Forrest v Chief Executive of the Department of Corrections [2014] NZHC 2492 (10 October 2014)

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UNDER	The New Zealand Bill of Rights Act 1990 and Common Law
IN THE MATTER OF	A claim under the New Zealand Bill of Rights Act 1990 and Common Law
BETWEEN	BRENDON DOUGLAS NEAL FORREST Plaintiff
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:	24 September 2014
Counsel:	B Forrest in Person (by Audiovisual Link from Paremoremo Prison) M Rose (present in the Court at Wellington as Mckenzie Friend, with telephone link to Mr Forrest) K Laurenson and M Reddy for the Defendant
_Judgment:	_{10 October 2014}

[1] Mr Forrest sues the defendant for an assault which he alleges was committed by Corrections Department officers in July 2013, while he was an inmate at Rimutaka Prison.

[2] The defendant now applies for an order for security for costs, on the basis that Mr Forrest will not be able to pay any costs he might be ordered to pay if he is not successful with his claim. Mr Forrest acknowledges that he would not be able to pay costs if his claim is unsuccessful, but says that the Court should exercise its

BRENDON DOUGLAS NEAL FORREST v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 2492 [10 October 2014]

[4] On 26 July 2013 at approximately 10.15 am Mr Forrest was moved from the prison’s “At Risk Management Unit” and driven to the “High Medium 13/14 Unit”. There he was placed in the programmes room while he waited for Corrections Department officers to come to carry out his induction into the new unit.

[5] Mr Forrest became disturbed while he was waiting in the programmes room, and decide to barricade the door with some office furniture which was in the room. There were two closed circuit television cameras in the room, and, after having spent

44 minutes in the room, he covered the cameras over with paper. He explains that he was paranoid, and concerned at the possibility of being assaulted (presumably by fellow prisoners) in the new environment.

[6] Two Corrections officers endeavoured to gain entry into the programmes room, and were eventually able to push the door in sufficiently for one of them to gain entry. At that point, Mr Forrest picked up a heavy wooden tray and threw it in the direction of the officers. They took evasive action, and left the programmes room.

[7] The alarm was sounded, and four Corrections officers (including the two officers who had originally entered) subsequently forced their way into the programmes room. Mr Forrest says that he then realised that he could not resist the four officers, and lay prone on the floor in a “surrender” position. He says that he was then assaulted by two of the officers. He says that one of the officers (Officer M) grabbed his head and slammed it into the floor, while another (Officer W) kicked him in his head. He says that he received injuries in the form of bruising and swelling to his face and head, and that he has since suffered from headaches which he puts down to the incident.

[8] The Corrections officers deny that any assault occurred. They say that no more than reasonable force was applied to control and restrain Mr Forrest in the circumstances. They deny that he was lying on the ground when the four officers entered the room. They say that Mr Forrest offered some initial resistance while still

on his feet, and was then forced to the ground in an approved control and restraint hold. They say that he continued to resist restraint on the floor, in particular lying with his left arm underneath him and obliging an officer to force him to release his arm so that Mr Forrest’s hands could be handcuffed behind him. The defendant says that Mr Forrest was calling out obscenities and protesting while he lay on the ground.

[9] Mr Forrest does not deny that he continued to resist on the floor, and he acknowledges calling out obscenities while he was on the floor.

[10] The defendant acknowledges that Mr Forrest suffered a small abrasion on his nose and slight redness on his forehead, and a senior Corrections officer who saw Mr Forrest on the afternoon of the incident noted, in addition to the nose injury, that one of Mr Forrest’s cheeks was discoloured bluish-grey, and seemed puffy in comparison with his other cheek. Otherwise the defendant denies that Mr Forrest suffered the injuries he claims to have suffered.

[11] Mr Forrest issued this proceeding on 1 September 2013. In it, he claimed damages of $5,000 for assault and battery and, in a second cause of action, a declaration that the defendant breached his right under s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA) to be treated with humanity and with respect for his inherent dignity.¹In addition to the declaration, Mr Forrest seeks public law damages of $10,000 for the alleged breach of s 23(5).

[12] The defendant has filed a statement of defence, and the parties have completed discovery and inspection of documents. A number of telephone conferences have been convened to deal with various matters raised by Mr Forrest. Mr Forrest has served his briefs of evidence for trial, but the defendant has not yet

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[13] The defendant asks for an order for security for costs in the sum of $10,000, with that sum to be paid into court within three months of the order for security. It also applies for an order that the proceedings be stayed until the security is paid into court.

[14] In his statement of defence, the defendant pleads affirmatively that Mr Forrest’s claims for compensatory damages are barred by the provisions of The Accident Compensation Act 2001.

[15] In his written submissions on the security for costs application, Mr Forrest indicated that he would only be proceeding with his claim under the NZBORA.

[16] Mr Forrest has at least eight civil proceedings presently pending in this Court at Wellington, including this case. The Chief Executive of the Department of Corrections is the named defendant in at least four of those cases, and the Inspector of Corrections and the Rimutaka Prison Department of Corrections are the named defendants in two others. In a minute dated 3 September 2014, Collins J noted that these cases have a degree of commonality, although each raises separate issues and different counsel within the Crown Law Office were working on the various claims. His Honour expressed the wish that all of Mr Forrest’s claims should be heard and determined expeditiously, and indicated that it might be appropriate to arrange for the eight cases to be heard in one block of time by one judge. However no order has yet been made to that effect.

(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(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.

(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—

(5) A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

[18] In McLachlen v MEL Network Ltd the Court of Appeal provided the following guidance on the exercise of the court’s discretion in deciding whether to make an order for security for costs under the rule: ²

Whether or not to order security and if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances. The discretion is not to be fettered by constructing “principles” from the facts of previous cases.

While collections of authorities such as that in the judgment of Master Williams in Nikau Holdings Ltd v BNZ (1992) 5 PRNZ 430, can be of assistance, they cannot substitute for a careful assessment of the circumstances of the particular case. It is not a matter of going through a checklist of so-called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a requirement for the making or refusing of an order, in quite different circumstances.

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 which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not likely to be denied.

²McLachlen v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA) at [13] – [16].

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.

[19] As far as possible, the Court is required to assess the merits and prospects of success of the plaintiff’s claim. If a plaintiff ’s claim has limited prospects of success, or the claim might be considered a disproportionate response, the chances of an order for security being made are higher.³In Goston, Rodney Hansen J stated that the merits of the plaintiffs’ claim and its prospects of success, were of “paramount importance”.⁴

[20] In Bevan-Smith, Associate Judge Sargisson considered that, if the effect of making an order for security would deny the plaintiff the opportunity to have his or her case heard, security should only be ordered after careful consideration and in a case in which the claim has little chance of success.⁵

[21] In Highgate on Broadway Ltd v Devine, Kós J noted that the imposition of security is not an automatic consequence of the plaintiff ’s impecuniosities.⁶The Judge listed a number of considerations which may be relevant in particular cases, while noting that the issue will always be one for the judge’s discretion on the particular facts of the case. Among the considerations proposed by Kós J in Highgate on Broadway Ltd were the following:⁷

While the Court hearing a security for costs application cannot generally do more than form an impression of the merits, if it is able to say that the plaintiff’s claim is prima facie unmeritorious, that will

(2) Would the denial of security for costs be oppressive to the reasonable interests of the defendant?

While the Judge noted that where an order for security would be likely to result in the denial of access to justice, an award may be considered “entirely exceptional”. But in some situations, allowing litigation to proceed without the checks and protection of security will be oppressive to the interests of other parties, particularly where the litigation is unjustified or unmeritorious, over-complicated or unnecessarily protracted.

(3) Would an order of security deprive the plaintiff of the capacity to advance a prima facie meritorious claim?

Under this heading, the Judge noted that access to justice should be considered an essential human right. The cost of exercising that right is the payment of costs in the event of failure, but the right of a successful defendant to costs in that event is arguably subordinate to the plaintiff’s right to be heard. As the Judge put it, strong social policy considerations favour the use of Courts as an accessible forum for the resolution of disputes and grievances of almost all kinds. Only where a clear impression can be formed that the plaintiff’s claim is altogether without merit – so that in the alternative it would be amenable to being struck out – would it be right for security to be ordered where to do so would bring the plaintiffs’ claim to a dead halt.

Undue delay by the defendant in applying for security may be a factor in denying an order. That is particularly so where the plaintiff has been led on to continue to prosecute his or her claim and incur expense. A defendant must act promptly where he or she has reason to believe the plaintiff may be unable to meet a costs award.

Under this heading, Kós J noted that any behaviour of either party that is contemptuous or oppressive will be significant, but the whole spectrum of each party’s conduct in relation to the litigation and its subject matter should be considered.

[22] I do not consider this is a case where I should exercise my discretion in favour of making an order for security for costs.

[23] The first consideration is the merits of Mr Forrest’s case. An internal investigation carried out by prison staff after the incident on 26 July 2013 was inconclusive. That investigation was itself the subject of overview by the Inspector of Prisons, but the inspector who completed a report on 8 December 2013 on the alleged assault on Mr Forrest concluded that further investigation would be unlikely to achieve a more definitive outcome given that Mr Forrest had covered up the closed circuit television cameras in the programmes room. There was considered to be no evidence to support Mr Forrest’s allegation, and that any further investigation within the prison system was unlikely to achieve a more definitive outcome. Under a heading “The Local Prison Conclusions” the inspector recorded:

The Fact Finding Review did not make any conclusion/recommendations as the matter had been referred to the Police to investigate. However Prison Management conducted a full and comprehensive post Use of Force review and found that no further action was required with respect to this matter.

[24] The monitoring inspector noted that Mr Forrest had filed a complaint with the police, and that the monitoring assignment would be revisited in the event that the police came to a different conclusion from those who had conducted the prison’s internal investigation.

[25] On 15 March 2014, the police advised that they had investigated Mr Forrest’s assault complaint, and that, based on the evidence established in the course of their investigation, intended to take no further actions in respect of his allegations. Mr Forrest’s complaint was not seen as meeting the evidential threshold for a criminal prosecution against the officers concerned (Officers M and W), and the police found no substantial independent evidence to corroborate Mr Forrest’s complaint.

[26] Affidavits were filed in support of the application by three of the Corrections officers who were involved in the restraint of Mr Forrest in the programmes room on

26 July 2013. In general terms, the officers gave similar accounts of the incident. Officer W said that when he entered the programmes room Mr Forrest was standing in a boxing stance with his fists held up to his face. Officer W stated that he administered a control and restraint hold on Mr Forrest, and got him onto the ground. Two other officers were right behind him, and “locks” were applied to restrain Mr Forrest while he lay on the ground. Mr Forrest was subsequently placed in handcuffs by the fourth officer who entered the room.

[27] Office W denies kicking Mr Forrest in the head, and says that there was no malice in anything the officers did.

[28] One of the first two officers to enter the programmes room stated that he remembered Mr Forrest struggling with Officer W as Officer W was trying to restrain him. He confirmed that Mr Forrest had been holding his hands up in a boxing stance. He said that Mr Forrest “struggled a bit” once he was locked in position on the ground. This officer stated that Officer M “secured Mr Forrest’s head” and turned Mr Forrest’s head sideways so that he could breathe.

[29] The third affidavit in support of the application was from a principal corrections officer. He was the fourth officer to enter the programmes room, and it was he who put the handcuffs on Mr Forrest when he was lying on the floor. This officer stated that Officer M, who was securing Mr Forrest’s head, acted in the approved manner, while officer W and the other officer were holding Mr Forrest’s

arms in approved locks. He stated that he checked that Mr Forrest’s head was held

[30] There was no affidavit from Officer M. He was one of the first two officers on the scene, and the one who is said to have secured Mr Forrest’s head. Mr Forrest alleges that it was Officer M who banged his head on the ground. Officers W and M are the officers who were later the subject of Mr Forrest’s complaint to the police. Why there was no affidavit by Officer M was not explained at the hearing.

8 August 2013 to the Deputy Prison Manager. In his report, Mr Morgan stated that two officers pushed through the door and took Mr Forrest to the ground, using appropriate control and restraint holds. He made no mention of Officer M. It was not explained why Officer M, who clearly had a role in bringing Mr Forrest under control during the incident, was not mentioned in Mr Morgan’s report. Mr Morgan stated in his report that he had interviewed the other three officers, but he made no mention of any interview with Officer M.

[32] There may be some perfectly reasonable explanation why the officer who secured Mr Forrest’s head and was one of those subsequently accused by Mr Forrest of assault was apparently not interviewed by the Prison’s residential manager, and why that officer has not provided any affidavit setting out his account of the incident (when the other three officers who were involved were interviewed by Mr Morgan and have provided affidavits). But the absence of sworn evidence from all of those who were involved in the incident, and the residential manager’s apparent ignorance of the involvement of one of the officers, does make it difficult for the Court in an interlocutory application such as this to conclude that Mr Forrest’s case is so weak that he should be denied access to the Court. (It is common ground that if an order for security is made as proposed by the defendant Mr Forrest will not be able to pursue his claims any further.)

[33] I note also that Mr Morgan, having interviewed three of the officers who were involved in the incident, stated in his report that “the prisoner was compliant throughout the ordeal and no force more than necessary was used”. Without

evidence from Mr Morgan it is not clear how that statement may be reconciled with the recollection of those directly involved in the incident that Mr Forrest struggled while the officers were trying to restrain him.

[34] On the other side of the coin, there will clearly be questions at trial over the

[35] It was common ground that, in the absence of any closed circuit television footage of the incident, the outcome on the question of whether excessive force was used is likely to come down to the word of Mr Forrest against the words of the officers who were involved. It may be that some assistance can be derived from the nature of Mr Forrest’s injuries as reported by prison nursing staff and others who saw him after the incident, but my impression is that that evidence is unlikely to be decisive on the question of whether the injuries sustained were the result of excessive force as Mr Forrest contends, or merely the result of reasonable force being used to control and restrain Mr Forrest.

[36] In the end, I am not persuaded that Mr Forrest’s claim is so clearly unmeritorious that his “essential human right” of access to the court should be denied.⁸I note in particular that investigations carried out by the prison and by the police have been inconclusive, and that the defendant acknowledges that the outcome is likely to depend on the credibility of Mr Forrest’s account of the incident and the credibility of the accounts given by the Corrections officers. Assuming the three Corrections officers give the same evidence at trial that they have given in their affidavits sworn in support of the security for costs application, a simple “head

count” of witnesses might appear to favour the defendant on the question of whose account of the incident is to be believed. But I do not think it appropriate to approach the credibility question in that way, particularly where one of the Corrections officers (who Mr Forrest has accused of assault) has not provided an affidavit. A credibility finding of that sort cannot be made reliably without the benefit of seeing the witnesses under cross-examination. In the words of Kós J in

_{Highgate on Broadway Ltd, I am not satisfied that it would be
right in this case for}

⁸Highgate on Broadway Ltd v Devine, above n 7, at [22](e) and [23](b) set out in this judgment at

Mr Forrest’s claim to be brought to a “dead halt” by making an order for security for

[37] Ms Laurenson for the defendant submitted that Mr Forrest’s conduct was such that he has brought the present situation on himself, and that it would be just to make an order for security in those circumstances. She submitted that, if Mr Forrest had not covered over the closed circuit television cameras, the defendant would be able to prove its case without any room for argument.

[38] Ms Laurenson is clearly right in pointing out that Mr Forrest’s conduct has resulted in television footage of the programmes room during the critical period not being available. And for his part, Mr Forrest has been frank in acknowledging that he should not have acted as he did, and should not have papered over the cameras. I accept that the conduct of the parties is a relevant consideration in balancing the competing interests in a security for costs application,¹⁰and that Mr Forrest’s conduct is a factor to be weighed against him in the required balancing of interests.

[39] But that factor is not in my view sufficient to tilt the scales in favour of making an order for security. It does not alter my conclusion that the evidence does not reach the threshold of showing that Mr Forrest’s case is so weak that he should be denied access to the Court. Other factors in my view also weigh against the making of an order.

[40] First, this is not a complex claim which will require a lengthy hearing. The scope of the dispute is narrow, and it is difficult to see more than one or two days being required for the hearing. Indeed, it may be possible to accommodate a trial of this case within the block of time which Collins J had in mind for hearing all (or most) of Mr Forrest’s claims before the same judge.

[41] A further consideration is that the defendant did not immediately make an application for an order for security, notwithstanding that he has known of

_{Mr Forrest’s relevant conduct and likely impecuniosity from
the outset. The}

application was not filed for some seven or eight months after Mr Forrest commenced his proceeding. While that delay is not particularly great, the general principle is that a defendant who is aware that the plaintiff may not be able to meet a costs award should act promptly once that fact is known.¹¹Delay is a minor factor in this case, but it weighs in Mr Forrest’s favour.

[42] Ms Laurenson submitted that the claim is a small one, indeed so small that most people would not have bothered to bring it. That may be so as far as the financial relied sought is concerned, but I think that where there are allegations of impropriety by corrections officers exercising control over a prison inmate, the fact that any damages award is likely to be small should not be a disqualifying or decisive factor in favour of the defendant.

[43] Weighing all the considerations, I decline to exercise my jurisdiction in favour of making an order for security. The case is best left to go forward to a hearing, preferably with Mr Forrest’s other claims if that can be arranged.

[44] Before leaving the case, I add that Mr Forrest should not read this decision as somehow endorsing his claims against the defendant. It is a long way short of that. A determination of the merits of his claims will only be possible on hearing the evidence at trial, and this decision does no more than reflect my view (after balancing the various factors relevant to the exercise of my discretion) that Mr Forrest should not be denied his day in court.

[45] The application for security for costs is refused. Mr Forrest has been representing himself, and in those circumstances I make no order for costs.

High Court of New Zealand Decisions

Forrest v Chief Executive of the Department of Corrections [2014] NZHC 2492 (10 October 2014)