REEKIE V ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) AND ORS HC AK CIV 2008-404-005757 [2009] NZHC 423 (7 April 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CIV 2008-404-005757



                BETWEEN                       NICHOLAS REEKIE
                                              Plaintiff

      
         AND                           ATTORNEY-GENERAL (SUED ON
                                              BEHALF OF THE DEPARTMENT
OF
                                              CORRECTIONS)
                                              First Defendant

   
            AND                           ATTORNEY-GENERAL
                                              Second Defendant

     
          AND                           THE DISTRICT COURT AT
                                              WAITAKERE
          
                                   Third Defendant


Hearing:        7 April 2009

Appearances: Plaintiff in person
            
Ben Keith for First and Second Defendants

Judgment:       7 April 2009



                            JUDGMENT OF HARRISON J




_________________________________________________________________________________

SOLICITORS
Crown Law Office (Wellington) for
First and Second Defendants
(copy to Plaintiff in person)

REEKIE V ATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS)
AND ORS HC AK CIV 2008-404-005757 7 April 2009

[1]       Mr Nicholas Reekie is a serving prisoner at Auckland Prison at Paremoremo.
In September 2008 he filed this proceeding.                His statement of claim alleges
misconduct by prison officers in September
2002 and unlawful activity by the
District Court at Waitakere from July 2002. Mr Reekie pleads that the Attorney-
General is vicariously
liable for the wrongdoing of his staff members. He pleads
seven causes of action including the tort of false imprisonment, negligence,
and
breaches of statutory duty (New Zealand Bill of Rights Act 1990).


[2]       Mr Reekie seeks primarily declaratory relief to
the effect that his detention
from 11 September 2002 to 25 September 2002 constituted a breach of his statutory
rights, amounted
to false imprisonment, or was in the nature of torture or cruel,
degrading or disproportionately severe treatment or conduct. He
also seeks modest
awards of general and exemplary damages of $25,000 each.


[3]       This is not the time to discuss the apparent
defects in Mr Reekie's statement
of claim. Presumably an application to strike out will be forthcoming. What has
generated today's
hearing is an application by Mr Reekie to review a decision made
by Associate Judge Robinson at a case management conference on 27
March 2009.
The Judge declined an application by Mr Reekie for an order that a terminally ill
witness, Mr Carl Manning, be produced
to give evidence in this proceeding prior to
the hearing. Mr Manning was formerly a prison officer employed at Auckland
Prison.


[4]       The issue arose in this way, as Associate Judge Robinson recorded in a
minute on 16 March 2009:

          Mr Reekie,
the plaintiff, advises as follows:

          `I have recently become aware that the person responsible for torturing me
       
  while I was strapped to the tie-down bed has cancer and has only a matter of
          weeks to live. I would have expected to
be able to cross examine him at the
          hearing on this matter. That will clearly not be possible now. This person's
     
    name is Carl Manning. His mobile phone number is ... He has not been a
          prison officer for a number of years, leaving
the job shortly after the event I
          complain of.

          I am not sure of the process in such situations and ask some
urgent
          clarification by either the Courts or counsel for the respondents, as to how
          this could or should be dealt
with as not being able to cross examine this
          person would strike a major blow to my claim.'

[5]    Mr Ben Keith for the
Attorney-General has provided an outline of the
discrete event giving rise to Mr Reekie's application. Mr Reekie alleges that in July
2002, after he was placed in physical restraints, Mr Manning
wrenched Mr Reekie's
arm back and forth about 12 times while shouting at him to behave. Mr Reekie
advised Associate Judge Robinson,
as he has advised me today, that Mr Manning has
subsequently apologised to him. He also says that the incident, if it occurred, was
the subject of a complaint to the prison authorities. Mr Keith also advises that
Mr Manning has previously declined Mr Reekie's request
to give evidence for him.
In this respect it is relevant that Mr Reekie has identified a number of fellow
prisoners who allegedly
witnessed the assault for which Mr Manning is said to be
responsible in July 2002. He has obtained briefs from some of them, notably
William Bell and George Baker.


[6]    To return to the narrative, Associate Judge Robinson delivered what appears
to be an urgent
decision on 27 March 2009.            He declined Mr Reekie's oral
application that Mr Manning be produced to give evidence before
trial. In summary,
the primary ground for the Judge's decision was that such an order was not in the
interests of justice. In particular,
the Judge found that, first, Mr Reekie had delayed
for some years in bringing the proceeding, and to this extent he must bear the
consequences of the unavailability of a witness at trial; second, as noted, Mr Reekie
has other witnesses available to give evidence
in support of his claim; and, third, and
perhaps decisively, Mr Reekie's claim for relief arising from events in July 2002 is
statute
barred, that is, it was brought in March 2009, more than six years after the
cause of action arose: Limitation Act 1950. The Judge
also was satisfied that
Mr Reekie would not suffer any prejudice from his inability to call Mr Manning; it
was only the Attorney-General
who might be disadvantaged.


[7]    Mr Reekie originally appealed Associate Judge Robinson's decision to the
Court of Appeal, which
had no jurisdiction. He then filed an appeal in this Court.
Again, there is no jurisdiction to hear an appeal from an Associate Judge.
However,
Mr Keith is content to treat what is described as an appeal as an application for
review. I am proceeding on that basis.

[8]    In order to succeed on review Mr Reekie must establish that Associate Judge
Robinson was plainly wrong in concluding that
an order to produce Mr Manning for
examination was not in the interests of justice. Mr Reekie advances four primary
arguments in
support. First, Mr Reekie says Associate Judge Robinson failed to give
sufficient weight to the importance of Mr Manning's evidence.
I am satisfied the
Judge properly considered the relevance of Mr Manning's evidence. He turned his
mind clearly to this issue. He
was not satisfied that it would be decisive, given the
existence of other witnesses including Mr Reekie.


[9]    Second, Mr Reekie
submits that the Associate Judge failed to properly
consider Mr Reekie's `knowledge of the other witnesses likely to be called and
his
history of knowing their lack of ability of tell the truth'.     That submission is
shorthand for Mr Reekie's acknowledgement
of little faith in the prospective
evidence of Messrs William Bell and George Baker. An assessment of the reliability
and veracity
of all witnesses will be an issue for the trial Judge. Mr Reekie knows
that he must prove his case by calling all available evidence
in support. Whether or
not Mr Reekie has confidence in Messrs Bell and Baker is not relevant. The fate of
this claim is likely to
be determined by the trial Judge's evaluation of Mr Reekie's
own credibility.


[10]   Third, Mr Reekie says that Mr Manning was
part of a cover-up of his claim
of unlawful detention. There is no evidence advanced in support of this allegation.
And, in any event,
even if Mr Manning was required to give a brief and subject
himself to cross-examination about a cover-up, it would not be relevant
to the
underlying issue of whether or not Mr Reekie was unlawfully detained in July 2002.


[11]   Fourth, and finally, Mr Reekie challenges the Judge's reliance
on the
Limitation Act 1950. He says that he will apply for an order granting leave to extend
time by reason of his disability. At
best, Mr Reekie's prospects of success in that
respect are speculative and the Associate Judge was correct not to give it weight.
As
the law stands, Mr Reekie's claim arising from events in July 2002 is statute barred.
He will have to establish grounds for an
order granting an extension of time.

[12]   Mr Reekie has presented cogent and courteous submissions in support of his
application
for review but, with respect to him, his argument falls well short of
meeting the high threshold of proving that the Associate Judge's
decision was
plainly wrong. Accordingly, the application to review is dismissed.




                                     ______________________________________
                                     Rhys Harrison J