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High Court of New Zealand Decisions |
Last Updated: 29 August 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-771 [2016] NZHC 1737
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UNDER
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the New Zealand Bill of Rights Act 1990
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IN THE MATTER
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of a claim for damages
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BETWEEN
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KERRYN MITCHELL Plaintiff
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AND
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THE ATTORNEY-GENERAL Defendant
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Hearing:
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12 May 2016 (via AVL)
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Counsel
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K Mitchell in Person
D H Harris and T P Westaway for Defendant
A W Taylor (Intended Plaintiff) in Person
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Judgment:
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28 July 2016
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JUDGMENT OF CLARK J
Introduction
[1] This judgment determines two interlocutory applications, one by the
plaintiff Ms Mitchell and the second by Arthur William
Taylor, to have Mr Taylor
joined to this proceeding as a plaintiff. At the time of the hearing of the
interlocutory applications
both Mr Taylor and Ms Mitchell were serving
prisoners. Ms Mitchell has since been released.
Background
[2] The genesis of this proceeding is in the withholding of two letters that Ms Mitchell wrote to Mr Taylor in March and April 2013. The prison manager at Arohata Women’s Prison (Arohata) wrote to Ms Mitchell and explained that her two letters to Mr Taylor had been withheld for reasons that were justified under the
Corrections Act 2004.
MITCHELL v THE ATTORNEY-GENERAL [2016] NZHC 1737 [28 July 2016]
[3] Ms Mitchell commenced judicial review proceedings. Shortly
thereafter the
prison manager revoked the decisions to withhold Ms Mitchell’s letters
to Mr Taylor.
[4] The Crown applied to strike out Ms Mitchell’s judicial review
proceedings. Collins J struck out the proceeding as
disclosing no reasonably
arguable cause of action.1 That was because the prison
manager’s errors had been rectified and the proceeding was therefore moot.
The Judge emphasised
that in striking out the proceeding he was not
trivialising the conduct of the prison manager whose decisions to
withhold
Ms Mitchell’s mail were unlawful. As well, on the face of those
actions they “breached the rights guaranteed to Ms Mitchell
in ss 14 and
21 of the New Zealand Bill of Rights Act 1990 (NZBORA).”2 Ms
Mitchell was expressly “permitted to change her ... proceeding into a
claim for damages for breach of the NZBORA”.3
[5] This proceeding, filed in October 2015, is Ms Mitchell’s
claim for damages
for breach of her NZBORA rights.
The applications for joinder
[6] Ms Mitchell filed her application to join Mr Taylor in November
2015. The application is made pursuant to r 4.2 of the
High Court Rules. An
order is sought adding Mr Taylor as a “joint applicant” on the
grounds that it would be in the
interests of justice for him to be joined, that
he consented to be joined and there is no undue prejudice to any
party.
[7] Mr Taylor’s application for joinder, filed in November 2015, relies on s 10(2)(b) of the Judicature Amendment Act 19724 and rr 4.2 and 4.56 of the High Court Rules. The further grounds are that Mr Taylor’s intended claim arises from the same documents and circumstances as Ms Mitchell’s claim. The letters Ms Mitchell wrote were intended for Mr Taylor and his s 14 NZBORA right to receive that
information has been breached. Further, there are important public
interest issues at
1 Mitchell v Attorney-General [2013] NZHC 2836.
2 At [29], [32], and [36].
3 At [40].
4 Section 10 gives power to a Judge to make such directions as are necessary to ensure an application for judicial review under the Judicature Amendment Act is expedited and all issues are effectively and completely determined.
stake including that jailers treat prisoners in accordance with the law, that
breaches of freedom of expression are sanctioned and
that the prison
manager’s engagement in a pattern of such behaviour in relation to the
treatment of prisoners in her charge
requires formal condemnation.
[8] The defendant opposes the joinder of Mr Taylor on the grounds that
his joinder as a plaintiff is not necessary to
adjudicate on and
settle the questions involved in Ms Mitchell’s claim. The grounds
advanced in the application include
matters beyond the scope of Ms
Mitchell’s proceeding and his joinder would not secure the just, speedy
and inexpensive determination
of the proceeding.
Principles applicable to joinder
[9] Power to strike out and add parties is given by r 4.56 of the High
Court
Rules.
4.56 Striking out and adding parties
(1) A Judge may, at any stage of a proceeding, order that—
(a) the name of a party be struck out as a plaintiff or defendant because the
party was improperly or mistakenly joined; or
(b) the name of a person be added as a plaintiff or defendant
because—
(i) the person ought to have been joined; or
(ii) the person’s presence before the court may be
necessary to adjudicate on and settle all questions involved
in the
proceeding.
(2) An order does not require an application and may be made on terms the
court considers just.
...
[10] The status which a party seeks in being joined to litigation is
relevant to the
exercise of the Court’s discretion. Rule 4.2 provides for the joinder of plaintiffs.
4.2 Plaintiffs
(1) Persons may be joined jointly, severally, or in the alternative as
plaintiffs,—
(a) if it is alleged that they have a right to relief in respect of,
or arising out of, the same transaction, matter,
event,
instrument, document, series of documents, enactment, or bylaw; and
(b) if each of those persons brought a separate proceeding, a common
question of law or fact would arise.
(2) On the application of a defendant, the court may, if it considers
a joinder may prejudice or delay the hearing of a proceeding,
order separate
trials or make any order it thinks just.
[11] The relationship between r 4.56 and r 4.2 is that once a proceeding
is commenced and a further party is sought to be added
an order adding that
additional person is required under r 4.56. Thus the first requirement is a
jurisdictional threshold. Once
that threshold is met the principles governing
the joinder of plaintiffs, or defendants, as the case may be, are to be found in
r
4.2 and r 4.3.5 As Mr Taylor seeks to be joined as a plaintiff, r
4.2 will become relevant but only once the jurisdictional threshold is
satisfied.
The test for joinder under r 4.56
[12] A person is regarded as a party who “ought to have been
joined” in terms of
r 4.56(b)(i) if the presence of the party is necessary to do
justice.6
[13] The test for joinder under r 4.56(b)(ii) is accepted to be that
articulated in Pegang Mining Co Ltd v Choong Sam.7
Lord Diplock noted the “voluminous judicial exegesis” to
which the English equivalent of r 4.56 had been subject. He
observed (emphasis
added):8
The cases illustrate the great variety of circumstances in which it may be
sought to join an additional party to an existing action.
In their
Lordships’ view one of the principal objectives of the rule is to enable
the Court to prevent injustice being done
to a person whose rights will be
affected by its
5 See for example Doug Andrews Heating and Ventilation Ltd v Dil [2012] NZHC 2534 at [16].
7 Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 (PC).
8 At 55–56.
judgment by proceeding to adjudicate upon the matter in dispute in the action
without his being given an opportunity of being heard.
To achieve this
objective calls for a flexibility of approach which makes it undesirable in the
present case, in which the facts
are unique, to attempt to lay down any general
proposition which could be applicable to all cases.
It has been sometimes said ... that a party may be added if his legal
interests will be affected by the judgment in the action but
not if his
commercial interests only would be affected. While their Lordships agree that
the mere fact that a person is likely to
be better off financially if a case is
decided one way rather than another is not a sufficient ground to entitle him to
be added
as a party, they do not find the dichotomy between “legal”
and “commercial” interests helpful. A better way of expressing
the test is: will his rights against or liabilities to any party to the action
in respect of the subject
matter of the action be directly affected by any order
which may be made in the action?
[14] In Mainzeal Corporation Ltd v Contractors Bonding Ltd Barker
J reviewed English, New Zealand and Commonwealth authorities, including
Pegang, and concluded that applying the tests as variously expressed the
party who had applied to be joined as a defendant (a company in
liquidation)
should be joined because—9
its presence is necessary to ensure that all matters in dispute amongst the
parties may be effectively and completely determined.
[15] In Capital + Merchant Finance Ltd (in rec and in liq) v Perpetual
Trust Ltd Thomas J conducted a comprehensive review of the authorities for
the purpose of determining the application before her. The party
sought to be
joined not as a plaintiff or defendant but as an “interested party”.
The Judge applied what she termed “the
Penang/Mainzeal
approach” 10 noting the test had been followed in other
cases where parties sought joinder as “interested parties” to
judicial review
proceedings.11
[16] Limiting joinder of plaintiffs or defendants to those whose rights (against or liabilities to, any party to the action) may be directly affected by an order sits compatibly with r 4.1 which seeks to limit the number of persons joined as parties to
those whose presence before the Court is necessary to justly determine
the issues
9 Mainzeal Corporation Ltd v Contractors Bonding Ltd [1989] NZHC 35; (1989) 2 PRNZ 47 at 51.
11 Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724,
18 October 2006 at [26]; Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 19 July 2002 at [22].
arising; and who ought to be bound by any judgment given. The
authors of
McGechan comment in respect of r 4.1:
The underlying policy is to limit the number of parties both originally named
and subsequently joined as far as practicable to those
(a) whose presence before
the court is necessary to justly determine the issues arising or (b) who should
be bound by any judgment
given.
[17] If the Court is satisfied that joinder is necessary to ensure all
matters in dispute between or amongst the parties
may be effectively
and completely determined the Court has a discretion whether to order
joinder.
[18] It can be seen then that the effect of the judicial gloss on r 4.56, and its English equivalent, is to clarify the “necessity” requirement: the rights and liabilities of the party seeking joinder must be rights against, or liabilities to, a party to the action. That said there is broader scope for joinder in judicial review proceedings because of the greater scope for the rights of others to be affected by judicial review
proceedings “than in other types of ‘plaintiff versus
defendant’ civil litigation ... ”.12
Applicants’ submissions
[19] Mr Taylor submits that the defendant’s submissions opposing
joinder are overly refined and exaggerate the difficulties
that are claimed will
arise should the application be granted.
[20] Mr Taylor says important rights are at stake. The defendant has breached both Ms Mitchell’s and Mr Taylor’s rights under ss 14 and 21 of NZBORA. There can be no question, Mr Taylor contends, that he is entitled in his own right to bring a damages claim for breach of ss 14 and 21 based on the same facts that Ms Mitchell relies on namely, the unlawful withholding of Ms Mitchell’s letters to Mr Taylor dated 28 March 2013 and 22 April 2013, as well as Mr Taylor’s to Ms Mitchell of
20 July 2013.
12 See Wilson v Attorney-General [Judicial Conduct] (No 2) [2010] NZHC 1241; [2010] NZAR 509 (HC) where the Full Court allowed joinder of an “interested party” although the interest was only indirectly affected and despite it being unlikely that the party could add anything to the argument.
[21] Mr Taylor also submits that the full context is necessary. If
joined Mr Taylor would file evidence to show that prior to
these circumstances
the manager withheld correspondence between Mr Taylor and other prisoners in her
charge and had been found by
the Prison Inspectorate and Ombudsman to have acted
“unreasonably” in relation to that.
[22] Both Mr Taylor and Ms Mitchell highlight what is described as an
inequality
of resources. Mr Taylor describes the defendant’s opposition
as
all about taking advantage of a distinctly uneven playing field and ensuring
an outcome based more on inequality of resources than
on the merits of the case.
They have taken full advantage of their custodial control of her to deny Ms
Mitchell access to essential
“tools” such as word processing
facilities, adequate research materials and case law.
[23] In addition to her affidavit in support of her interlocutory application for joinder Ms Mitchell filed detailed submissions. Ms Mitchell’s oral submissions were focussed and succinct. In reliance on NZX Ltd v Ralec Commodities Pty Ltd13
Ms Mitchell submitted that a liberal approach is taken to
joinder.
[24] Ms Mitchell emphasised the following particular reasons for
joinder of
Mr Taylor.
(a) Ms Mitchell is the author and he is the recipient of her letters.
Both parties are needed. It is not enough simply to
have Mr Taylor adduce
evidence. He must be a party not a witness because he has a
legitimate interest and harm
has been suffered by both parties in
respect of the same events.
(b) Ms Mitchell brings her case as an advocate for other inmates who
have had the same or similar experiences. If
successful, other
prisoners can bring claims for relief.
(c) Ms Mitchell cannot address the issue of harm without Mr
Taylor.
(d) Mr Taylor has a right to bring a claim because the seizure of
his
13 NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 3041 at [32].
property is involved. The Court will have to make findings of
ownership in respect of the correspondence.
(e) While there are two applications the Court can decide on the basis
of one of the applications.
(f) Rule 1.2 of the High Court Rules is relevant in its objective of
speedy and efficient resolution of matters. Keeping the
proceedings separate
would cause undue expense to the taxpayer.
(g) As Mr Taylor’s claim presently stands any claim he has is only
for
delay and by itself it is not a strong case.
(h) Ms Mitchell also referred to other prisoners who may bring similar
claims and that it was desirable for the Court
to have her and Mr
Taylor’s combined perspectives. As well, if joined, “each could
rely on the other to keep the
other’s rights a live
issue”.
[25] Both Mr Taylor and Ms Mitchell emphasise that Mr Taylor comes within
r 4.2(1)(a) — as a putative plaintiff he has a
right to relief in respect
of, or arising out of, the same matter or document.
Analysis
[26] Reliance on r 4.2(1)(a) at the outset is the wrong approach. Both Ms Mitchell and Mr Taylor relied on the withheld letters as satisfying the r 4.2(1)(a) requirement (right to relief arising out of the same matter, event, series of documents). But the first step in analysing an application for joinder is to assess whether the jurisdictional threshold established by r 4.56, pursuant to which the Court may make an order, is satisfied. I must be satisfied that Mr Taylor’s presence is necessary to ensure all matters in dispute between the parties can be effectively and completely determined.
[27] The question is whether Mr Taylor’s rights in respect of the
subject matter of
the action will be directly affected by any order which may be made in the
action.14
[28] I have no doubt that Mr Taylor has a real interest in the
proceeding. He was the intended recipient of the letters from
Ms Mitchell that
were wrongfully withheld. But his interest is not the material interest that
necessitates his presence before the
Court to enable the Court to adjudicate on
and settle all questions in the proceeding. Ms Mitchell’s proceeding is
not an application
for judicial review. Ms Mitchell and Mr Taylor have advanced
their respective interlocutory applications as though it were, Ms Mitchell
seeking to join Mr Taylor as a “joint applicant” and Mr Taylor
relying on s 10 of the Judicature Amendment Act which
applies only to the
disposition of judicial review proceedings.
[29] Ms Mitchell’s judicial review proceeding15 was
determined by Collins J for the reasons in his judgment delivered on 29 October
2013. I note Mr Taylor did not seek to be joined
to that proceeding. The
question raised in this claim for NZBORA damages is whether the unlawful
exercise of power which Collins
J found, amounts to a breach of Ms
Mitchell’s right to freedom of expression under s 14 of the NZBORA
and her right
to be secure against unreasonable search or seizure under s 21 of
the NZBORA. Ms Mitchell claims, also, breaches of ss 13, 17, 27
and 28 of the
NZBORA.
[30] If Ms Mitchell establishes a breach of her rights it will be necessary for the Court to consider the appropriate remedy. That assessment will involve an analysis of the particular breaches and the harm suffered. It is well established that the remedial response to a breach of the NZBORA must be appropriate to the breach in
that the remedy should relate to, and speak to, the particular breach.16
Assessment of
the nature and extent of Ms Mitchell’s rights and the nature and
gravity of the
14 Pegang Mining Co Ltd v Choong San (1969) 2 MLJ 52 (PC) at 56.
15 CIV-2013-485-624.
various alleged breaches and her entitlement to an
“appropriate”, “effective”, “proportionate”
remedy or “vindication” will have to be
determined.17
[31] What may be adequate in terms of a remedy for any breach of Ms
Mitchell’s rights “will be for the Court to determine
in the
circumstances of each case”.18
[32] I am not satisfied that Mr Taylor’s presence before the Court
is necessary to enable the Court effectually and completely
to adjudicate upon
and settle those questions.
[33] As Mr Taylor submits he is entitled to bring, in his own right, a
damages claim for breach of ss 14 and 21 NZBORA
but it may be that
the remedy appropriate, or proportionate, to the particular breaches of Mr
Taylor’s rights if they
are proved, will be different in kind or degree.
This Court does not need to engage in speculation about that. It is enough to
find
that the test of necessity is not satisfied.
[34] Likewise, I do not accept Mr Taylor’s submission that his
presence as a plaintiff is necessary to ensure the Court
properly considers the
public interest in ensuring compliance with the law by those acting under
statutory powers.
[35] The further following considerations tell against
joinder.
(a) Mr Taylor’s application indicates he intends to expand the scope
of
the proceedings to include the withholding of a letter dated 20 July
2013 written by Mr Taylor to Ms Mitchell. Ms Mitchell does not refer to that letter in her statement of claim. Nor was it referred to by Collins J in his judgment or when he granted leave to Ms Mitchell to bring her claim for breach of the NZBORA. As the Crown submits, if Mr Taylor is joined and expands the scope of the claim, the proceeding will in effect have to start again with amended pleadings
and evidence from an additional party on an additional issue.
There
17 These key words are said to reflect the things that emerge from case law dealing with issues of remedy: Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed LexisNexis, Wellington, 2015) at [26.7.2].
18 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667, (1994) 1 HRNZ 42 at 692.
will need to be discovery and further investigations undertaken to examine
the additional issues raised by Mr Taylor.
(b) Mr Taylor suggested the purpose of r 4.56 is to prevent duplication
of effort and that it was commonsense that duplication
of court time, effort and
expense should be avoided. But that is not the objective of r 4.56. When their
combined objective is
regarded it is clear that the effect of rr 4.1, 4.2, 4.3
and 4.56 is to limit the number of persons joined as parties to a proceeding
as
far as practicable to those whose presence before the Court is necessary to
justly determine the issues arising. “Issues
arising” does not
contemplate issues which a putative party would wish to raise. For example, if
joined, Mr Taylor intends
to file evidence showing that prior even to the
incidents involving Ms Mitchell the prison manager withheld correspondence from
other
prisoners in her charge. To permit joinder in contemplation of that kind
of expansion of the proceeding is not to appropriately
ring-fence the
litigation to ensure its just and expeditious determination but would
condone its expansion beyond
the limited scope of Ms
Mitchell’s claim for breach of specified NZBORA rights and
remedies.
(c) Mr Taylor proceeds on a misconception of the effect of Collins J’s judgment. Mr Taylor submits that the Judge found Ms Mitchell’s NZBORA rights were breached. There was no such determination. The Judge was clear that the decision to withhold Ms Mitchell’s mail “involved the unlawful exercise of a statutory power of decision” and he went on to say that “on its face” that also breached Ms Mitchell’s
NZBORA rights.19 While obviously helpful to Ms Mitchell
the
Judge’s en passant observation is not the same as the reasoned and
authoritative determination of breach which is required to
found acclaim for
NZBORA damages.
(d) Mr Taylor’s presence is not necessary to determine Ms Mitchell’s
rights.
(e) There can be no injustice to Mr Taylor in not being
joined to Ms Mitchell’s personal claim against
the Attorney-General
as his rights will not be affected by adjudication of Ms Mitchell’s
alleged breach of rights or consideration
of an appropriate remedy for any such
breach.
(f) Nor is Mr Taylor’s presence necessary to improve the
information before the Court. Ms Mitchell has the judgment of
Collins J with
its finding of “unlawful exercise of a statutory power”. Evidence
will be adduced by the parties in the
normal way and, if it is necessary for Ms
Mitchell to rely on additional evidence she will be able to do so (subject to
the normal
evidentiary restrictions) and does not need to rely on a further
plaintiff in order to do that.
[36] Finally, I address Ms Mitchell’s submission that
NZX Ltd v Ralec
Commodities Pty Ltd demonstrates that a liberal approach is taken to
joinder.
[37] Ralec concerned an application to join defendants. The plaintiff sought joinder of additional defendants in order to add solvent entities to enhance the prospect of being able to enforce any substantial judgement it obtained. Dobson J was not prepared to order joinder of the proposed defendants because of the relative weakness of the cause of action and the delay in bringing the application. Yet this outcome was reached against the backdrop of the Judge acknowledging the liberal approach the Court generally will take to joinder applications. The outcome also runs against what has been described as the “favoured position” of plaintiffs who
seek joinder of additional defendants.20
[38] Ralec illustrates that even where there may be a presumption in favour of joinder (as in the case of plaintiffs applying to join the defendants) the Court will approach the application by deciding whether the jurisdictional threshold for joinder is reached. Applying that analysis Dobson J could not be satisfied that the additional
defendants were necessary parties. Even acknowledging the claimed unfairness
of the plaintiff having to defend substantial counterclaims
brought by parties
who were unlikely to be able to meet significant costs awards, that
consideration did not equate with “necessity”
which is the threshold
requirement of r 4.56.
Result
[39] For the foregoing reasons the interlocutory applications for joinder
are dismissed.
Karen Clark J
Solicitors:
Crown Law Office, Wellington for Respondents,
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