Bowers v Attorney-General
[2025] NZHC 1668
•23 June 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-161
[2025] NZHC 1668
BETWEEN BRAD BOWERS
Plaintiff
AND
ATTORNEY-GENERAL in respect of the Department of Corrections
Defendant
Hearing: On the papers Counsel:
Plaintiff - self-represented
A B Bloomfield and O Kiel for the Defendant
Judgment:
23 June 2025
JUDGMENT OF HARLAND J
As to mode and costs of appearance
Introduction
[1] The plaintiff, Mr Bowers, is currently a serving prisoner. He has commenced proceedings against the defendant, sued on behalf of the Chief Executive of the Department of Corrections (Corrections).1
[2] In his amended statement of claim, Mr Bowers alleges breaches of the New Zealand Bill of Rights Act 1990 (NZBORA), the Corrections Act 2004 and the Corrections Regulations 2005. He pleads that, while attending the Kia Marama Unit between September 2017 and October 2018, he was subjected to a treatment programme that caused a "loss of his inherent dignity" under s 25(5) of NZBORA2
1 Crown Proceedings Act 1950, s 14(2)(c).
2 Amended statement of claim, para 3.
BOWERS v ATTORNEY-GENERAL [2025] NZHC 1668 [23 June 2025]
which has harmed and traumatised him. The alleged breaches of the Corrections Act and Corrections Regulations are not immediately evident from the amended statement of claim.
[3]As relief, Mr Bowers seeks written apologies, damages amounting to
$575,000, an order likely in the nature of mandamus to require Corrections to pay for an outside, independent psychologist to treat and rehabilitate him, and a written assurance that the programme which caused him the alleged harm and trauma he pleads is discontinued.
[4] A substantive hearing of this application is set down for 4, 5 and 6 August 2025.
[5] This judgment concerns the plaintiff's request to attend the hearing in person, under s 65(3) of the Corrections Act 2004. He also asks that I exercise my discretion under s 65(4) of the Corrections Act not to require him to deposit a sum sufficient to pay the expenses of bringing him to the Court and returning him to prison during the substantive hearing.
[6] The defendant takes no position on the plaintiff's request and abides the decision of the Court.
Attendance at Court during the substantive hearing
[7] I am not aware of any application for the plaintiff to appear at his hearing via AVL from prison. However, the provisions of s 65 of the Corrections Act may nonetheless apply. The relevant provisions are:
65 Removal of prisoner for judicial purposes
…
(2) Subsection (3) applies if—
…
(b) in any other case, the interests of justice require the attendance for judicial purposes of a prisoner.
(3) If this subsection applies, any court or Judge or Registrar may, by order in writing, direct the manager of the prison in which the prisoner is detained to bring the prisoner, or to ensure that the prisoner is brought, before the court or, as the case may require, to arrange the attendance of the prisoner for those judicial purposes, as often as is necessary, and the manager must obey the order.
(4) The court or Judge or Registrar making any order under subsection (3) must, if the order is made in a civil proceeding, and may, if it is made in any other proceeding, require any person applying for the order to deposit a sum sufficient to pay the expenses of bringing the prisoner before the court or, as the case may require, arranging the attendance of the prisoner for judicial purposes, and returning the prisoner to the prison in which he or she is required by law to be detained.
(5) In subsection (4), expenses, in relation to a prisoner, includes the expenses of the prisoner’s maintenance and custody from the time the prisoner leaves the prison until the time he or she returns.
[8] It is common ground that AVL links may be used in a civil proceeding3 with the general criteria set out in s 5. However, as I have mentioned, no such application has been brought to my attention.
[9] Nonetheless, s 65(2)(b) and (3) of the Corrections Act may apply. These provisions have been considered in several cases, the most useful of which were referred to by the plaintiff in his memorandum of 5 June 2025. They are Taylor v Attorney-General and Smith v Attorney-General.4
[10] I am satisfied that it is appropriate to make an order that the Manager of the Prison in which the plaintiff is detained must ensure he is brought before the Court for the entirety of the substantive hearing on the dates referred to above. I have reached this view because I am satisfied it is in the interests of justice for that to occur. The case involves a sui generis public law action, and the substantive hearing will likely involve examination and cross-examination of a number of witnesses,5 and submissions. A bundle of documents has been directed and reference to them, if the pleadings and briefs exchanged are anything to go by, will take some time.
3 Courts (Remote Participation) Act 2010, s 7.
4 Taylor v Attorney-General [2017] NZHC 2234; Smith v Attorney-General [2020] NZHC 1157.
5 Mr Bowers has prepared a brief to support his claim and the defendant has prepared four briefs of evidence for the witnesses it intends to call at the substantive hearing.
[11] Mr Bowers acts for himself and, although not stated directly as such, the fact he has applied to attend the hearing in person means that he would not consent to appearing by way of AVL.
[12] Further, and contrary to the defendant's position in the two previous cases I have referred to, the defendant in this case does not oppose the application, neither does it raise any concern about safety or the like should I order the plaintiff's attendance in person at Court for his hearing.
[13] Accordingly, I make an order under s 65(3) of the Corrections Act directing the Manager of the Prison where Mr Bowers is detained to bring Mr Bowers before the Court at the hearing on 4, 5 and 6 August 2025.
Costs
[14] I have referred to s 65(4) of the Corrections Act above. I have agreed with the Judges in Taylor v Attorney-General and Smith v Attorney-General that, for the purposes of this section, the proceedings against the Crown in relation to NZBORA is not to be regarded as actions in tort but are sui generis public law actions. Therefore, Mr Bowers' claim is an "other proceeding" for the purposes of s 65(4), which means that I have a discretion as to whether I order him to pay a deposit towards the expenses of his appearance in Court.
[15] Although I do not have the specific details of Mr Bowers current period of incarceration (particularly the sentence to which it relates), and in the absence of any submission from the defendant to the contrary, I am able to infer that he is likely to have limited resources available to enable him to meet these costs.
[16] Given that I have found it is in the interests of justice that Mr Bowers appear in person at his hearing, and for the reasons I have expressed above, I decline to require him to deposit a sum sufficient to pay the expense of his appearance at his substantive hearing.
Result
[17] I make an order under s 65(3) of the Corrections Act 2004, directing the Manager of the Prison where Mr Bowers is detained to bring Mr Bowers before the Court at the hearing on 4, 5 and 6 August 2025.
[18] I decline to make an order under s 65(4) of the Corrections Act 2004 requiring Mr Bowers to deposit a sum sufficient to pay the expenses of his appearance before the Court.
[19] As directed in Associate Judge Lester's Minute of 5 December 2024, there is to be a pre-trial judicial telephone conference at 9.15 am on Wednesday 16 July 2025.
Harland J
Solicitors:
Crown Law, Wellington
Copy to:
B Bowers, Plaintiff.
0
2
0