White v Attorney-General [2021] NZCA 479 (22 September 2021)

Last Updated: 28 September 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA124/2021 [2021] NZCA 479

	BETWEEN	DEON MICHEAL WHITE Appellant
	AND	THE ATTORNEY-GENERAL OF NEW ZEALAND Respondent

Hearing:	28 July 2021
Court:	Brown, Clifford and Collins JJ
Counsel:	D A Ewen and J J Middleton for Appellant D Jones and T Witten-Sage for Respondent
Judgment:	22 September 2021 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed in part.
2. The words “in order to secure the plaintiff’s compliance with a lawful direction” in para 2.7.2 of the statement of defence are struck out.

100. Paragraphs 2.4.2 and 4.1.4 of the statement of defence are struck out.

4. The respondent must pay the appellant costs for a standard appeal on a band A basis, plus usual disbursements. We do not certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] Mr White is claiming damages from the Attorney-General for actions of Corrections officers which, he says, breached three of the rights affirmed by the New Zealand Bill of Rights Act 1990 (the NZBORA). In this appeal he challenges a judgment of the High Court, in which Associate Judge Johnston dismissed Mr White’s application to strike out three paragraphs of the Attorney-General’s statement of defence.^[1] The strike-out application was based on the contention the Attorney-General could not lawfully challenge, in the High Court proceeding, certain findings made by a Visiting Justice in a prison disciplinary hearing. Four interconnected events form the background to this appeal.

First — The attempt to strip search Mr White

• [2] On 12 March 2019 Mr White, who at the time was a prisoner in Rimutaka Prison, was ordered by three Corrections officers to submit to a strip search. Mr White partially complied. He removed his upper clothing and pants. He then lowered his underpants to his ankles. One of the Corrections officers subsequently explained that when Mr White was told to take off his underpants, he became aggressive and refused to completely remove his underpants. At that point Mr White was “taken to the ground” by Corrections officers. Mr White was charged under the disciplinary regime set out in s 128 of the Corrections Act 2004 (the Act). We explain the relevant portions of that section at [19]. Specifically, Mr White was charged with disobeying a lawful order of a Corrections officer pursuant to s 128(1)(a) of the Act.

Second — The findings of the Visiting Justice

• [3] Mr White pleaded not guilty to the charge, which was then referred to Mr Pratley, a barrister and Visiting Justice. After conducting a defended hearing, the Visiting Justice dismissed the charge on 2 September 2019.^[2] The Visiting Justice concluded the order to strip search Mr White was not lawful.^[3] He reached that conclusion after hearing evidence from one of the Corrections officers involved in the attempt to search Mr White and the Residential Manager of the prison who had, on the day before the attempted search, authorised a strip search of Mr White and three other prisoners.
• [4] The Corrections officer told the Visiting Justice that the order to strip search Mr White and other prisoners had been made because “intelligence” had been received from other prisoners and nurses that prisoners who were attending the medical unit in the prison were taking their medications back to their cells, contrary to the directions that had been given to prisoners. The Corrections officer also told the Visiting Justice that before Mr White and the other prisoners went to the medical unit they were subjected to a “rubdown” search, which did not involve removal of any of their clothing. No unauthorised items were found on any of the prisoners on 12 March 2019.
• [5] As we have noted, only one of the Corrections officers involved in the attempt to strip search Mr White gave evidence, and the Residential Manager’s evidence cast very little light on why it was thought necessary to strip search Mr White.
• [6] The Visiting Justice held the order to strip search Mr White was not lawful because there was “no evidence as to why it was necessary for Mr White to remove his underpants in order that the prison staff could detect an unauthorised item”.^[4]
• [7] The Visiting Justice also went on to say:

(a) the order to strip search Mr White was also not lawful because the “intelligence” information relied upon by the Corrections officers did not identify any individual who may have been unlawfully concealing medication;^[5] and

(b) there was no reasonable ground for the Corrections officers to believe Mr White had possession of an unauthorised item because the evidence was “vague in regard to the types of items that were alleged to be ‘brought back’ from the prison medical facility, the method of concealment, and the source of the [intelligence]”.^[6]

Third — The NZBORA proceedings

• [8] On 3 March 2020, Mr White issued proceedings in the High Court against the Attorney-General seeking up to $35,000 in damages under the NZBORA.^[7] We will refer to those proceedings as the NZBORA proceedings. Three causes of action are pleaded:

(a) a breach of the right not to be subjected to an unreasonable search (s 21 of the NZBORA);

(b) a breach of the right not to be subjected to cruel and degrading treatment (s 9 of the NZBORA); and

(c) a breach of the right to be treated with dignity and respect (s 23(5) of the NZBORA).

• [9] The statement of claim alleges:

2.4 Prior to conducting the strip search no officer present had formed reasonable grounds to believe [Mr White] was in possession of an unauthorised item.

• [10] The statement of defence denies this allegation and contends:

2.4.1 Prior to conducting the search, the officers involved in the conduct of the search were aware of information that had been provided that prisoners returning in the mornings from medical appointments were bringing medication back to the unit when not authorised to do so; and

2.4.2 The officers therefore had reasonable grounds to believe that the four prisoners who were searched were in possession of unauthorised items.

• [11] An almost identical denial to para 2.4.2 is contained in para 4.1.4 of the statement of defence in response to the second cause of action.
• [12] The statement of claim also alleges Mr White had been subjected to an assault when he was tackled to the ground and restrained. The Attorney-General’s response includes the following paragraph:

2.7.2 He denies that this use of force involved an assault. The use of force was reasonable and necessary in order to secure the [Mr White]’s compliance with a lawful direction and in light of [Mr White’s] aggressive behaviour.

Fourth — The High Court judgment

• [13] Mr White applied under r 15.1 of the High Court Rules 2016 to strike out paras 2.4.2, 2.7.2 and 4.1.4 of the statement of defence, which we have set out at [10]–[12]. He contended that the Attorney-General was prevented by res judicata, issue estoppel and the principles governing abuse of the court’s process from challenging the Visiting Justice’s finding that the order to search Mr White was unlawful and that the Corrections officers lacked reasonable grounds for believing Mr White had possession of an unauthorised item. We explain the relevant legal principles at [20] to [43].
• [14] The Attorney-General opposed the strike-out application, arguing that a different standard of proof applied in the NZBORA proceedings to that which had governed the proceedings before the Visiting Justice. The Attorney-General also said that further evidence was available relating to whether the Corrections officers had reasonable grounds for believing Mr White had possession of an unauthorised item.
• [15] The Associate Judge dismissed Mr White’s strike-out application.^[8] He reasoned that the Visiting Justice applied the criminal standard of proof when determining the Corrections officers lacked reasonable grounds for believing Mr White had possession of an unauthorised item. From that position the Associate Judge concluded the Attorney-General was not prevented by res judicata or issue estoppel from defending the NZBORA proceedings by arguing to the civil standard of proof that the officers had reasonable grounds for believing a strip search was necessary.^[9] The Associate Judge did not consider whether the relevant paragraphs in the statement of defence should be struck out for abuse of process.
• [16] On 23 February 2021, the Associate Judge granted Mr White leave to appeal to this Court pursuant to s 56(3) of the Senior Courts Act 2016.^[10] Before analysing the issues raised by the appeal, we shall set out the legislative framework and the governing legal principles.

Legislation

• [17] Section 98 of the Act deals with “searches”. The material part of s 98 states:

98 Search of prisoners and cells

(1) An officer may, at any time, for the purpose of detecting any unauthorised item, conduct—

(a) a scanner search of any prisoner:

(b) a rub-down search of any prisoner:

(c) a search of any cell in a prison.

...

(3) An officer may conduct a strip search of a prisoner—

(a) if the officer—

(i) has reasonable grounds for believing that the prisoner has in his or her possession an unauthorised item; and

(ii) has obtained the manager’s approval to the conduct of a strip search; ...

...

(5) The power to conduct a strip search of a prisoner under subsection (3) may only be exercised—

(a) for the purpose of detecting any unauthorised item; and

(b) if a strip search is necessary in the circumstances for the purpose of detecting an unauthorised item.

...

• [18] “Strip search” is defined in the following way in s 90 of the Act:

90 Definition of strip search

(1) For the purposes of this Act, a strip search means a search where the person conducting the search may require the person being searched to remove, raise, lower, or open all or any of that latter person’s clothing.

...

(3) Authority to conduct a strip search—

(a) includes the authority to conduct a visual examination ... of the mouth, nose, ears, and anal and genital areas; ...

...

• [19] As we have noted at [2], the offence provision is contained in s 128 of the Act. The relevant part of that section states:

128 Offences by prisoner

(1) Every prisoner (whether inside or outside a prison) commits an offence against discipline who—

(a) disobeys any lawful order of an officer or a staff member, or disobeys or fails to comply with any regulation made under this Act or any rule of the prison made under section 33:

...

Res judicata and abuse of process

• [20] Res judicata and the principles designed to prevent an abuse of the Court’s processes have much in common. There are, however, important distinctions between the concepts.

Res judicata

• [21] Res judicata prevents a party from relitigating the same action. As the Supreme Court noted in Lai v Chamberlains, a judgment on the merits is conclusive as between the parties to the litigation and can generally only be challenged on appeal.^[11] The author of Spencer Bower and Handley: Res Judicata, explains that for res judicata to be invoked, the first decision must:^[12]

(a) be “judicial in the relevant sense”;

(b) have been delivered;

(c) be from a tribunal that has jurisdiction over the parties and the subject matter;

(d) be final;

(e) have been decided on the merits;

(f) have determined a question raised in the later litigation; and

(g) be one that involved the same parties (or their privies) as in the later litigation.

• [22] The rationale for res judicata was explained in the following way by Lord Blackburn in Lockyer v Ferryman:^[13]

The object of the rule of res judicata is always put on two grounds — the one public policy, that it is in the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.

• [23] Maxwell v Commissioner of Inland Revenue,^[14] and Gregoriadis v Commissioner of Inland Revenue,^[15] illustrate how res judicata may apply. For present purposes, we will focus upon Gregoriadis, which considered and applied Maxwell. As we shall explain, Mr White’s case and Gregoriadis have an important point in common. Mr Gregoriadis was acquitted, following an appeal, on charges of wilfully making false income tax returns. His appeal succeeded because evidence had been wrongly admitted at his trial. Prior to the conclusion of the criminal proceedings, the Commissioner of Inland Revenue assessed Mr Gregoriadis for penal tax for the same period covered by the criminal charges. This Court held that res judicata applied because the latter civil proceeding commenced by the Commissioner was grounded on fraud and the standard of proof in the civil proceeding closely approximated the standard in the earlier criminal proceedings. Richardson J, writing for himself and Richmond J, also reasoned the acquittal of Mr Gregoriadis “did not turn on the standard of proof but on the absence of admissible evidence. Had the standard [in the criminal trial] been a simple preponderance of probabilities the Commissioner would still have failed.”^[16]
• [24] As this Court explained in Shiels v Blakeley,^[17] and reaffirmed in Beattie v Premier Events Group Ltd,^[18] res judicata may arise through cause of action estoppel, or issue estoppel.^[19]

Cause of action estoppel

• [25] The elements of cause of action estoppel were summarised in the judgment of Lord Clarke in R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales as comprising the same elements of res judicata we have set out at [21].^[20]
• [26] For present purposes it is unnecessary to engage further with cause of action estoppel because none of the causes of action in the NZBORA proceedings were before the Visiting Justice.

Issue estoppel

• [27] A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment.^[21]
• [28] Lord Diplock explained in Thoday v Thoday:^[22]

... neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.

• [29] The judgments of this Court in Talyancich v Index Developments Ltd, and van Heeren v Kidd, are examples of the application of issue estoppel in this country:^[23]

[1] An issue estoppel arises where a judgment has determined an issue as an essential and fundamental step in the logic of the judgment and without which it could not stand. The issue so determined may not be contested in subsequent litigation between the same parties.

Abuse of process

• [30] The third concept with which we are concerned may cover a wide range of circumstances beyond the limits of res judicata.

Failure to put relevant matters before the first Court

• [31] Lord Bingham explained an example of abuse of process in Johnson v Gore Wood & Co (A Firm):^[24]

The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

• [32] Lord Bingham also made clear, however, that it would be wrong to conclude that because the matter could have been raised in earlier proceedings it should have been. Such approach, he said, would be “too dogmatic”.^[25] Instead, what is required is:^[26]

... a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

• [33] These observations of Lord Bingham were quoted with approval by this Court in Commissioner of Inland Revenue v Bhanabhai,^[27] and in Beattie v Premier Events Group Ltd.^[28]

Challenging a finding of a court of competent jurisdiction

• [34] A second way in which abuse of process may be invoked arises where civil proceedings seek to collaterally impugn the result of a criminal trial. The judgment of Lord Diplock in Hunter v Chief Constable of the West Midlands Police illustrates the breadth of circumstances in which this type of abuse of process may arise.^[29] That case concerned defendants in a criminal prosecution, who were alleged to have murdered 21 people and injured 161 others when bombs exploded in Birmingham. The defendants challenged the admissibility of their confessions that they had participated in the bombings, saying their admissions were extracted after they were assaulted by police officers. It was ruled during the course of the criminal trial that the Crown had proven beyond reasonable doubt that the police had not assaulted the defendants and that the confessions were admissible. Following their convictions and the exhaustion of their appeal rights, the defendants commenced civil proceedings seeking damages from the police for the same assaults that they had alleged in their criminal trial. In upholding the decision of the Court of Appeal to strike out the civil proceedings, Lord Diplock, writing on behalf of the House of Lords, said that where a final decision had been made by a criminal court of competent jurisdiction, the use of civil proceedings to initiate a collateral challenge to that decision constituted an abuse of the process of the court.^[30]
• [35] A similar issue arose in this Court in Daniels v Thompson.^[31] W, who was one of the appellants in that case, alleged she had been the victim of sexual assaults by a health professional. The health professional was acquitted of criminal charges laid against him following W’s complaints to the police. Her civil claim for exemplary damages based on the same allegations in the criminal trial was held by four Judges of this Court to be a collateral attack upon the verdict in the criminal trial and therefore an abuse of process.^[32] In reaching that decision, this Court recognised that res judicata was not apposite as the parties in the civil proceedings were not the same as in the criminal trial, and the standard of proof in the civil proceedings was also not the same as that which had governed the criminal trial.^[33] W’s appeal was dismissed by the Privy Council.^[34] In the meantime, however, Parliament enacted s 396 of the Accident Insurance Act 1998 so as to allow civil claims for exemplary damages to continue in cases such as those commenced by W.^[35]
• [36] Different considerations have applied where professional disciplinary proceedings are commenced alleging the same misconduct that had been previously determined in a criminal charge. In Z v Dental Complaints Assessment Committee, a dental practitioner faced a criminal charge of indecently assaulting a patient.^[36] He was acquitted of those charges. Disciplinary proceedings were nevertheless commenced against him based upon the same allegations that had been found not to be proven to the criminal standard in the criminal trial. A question that came before the Supreme Court was whether the professional disciplinary proceedings constituted an abuse of process because they sought to relitigate the matter that had been resolved in the criminal proceedings. A majority of the Supreme Court concluded that the disciplinary proceedings did not constitute an abuse of process primarily because of the different standards of proof involved in the criminal proceedings and the disciplinary proceedings:^[37]

[95] In the criminal proceedings the Crown had the onus of proving facts that amounted to indecent assaults as charged to the criminal standard of proof, that is, beyond reasonable doubt. The first step in considering the appellant’s argument that he faces reconsideration of the same issues in relation to the disciplinary process is to ascertain whether the same standard of proof would apply, if the disciplinary process proceeds, as at the trial. If a different, lower standard of proof is appropriate, the argument against allowing the second set of proceedings is weaker ...

• [37] Parliament’s decision to reverse the effect of Daniels v Thompson and W v W, when it enacted s 396 of the Accident Insurance Act, provides a basis for distinguishing those cases from the approach taken by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee. It is also possible to distinguish disciplinary proceedings from private actions such as those in Daniels v Thompson and W v W. As has been noted on numerous occasions, professional disciplinary proceedings have a broad range of non-punitive social objectives, including the protection of the public.^[38] Actions for exemplary damages however seek to punish the defendant and vindicate personal rights.^[39]

Is abuse of process a shield or a sword?

• [38] Mr Jones, senior counsel for the Attorney-General, submitted that abuse of process was not an appropriate concept where the Crown wishes to defend a claim brought against it. The gravamen of this submission was that a finding of a court of competent criminal jurisdiction can give rise to an abuse of process if the defendant initiates civil proceedings in relation to the same facts. Abuse of process is then used as a shield, not as a sword by the Crown. Mr Jones argued abuse of process cannot, however, be used as a sword by the plaintiff in a civil proceeding to prevent the Crown mounting a legitimate defence.
• [39] Some support for Mr Jones’ argument can be found in Nawrot v Chief Constable of Hampshire Police, an unreported judgment of the Court of Appeal of England and Wales.^[40] The genesis of that proceeding was a failed prosecution of Mr Nawrot, who subsequently initiated a civil claim for exemplary damages against a police officer who had arrested him. Lord Woolf said the principles articulated by Lord Diplock in Hunter were not apposite where:^[41]

(a) there was considerable uncertainty about the factual findings that had been made in favour of Mr Nawrot by the Magistrate in the criminal proceeding;

(b) the constable who was a defendant in the subsequent civil claim for exemplary damages was merely a witness and not a party to the criminal proceeding; and

(c) different standards of proof governed the criminal and civil proceedings.

Lord Woolf made the point that the circumstances in Hunter were the reverse of those in Nawrot (in Hunter, abuse of process was used as a shield, whereas in Nawrot, it was used as a sword) and that in Nawrot’s case “[n]ot only would it not be in the interests of justice to strike out the allegedly offending passages of the defendant’s pleadings, it would be grossly unfair to do so”.

• [40] In Tamworth Industries Ltd v Attorney-General, this Court observed that it was far from settled whether an acquittal in criminal proceedings can give rise to an abuse of process where in subsequent civil proceedings the Crown seeks to contradict the outcome of the criminal proceeding.^[42]
• [41] In the absence of clear authority to guide us, we consider that, in principle, abuse of process is an available remedy to Mr White because here the Department of Corrections (the Department), through the Attorney-General, seeks to re-litigate matters that the Department had every opportunity to address during the hearing before the Visiting Justice but failed to do so. Subject to what we say at [60]–[61], the pleadings with which we are concerned seek to challenge the legitimacy of the Visiting Justice’s findings. In this case the findings of the Visiting Justice are clear and the Department had every opportunity to produce all evidence in the disciplinary hearing. That is particularly material as the Visiting Justice’s decision turned on the lack of evidence produced by the Department. These considerations differentiate this case from Nawrot and lead us to conclude at a conceptual level that it would be neither unfair nor contrary to the interests of justice to allow abuse of process to be used as a sword by Mr White. We are primarily driven to this conclusion after considering the broader public interests engaged by this case, and Mr White’s personal interests. We return to those matters at [65]–[66].^[43]

Strike-out principles

• [42] The application by Mr White to strike out the three paragraphs in the statement of defence that we have set out at [10]–[12] was based on r 15.1(1)(d) of the High Court Rules, which provides:

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

...

(d) is otherwise an abuse of the process of the court.

...

• [43] The onus was on Mr White to show that the pleading in issue constitutes an abuse of process. It is a “heavy” onus and a jurisdiction that should be exercised only in exceptional circumstances.^[44]

Issues

• [44] Before explaining the issues, we record that the parties agree the decision of the Visiting Justice was a final decision based upon the merits. There is no issue that in reality the same parties are engaged in both proceedings; the Department prosecuted Mr White before the Visiting Justice and the Attorney-General is sued on behalf of that Department in the NZBORA proceedings by Mr White. It is also agreed the Visiting Justice had jurisdiction over the parties and the issues with which he dealt. Obviously, there is also no dispute that the decision of the Visiting Justice has been delivered.
• [45] Having provided an overview of the relevant legal principles, we shall now address the issues raised by Mr White’s appeal. Those issues are encapsulated in the following questions:

(a) Was the decision of the Visiting Justice a judicial decision for the purposes of res judicata and/or abuse of process? If so, —

(b) Do the NZBORA proceedings raise a question that had been determined in the decision of the Visiting Justice so as to give rise to issue estoppel? Or alternatively, —

(c) Do the denials in the statement of defence that are in issue amount to an abuse of process, either because:

(i) they attempt to rely on matters that should properly have been placed before the Visiting Justice; or

(ii) they constitute an impermissible collateral attack on the decision of the Visiting Justice.

Status of the decision of the Visiting Justice

• [46] Complaints which allege a prisoner has committed an offence against discipline are, in the first instance, referred to a hearing adjudicator who may “refer the case to a Visiting Justice for hearing and determination”.^[45] The Visiting Justice may hear and determine the complaint or refer the case to an appropriate authority to prosecute the prisoner before the regular criminal courts.^[46]
• [47] Although the Visiting Justice is not a court, a hearing conducted before a Visiting Justice has the following characteristics of a criminal proceeding:

(a) Visiting Justices must be either:^[47]

(i) a District Court Judge; or

(ii) a Justice of the Peace or barrister or solicitor appointed by the Governor-General to be a Visiting Justice.

(b) The powers of a Visiting Justice include hearing and determining disciplinary charges laid under the Act.^[48]

(c) In hearing and determining a disciplinary charge a Visiting Justice may take “evidence on oath or otherwise”.^[49]

(d) Proceedings conducted by a Visiting Justice must comply with the requirements of natural justice.^[50]

(e) Hearings conducted by a Visiting Justice “must be in the presence and hearing of the prisoner charged with the offence, who is entitled to be heard and to cross-examine any witness”.^[51]

(f) A prisoner charged before a Visiting Justice may be entitled to legal representation.^[52]

(g) Before imposing a penalty on a prisoner found guilty of a disciplinary charge, the person holding the hearing “must give the prisoner the opportunity to make an explanation or plea in mitigation; and ... may invite any support person to speak”.^[53]

(h) The penalties that may be imposed by a Visiting Justice on a prisoner found to have committed a disciplinary offence include forfeiture of the prisoner’s privileges, forfeiture of the prisoner’s earnings and “confinement in a cell for any period not exceeding 15 days”.^[54]

• [48] The criminal nature of proceedings before a Visiting Justice is reaffirmed by the Corrections Regulations 2005, which provides:^[55]

33 If the prisoner pleads not guilty and, after hearing all the evidence, the person holding the hearing finds that the case against the prisoner has been proved beyond reasonable doubt, the person holding the hearing must find the prisoner guilty of the offence.

• [49] Thus, although the disciplinary regime provided for in the Act is “separate from the criminal justice system”,^[56] proceedings conducted by a Visiting Justice have all the hallmarks of a judicial proceeding for the purposes of res judicata and abuse of process. This conclusion is reinforced when regard is had to the leading textbook on res judicata:^[57]

2.02 It is immaterial for present purposes whether the tribunal is a court of record or not ... or whether it is or is known as a court ... It does not matter whether the tribunal has permanent jurisdiction or only jurisdiction over a particular dispute or disputes ...

2.03 Tribunals established by statute may be ‘judicial’ for present purposes. They include: a court martial ... a medical tribunal ... and tribunals appointed to determine applications for exemption from military service ...

• [50] There are many cases from the United Kingdom in which the decisions of statutory tribunals have been found to give rise to res judicata.^[58]
• [51] The role of the Visiting Justice in this case, combined with the authorities that have held a wide range of statutory tribunals are, in this context, “judicial” leads us to the conclusion that the decision of the Visiting Justice was a judicial decision for the purposes of res judicata and abuse of process.

The Visiting Justice’s decision

• [52] As we have noted at [6] and [7], there were two parts to the Visiting Justice’s decision.

A strip search was not necessary — s 98(5)(b) of the Act

• [53] First, relying upon this Court’s judgment in Forrest v Attorney-General, the Visiting Justice made clear that a decision as to whether or not a strip search is necessary must involve “consideration of whether [a less invasive search such as] a scanner search or rub-down search would suffice”.^[59]
• [54] The Visiting Justice explained in his decision there was no evidence that Corrections officers considered conducting a rubdown search, and if such a search was considered, why it was ruled out. He said “[t]here was no evidence as to why it was necessary for Mr White to remove his underpants”.^[60]
• [55] Thus, because the prosecuting officer failed to demonstrate the requirements of s 98(5)(b) of the Act had been satisfied, namely that it was necessary to strip search Mr White, the order given was unlawful. It therefore followed Mr White had not disobeyed a lawful order.^[61] The Visiting Justice then said:

[55] This is in itself sufficient ground to find Mr White not guilty of the charge and I do so accordingly.

• [56] Although the finding that the order to strip search Mr White was not a lawful order was made in accordance with the criminal standard of proof, it is significant that this conclusion was reached after the Visiting Justice said there was no evidence that a strip search was necessary.

Lack of reasonable ground — s 98(3) of the Act

• [57] Second, in case he was wrong when he reached the primary conclusion, the Visiting Justice proceeded to decide:

(a) The order was unlawful because the evidence about prisoners having unauthorised items in their possession did not specifically identify Mr White. This part of the decision was based on the wording of s 98(3) of the Act, which refers to a “strip search of a prisoner”. The Visiting Justice held that the use of the singular “prisoner” required information about possession of unauthorised items to specifically include Mr White.^[62]

(b) The Corrections officers did not have reasonable grounds for believing that Mr White had an unauthorised item in his possession. This part of the decision engaged s 98(3)(a)(i) of the Act. The Visiting Justice held this subsection had not been complied with because the “intelligence” concerning prisoners possessing unauthorised items was too “vague”.^[63]

• [58] We interpolate at this point to observe that the Visiting Justice’s conclusion about the need for Mr White to have been identified as a prisoner who had possession of an unauthorised item appears to have overlooked that when interpreting legislation “[w]ords in the singular include the plural and words in the plural include the singular”.^[64] Even if the Visiting Justice erred in law, “[r]es judicata ... gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong”.^[65] It is, however, not necessary to consider this point further as the NZBORA proceedings engage the Visiting Justice’s finding under s 98(3)(a)(i) of the Act (which we explained at [57(b)], and not the finding we have explained at [57(a)].

Analysis

• [59] In addressing the questions we have set out at [45(b) and (c)], it is convenient to follow the bifurcated approach taken by the Visiting Justice in his decision. That is to say, we shall first consider the conclusion that the order to strip search Mr White was not lawful because of the absence of evidence that such an order was necessary.

A strip search was not necessary — para 2.7.2

• [60] As we have explained at [12], in response to the allegation that the Corrections officer assaulted Mr White, the Attorney-General said at para 2.7.2 of his statement of defence:

(a) there was no assault;

(b) the force used was justified in light of Mr White’s aggressive behaviour; and

(c) the force used was justified to secure compliance with a lawful direction.

• [61] Although Mr White attempted to strike out all three elements of the Attorney‑General’s pleading in para 2.7.2 of the statement of defence, in reality, only the third element was engaged by Mr White’s application. That is because the Visiting Justice did not determine whether or not Mr White was assaulted, or whether the force used was a justified response to his aggressive behaviour.
• [62] The finding by the Visiting Justice that the order to strip search Mr White was unlawful was reached by applying the criminal standard of proof. That decision was based, however, on the total absence of evidence that it was necessary to strip search Mr White.^[66] The absence of any evidence on this issue means that the same conclusion would have been reached by the Visiting Justice if he had decided on the civil standard of proof that the order was unlawful.
• [63] In this respect, it is very difficult to distinguish the circumstances of this case from those that were addressed by this Court in Gregoriadis. Regardless of what standard of proof is applied, the finding of the Visiting Justice was based on a failure by the prosecuting authorities to show that it was necessary to strip search Mr White. Res judicata applies to this part of Mr White’s appeal.
• [64] Even if the different standards of proof might justify the Attorney-General’s attempt to circumvent Gregoriadis, we are satisfied, applying the test articulated by Lord Bingham in Johnson v Gore Wood & Co (A Firm), that Mr White has demonstrated it would be an abuse of process to now allow the Attorney-General to try and adduce evidence to establish what should have been proven before the Visiting Justice.^[67] In reaching this conclusion, we have conducted a broad merits‑based assessment that takes account of all of the evidence and the public and private interests that are engaged.
• [65] If the Department has evidence that shows that it was necessary to strip search Mr White, then it should have adduced that evidence in the proceedings before the Visiting Justice or, at the very least, have disclosed that evidence consistent with cl 16.7 of the Solicitor-General’s Prosecution Guidelines 2013. The Department chose to charge Mr White with a disciplinary offence that carried significant consequences, including the possibility of Mr White being confined in his cell for up to 15 days. When the Department chose to charge Mr White, it needed to marshall all relevant evidence and place it before the Visiting Justice or otherwise have disclosed that evidence. It is contrary to the public interest for the Department, through the Attorney‑General, to now say there is possibly further (unexplained) evidence that might have been considered by the Visiting Justice. We say this because the approach advocated by the Attorney-General undermines the role of the Visiting Justice and has the effect of impugning the validity of his decision.
• [66] Our conclusion in relation to this part of the case is reinforced by having regard to Mr White’s personal interests. A strip search of a prisoner is a serious and invasive procedure. It has been described by the Supreme Court of Canada as “inherently humiliating and degrading”.^[68] As a strip search of a prisoner is amongst the most intrusive measures that the State can inflict upon a citizen, those who seek to justify such measures must do so with clear and convincing evidence.
• [67] The transcript of the evidence taken before the Visiting Justice shows the prosecuting authorities had the opportunity to adduce any evidence that addressed the requirements of s 98(5)(b) of the Act. They failed to do so by an appreciable margin.
• [68] We conclude that the reasoning in Gregoriadis applies to Mr White’s case and that the Associate Judge erred when he declined Mr White’s application to strike out the following words in para 2.7.2 of the statement of defence “in order to secure the plaintiff’s compliance with a lawful direction”. For the reasons we have explained at [61], the balance of para 2.7.2 of the statement of defence remains. We are also satisfied that even if the relevant part of para 2.7.2 of the statement of defence could survive the application of res judicata, it does not withstand a proper assessment of the principles that govern abuse of process.

Lack of reasonable ground — paras 2.4.2 and 4.1.4

• [69] Different considerations apply, however, to the application by Mr White to strike out paras 2.4.2 and 4.1.4 of the statement of defence in which the Attorney‑General pleads the Corrections officers had reasonable grounds to believe the prisoners who were the subject of the strip search order were in possession of unauthorised items.
• [70] The key point of distinction between this aspect of Mr White’s application and the challenge to para 2.7.2 of the statement of defence is that the Visiting Justice did not need to decide whether the Corrections officers had reasonable grounds to believe the prisoners were in possession of unauthorised items. The Visiting Justice had already concluded that the lack of evidence that the strip search was necessary meant the order was not lawful, and this was sufficient in and of itself to find Mr White not guilty.^[69]
• [71] This is not a case therefore in which issue estoppel may be invoked because the finding that the Corrections officers lacked reasonable grounds for believing Mr White was in possession of unauthorised items was not “an essential and fundamental step in the logic of the [Visiting Justice’s] judgment ... without which it could not stand”.^[70]
• [72] On the contrary, all of the findings and reasoning of the Visiting Justice concerning the Corrections officers’ lack of reasonable grounds to believe Mr White had possession of an unauthorised item could have been excised from the Visiting Justice’s decision without altering the decision.
• [73] Thus, as Mr White cannot rely on issue estoppel, res judicata cannot assist this aspect of Mr White’s case, regardless of what standard of proof was applied by the Visiting Justice when he decided the Corrections officers lacked a reasonable ground to believe Mr White had possession of an unauthorised item.
• [74] We therefore turn again to the principles that govern abuse of process to determine whether or not paras 2.4.2 and 4.1.4 of the statement of defence should be struck out.
• [75] For the reasons we have explained at [64] to [66], we conclude that it would be an abuse of process to allow the Attorney-General to collaterally challenge the findings of the Visiting Justice when he found the Corrections officers lacked reasonable grounds for believing Mr White had possession of an unauthorised item. The evidence put before the Visiting Justice on this issue was vague,^[71] and it would be contrary to the public interest and Mr White’s private interest for the Attorney‑General to now try and establish this issue.

Result

• [76] The appeal is allowed in part.
• [77] The words “in order to secure the plaintiff’s compliance with a lawful direction” in para 2.7.2 of the statement of the defence are struck out on the grounds they offend res judicata and are also an abuse of process.
• [78] Paragraphs 2.4.2 and 4.1.4 of the statement of defence are struck out on the basis they constitute an abuse of the court’s process.
• [79] Mr White is entitled to costs for a standard appeal on a band A basis, plus usual disbursements. We do not certify for a second counsel.

Solicitors:
Ord Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent

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^[1] White v Attorney-General [2020] NZHC 2499 [High Court judgment].

^[2] Department of Corrections v White Charge 305/19/410781, 2 September 2019 [Visiting Justice decision] at [55].

^[3] At [54].

^[4] At [50].

^[5] At [59]–[60].

^[6] At [67].

^[7] These are the proceedings in CIV-2020-485-123.

^[8] High Court judgment, above n 1, at [43].

^[9] At [38] and [42].

^[10] White v Attorney-General [2021] NZHC 245 [Leave judgment].

^[11] Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [58].

^[12] K R Handley Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis, London, 2019) at [1.02].

^[13] Lockyer v Ferryman (1877) 2 App Cas 519 (HL) at 530.

^[14] Maxwell v Commissioner of Inland Revenue [1962] NZLR 683 (CA).

^[15] Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA).

^[16] At 116.

^[17] Shiels v Blakeley [1986] 2 NZLR 262 (CA) at 266.

^[18] Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [42].

^[19] Handley, above n 12, at [1.05].

^[20] R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, [2011] 2 AC 146 at [34].

^[21] Handley, above n 12, at [8.01].

^[22] Thoday v Thoday [1964] P 181 (CA) at 385.

^[23] van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141, citing Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37 (footnote omitted).

^[24] Johnson v Gore Wood & Co (A Firm) [2002] 2 AC 1 (HL) at 31.

^[25] At 31.

^[26] At 31.

^[27] Commissioner of Inland Revenue v Bhanabhai [2006] NZCA 368; [2007] 2 NZLR 478 (CA) at [60].

^[28] Beattie v Premier Events Group Ltd, above n 18, at [44].

^[29] Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 (HL).

^[30] At 541–542.

^[31] Daniels v Thompson [1998] NZCA 3; [1998] 3 NZLR 22 (CA).

^[32] At 51–52.

^[33] At 51.

^[34] W v W [1999] 2 NZLR 1 (PC).

^[35] Now s 319 of the Accident Compensation Act 2001.

^[36] Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.

^[37] See also [125]–[126], [132] and [140].

^[38] Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 3211, [2019] 2 NZLR 731 at [61]. See also Z v Dental Complaints Assessment Commitee, above n 36, at [128] and [132].

^[39] Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [238].

^[40] Nawrot v Chief Constable of Hampshire Police [1991] Lexis Citation 2173, 9 December 1991.

^[41] Nawrot, above n 40, referring to Hunter, above n 29.

^[42] Tamworth Industries Ltd v Attorney-General [1987] NZCA 59; [1988] 1 NZLR 296 (CA) at 305.

^[43] See also Handley, above n 12, at [1.03]; and Johnson v Gore Wood & Co (A Firm), above n 24, at 22.

^[44] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (HCA) at 529; and Goldsmith v Sperrings Ltd [1977] 1 WLR 478 (CA) at 498. See also Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.05(4)(c)].

^[45] Corrections Act 2004, s 134(1).

^[46] Section 137(6).

^[47] Section 19(1) and (2).

^[48] Section 19(4)(g).

^[49] Section 19(4)(e).

^[50] New Zealand Bill of Rights Act 1990, s 27(1); and Goldberg v Attorney-General [2004] NZAR 159 (HC) at [30], referring to Poi v District Court HC Christchurch CP36-02, 11 March 2003 at [87].

^[51] Corrections Act, s 137(2).

^[52] Section 135.

^[53] Corrections Regulations 2005, sch 7, cl 35.

^[54] Corrections Act, s 137(3).

^[55] Corrections Regulations, sch 7.

^[56] Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA) at [85] and [89] per McGrath J.

^[57] Handley, above n 12 (footnotes omitted).

^[58] See for example, R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales, above n 20, at [29], applied in R (Gray) v Chief Constable of Nottinghamshire Police [2018] EWCA Civ 34, [2018] 1 WLR 1609 at [42].

^[59] Visiting Justice decision, above n 2, at [51], quoting Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798 at [15].

^[60] At [50].

^[61] At [53]–[54].

^[62] At [58]–[60].

^[63] At [67]–[68].

^[64] Interpretation Act 1999, s 33.

^[65] Crown Estate Commissioners v Dorset County Council [1990] Ch 297 at 305; and Handley, above n 12, at [1.14].

^[66] Visiting Justice decision, above n 2, at [53]–[54].

^[67] Johnson v Gore Wood & Co (A Firm), above n 24, at 31.

^[68] R v Golden 2001 SCC 83, [2001] 3 SCR 679 at [90]. See also Minogue v Thompson [2021] VSC 56 at [139]; and Wainwright v United Kingdom App 12350/04 ECHR at [44] which concerns the strip searching of visitors to a prison.

^[69] Visiting Justice decision, above n 2, at [54]–[55].

^[70] van Heeren v Kidd, above n 23, at [1]. See also Handley, above n 12, at [8.23]–[8.24].

^[71] Visiting Justice decision, above n 2, at [67].