Taylor v Manager of Auckland Prison [2012] NZHC 1241 (5 June 2012)

Last Updated: 11 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-006168 [2012] NZHC 1241

UNDER the Declaratory Judgments Act 1908

IN THE MATTER OF of an application for a declaration that a rule promulgated by the Manager of Auckland Prison forbidding any prisoner to smoke or possess tobacco is unlawful

BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff

AND THE MANAGER OF AUCKLAND PRISON

Defendant

Hearing: 17 May 2012

(Subsequent submissions filed on 31 May 2012)

Counsel: C J Tennet for the Plaintiff

G J Robins for the Defendant

M Reddy for the Department of Corrections

Judgment: 5 June 2012

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 5 June 2012 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

TAYLOR v MANAGER OF AUCKLAND PRISON HC AK CIV-2011-404-006168 [5 June 2012]

[1] On 1 June 2011, the defendant, the Manager of the Auckland Prison, instituted a rule forbidding any prisoner at Auckland Prison from smoking tobacco or any other substance, or having in their possession any tobacco or tobacco related item on Auckland Prison property. The plaintiff, Mr Taylor, who is an inmate of Auckland Prison, commenced this proceeding challenging the legality of this rule.

[2] Two interlocutory applications were before me for determination. One was brought by the defendant. He sought an order that Mr Taylor, who will be representing himself at the substantive hearing of this proceeding, participate in the hearing by audio-visual link (AVL). The other was brought by Mr Taylor, who sought the appointment of counsel to assist the Court. I shall deal with the defendant’s application first.

Participation by AVL

Legislation

[3] The ability to allow participation by AVL is set out in the Courts

(Remote Participation) Act 2010.

[4] Section 5 sets out the general criteria that should be considered when deciding whether to allow the use of AVL for the appearance of a participant in any proceeding:

5 General criteria for allowing use of audio-visual links

A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:

(a) the nature of the proceeding:

(b) the availability and quality of the technology that is to be used:

(c) the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

(i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and

(ii) the level of contact with other participants: (d) any other relevant matters.

[5] Section 6 provides additional criteria for allowing use of AVL in criminal proceedings:

6 Additional criteria for allowing use of audio-visual links in criminal proceedings

A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular,—

(a) the ability of the defendant—

(i) to comprehend the proceedings; and

(ii) to participate effectively in the conduct of his or her defence;

and

(iii) to consult and instruct counsel privately; and

(iv) to access relevant evidence; and

(v) to examine the witnesses for the prosecution; and

(b) the level of contact the defendant has with other participants; and

(c) any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.

[6] Section 7 sets out the approach to be taken when considering whether AVL

should be used in civil proceedings:

7 Use of audio-visual links in civil proceedings

(1) AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.

(2) A judicial officer or Registrar may make a determination under subsection (1)—

(a) on his or her own motion; or

(b) on the application of any participant in the proceeding. (3) A determination under subsection (1) must—

(a) be made in accordance with the criteria in section 5; and

(b) take into account whether or not the parties consent to the use of AVL for the appearance of the participant.

[7] Section 3 of the Act divides criminal proceedings into criminal procedural matters and criminal substantive matters, each of which is expressly defined. Civil proceedings are also defined in s 3, but this is done simply by way of encapsulating into this term any proceeding that falls outside the exhaustive definitions given to the two types of criminal proceedings. “Proceeding” means any proceeding in a New Zealand court.

[8] Under s 3, “participant” is given a broad meaning:

participant, in relation to a proceeding, means a person who is, in that proceeding, any of the following:

(a) a party:

(b) the defendant: (c) counsel:

(d) a witness:

(e) a member of the jury:

(f) a judicial officer who is presiding over the proceeding: (g) a Registrar who is presiding over the proceeding:

(h) any other person directly involved in the proceeding whom the judicial officer or Registrar considers appropriate

[9] Section 14 of the Act provides that attendance by use of AVL under the Act is regarded as being present in the place of the hearing of the proceeding:

14 Attendance at hearing

(1) A participant who appears at a proceeding, or part of a proceeding, by the use of AVL under this Act is regarded as being present in the place of hearing at the proceeding, or that part of the proceeding, for the duration of that use.

(2) Subsection (1) applies whether or not the participant is in New Zealand.

Defendant’s submissions

[10] The defendant submits that the present proceedings are suitable for the appearance of Mr Taylor by AVL under s 7 of the Act because:

(i) This is a civil proceeding about statutory interpretation, not about giving Mr Taylor a fair trial in the criminal proceeding sense;

(ii) Auckland Prison has a dedicated room for AVL;

(iii) In another decision of this Court, Allan J found that Mr Taylor should appear by AVL in all three of his other civil proceedings, except where he exercises his right to seek an appearance in person on any given occasion;

(iv) Documents used at the hearing are confined to affidavit evidence and no oral evidence will be given;

(v) There would not be cross-examination; and even if there was, AVL would be suitable for cross-examination; and

(vi) There is no issue of witness credibility.

[11] The defendant is also concerned that if Mr Taylor is allowed to appear in person:

(i) He would have increased access to contraband;

(ii) He would present an escape risk; and

(iii) There would be high transport and labour costs involved.

Mr Taylor’s submissions

[12] Mr Taylor submits that Wylie J approved the plaintiff’s attendance in Court at

a telephone conference and that the defendant is now seeking to review that decision.

[13] Mr Taylor submits that he has a right to appear before the Court in person to argue matters under s 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA) and that should not be taken away lightly. Otherwise, this would be creating a subclass of persons, prisoners, who, by virtue of their status, do not get to physically attend court. He also argues that appearance by AVL has a substantial effect on the dynamics of the case.

[14] Mr Taylor also submits that there should be a presumption in civil cases for physical presence and against AVL unless there are matters of physical harm and safety. He argues that the fact that ss 8 and 9 create a presumption for AVL not to be used unless there are good reasons does not mean AVL should be used in civil proceedings.

[15] As to the risks involved with transporting him to the court, Mr Taylor submits that the risk of contraband is merely potential, as court security could prevent this; that the risk of an escape is theoretical; that cost should not be a factor because this case involves individual rights and the costs are less than filing fees.

[16] Mr Taylor also argues that allowing him visits to court allows him to get documents witnessed and sworn, and to file documents where he otherwise could not do so. By not allowing him to do these things, he is effectively denied access to the courts.

Discussion

[17] Legislative enactments are to be read in light of their purpose. According to the Explanatory Note in the Courts (Remote Participation) Bill: “[t]he purpose of this Bill is to enable greater use of audio-visual links (AVL) in New Zealand courts” (at 1), and to ensure that AVL facilities “can be used to their full potential” (at 2). This was due to the fact that courts had previously interpreted the requirement for persons to be “present in court” to mean their physical presence: see Connelly v R [1998] 3 NZLR 763 (HC).

[18] The Explanatory Note shows that one of the drivers for the legislation was the idea of using AVL to reduce the costs of having participants physically present at court proceedings, including specifically “the costs of transporting prisoners, housing them at court, and providing security” (at 4). Implicit in this statement is a concern for the risk posed by such transport as well. Recognised benefits were seen to include reductions in costs for participants in the court process, improved efficiency for justice sector agencies, improved safety and security, increased access to justice, improved quality of evidence (at 8). The Explanatory Note recorded that investment in AVL facilities will avoid future costs for the Government and having legislation in place to enable greater use of AVL would mean that the costs savings and benefits to any future investment in AVL would be realised as further facilities were installed.

[19] The Explanatory Note sets out the alternative options for using AVL that were considered but discounted. One such option was for the legislation to specify when AVL can and cannot be used, with the legislation identifying the type of participant and when that participant could appear by AVL. Another such option was for the Act to list the particular proceedings or types of proceeding in which participants could appear by AVL and/or the proceedings for which AVL generally should not be used. The Explanatory Note records that options such as these were not preferred because distinctions between participants or types of proceedings were “relatively arbitrary”. Those options were also seen as potentially restrictive because they would be based on the limits of current technology, and so they would not allow for technological

advantages that may make AVL acceptable for use in a wider range of proceedings in the future. It was noted, however, that specifying the type of participant or proceeding for which AVL could be used was the approach adopted in New South Wales when it was gradually expanding its use of AVL.

[20] Another alternative legislative approach was to enact a general presumption that AVL could be used, with the legislation supported by guidelines that stressed that the overriding factor for its use in any particular case was that it must be consistent with furthering the interests of justice. This was the approach taken in Tasmania.

[21] The Explanatory Note records that the preferred option for New Zealand was a modified presumption for the use of AVL. This involved legislation that stipulated that AVL could be used in any proceedings, but with the threshold for its use varying according to whether the proceeding was categorised as a criminal procedural matter, a criminal substantive matter, or a civil proceeding.

[22] For “criminal procedural matters where no evidence was being called (such as relevant list appearances, bail and some callovers)”, the legislation would provide a presumption in favour of the use of AVL, because the use of AVL had some acceptance already for those types of hearings and extending its use here would raise fewer concerns than for criminal substantive hearings. Criminal procedural matters were considered to represent the bulk of short, high volume appearances and, therefore, they were seen to offer the opportunity for the greatest gains from the use of AVL. The use of AVL for this category of hearing was, therefore, to be encouraged. Where there was an objection to the use of AVL in criminal procedural matters, judges would be guided by the legislative criteria in deciding whether the presumption in favour of AVL should be displaced.

[23] The Explanatory Note recorded that for criminal substantive matters where evidence was being called, such as defended hearings and jury trials, there would be no presumption in favour of the use of AVL. Instead, any party would be able to apply to the court to use AVL and the court would determine the application based on the statutory criteria.

[24] As for civil proceedings, these were seen not to raise the same fair trial concerns as criminal substantive matters. Thus, there was no division between procedural (interlocutory) and substantive hearings. The Explanatory Note to the Bill states (at 7) that:

[C]ivil matters do not present the same human rights concerns as criminal matters. The test for using AVL can correspondingly be less rigorous. Accordingly, the legislation would provide that AVL can be used in civil proceedings whenever the parties consent. The legislation would also allow a court to order the use of AVL in civil proceedings where the parties do not consent, provided that the use of AVL accords with the principles of natural justice.

[25] The Explanatory Note concluded the account on the operation of the preferred option by noting that decisions on the use of AVL would be guided by criteria outlined in the legislation. In this regard, the critical question for the court was said to be whether the use of AVL in the particular circumstances of the case was able to ensure the protection of the rights of a defendant to be present at trial and to present a defence.

[26] Most of the legislature’s concerns regarding the use of AVL in court proceedings seem to have been targeted at reconciling AVL with the rights of persons accused of criminal offences to a fair trial. This may account for why at no stage during the Bill’s passage into law was any attention paid to its potential effect on public law litigation (cases raising issues of administrative and constitutional law, as well as the NZBORA), which is almost always commenced by way of civil proceedings. I leave to the side here the circumstance where public law issues are raised as part of a collateral challenge or collateral defence, in which case this can occur within the context of a criminal proceeding.

[27] In its approach to the use of AVL in civil proceedings, the Explanatory Note does not distinguish between civil proceedings involving private law disputes between private persons and those that raise public law issues. The latter form of civil proceeding is inevitably focused on alleged misuse of public power and its effect on fundamental rights: see the discussion in Mark Elliot “Judicial Review’s Scope, Foundations and Purposes: Joining the Dots” [2012] 1 NZL Rev 75 at 76-77.

Elliot cites a comment by Sedley J in R v Somerset County Council ex parte ARC Southern Ltd [1998] Env LR 111 (HC) at 121:

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power.

[28] Encapsulated within this statement is the idea that administrative law and its remedies exist to ensure compliance with the rule of law. Elliot says (at 78) that the principle of legality, which requires that those exercising legal powers must not be permitted to exceed the limits of those powers, lies at the core of the rule of law. He then identifies other underlying constitutional principles that he says “animates” the rule of law. These other principles include: the separation of powers, respect for liberty and the legal rights of individuals, and “the necessity in a constitutional polity of a functioning hierarchy of legal norms”. Much the same is said in Michael Fordham “Constitutional Fundamentals” in Judicial Review Handbook (5th ed, Hart, Portland, 2008) at p 7. Implicitly included within the multi-layers of constitutional principles are the administrative law principles that developed as part of the inherent common law jurisdiction possessed by the King’s Courts, commencing with Groenwelt v Burwell [1792] EngR 717; (1700) 1 Ld Raym 454 (91 ER 1202. These principles now include: the protection of access to administrative law through the court’s reluctance to see its jurisdiction ousted (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL)); the principle requiring exclusion of access to law to be only by plain words (Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 (HL)) and the rules of natural justice (Ridge v Baldwin [1963] UKHL 2; [1964] AC 40) of which Lord Morris in Wiseman v Borneman [1971] AC 297 (HL) at 309B said are “only fair play in action”. And in R v Secretary for State for the Home Department ex parte Pierson [1997] UKHL 37; [1998] AC 539 (HL) at 591F, Lord Steyn said: “the rule of law enforces minimum standards of fairness, both substantive and procedural”.

[29] The position is the same in New Zealand. In Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed), Brookers, Wellington, 2007), the author at 815 describes judicial review as:

... an institution of constitutional importance embracing the rule of law, the separation of powers and the independence of the judiciary. ... The legal landmark established in Entick v Carrington [(1765) 19 St Tr 1029] allayed any doubt that it was the duty of the courts to uphold the rule of law over executive government. No official of whatever rank could invade the liberties of the subject without countenance and due process of law.

... [The courts] will intervene where a decision-maker misconstrues a statutory power, acts unreasonably or mala fides, commits a procedural error, or unreasonably encroaches on fundamental rights or values underpinning the rule of law.

[30] It follows that civil proceedings brought in public law may often engage legal principles involving fundamental rights that are on par with the concerns involving rights that can arise in criminal proceedings. Indeed, the fundamental constitutional rights that administrative law guards are also often the source of the concerns for rights that arise in criminal law. In R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 (HL), Lord Bridge in a judicial review proceeding said at 122:

We should, I submit, regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on.

Thus, the divide between criminal and civil procedure is not as clear-cut as has been presented by the structure of the Act. The procedural rights and protections that exist in both types of proceedings originate from the concern of courts to ensure that their processes are conducted fairly and justly, which has been achieved over the ages through courts exercising their inherent jurisdiction to control those processes.

[31] So, the special and important character of civil proceedings involving public law issues must necessarily make them stand apart from other forms of civil proceedings. To varying degrees, such cases will involve the engagement of fundamental rights that are traceable to landmark cases in which courts have, in the exercise of their common law jurisdiction, developed legal principles that have come to form the bedrock of this jurisprudence.

[32] The present proceeding is brought under the Declaratory Judgments Act

1908. However, this does not detract from the proceeding’s public law character.

The use of a declaration as an available remedy for administrative or public law

matters is longstanding. HWR Wade and CF Forsyth Administrative Law (10th ed 1

Oxford University Press, Oxford 2009) at 481 describes the use of a declaration in a public law proceeding in this way:

In administrative law the great merit of the declaration is that it is an efficient remedy against ultra vires action by governmental authorities of all kinds, including ministers and servants of the Crown, and, proper cases even, the Crown itself. If the court will declare that some action, either taken or proposed, is unauthorised by law, that concludes the point as between the plaintiff and the authority.

[33] Wade and Forsyth go on to describe the declaration as a (at 482): “... particularly suitable way to settle disputes with governmental authorities, since it involves no immediate threat of compulsion, yet is nonetheless effective”. And later at 482, Wade and Forsyth refer to what they describe as the “landmark case” of Dyson v Attorney-General [1911] 1 KB 410 (CA) in establishing the importance of the declaration as a public law remedy:

But the Dyson case gave a fair wind to the action for a declaration as a defensive weapon against the executive power. ... the court considered that a question as to the legality of administrative action was in itself a good reason for asking for judicial intervention at the earliest possible moment.

[34] A proceeding under the Declaratory Judgments Act that raises public law issues can engage fundamental rights just as much as a judicial review proceeding. This is recognised by s 7 of the Judicature Amendment Act 1972, which provides that proceedings for a declaration that involve the exercise, refusal to exercise, or proposed or purported exercise of a statutory power can on the application of a party to the proceeding be treated and disposed of as if they were an application for review.

[35] It follows that any alterations in the procedures governing how persons might participate in these proceedings needs to be approached with care. This is especially so when such alterations are to be forced on participants against their will, such as when court-ordered AVL at the request of an opposing party compels the affected objecting party to participate in this way.

[36] There is also a potential for participation by AVL, especially by court-ordered compulsion, to impact upon rights enshrined in the NZBORA. For civil proceedings, the relevant provisions of the NZBORA are to be found in s 27:

27 Right to justice

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

The safeguards in the NZBORA do not add significantly to the existing common law rights permitting public law claims against the Crown.

[37] One of the reasons given in the Explanatory Note for the presumption in favour of AVL in criminal procedural hearings is because by and large no evidence is called at these hearings. Any evidence that is relied on is given is in the form of affidavit evidence that is usually not subjected to cross-examination. The legislature recognised that with criminal substantive proceedings where oral evidence and cross-examination was standard, the use of AVL could more readily give rise to fair trial concerns.

[38] As with criminal substantive hearings, the substantive hearing of ordinary civil proceedings will usually involve oral evidence. In terms, therefore, of the criteria in s 5 the impact of AVL on the ability to assess the credibility of witnesses and the reliability of evidence presented in court is something that might end up counting against the use of non-consensual court-ordered AVL.

[39] But with public law litigation, the procedures that are followed resemble those that are used in criminal procedural hearings. In judicial review proceedings, evidence is given by affidavit and cross-examination is rare: see Siemer v Official Assignee HC Auckland CIV-2010-404-1709, 4 August 2011 at [34]-[35]. The same would apply for public law proceedings brought under the Declaratory Judgments Act. In terms of the specific criteria provided in s 5 for when AVL is appropriate, there is nothing that informs as to its intended use in public law proceedings. This is another example of the omission to consider what impact the language of the Act might have on public law cases.

[40] When considering the impact of this Act on the conduct of proceedings brought in public law, any attempt to read this Act in the light of its purpose runs head-on into the problem that there is no guidance to be obtained from the Act or the ancillary material that is usually helpful for interpreting legislation.

[41] When read literally, and in the way for which the defendant contends, it is possible to understand s 7 as permitting, if not favouring, the use of AVL for public law proceedings in circumstances where the party bringing the proceeding is denied the opportunity to be physically present in court during the conduct of the proceeding. In theory, this could mean that an applicant seeking a writ of habeas corpus, and who was acting for himself or herself, might be compelled by court order to participate by AVL in the hearing of the application. An application for a writ of habeas corpus is brought as a civil proceeding, and it is usually heard on the basis of affidavit evidence and without cross-examination. In the course of argument, the defendant, who is represented by Crown Counsel, submitted that the Crown would not apply for an AVL order in such a case. However, whether such an applicant for a writ of habeas corpus can enjoy physical access to the court should not rest on the indulgence of the Crown.

[42] I do not find the language of the Act’s relevant provisions as clearly supportive of court-ordered AVL as the defendant contends. First, when considering ordering AVL under s 7, a court is required to consider the criteria in s 5. Section 5(c) requires the court to consider the potential impact of the use of AVL on the “rights of other parties” to the proceeding. Although here, it is the defendant

who is making the application, he argues that in terms of s 5 he is the “other party” to this proceeding. This seems to be right in terms of the language of s 5. It means that the court is expressly enjoined to consider the rights of the defendant when considering ordering that Mr Taylor participate in the substantive hearing by AVL. But there is no express requirement in s 5 for the court to consider the rights of Mr Taylor. I would expect Parliament to have stipulated in the Act the considerations to be applied to the participant who was to be deprived of the opportunity to appear physically before the court. Instead, the only mandatory direction in s 5 to that effect is the requirement in s 5(d) to consider “any other relevant matters”.

[43] Clearly, the impact of an order under s 7 on Mr Taylor is a relevant matter that must be considered. But it is surprising that the rights of the person who is at risk of being compelled to participate in the proceeding he is bringing on his own behalf get no greater attention than that which is given in s 5(d). This to me is yet another indication that the legislature may not have given thought to how this Act might impact on proceedings like the present. More importantly, it suggests to me that the language of s 5 is not so easily read in the way that the defendant would have it.

[44] The defendant’s argument hinges on the Court reading the reference to “participant” in s 7(2)(b) broadly and without any qualification. Read in this way, any person who is a participant in a civil proceeding may make an application under s 7 for other participants to participate in the proceeding by AVL. However, another way of reading s 7 is to read “participant” in s 7(2)(b) as implicitly qualified in a way that means that any person who meets the definition of “participant” in s 3 can apply for an order, but only in relation to his or her own participation in the proceeding. This still means that any participant who wants to participate in a civil court proceeding can apply under s 7 for an order for participation by AVL, but he or she cannot apply for an order compelling someone else, such as an opposing party, to attend in that way.

[45] Reading such a qualification into s 7 is consistent with well-settled principles of statutory interpretation. In JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009), the authors note that (at 319):

The main task of statutory interpretation is to interpret the statutory text in its context in a way that will give effect to the purpose of those who framed it. However, it should not be assumed that these are the only considerations that influence the interpretative process. Sometimes matters external to the statute, and not so obviously deriving from the intention of the lawmakers, constrain or influence its interpretation. Obviously this can be the case where the text’s meaning is unclear, and where the purpose of the provision is not self-evident. In such a case a court must perforce resort to other matters when searching for an answer. However, sometimes, even if text and purpose seem at first to be clear, the court may examine other considerations to see whether its initial impression was the most satisfactory one. To put it colloquially, there may be occasions where a court may wish to tailor the interpretation of the statute to avoid a result that it regards as unacceptable.

[46] The authors go on to consider what they describe as “some of the important values that influence interpretation” (at 319). The authors describe these influences as guides to parliamentary intent or presumptions of intent, in that it is “reasonable to assume that Parliament wanted its legislation to work sensibly and justly” (at 319). One of these key influences is the principle that courts strive to ensure, if possible, that the interpretation placed on legislation accords with certain accepted values and principles. The authors describe these as presumptions of interpretation, many of which, they say, have been fundamental in our law for a very long time (at 320):

Most of the values and principles we are concerned with in this chapter have been at the heart of our legal system since time immemorial. They are truly fundamental. They have been described as “principles of legality”. It may be, however, that “the true principle is not ‘legality’ but that the Courts should be slow to impute to Parliament an intention to override established rights and principles where that is not clearly spelt out”.

Three such values and principles are: the right to a fair hearing, the right of access to the courts, and the right that like cases will be treated alike.

[47] The right to a fair hearing is usually understood to mean the right to be heard before anyone can be punished or prejudiced in his or her person or property by any judicial or quasi-judicial proceeding. In such circumstances, he or she must first be given an adequate opportunity of being heard. However, the principle of audi alteram partem, which forms part of the rules of natural justice, encapsulates the idea

of hearing both sides. In the past, there would be few occasions where it might be thought that the party bringing a legal proceeding might not have a fair opportunity to be heard. But the potential for plaintiffs to find themselves compelled to participate in the trial of their civil proceeding by AVL raises the question of whether in such circumstances they would be receiving a fair and adequate opportunity to be heard. As was noted by Blanchard J in Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67], “natural justice is ... a flexible concept which adapts to particular situations”.

[48] Right of access to the courts has usually been understood to involve circumstances where the right to bring a proceeding in court is at risk of removal altogether. In this regard, courts have been unwilling to read a statute as having taken away the right of a citizen to have the decisions made under that statute reviewed in the courts. Thus, privative clauses have received a “notoriously narrow construction” (at 323). But access to the court that is compromised by a party being precluded from being physically present before the court to argue his or her case raises the question of whether that party has enjoyed proper access to the court.

[49] In Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 (CA) at 72, Thomas J said, “the notion that like should be treated alike has been an essential tenet in the theory of law”. And in Patel v Chief Executive Department of Labour [1997] 1 NZLR 102 (HC) at 111, Baragwanath J said that: “The rule of law requires that a person whose factual situation is indistinguishable from another should be given like treatment”. But if a plaintiff is compelled to appear in a different way from the defendant, this means that neither party is being heard in the same way.

[50] I consider that consideration of these three established principles is relevant when there is a question as to whether legislation has taken away the right of the citizen to determine for him or herself whether he or she will be physically present in court to present his or her civil case to the court. This is because these principles are based on the idea that in a society that adheres to the rule of law, its citizens should, save for special cases, be entitled to bring their legal disputes to a court of law and to expect that once there, they will receive a fair hearing.

[51] In some circumstances, the use of AVL can enhance access to justice; for example, where it allows a court to hear evidence from witnesses who could not otherwise attend the court hearing. The Evidence Act 2006 makes provision for this. Another example would be where a party and his or her counsel live some distance from the registry of the court that is to hear the proceeding. If that party and his or her counsel seek to attend interlocutory hearings or judicial conferences by AVL and the court is satisfied that the other party will not be prejudiced, this use of AVL can only be beneficial.

[52] However, I have reservations about whether a party or counsel who is compelled to participate in a court hearing by AVL can nonetheless be said to have received an adequate opportunity to be heard, to have had access to the court in a real sense and to have been treated on like terms as the opposing party.

[53] Section 14 provides that parties who participate by AVL are to be treated as if they have participated in a courtroom, thus providing them with the protections that statute and the common law give to those who participate in civil proceedings, as well as making them subject to the law of contempt, the law of perjury and such like. However, I do not think that the section goes so far as to deem them to enjoy, in a practical and substantive sense, the same experience as those participants who are physically present in court.

[54] The experience of participating by AVL must at times necessarily be different from a physical appearance in person in the courtroom. The legislature has recognised this to some extent in the criteria specified in s 5. But this difference may affect the principle of equality before the law.

[55] Appearance by AVL means that the participant at a distance will be disadvantaged when it comes to looking at new material that is introduced by another party. Whilst case management of civil proceedings attempts to reduce this occurrence, it still happens commonly. If the participant appearing by AVL wants to direct the court’s attention to new material, it will be difficult to do so. Discussion between the parties and their respective counsel will be difficult if one group is at a remote location. The opportunity for counsel and client to confer either during court

time or at adjournments will be handicapped. It will be more difficult for concessions to be made in the course of a hearing, which is of assistance to the court.

[56] The adversarial process that is followed in the substantive hearing of a civil proceeding still does not lend itself to a situation where everything can be foreseen in advance of a hearing so that its progress can be predicted in a way that removes any surprise turns and so make it safer for a party or his or her counsel to participate by AVL from a remote location.

[57] My other concern is that a participant by AVL may not have the same quality of hearing as those who participate by their physical presence in a courtroom. In this case, for this hearing, Mr Taylor was represented by counsel; but Mr Taylor was present by AVL to observe what occurred. The background noise in the room he was in was so loud that I had to request him to apply the mute button to stop it from being broadcast in the courtroom. That removed the distraction I experienced, but it did not remove it for Mr Taylor. Had Mr Taylor been before me in court, I could have ensured that there was no background noise that might distract him. Mr Taylor had a relevant document that needed to be brought to my attention. He could not do so. This is not satisfactory.

[58] For counsel, or a party especially, participation in the substantive hearing of a civil proceeding is stressful and demanding. Whether those who participate by AVL do so suffering no additional burdens is not something I am prepared to assume. Given the newness of the regime, it is not something that judges will have experienced as counsel and so there is nothing in this way that would allow a judge to take judicial notice of what the experience is like. The regime’s newness also means that it will be unlikely that expert opinion evidence could be available to inform the Court on whether participation as counsel or party by AVL carries no significant disadvantage. But without such knowledge obtained either by judicial notice or evidence, I am not prepared to assume that there are no additional burdens that might disadvantage such persons. My own experience as counsel in public law litigation leads me to think that there would be disadvantages in arguing such a case by AVL.

[59] When it comes to appearing in a court hearing of a civil proceeding, each party and counsel has certain procedural rights and obligations under a system that strives to give all persons a fair opportunity to be heard. Unless this Court can be sure that those who participate by AVL are not under a disadvantage, it cannot be sure that it is ensuring that those who appear by AVL are receiving like treatment with those who are physically present in the courtroom and, therefore, that the procedure does not detract from their rights to a fair hearing or to access to the courts.

[60] Whilst Parliament is always free to pass legislation that overrides established rights and principles, it must do so in a way that clearly spells this out: see Cropp v Judicial Committee [2008] 3 NZLR 774 (SC) at [26] where Blanchard J, citing Bennion, Statutory Interpretation, said:

... courts should be slow to impute to Parliament an intention to override established rights and principles where that is not clearly spelt out. There is nothing new in this: it is a well established interpretative principle.

[61] In R v Secretary of State for the Home Department ex parte Simms [2000] 2

AC 115 (HL) at 131, Lord Hoffman said:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. (emphasis added)

[62] My concern with this Act is that it does not clearly spell out an intention to authorise the Court to compel any participant in a civil proceeding to appear by AVL when he or she wants to be physically present before the court. I have in [55]-[59] identified the problems I find with reading the Act in this way. Furthermore, I consider that the Explanatory Note and the reports in Hansard reveal that the full implications of the unqualified reference to “participant” in s 7(2)(b) and the impact this might have on plaintiffs in public law litigation did pass unnoticed. Whilst the

Explanatory Note shows that the legislature did turn its mind to the principles of natural justice where parties did not consent to participation by AVL in civil proceedings, there is nothing in the language of the Act that recognises that, in itself, compelling participation by AVL in civil, and particularly public law, proceedings is contrary to the rules of natural justice.

[63] Because I consider that to read the Act as the defendant would have me read it would result in an overriding of the established rights and principles that I have identified, I am not prepared to adopt that form of reading. Instead, I read s 7 to go no further than to allow any participant, as defined in s 3, who wants to appear by AVL to apply to the Court for that outcome. This way of reading s 7 results in an interpretation that accords with established rights and principles; insofar as there are disadvantages to a participant appearing by AVL, it will be that participant who has sought this form of participation and, therefore, he or she will have accepted any attendant disadvantages.

[64] If I am wrong in the way in which I have approached the Act, and it should be the case that the Act does authorise me to order Mr Taylor to participate by AVL, I am not satisfied that I should exercise that authority.

[65] Mr Taylor will be appearing at the substantive hearing in person. Thus, he will be taking on the role of counsel, as well as that of plaintiff. Even though the hearing will not involve the giving of oral evidence or cross-examination, I consider that to expect him to appear as his own counsel and to argue the application for a declaration by AVL will place him at a significant disadvantage. He will already be under the disadvantage that persons who appear for themselves are under. It will be difficult for him, as a self-represented litigant, to ensure that everything he needs to bring to the Court’s attention is filed and served before the hearing. He cannot be expected to anticipate how much of the material he currently has available to him will need to be before the Court. I cannot see how he can be expected to be able to focus on his case in the same way as he could if in a courtroom.

[66] When it comes to considering other relevant matters under s 5(d), as I must do if I am to make an order under s 7, I consider that the rights and principles I have

already discussed in regard to the interpretation of the Act are just as relevant to the exercise of discretionary authority in s 7. Those considerations cause me to conclude that in the absence of evidence to the contrary, it would be wrong for me to find that participation by AVL will have no detrimental impact on Mr Taylor’s ability to present his case. My own experience as a Judge and as counsel cause me to conclude that it would be more difficult to appear as sole counsel and argue a substantive application such as the present by AVL. I have not been directed to any evidence to the contrary. Before I concluded otherwise, I would want to be directed to evidence to that effect.

[67] Furthermore, courts have always been concerned to ensure that statutory authority of the executive or its agents is exercised lawfully. I consider that in the context of a public law claim alleging that conduct by the defendant is ultra vires, this Court should ensure that the party bringing the claim has the fullest opportunity to be heard and to have access to this Court. I could not be satisfied that that was the case if Mr Taylor’s opportunity to argue his case was restricted to participation by AVL.

[68] The defendant has raised concerns about what is entailed in bringing Mr Taylor to court so that he can attend the hearing in person. Leanne Field, who is the Assistant General Manager in the Prison Services National Office, has given an affidavit in which she identifies three main concerns regarding transporting Mr Taylor to court. First, Mr Taylor has an extensive record of disciplinary convictions for possessing and obtaining contraband, including methamphetamine, and allowing him out of prison would increase the risk of him obtaining such items. Secondly, Ms Field is concerned that Mr Taylor might pose a flight risk, as on an earlier occasion when being transported to attend the Family Court, he kidnapped two prison guards at apparent gun-point. Finally, transport itself is expensive, as four members need to accompany him for the duration of the day. Police support would also be required.

[69] In addition, following the hearing, the defendant, at the Court’s invitation, filed further evidence setting out Mr Taylor’s criminal history and his attempted escapes from custody, as well as other misconduct while a prisoner.

[70] I accept that Mr Taylor is a difficult prisoner to manage in terms of transporting him to and from court. However, an affidavit by Mr Beales in support of the application records that Mr Taylor has been outside the prison for court visits on approximately a dozen occasions in 2011. Whilst the way in which those trips were managed was demanding of resources, they were undertaken without any untoward occurrence. The occasion on which Mr Taylor attempted to escape from custody while being transported to court occurred in 2005. The overall impression I have received from the material is that Mr Taylor can be safely and successfully transported between prison and the court but at a cost. Whilst this is a concern, it cannot outweigh the fundamental rights concerns that I have already identified.

[71] I am aware that a similar application under s 7 was made before Allan J, who granted the application: see Taylor v Chief Executive of the Department of Corrections HC Auckland CIV-2010-404-6985, 21 July 2011.

[72] In that decision, Allan J found that although there was an increased risk of accessing contraband, given the stringent security arrangements, the risk is not high. However, he found the risk of an escape to be real and not imaginary, given the fact that the plaintiff had in the past overpowered guards to make his escape on being transported to a Family Court conference. This is the occasion in 2005 to which I have also referred. Whilst I also accept the incident is of concern, the numerous trips that have been made to court since then without incident cause me to be less concerned about the possibility of escape than Allan J was.

[73] Allan J found that as cross-examination was unnecessary, the defendant’s security concerns were well-founded. Allan J rejected that cost should be a compelling factor, but agreed that there would be some savings in time and costs if participation is undertaken by AVL.

[74] In considering the nature of the proceedings, Allan J suggested that if there were a need for oral evidence and cross-examination during the hearings, the question of the desirability of AVL could be revisited. He found that there was available and satisfactory technology at Auckland Prison. In terms of the impact on other parties, there was only one defendant and it was the one making the

application. I note that the Judge found one of the factors that would make Mr Taylor’s case for personal appearance stronger would be if he were to be appearing in a substantive rather than interlocutory proceeding.

[75] I have considered carefully the approach taken by Allan J. He did not direct his attention to the concerns that have weighed so heavily in my decision. With the greatest respect to Allan J, I find that I cannot reach the same conclusion that he did. It follows that the defendant’s application for an order under s 7 is dismissed.

Amicus curiae

[76] On 31 May 2012, I delivered a result judgment directing the appointment of counsel to assist the Court. At a judicial telephone conference before Wylie J on

19 October 2011, Mr Taylor queried if the appointment of counsel to assist the court was required. Wylie J rejected the idea at that time but recorded that the issue may need to be revisited once the defendant had filed his evidence. At the time of the judicial conference, Mr Taylor had made no formal application to the court to appoint an amicus. I considered that there was nothing in these earlier circumstances that precluded me from hearing and determining the application to appoint an amicus. I now set out my reasons for making that direction.

[77] Mr Taylor will be representing himself. Despite his knowledge of the law, he submits that an amicus should be appointed to assist the court so as to ensure that all relevant arguments are placed before it.

[78] The defendant submits that the appointment of amicus is inappropriate because such appointment is rare in criminal proceedings and should be even more restricted in civil proceedings, especially since Mr Taylor is well-versed in legal proceedings and familiar with Corrections Regulations. The Court of Appeal had previously decided that transferring the obligation in relation to the case on appeal and bundle of authorities to the respondent is more appropriate than appointing an amicus to do what is, in effect, a clerical exercise: Taylor v Chief Executive of the Department of Corrections [2010] NZCA 203 at [7]. As the appointment of an

amicus must assist the Court rather than merely the plaintiff himself, such appointment would be inappropriate in this case.

[79] In R v Hill [2004] 2 NZLR 145 (CA) at [56], the Court of Appeal noted that there was little New Zealand authority guiding the exercise of the discretion to appoint an amicus, and cited the High Court of Australia decision of Levy v Victoria (1997) 189 CLR 579 (HCA) at 605, which stated that:

All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

[80] However, the appointment of counsel to assist the court in civil proceedings is well established. Gazley v Attorney-General [1995] 8 PRNZ 313 is an example where amicus was appointed in a proceeding under the Declaratory Judgments Act. In that case, Mr Gazley, who was legally qualified, appeared for himself; the Attorney-General appeared to oppose the application, and there were interveners for the New Zealand Law Society and the New Zealand Bar Association. Nonetheless, Mr Barton QC was appointed as amicus.

[81] The present proceeding involves a challenge to the vires of rules that the defendant has made prohibiting smoking in Auckland Prison. The rule is made under s 33 of the Corrections Act 2004. Section 6A of the Smoke-Free Environments Act 1990 provides for a smoking policy in prison cells to be prepared. Regulation 158(1)(h) of the Corrections Regulations 2005 covers when a prisoner may be forbidden from purchasing anything other than certain specified items, which include tobacco. It might therefore be inferred that tobacco is something that is exempt from prohibition.

[82] I anticipate that the argument for Mr Taylor will be that the authority given to the defendant to make rules do not go so far as to permit rules that impose an outright prohibition on the use of tobacco. Whether the power to regulate includes a power to prohibit is an issue that has arisen in a number of administrative law cases on the application of the ultra vires principle. Furthermore, the interpretation of a general power to make rules affecting prisoners and the extent of the interference

that they permit is an issue that has been the subject of judicial attention in many cases, some of which have involved courts at the highest appellate level; for example, see R v Secretary of State for the Home Department ex parte Simms and in New Zealand, Drew v Attorney-General. The law in this area is not straightforward. As a matter of general comment, Lord Nicholls in R v Wicks [1997] UKHL 21; [1998] AC 92 (HL) said at 106 that: “[c]hallenges to the lawfulness of an order often raise complex and sophisticated issues”. Whether this proceeding raises legal issues of similar complexity to those in Drew or in Simms is an issue yet to be determined but the fact that it might is sufficient to support the appointment of an amicus.

[83] If the declaration Mr Taylor seeks is refused, the practical effect will be to give this Court’s imprimatur to the present rule prohibiting tobacco in prisons. In a proceeding like the present, there is the potential that without the assistance of an amicus, the judge hearing the proceeding might overlook some relevant argument that could determine the outcome of the case. If that were to occur in circumstances where there were sound arguments against the rule’s vires that were not brought to the judge’s attention, the rule would be upheld inadvertently. Such an outcome would be unfortunate and embarrassing for the Court. The appointment of an amicus would avert this risk.

[84] The appointment of an amicus can also maintain judicial distance from the arguments, as the alternative to the judge not hearing all the relevant arguments is for that judge to look for them for himself or herself. In Drew v Attorney-General [2001] 2 NZLR 428 (CA), in particular at [16]-[18], McGrath J set out the considerations to be taken into account when the Court was considering permitting an intervener to participate in what was a public law challenge (including ultra vires) to the validity of a regulation in the Penal Institutions Regulations 1999. The New Zealand Council for Civil Liberties sought to intervene and be heard in an appeal against a decision of this Court dismissing an application for judicial review. I consider that the comments of McGrath J, who delivered the Court of Appeal’s judgment, are also relevant when considering whether to appoint an amicus in a public law challenge where the plaintiff will be appearing for himself. First, at [15], McGrath J recognised that such proceedings involve a contest between a citizen and the State. Then, at [16], McGrath J said:

Furthermore, bodies such as the applicant bring and are seen to bring a political motivation to the litigation in which they take part in the sense that their purpose is often to have the currently understood state of the law either changed or reaffirmed, depending on the context. In New Zealand policy decisions of this kind are generally the role of the legislature assisted by the executive government. The Court needs to be sensitive to any suggestion that it is conducting a form of judicial inquiry into desirable policy in this area. That is a further factor reinforcing the Court's traditional restraint in allowing those not parties to the appeal to participate in cases involving questions of public law.

[85] Whilst alert to the identified concerns, the Court of Appeal nonetheless approved the intervention. Whether prisons should be smoke-free and therefore whether prisoners should be denied the opportunity to smoke tobacco is a policy question for the executive to determine. But whether the implementation of such policy has been done lawfully is a question for the courts. Irrespective of the merits of the policy, if its implementation is done unlawfully, it is the duty of the courts to strike down such unlawfulness. The potential for the court hearing a public law challenge of this type to be seen to be conducting a judicial inquiry into the merits of the policy is something of which all judges need to be mindful. There is an even greater danger that a court will get drawn into the search for competing relevant arguments when the plaintiff is a prisoner who is not legally represented.

[86] The role of the amicus is to place before the Court any relevant arguments that were not addressed by either party. The appointment of an amicus is therefore not done to assist Mr Taylor, or to ensure that he has legal representation. It is done to assist the Court so that the judge who hears the substantive matter has his or her attention directed to all relevant arguments that can be made, and can maintain appropriate judicial distance from the inquiry that needs to be made. This would reduce the potential for the Court to be seen as conducting its own inquiry into the validity of the rule being challenged. The considerations that apply here are different from those that apply in criminal proceedings where the reason for appointment of amicus is related to the fair trial concerns for an accused person. The considerations are also different from those that apply when the appointment is sought for a civil proceeding that raises private law issues, such as the appeal Mr Taylor made to the Court of Appeal regarding his contact visits with his daughter: see Taylor v Chief Executive of the Department of Corrections.

[87] It follows that, for the reasons outlined, I am satisfied that an amicus should be appointed.

Result

[88] The defendant’s application under s 7 for an order that Mr Taylor participate

in the substantive hearing of this proceeding by AVL is dismissed.

[89] Mr Taylor’s application for an order appointing an amicus is granted.

[90] As Mr Taylor was represented in this proceeding, he can, if he wishes, apply for costs.

Duffy J

Counsel: C J Tennet P O Box 12456 Thorndon Wellington 6140 for the Plaintiff

Solicitors: Crown Law P O Box 2858 Wellington 6140 for the Defendant

Copies To: Department of Corrections Private Bag 1206 Wellington 6140

Hickey Law (J P Hickey) P O Box 100802 North Shore Auckland 0745

A W Taylor Private Bag 50124 Albany North Shore Auckland 0752

Media Works 3 News TV Works Ltd (A Harley, Chief of Staff; C Bradley, Legal Counsel; M Morrah, Journalist) Private Bag 92624 Symonds Street Auckland 1150