|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 21 December 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-409-1233
BETWEEN BRENDAN DOUGLAS FORREST Plaintiff
AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant
Hearing: 14 November 2011
(Heard at Wellington by Telephone Conference Link)
Counsel: Plaintiff in Person
J. Foster and C. Fleming - Counsel for Defendant
Judgment: 2 December 2011 at 3:30 AM
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment of Associate Judge Gendall was delivered on 2 December 2011 at
3.30 pm under r 11.5 of the High Court Rules.
Solicitors: Crown Law, PO Box 2858, Wellington
BD FORREST V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC WN CIV-2011-
409-1233 2 December 2011
Introduction
[1] Before me are two applications by the defendant which were heard by way of telephone conference link. The first seeks an order striking out the plaintiff‘s claim for a declaration that a search carried out in 2004 was in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). The second, which is in the alternative seeks an order for security for costs in the sum of $10,000 against the plaintiff.
[2] The plaintiff, Brendan Douglas Forrest (Mr Forrest) opposes both applications.
Background
[3] Mr Forrest is currently an inmate at Rimutuka Prison, Upper Hutt. He was at the material time an inmate at Christchurch Mens Prison having been remanded to that Prison on 17 March 2004. His claim in this proceeding relates to a strip search conducted on him by Corrections‘ staff at Christchurch Prison on 19 March 2004. Mr Forrest alleges that this search was an unreasonable search, on the basis that it was conducted without lawful justification.
[4] Mr Forrest‘s case is summarised by paragraphs 10 to 14 of his statement of claim. Those paragraphs read:
10. The Plaintiff was subsequently unlocked and was informed that he would be required to undergo a strip search for the purpose of to seize contraband and to detect offences, the Plaintiff complied with the order and was stripped (sic) searched.
11. The Plaintiff was then taken to the East Wing Yard to await with other prisoners until such time the operation had finished. This enabled the Corrections officers to search the P laint if f ‘s cell along with the drug dog.
12. The Plaintiff submits that the operation at Christchurch Prison involved an organised search of all cells and prisoners in East Wing to check for contraband and to detect offences.
13. This search was unreasonable because it was without lawful justification and therefore unlawful in the circumstances.
14. The Plaintiff submits that he has a right to be free from unreasonable searches and seizure protected by s 21 of the Bill of Rights Act 1990 as it is an important one that can only be interfered with by legal authority.
[5] Mr Forrest filed this claim in the High Court at Christchurch on 7 June 2011 and it was transferred to this Court by consent. His claim for relief is twofold.
First, he seeks a declaration that the search was unlawful and unreasonable in the circumstances and was in breach of s 21 of the NZBORA. Secondly, he seeks an order for costs on the proceeding.
Preliminary Issue
[6] A preliminary issue arises in this case. This relates to an Associate Judge‘s jurisdiction to hear and determine a strike out application in circumstances such as the present. Jurisdiction to declare an act of the Crown is contrary to the NZBORA is confirmed by ss 2 and 3 of the Declaratory Judgments Act 1908, and the Crown Proceedings Act 1950, Schedule 1. Generally, applications for strike out are within the jurisdiction of an Associate Judge: Amer v Glyde HC Wellington A345/84, 28
June 1988. However, where the proceedings are for judicial review under the Judicature Amendment Act 1972, this Court has held that an Associate Judge has no such jurisdiction: Reid v The New Zealand Fire Service Commission (1995) 8 PRNZ
550 (HC).
[7] Section 26I of the Judicature Act 1908 confers jurisdiction on an Associate Judge to exercise certain powers of a High Court judge. The jurisdiction of Associate Judges to deal with strike-out applications however arises pursuant to s
26J and s 26IA Judicature Act 1908, and r 2.1 High Court Rules. An order striking out proceedings is an interlocutory order as it is relief ancillary to that claimed in a pleading (r 1.3). Section 26IA of the Judicature Act 1908 provides:
26IA Ancillary powers of Associate Judge
(1) Subject to subsection (2) of this section, an Associate Judge shall have, in all proceedings (including proceedings on an interlocutory application) properly before the Associate Judge, jurisdiction to make any order or to exercise any authority or jurisdiction that might be made or exercised by a Judge of the High Court.
(2) Nothing in subsection (1) of this section confers on an Associate Judge any jurisdiction or power of a kind described in subsection (3) or subsection (4) of section 26J of this Act.
[8] Rule 2.1 of the High Court Rules likewise provides:
2.1 Jurisdiction and powers
(1) An Associate Judge has the jurisdiction and powers of a Judge in chambers conferred by the Act or these rules or another enactment.
(2) The jurisdiction and powers referred to in subclause (1) are in addition to the jurisdiction and powers conferred by section 26I of the Act.
(3) Despite subclause (1), an Associate Judge does not have jurisdiction or powers in respect of the matters specified in—
(a) section 26J(3) and (4) of the Act; or
(b) section 26P(1) of the Act.
[9] And, section 26J(3) and (4) of the Judicature Act 1908 provides:
(3) Nothing in subsection (1) or subsection (2) of this section authorises the making of any rule which confers on Associate Judges any jurisdiction or power in respect of any of the following matters:
(a) Any criminal proceeding, other than an uncontested application for bail, or an application for the setting aside of a witness summons:
(b) Any application for a writ of habeas corpus:
(c) Any proceedings for the issue or renewal of a writ of sequestration:
(d) Any proceedings under or by virtue of the Care of Children Act 2004: (e) Any action in rem under or by virtue of the Admiralty Act 1973:
(f) Any application to review, or any appeal against, the exercise, or the refusal to exercise, by any Registrar or Deputy Registrar, of any jurisdiction or power conferred on any Registrar or Deputy Registrar by or under this Act or any other Act.
(4) Nothing in subsection (1) or subsection (2) of this section authorises the making of any rule which confers on Associate Judges any jurisdiction or power—
(a) To grant an Anton Piller order, or an injunction (whether interlocutory or otherwise):
(b) To grant any relief on an application for review under section 4(1) of the Judicature Amendment Act 1972:
(c) To grant any relief in any proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari, or for a declaration or injunction:
(d) To grant any application to remove any person from public office: (e) To try the right of any person to hold any public office.
[10] A possible reading of s 26J(4)(c) might lead to the conclusion that an Associate Judge could not strike out any proceeding in which a “declaration” was sought. It is not clear, however, whether that is a conclusion intended by the words used. The reference to mandamus, prohibition and certiorari in this subsection indicates that sub-section (c) is really directed towards the High Court‘s judicial
review jurisdiction rather than declaratory orders or injunctions in normal proceedings. It may be that the reference in sub-section (c) to a ―declaration‖ may have arisen because Courts do not make injunctions directly against the Crown but rather the Courts declare what the Crown ought to do. In my view there is a reasonable argument that if it was intended by this provision to exclude the jurisdiction to grant any relief in proceedings under the Declaratory Judgments Act
1908 this would have been specifically listed in the sub-section just as reference to the Judicature Amendment Act 1972 has been.
[11] Since the decision in 1995 in Reid, which held that an Associate Judge has no jurisdiction to strike out a proceeding seeking judicial review under the Judicature Amendment Act 1972, there have been a number of cases where Associate Judges have considered strike-out applications under the Declaratory Judgments Act 1908, although it does appear in each case that this was without direct discussion of the jurisdictional point. These have included Jew v Jew (2002) 22 FRNZ 479 (Master Lang), Rupa v Bank of New Zealand, HC, Auckland, 5 February 2007, CIV-2006-
404-5581 (Associate Judge Abbott), Commerce Commission v Sweetline Developments Limited (2000) 6 NZBLC 103.130 (Master Venning) and Ullrich v Ullrich (1996) 10 PRNZ 253 (Master Venning).
[12] As an Associate Judge‘s jurisdiction to strike out is one which is exercised in chambers, the right of recourse of a disaffected party to any order made under that jurisdiction is for review to a High Court Judge under s 26P of the Judicature Act
1908. Judicial Review appeals however are dealt with in s 11 of the Judicature
Amendment Act 1972 which provides:
11 Appeals
Any party to an application for review who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the principal Act shall apply to any such appeal.
[13] Neazor J in Reid appears to have been persuaded that if an Associate Judge could strike out proceedings brought under the Judicature Amendment Act 1972, s
11 of that Act and s 26P of the Judicature Act 1908 would sit in conflict. Indeed, Neazor J said:
It may be that [an Associate Judge] has jurisdiction in respect of other interlocutory orders in proceedings for judicial review which are ―orders or directions related to procedure‖ within the definition of R 3(1), but it is not necessary to decide that now. It would make sense that [an Associate Judge] should have that procedural jurisdiction, but the appeal provisions in s 11 suggest to the contrary.
[14] In the present case, however, that is not so. Section 8 of the Declaratory
Judgments Act 1908 provides:
8 Appeal to Court of Appeal
An appeal shall lie to the Court of Appeal from any judgment or order given or made in pursuance of this Act, in the same manner as in the case of a final judgment of the High Court.
[15] There is no such similar reference to interlocutory relief under s 8. Further, in Secretary for Internal Affairs v Kilbirnie Tavern Ltd HC Wellington CIV-2007-
485-1988, 7 May 2008 at [3]-[24] after detailed submissions from experienced counsel on the issue, I concluded that s 26J(4) does not limit an Associate Judge‘s jurisdiction to strike out proceedings brought under the Declaratory Judgments Act
1908. And, Miller J in Clark v Governor-General (No 1) HC Wellington CIV-2004-
485-1902, 2 February 2006 at [23] came to a similar view.
[16] Finally, in Young v Police [2006] NZCA 111; [2007] NZAR 92 (CA) the Court of Appeal, while concluding that it did not have jurisdiction to consider an appeal against a decision of an Associate Judge striking out proceedings for review under the NZBORA, appears to infer (at [12]) that the Associate Judge did have jurisdiction to strike out the proceeding (see also Bolton v Auckland District Law Society HC Auckland CIV-
2006-404-3312, 26 October 2006 at [21]). Therefore, it appears that the proper interpretation of s 26J and Reid is that, as far as an Associate Judge‘s jurisdiction to strike out proceedings is concerned, the limitation to this jurisdiction outlined in Reid applies only to proceedings brought under the Judicature Amendment Act 1972.
[17] For all these reasons, I conclude that I do have jurisdiction to deal with the defendant‘s application to strike-out the plaintiff‘s claim here, a claim which effectively seeks declaratory relief under the Declaratory Judgments Act 1908. On that basis, I continue now to consider the defendant‘s strike-out application on its merits.
Strike-Out Principles
[18] Turning now to that application, under r 15.1(1) this Court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[19] The authors of McGechan on Procedure (online looseleaf ed, Brookers) at
HR15.1.02(1) provide the following helpful summary of the principles relevant to r
15.1(1):
The established criteria for striking out was summarised by the Court of Appeal in A- G v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) at
267, and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45 at [33], per
Elias CJ and Anderson J:
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action for defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: ―It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.‖
(c) The jurisdiction is to be exercised sparingly, and only in clear cases. This
reflects the Court‘s reluctance to terminate a claim or defence short of trial.
(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e) The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation. In Couch, at [33], Elias CJ and Anderson J said: ―Particular care is required in areas where the law is confused or developing.‖ There is considerable authority that developments in negligence need to be based on proved rather than hypothetical facts.
[20] Some issues of delay in bringing the present proceeding arise here. In order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff‘s cause of action is so clearly statute-barred that the plaintiff‘s claim can properly be regarded as frivolous vexatious or an abuse of process. Tipping J went on to say in Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33]:
In the end the judge must assess whether, in such a case, the plaintiff has presented enough by way of pleadings and particulars (and evidence, if the plaintiff elects to produce evidence), to persuade the Court that what might have looked like a claim which was clearly subject to a statute bar is not, after all, to be viewed in that way, because of a fairly arguable claim for extension or postponement. If the plaintiff demonstrates that to be so, the Court cannot say that the plaintiff‘s claim is frivolous vexatious or an abuse of process. The plaintiff must, however, produce something by way of pleadings, particulars and, if so advised, evidence, in order to give an air of reality to the contention that the plaintiff is entitled to an extension or postponement which will bring the claim back within time.
Strike-Out Application
[21] The defendant‘s grounds for this application are that the proceeding should be struck out as it is likely to cause prejudice, is vexatious or is otherwise an abuse of the process of the Court. Ms Fleming, for the defendant, submitted that this is for two reasons:
a) Given that the events at issue occurred over seven years ago in March
2004, this proceeding was commenced in June 2011 only after what must be seen as an unreasonable delay; and
b) The proceeding and a declaration here would serve no useful purpose as the plaintiff‘s right to be free from unreasonable searches whilst in prison has been vindicated in other proceedings.
[22] With regard to delay, Ms Fleming contended that there is no principle that a claim under the NZBORA should be able to be brought no matter how belatedly the claimant chooses to bring it. She referred me to the Court of Appeal‘s decision in PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (HC and CA). In that case, the applicant had brought its claim for Baigent damages nine years after the seized items were returned to it. In PF Sugrue, officers of the Department of Conservation seized a helicopter and other property following investigations of illegal hunting by the appellant company. Those items were returned in 1990 and 1991. Counsel‘s submission was that by, at the latest, 1996 the appellant had all documentary material available to it – although there was a suggestion that that material in fact was available as early as April 1991. In that light, notwithstanding the illness of original counsel, a claim brought in 2000 was regarded as too late (at [68]).
[23] The Court of Appeal clarified that a claim under the NZBORA is not governed by s 4(1)(d) of the Limitation Act 1950 (now the Limitation Act 2010).
Nevertheless, a claim for Baigent damages it decided should not be able to be brought irrespectively, no matter how belatedly the claimant chooses to put it forward. Blanchard J continued at [70]:
The Court must have a degree of flexibility in determining how long a delay is too much. All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff‘s rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim, should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the Court will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act, just as it is when there has been a delay in commencing a claim in equity: see generally Matai Industries Ltd v Jensen [1989] 1 NZLR 525 [(HC)].
[24] Relevantly, Blanchard J, with regard to declarations for relief said at [73]:
Nor do we accept the argument that by dismissing a Baigent claim for delay the Court would be denying the plaintiff an appropriate and effective remedy and in so doing placing New Zealand in breach of its obligations under the International Covenant on Civil and Political Rights, itself affirmed in the Bill of Rights. It would not follow from the exercise of the discretion to dismiss a monetary claim for undue delay, that the Court would on the same basis dismiss a claim for non-monetary relief, such as a declaration of breach of a guaranteed right. It might well remain appropriate, despite the delay, to vindicate the plaintiff‘s right in that way, and thereby admonish the Crown and warn against any repetition of the conduct in question.
[25] That issue has recently been addressed by Allan J in Taylor v Attorney- General HC Auckland CIV-2010-404-6985, 11 November 2011. In Taylor Allan J said at [36]:
In Sugrue, Blanchard J thought that, although in a given case a claim for damages may be struck out on limitation grounds, a prayer for a declaration for breach of a guaranteed right might survive in appropriate circumstances. I uphold Ms Casey‘s argument that, in this case, it would not be appropriate to preserve the plaintiff's right to claim declaratory relief. In the first place, it is to be remembered that the vindication of a plaintiff's right might, at least in some instances, be counterbalanced by the damage to individual reputations of those against whom Mr Taylor levels his accusations. But in addition, where the delay, as here, has been lengthy, the authorities are seriously prejudiced in their ability to defend the claim at all. In other words, to maintain the right to declaratory relief would be at odds with the protection which limitation principles are designed to safeguard.
[26] That case was similar to the present in that it concerned an application by the defendant to strike out various claims brought by the plaintiff, who is a maximum security prisoner at Paremoremo Prison, for breaches of s 9 of the NZBORA with respect to his treatment as a prisoner. Those claims were separated into three categories. First, breaches relating to segregation claims between November 1993 and March 1994. Second, breaches also relating to segregation claims between June
1998 and October 1999. And, third, those relating to claims over current prisoner conditions from 15 March 2010 onwards. For each, the plaintiff sought declaratory relief along with varying amounts of damages.
[27] The Crown sought to strike out the first and second categories on limitation grounds. With regard to the second, Allan J considered that it was premature to address this category at that stage, given the uncertain state of the plaintiff‘s pleadings. The claim with respect to the first was, however, sufficiently clear, and it was struck out.
[28] Allan J relied on a decision in Marsh v Attorney-General [2010] 2 NZLR 683 (HC) at [63]-[68]. In that case, Wild J was concerned with a claim under the Bill of Rights Act 1688 for harm suffered between 1972 and 1989. In deciding that the claim was barred, his Honour said the following:
Thirdly, the plaintiff must establish that a cause of action for public law compensation based on the 1688 Bill of Rights is not subject to a limitation period, either directly or by analogy.
In PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) the Court of Appeal confirmed that a claim for „Baigent‟ damages is not barred by any provision in the Limitation Act. ...
At [73] the Court rejected the suggestion that treating such a claim as time-barred would deny the plaintiff an effective remedy and place New Zealand in breach of the ICCPR. It said that a declaration might well remain appropriate, despite delay, to vindicate the plaintiff‘s right.
In Pearson v R [2006] FC 931, a decision of the Canadian Federal Court, Y de Montigny J reached the same conclusion, in a case where the plaintiff was suing the Crown for compensatory damages for breaches of his rights under the Canadian Charter of Rights and Freedoms (essentially, being unjustly sent to jail). At para 54 the Judge said:
54. ... The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. As long as the government is not trying to do indirectly what it could not do directly, I see no reason not to apply a limitation period.
Similarly, the European Court of Human Rights in Stubbings v United Kingdom [1996] ECHR 44; (1996) 23 EHRR 213 at [51] upheld limitation periods as consistent with human rights protections because they:
... serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time ...
Accordingly, the plaintiff‘s claim for „Baigent‟ damages is, by analogy, time-barred. No persuasive reason for permitting it to be brought out of time has been advanced. The reasoning in Stubbings is particularly apt here. It suggests that the plaintiff‘s claim should not now be permitted.
[29] I interpolate that the Canadian approach of holding actions subject to the limitation statutes has since been confirmed by the Supreme Court in Kingstreet Investments v New Brunswick 2007 SCC 1, [2007] 1 SCR 3 and Ravndahl v Saskatchewan 2009 SCC 7, [2009] 1 SCR 181. Although, I note in Prete v Ontario (1993) 16 OR (3d) 161 (CA) the Ontario Court of Appeal said at 168, in a case where the plaintiff brought an action for damages outside the limitation period, that Governments should not, even by statute, be permitted ―to decide when they would like to be free of [constitutional] controls‖.
[30] After drawing two observations out of that discussion by Wild J (that a claimant should not be entitled to sue the Crown indefinitely just because the basis of the complaint is a constitutional right and also the difficulty for a defendant in defending stale claims) Allan J in Taylor found (at [34]) that the passage of 13 years for the first category relating to segregation claims was too long. The Judge rejected the plaintiff‘s evidence that he did not become aware of his rights until the Supreme Court‘s decision in Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR
429. That is because he found clearly that the plaintiff was an experienced litigant in this Court who had brought claims for damages for alleged breaches of his rights under the NZBORA as early as 1996. Further, the Judge accepted that the defendant would have difficulty in obtaining useful evidence to counter aspects of the plaintiff‘s claim.
[31] In the present case, the passage of time in question is some 7 years. Mr Forrest‘s evidence was that he only ―recently‖ (no specific date is provided) made a request under the Privacy Act 1993 for a copy of his file held by the Department of Corrections. He deposes to it being his access to that file which alerted him to what he says are the suspect grounds for Corrections conducting the search. Further, at paragraph 6 of his 12 September 2011 affidavit, Mr Forrest recorded:
There is no real reason as to the delay in proceeding with this case but I have been involved in other litigation and my polytechnic studies and obtaining the necessary treatment for my offending and that has been the priority of my time as I considered that this case was minor and that it could wait. That is the true reasoning of the delay.
[32] Mr Forrest further noted that the officers involved in the search are still employed within Corrections and so are able to give the necessary evidence.
[33] It is apparent that Mr Forrest is no stranger to the civil remedies process in this Court. In a judgment released on 1 November 2010, which concerned a similar claim and allegations to the present brought by Mr Forrest against the Attorney: Forrest v Attorney-General of New Zealand HC Christchurch CIV-2009-409-2373, 1
November 2010, Chisholm J recorded at [4]:
In addition [Mr Forrest] has mounted a significant number of civil proceedings, many of which have been withdrawn or discontinued.
[34] That acquaintance with the civil remedies process however, would seem to be relatively recent. Therefore, in my view this case can be distinguished to a certain extent from that in Taylor. Further, the search in question in this case occurred in
2004. Drawing an analogy between this claim and a claim covered under the Limitation Act 1950, if the present claim was subject to s 4(1)(d) of the Limitation Act 1950, the limitation period would be six years (see [23] above). While Mr Forrest said that there is ―no real reason‖ for the delay here, his explanation appears to rely on his claim that he had been otherwise occupied with obtaining treatment for his offending and that the circumstances of the search were not apparent until he obtained his Department of Corrections file. In those circumstances, I do not consider that Mr Forrest‘s claim is so clearly barred due to his delay that it ought to be struck out. It is arguable in my view that there is a valid reason for Mr Forrest‘s delay which, if he was so indulged, would bring the claim by analogy within, the Limitation Act time bar. Indeed, on that basis, only a year‘s delay need be explained.
[35] Further, the Court of Appeal in PF Sugrue Ltd was careful to distinguish, on the one hand an application for a declaration, and on the other a claim for Baigent damages. Strong policy reasons exist in my view to support the view that a declaration should not be subject to a strict limitation period. First, the only resources which are at issue in a claim for a declaration are the Crown‘s time in defending the claim along with the time of any witnesses called. There is no risk that it will be forced to pay damages in circumstances where a difficult to defend claim is lost. Secondly, a declaration operates to vindicate the violation of the
plaintiff‘s rights: Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2007) at [26.7.6], Taunoa v Attorney- General [2007] NZSC 70, [2008] 1 NZLR 429. In Taunoa Tipping J provides the following helpful definition of ―vindication‖ in the Bill of Rights context at [300] to mean: (references omitted)
defending and upholding the value and importance of the right rather than exacting punishment for its breach. Vindication also includes the ideas of denunciation and marking public disapproval.
[36] The rights enshrined in the NZBORA are provided in recognition of notions of inherent dignity and equal and inalienable rights (see the preamble to the International Covenant on Civil and Political Rights). The NZBORA was enacted to affirm New Zealand‘s commitment to that Covenant. Given the importance of these rights, there needs to be some way in which a wrong is deterred for the future: see Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [254]. Blanchard J also said at [255] that a declaration is not toothless and:
can be expected to be salutary, effectively requiring compliance for the future and standing as a warning of the potentially more dire consequences of non-compliance.
[37] The wider utility of a declaration was discussed further at first instance in Taunoa (Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC)), where Ronald Young J commented at [15]:
These declarations are not simply hollow words as a prerequisite for monetary compensation. The declarations matter at a number of levels. They enable an individual plaintiff to say what happened to me should not have happened. It is an "official" declaration that they should not have been treated in the way that they were. It means Corrections must stop treating these prisoners unlawfully. This is to the prisoner's advantage. Counsel for the respondents have advised me that that has already happened. It informs Corrections and ensures the errors made will not be repeated in the future with other inmates. And, in a broader context, it ensures there is oversight of important public institutions such as prisons. It reminds us that those members of society who are in prison are entitled to minimum standards of treatment.
[38] Indeed, Hammond J emphasised the importance of a declaration in Manga v Attorney-General [2000] 2 NZLR 65 (HC) at [145]-[146] where his Honour ordered a declaration in circumstances where it was not specifically pleaded.
[39] Therefore, it is appropriate that an application for a declaration should not generally be as constrained as a claim for Baigent damages. For all these reasons
outlined above, I find that given the high threshold that must be met on any strike-
out application, the defendants‘ unreasonable delay argument cannot succeed here.
[40] In the alternative, as I have noted at [21](b) above, Ms Fleming for the defendant submitted that a declaration in this case would serve no useful purpose. As recorded above at [33], in November 2010, Mr Forrest successfully brought a claim in similar circumstances in this Court at Christchurch. That case also concerned a strip search this one conducted in August 2009 for the purpose of detecting contraband. The Court found in that case that the search was unlawful and was contrary to s 21 of the NZBORA. Indeed, that the search there was unlawful and contrary to s 21 was conceded by the Attorney-General. In his decision at [50] Chisholm J found that it was appropriate to make a declaration with regard to that search.
[41] It is well established that the decision to award compensation in a public law case such as the present one is discretionary: P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) at [70]; Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [255] and [318]. In a minority opinion, Baragwanath J said in Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA
423, [2009] 2 NZLR 56 at [107]-[114]:
The remedy of declaration is not to be seen as so innocuous that its pronouncement is of little significance. On the contrary, a solemn declaration of rights is an important remedy with potential precedential effects which should be pronounced only when the justice of the case so requires.
In the leading text Zamir and Woolf, The Declaratory Judgment (3rd ed, 2002) Lord
Woolf and Jeremy Woolf state on p 123:
―A most important feature of the declaratory judgment is that it is a flexible and discretionary remedy . . .‖
On pp 164 – 165 they cite as an example of a declaration being refused because it would serve no useful purpose Hammerton v Earl of Dysart [1916] 1 AC 57, where the House of Lords confirmed the judgment of the Court of Appeal setting aside a declaration when there was no such interference with a claimed exclusive right to operate a ferry as would warrant the grant of injunction.
That principle is of particular importance in relation to public law rights. Zamir and
Woolf state on p 178 as to balance of convenience:
―In public law proceedings this factor is likely to prove of particular importance in determining how discretion should be exercised . . . the court is entitled to have regard to the wider consequences when deciding whether or not to give relief.‖
In ―Rethinking ‗Effective Remedies‘: Remedial Deterrence in International Courts‖ (2008) 83 NYU L Rev 693, in a context of international courts and tribunals, Sonja B Starr draws attention to the need for a carefully nuanced approach to the grant of remedies. She argues that an unthinking application of strong and inflexible remedial rules can constrain courts to narrow the substantive interpretation of rights by raising the threshold required to trigger a remedy or erecting procedural hurdles that avoid considering the claim at all.
Because it is unnecessary for the just determination of this case to say more than that on no arguable basis could the damages claim succeed, I prefer that this Court should refrain from making a ruling as to the scope of s 27(1) and as to that of the common law which is unnecessary to its decision and which might prove to require modification when a case with merits comes to be argued.
Because this case did not justify it, we have not had the in-depth examination of context, perspective and consequences which is essential to development of precedent that will guide rather than mislead (see Duxbury, pp 26 – 27).
This Court‘s opinion on the question of liability for damages under s 27(1), which is of considerable importance but in this case is moot, should in my view be reserved for a case which turns upon it. So too should the question of what, if any, relief, including declaration, should be given for breach.
That is because of the need for care when considering whether and if so how the jurisprudence concerning redress for breach of public law obligations should be extended beyond the present bounds. We are still at a relatively early stage in the development of a rights jurisprudence. It is in my view generally desirable in that context to avoid premature determination of important issues unnecessary to the decision in the case.
I also note his Honour‘s echoing of those comments in David Baragwanath ―A Capital Opportunity: Creating a New Zealand Jurisprudence in Public and International Law‖ (2010) 41 VUWLR 703 at 711.
[42] The majority in that case declined to set aside the declaration on the basis that the Auckland City COGS Committee did not argue (and the Combined Beneficiaries Union did not have the opportunity to respond) that the declaration should be set aside on the basis that it was unnecessary.
[43] Ms Fleming submitted that a further declaration here would not add anything to the declaration obtained in Chisholm J‘s 2010 decision. In response, Mr Forrest submitted that his claim will serve some useful purpose in vindicating the harm allegedly done to him and to assist in protecting other potential breaches in the future.
[44] Of course, at the time that Mr Forrest was subject to the search at issue in the present case, the enactment which enabled prisoner searches was the Penal Institutions Act 1954. That Act was repealed from 1 June 2005 by the Corrections
Act 2004. The search at issue before Chisholm J was conducted under the auspices of the Corrections Act 2004 and was not lawful however under that Act. I also acknowledge that the defendant here has made no concession in the present case to accept that the search conducted in 2004 was unlawful. Therefore, there is a real and unresolved issue as to the legality of the search, albeit with historical relevance, under the 1954 Act.
[45] In my view, there is some substance in Baragwanath J‘s reasoning noted at [41] above. I am also persuaded that the practical effect of any declaration obtained by Mr Forrest is minimal here given the fact that the Penal Institutions Act 1954 is no longer in force and that he has already obtained a declaration with respect to a search conducted in materially the same circumstances, under a similar enactment.
[46] However, I must return to the high standard required for an applicant to meet on a strike out application. I note also the care which a court must take in striking out a claim in a developing area of law. The issue of relief for claims brought under the NZBORA is one such area. Indeed, the issue of mootness regarding applications for a declaration is a point which has expressly been left open by the Court of Appeal in Combined Beneficiaries Union, notwithstanding Baragwanath J‘s persuasive reasoning. Further, given that Mr Forrest is a self-represented litigant, albeit a relatively experienced one, and also that I have not heard full argument on the question, I am reluctant to determine the issue here. Given all these factors, even if I was persuaded that Mr Forrest‘s claim was an abuse of the process of the Court, in exercising my jurisdiction to consider the defendant‘s application, I do not consider it prudent to apply my discretion to strike out Mr Forrest‘s claim here. The defendant‘s application for strike-out must fail. I now turn, to consider the second application before the Court.
Security for Costs
[47] Whatever the proper approach might be to an Associate Judge‘s jurisdiction to strike out proceedings under the Declaratory Judgments Act, I am satisfied that in any event I do have jurisdiction to make an order for security for costs: see Minhinnick v Treaty of Waitangi Fisheries Commission [2005] NZHC 79; [2006] NZAR 203 (HC) at [20]; Ngati Muriwai Hapu Inc v Whakatohea Maori Trust Board Inc HC Wellington
CIV-2007-463-30, 29 November 2007 at [14]. That is because, it is not, directly, concerned with granting ―relief‖ in this proceeding in terms of s 26J(4) Judicature Act 1908..
[48] In this second application before the Court, the defendant applies for security for costs under r 5.45 of the High Court Rules. That rule provides:
5.45 Order for security of costs
(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a) that a plaintiff—
(i) is resident out of New Zealand; or
(ii) is a corporation incorporated outside New Zealand; or
(iii) is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or
(b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.
(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3) An order under subclause (2)—
(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i) by paying that sum into court; or
(ii) by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and
(b) may stay the proceeding until the sum is paid or the security given.
...
[49] At paragraph 13 of his 12 September 2011 affidavit, Mr Forrest conceded that he is impecunious and would be unable to meet an order for costs if his claim was unsuccessful. Indeed, in two recent, separate proceedings Mr Forrest has been ordered to provide security for costs: Forrest v Martin HC Christchurch CIV-2009-
409-1529, 2 June 2010, Forrest v Attorney-General HC Christchurch CIV-2010-
442-202, 14 December 2010. The threshold of impecuniosity is met for an order for security for costs in the present case.
[50] I must therefore balance the interests of the plaintiff, in that he should not lightly be prevented from pursuing his claim, and those of the defendant that he should be protected against being drawn into unjustified litigation. That balancing test was summarised by the Court of Appeal in A S McLaughlin Ltd v MEL Networks Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA) at [15]-[16]:
The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the courts for a genuine plaintiff is not lightly to be denied.
Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over- complicated and unnecessarily protracted.
[51] The merits of a plaintiff‘s case are a proper matter for consideration in the context of security for costs: see Ambrose v Pickard [2009] NZCA 502. Other matters which may be assessed in undertaking that balancing exercise include:
(a) Whether the impecuniosity was caused by the defendant‘s actions;
(b) The means of anyone associated with the proceeding which may be able to assist the plaintiff;
(c) Delay on the part of the defendant in bringing the application; and
(d) Whether the making of an order might prevent the plaintiff from proceeding with a bona fide claim.
[52] In conducting this balancing exercise, I proceed on the basis that the plaintiff will be able to make out the factual propositions that he advances in support of his claim. Indeed, at this point the defendant generally does not dispute the facts here. Accordingly, the question is whether, assuming the facts as alleged, the claim has so little chance of success that the defendant should be protected from being drawn into it without security for costs.
[53] Ms Fleming submitted five grounds on which an order for security for costs should be made. First as to the merits, the plaintiff has little chance of success. Secondly, she argued that those small prospects are amplified by Mr Forrest‘s
history of lack of success in litigation against the Crown which was particularly noted by Associate Judge Osborne in ordering security for costs in Forrest v Attorney-General HC Christchurch CIV-2010-442-202, 14 December 2010 at [40]- [41]. Thirdly, she maintained the defendant would not be able to recover costs against Mr Forrest in the event that he is unsuccessful here. Fourthly, as noted by Associate Judge Osborne at [50], as Mr Forrest is self-represented he has no incentive to consider the cost implications of his claims. Finally, Ms Fleming submitted that there is no wider public interest in this case which would weigh against an award of security.
[54] In response, Mr Forrest reiterated his submissions with regard to the utility of his claim and said further that in assessing the merits of this particular claim, his litigation history should not be looked to. To some extent, I agree. In particular in one claim he made in the past, he was successful in obtaining some relief. Whether or not there is a seriously arguable claim that the search conducted in the present case was without lawful justification however remains to be determined. A further question remains in any event as to the availability of a remedy. Mr Forrest further suggested that he does have an incentive to consider the cost implications of his claims because, when he is released, he may still have to pay costs which might be awarded against him. And finally, he contended that a further declaration will serve some purpose.
[55] Considering all these aspects, I do agree that there might be some possible public interest in this litigation, and that this is relevant to the exercise of my discretion here: Save Happy Valley Coalition Inc v Minister of Conservation HC Wellington CIV-2006-485-1634, 18 September 2006. Mr Forrest‘s claim to a public interest element must stem from the premise that relief in the NZBORA sphere is for the purposes of vindication. Therefore, a declaration may also be used by others in similar circumstances where appropriate, to obtain relief or to reprimand the defendant for actions taken improperly. Of course, the level of public interest in this claim in my view is muted by the fact that Mr Forrest has already obtained a declaration with respect to actions of the defendant in analogous circumstances. Although, I do acknowledge that there is some importance in providing declarations in appropriate cases with respect to each and any violation of an individual‘s rights,
I agree also that Mr Forrest does not really seem to have any incentive to consider the cost implications of his claim particularly in the short term given the fact that he has no funds and has no means of obtaining further funds as a result of his incarceration.
[56] Balancing all these matters I have mentioned above, I consider that an order for security for costs is just in all the circumstances here. While it is possible that Mr Forrest might be able to establish that the search in this case was unlawful, I have already assessed his prospects of obtaining the relief sought as low along with the questioned utility of Mr Forrest‘s present claim, given that he has obtained a declaration in what he says are similar circumstances in the past. Therefore, there is a real risk as I see it that should Mr Forrest not obtain the relief sought, an unsatisfied order of costs would be awarded against him, in terms of r 14.2(a) of the High Court Rules. Further, as Associate Judge Osborne considered in Forrest v Attorney-General HC Christchurch CIV-2010-442-202, 14 December 2010 at [46], what is at stake in this proceeding is also an important consideration. While I have noted that there is some possible public interest in the relief at issue here, I doubt whether a declaration in the nature sought would have a large impact on the conduct of either the plaintiff or the defendant.
[57] As to quantum of security to be ordered, in AS McLachlan Ltd, the Court of Appeal made it clear at [14] that there is no checklist or simple formula for decisions on quantum. Further, the amount of security is not necessarily to be fixed by reference to the scale (at [27]). What the court must do is make an assessment of what is just in the particular circumstances of the case.
[58] The defendant seeks security here in the sum of $10,000 (two-thirds of category 2B costs for a two-day hearing). That is on the basis that it would call three witnesses and the hearing would take two days. Mr Forrest, in his assessment, considers that the hearing would take one and a half days at most.
[59] Although the facts of the matter in this case are not, largely, in dispute, I tend to agree that the matter would occupy two days. Two thirds of scale costs at 2B for that length of trial would be approximately $10,000.00. In the circumstances of this case, I am satisfied that a just order for security would be this sum of $10,000.00
given Mr Forrest‘s prospects of success on his claim. An order to this effect is to follow.
Conclusion
[60] As I have noted above, the defendant‘s application for strike out is dismissed. [61] The defendant‘s application for security for costs however, is successful and
security of $10,000.00 is to be ordered. Given that the raising of the $10,000.00 security may well be difficult for Mr Forrest, an order for payment of this security in stages is appropriate. This proceeding is unlikely to be faced with numerous interlocutory attendances. Therefore, I consider that the payment of that $10,000.00 security amount in the form of two tranches of $5,000.00 each is appropriate. Orders along these lines are to follow.
[62] As to costs on the application before me, if these are sought and the parties cannot agree, I invite memoranda to be filed sequentially on the issue of costs.
Orders
[63] I order:
(i). That the plaintiff is to provide security for costs in the total sum of
$10,000.00, which sum shall be paid to the Registrar of the Court in two tranches:
(ii). This proceeding shall be stayed (progressively) until the plaintiff has provided security as required in accordance with (i) and (ii) above respectively.
‘Associate Judge D.I. Gendall’
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2011/1790.html