Cheng v Chief Executive, Department of Corrections

[2020] NZHC 3273

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

*CIV-2020-404-000060

[2020] NZHC 3273

BETWEEN

THOMAS CHENG

Plaintiff

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS and

PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)

Defendants

Hearing:

7-8 December 2020

Appearances:

Applicant in person

SK Shaw and HT Reid (Department of Corrections) and JK Scragg and EM Greig (Serco) for Defendants

Judgment:

11 December 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 11 December 2020 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. Duncan Cotterill, Wellington.

Copy to: Applicant.

CHENG v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS and PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2020] NZHC 3273 [11 December 2020]

*

CIV-2020-404-000062 CIV-2020-404-000063 CIV-2020-404-000064 CIV-2020-404-000075 CIV-2020-404-000076 CIV-2020-404-000077 CIV-2020-404-000079 CIV-2020-404-000104 CIV-2020-404-000108 CIV-2020-404-000110 CIV-2020-404-000160 CIV-2020-404-000287 CIV-2020-404-000289 CIV-2020-404-000292 CIV-2020-485-000031 CIV-2020-485-000032 CIV-2020-485-000033 CIV-2020-485-000103 CIV-2020-485-000104 CIV-2020-485-000136 CIV-2020-404-001703 CIV-2020-404-001759

Should 23 claims be struck out or stayed?

[1]    Thomas Cheng is serving a 10-year, nine-month prison sentence for importing and supplying methamphetamine. Mr Cheng also faces a host of serious charges for offences allegedly committed from and within prison, including the importation of more methamphetamine. Mr Cheng has filed 25 claims in this Court. Twenty-two implicate the Department of Corrections;1 the remaining three, Serco. Serco manages Auckland South Corrections Facility where Mr Cheng is now held. Corrections and Serco apply to strike out all but two claims.2 They argue the claims disclose no reasonably arguable cause of action; are likely to cause prejudice or delay; are frivolous and vexatious; and an abuse of process. Alternatively, Corrections and Serco seek substantial security for costs.

[2]    Mr Cheng contends all his claims are legitimate, and tenable. He says many raise human rights questions. He resists security, saying he is “destitute”.

[3]    This, at least, is how the case began. With a little encouragement, the parties recalibrated during the two-day hearing. Corrections and Serco sought a stay of the claims rather than outright dismissal. Mr Cheng acknowledged his pleadings were problematical, some claims could not succeed, and others were better directed elsewhere, for example, the Ombudsman and Privacy Commissioner. Importantly, Mr Cheng did not argue against a stay, provided he was given an opportunity to re-plead, in the New Year, a manageable number of claims.

[4]    This  means  the  judgment  is  much  shorter  than  it  would  otherwise  be.  It contains the background, a brief summary of the claims and why they should be stayed, albeit subject to an opportunity to re-plead.

1      Corrections.

2      The applications do not extend to the twenty-second (CIV-2020-404-1291) or twenty-fourth claims (CIV-2020-404-1704). At the hearing, Serco requested its applications include the twenty-fifth claim (CIV-2020-404-1759) as Mr Cheng filed this claim after Serco had applied for strike out and security for costs. Mr Cheng did not oppose its inclusion.

Background

[5]    Mr Cheng   is   a   Singaporean   national.    On    22    February    2018, Judge W P Cathcart imposed the sentence  described  above.3  The  Judge  ordered Mr Cheng serve at least four years and three months. Mr Cheng has been a prisoner at Rimutaka Prison, Waikeria Prison and Auckland Prison. As observed, he is now at Auckland South Corrections Facility.

[6]    On 13 May 2019, Police laid 26 new charges against Mr Cheng. These allege he imported methamphetamine; dealt methamphetamine; dealt cannabis; committed aggravated robbery; and participated in an organised criminal enterprise.4 The alleged offending occurred between 1 March 2018 and 9 May 2019, so, early in Mr Cheng’s sentence.

[7]    On 15 May 2019, Mr Cheng filed nine claims against Corrections. On 19 May, he filed another. On 20 May, he filed two more; then another two 25 May. On 26 May, he filed another. Since then, Mr Cheng has continued to file claims. His (two) most recent were filed 23 September 2020.

[8]    Many claims are hybrid in that they seek, among other things, judicial review and compensation under the New Zealand Bill of Rights Act 1990. Mr Cheng sought interim relief (pending judicial review). He argued he should be provided a “personal” laptop; weekly audio-visual connections to the Philippines and Singapore; and international telephone calls at modest cost. Mr Cheng also argued mail monitoring should cease. I declined that application 25 August 2020.5

[9]    Mr Cheng and members of his family are respondents (or interested parties) in a claim by the Commissioner of Police under the Criminal Proceeds (Recovery)    Act 2009. The Commissioner alleges Mr Cheng has engaged in significant criminal activity, including tax evasion and money laundering. This Court has made restraining orders over allegedly connected property.6

3      R v Cheng [2018] NZDC 3344.

4      The alleged aggravated robbery was committed outside of prison. Mr Cheng is said to have organised the offence from prison, or otherwise been a (remote) party to the offence.

5      Cheng v Chief Executive, Department of Corrections [2020] NZHC 2158.

6      Commissioner of Police v Cheng [2019] NZHC 2888.

The claims

[10]   Mr Cheng’s first claim concerns a segregation order made 13 May 2019 and later extensions.7 But, as with almost every claim, the claim overlaps others. The claim also raises questions about prisoners’ entitlements; telephones; access to audio-visual facilities; mail; timing of meals; daily visits; access to rehabilitation programmes;  searches  of  prisoners;  requests  for   information   under   the Official Information Act 1982; and prison complaints procedures. The claim contains eight causes of action, most under the Bill of Rights Act.

[11]   The second claim is directed at access to computers and facilities in relation to Mr Cheng’s legal proceedings.8 The claim challenges Corrections’ decisions between May 2019 and April 2020. The claim also challenges aspects of Corrections’ general policy. Four causes of action are pursued.

[12]   The third claim addresses prison property rules; mail; clothing; access to legal documents; and a parcel sent February 2020.9 The claim challenges decisions in relation to Mr Cheng and general rules. Seven causes of action are pursued.

[13]   The fourth claim concerns mealtimes.10 Mr Cheng argues service of dinner from mid-afternoon contravenes, among other things, the Bill of Rights Act. Six causes of action are pursued.

[14]   The fifth claim is directed at audio-visual facilities, and their facilitation of what would otherwise be visits by family; friends; or both.11 Mr Cheng argues he was wrongly declined use of the technology in November 2019. Mr Cheng also seeks a declaration that foreign prisoners are entitled to this technology under the Corrections Act 2004. Eight causes of action are pursued.

7      CIV-2020-404-60.

8      CIV-2020-404-62.

9      CIV-2020-404-63.

10     CIV-2020-404-64.

11     CIV-2020-404-75.

[15]   The  sixth  claim  concerns  a  segregation  order   between  13  May  and    10 June 2019.12 Mr Cheng argues the order unlawfully compromised his use of the telephone; access to recreational facilities; visits; and other matters. Eight causes of action are pursued.

[16]   The seventh claim is directed at the Official Information Act.13 Mr Cheng argues Corrections has repeatedly failed to comply with the Act. Mr Cheng also argues Corrections’ processes in relation to the Act are unlawful. Four causes of action are pursued.

[17]   The eighth claim is about seizure of Mr Cheng’s property in April 2016.14 Declaratory relief is sought. So too damages. The primary cause of action appears to be s 21 of the  Bill  of  Rights  Act.  The  defendants  are  Corrections,  Commissioner of Police and Independent Police Conduct Authority.

[18]   The ninth claim alleges the Attorney-General failed to comply with his reporting obligation under s 7 of the Bill of Rights Act in relation to the Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018.15 The cause of action is not explicit. Presumably, s 7 of the Bill of Rights Act is itself invoked.

[19]   The tenth claim concerns the prison telephone monitoring system.16 Mr Cheng argues Corrections and Commissioner of Police acted unlawfully in relation to his telephone calls while he was on remand at Waikeria Prison. The causes of action are not explicit here either, but the Privacy Act 1993 and Bill of Rights Act are cited.  Mr Cheng seeks “adequate compensation”, “reasonable compensation”, and “exemplary damages”.

12     CIV-2020-404-76.

13     CIV-2020-404-77.

14     CIV-2020-404-79.

15     CIV-2020-404-104.

16     CIV-2020-404-108.

[20]   The eleventh claim is similar to the eighth in that Mr Cheng challenges seizure of property in April 2016.17 Two causes of action are pursued under the Bill of Rights Act. That said, the statement of claim is entitled, “Application for judicial review”.

[21]   The twelfth claim is directed at the “ineffectiveness” of Corrections’ internal complaints procedures generally and in relation to Mr Cheng.18 Mr Cheng seeks declaratory relief, damages, and an order directing Corrections to “overhaul” the prison complaints system. Three causes of action are pursued.

[22]   The thirteenth claim concerns Mr Cheng’s inability to use a dayroom in Auckland Prison throughout the week of 30 November 2019.19 Mr Cheng argues Corrections “arbitrarily curtailed his rights” in this period. Eight causes of action are pursued. Most employ the Bill of Rights Act.

[23]   The fourteenth claim is about “Friday  lockdowns”  in  Auckland  Prison.20 Mr Cheng argues these are unlawful. Six causes of action are pursued, again, most under the Bill of Rights Act. Among other things, Mr Cheng seeks “a global Baigent claim against the respondent, set at a figure that the Court considers reasonable, fair and sufficient to effectively redress the breaches”.

[24]   The fifteenth claim concerns the legality of restrictions to telephones and mail while a prisoner is segregated.21 Fifteen causes of action are pursued. Mr Cheng seeks declaratory relief, damages and an order directing Corrections to “consider the proposal that all prisoners be issued with a personal phone”.

[25]   The sixteenth claim is directed at prisoners’ wages.22 Mr Cheng argues “remuneration for the work done by prisoners is inconsistent with the principles of fair pay”. Six causes of action are pursued. Mr Cheng seeks declaratory relief and “remedy by way of backpay”.

17     CIV-2020-404-110.

18     CIV-2020-404-160.

19     CIV-2020-404-287.

20     CIV-2020-404-289.

21     CIV-2020-404-292.

22     CIV-2020-485-31.

[26]   The seventeenth claim alleges Mr Cheng was unlawfully searched at Rumutaka Prison between 28 December 2018 and 23 January 2019.23 The claim also alleges unlawful seizures within the same period, and deprivation of personal property from 27 December 2018, when Mr Cheng was found with contraband in his cell. Five causes of action are pursued. Mr Cheng seeks declaratory relief and compensation, the latter “to deter future occurrences”.

[27]   The eighteenth  claim  concerns  segregation  at  Rimutaka  Prison  in  January 2019.24 Mr Cheng alleges Corrections failed to release him from segregation, thereby interfering with access to “the Gym, the Dining halls, the recreational rooms, the grass pitches in the open air, telephone access, the library, and association with fellow prisoners”. Five causes of action are pursued. Mr Cheng seeks declaratory relief and compensation, including “consideration for a global Baigent claim against the respondent”.

[28]   The nineteenth claim challenges Mr Cheng’s 9 January 2020 security classification.25 Five causes of action are pursued, as are declaratory relief, damages, and “reasonable costs and disbursements”.  The claim does not articulate whether  Mr Cheng has pursued an application for reconsideration of his classification under  s 48 of the Corrections Act. However, Mr Cheng told me he did apply, and the “high” classification was upheld. Mr Cheng also said the classification is historical. He is now classified as a “low/medium” security inmate.

[29]   The twentieth claim is about mail and email.26 Mr Cheng challenges general policies and procedures, and alleged interferences with his correspondence, including a parcel sent 12 January 2020 containing chocolate. Six causes of action are pursued.

[30]   The twenty-first claim concerns events of 28 February 2020.27 Mr Cheng met a senior Corrections officer to discuss his complaints. The meeting took three hours. The meeting coincided with exercise time, so, Mr Cheng was not allowed to exercise.

23     CIV-2020-485-32.

24     CIV-2020-485-33.

25     CIV-2020-485-103.

26     CIV-2020-485-104.

27     CIV-2020-485-136.

Mr Cheng argues this breached his entitlement to exercise. Again, as with most other claims, this overlaps others. Complaints about mealtimes; Friday lockdowns; and segregation are pleaded too. Ten causes of action are pursued. Mr Cheng seeks declaratory relief and compensation.

[31]   The twenty-second28 and twenty-fourth29 claims lie beyond the strike-out and security applications. In these, Mr Cheng challenges the Parole Board’s decision to decline parole; pricing of items in prison canteens; prisoners’ wages; and pricing of telephone calls.

[32]   This leaves the twenty-third and twenty-fifth claims.   In the twenty-third,   Mr Cheng alleges Serco breached its statutory obligations to serve legal documents; and committed “sustained” and “systemic” breaches in relation to legally privileged material”.30 Ten causes of action are pursued. Mr Cheng seeks declaratory relief and damages, the latter “to denounce and deter such conduct from re-occurring”.

[33]   In the twenty-fifth, Mr Cheng alleges Serco has contravened s 45A of the Corrections Act in relation to authorised property.31 He contends Serco has removed items of property to which he is entitled. Mr Cheng says rules made by Serco in this context are “ultra vires” s 45A. Seven causes of action are pursued.

[34]   As will be apparent, the claims address many aspects of Mr Cheng’s prison experiences.

Why the claims should be stayed

[35]Five things about Mr Cheng’s claims stand out.

[36]   First, their sheer number.   The  claims occupy  197 pages of  close typing,   or 924 pleaded paragraphs. There are at least 134 causes of action. Sixty-three engage the Bill of Rights Act. Twenty-seven allege errors of law. Unsurprisingly, no one could find a case in which a single litigant had brought so many claims against the

28     CIV-2020-404-1291.

29     CIV-2020-404-1704.

30     CIV-2020-404-1703.

31     CIV-2020-404-1759.

Crown. In Greer v Prison Manager at Rimutaka Prison,32 Ronald Young J dismissed nine causes of action relating to complaints about transportation of legal papers; Corrections’ refusal to provide Mr Greer a laptop; search and seizure; access to legal databases; and service of documents. The Judge noted while Corrections’ actions “might be frustrating to Mr Greer these … would not ordinarily be susceptible to judicial review” and most were “management decisions not susceptible to review”.33

[37]   Second, breadth of subject matter. The claims are extraordinarily broad. They encompass at least the following: segregation of prisoners; access to facilities (for a forensic purpose); meal times; mail monitoring; use and monitoring of email; telephone use and monitoring; audio-visual links as an alternative to visits; search and seizure of the person; search and seizure of property; Official Information Act requests; Friday lockdowns; intelligence sharing; prisoners’ wages; access to rehabilitative programmes; exercise entitlements; dayroom access entitlements; security classifications; the prison complaints system; entitlements to property; and privacy. As observed, the claims address many aspects of Mr Cheng’s prison experiences. Systemic complaints are also ventilated, thereby encompassing prison life more generally.

[38]   Third, prolixity. Multiple causes of action are pleaded when one or two would do. I give examples only. The contention dinner time is unlawful attracts six causes of action.34 Telephone and mail restrictions during segregation attract 15 causes of action. That Mr Cheng  was  not  allowed  to  exercise  28  February  2020  attracts 10 causes of action. Individual causes of action are often over-pleaded. Take, for example, the sixth cause of action in claim one:35

[52]    Error of Law (absence of relevant consideration)

a.The applicant pleads that the respondent had erred in law by refusing to facilitate legal and official phone calls to the applicant after 3:30pm. The respondent failed to properly consider whether or not it was reasonable and justifiable to limit the applicant’s legal right.

32     Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008.

33 At [9].

34     Claim 15 (CIV-2020-404-292).

35     CIV-2020-404-60.

b.The respondent had erred in law in practicing Friday half-day lockdowns which makes it de facto 4 day working week. The respondent erred in law by continuing such a practice outside of lawful authority, and failed to consider if such a practice was reasonable justification to curtail the rights and privileges of the applicant.

c.The respondent had erred in law and failed to consider whether or not in redirecting the applicant’s inward and outward mail for the purpose of mail monitoring was reasonable.

d.The respondent had erred in law when deciding unilaterally that it had the power to subject the applicant to this targeted form of mail monitoring without transparent and accountable due processes being practiced.

e.The respondent failed to apply relevant consideration on whether or not it had reasonable justification to subject the applicant to a blanket examination and redirection of his mail. The respondent failed to consider whether a catch-all mechanism was justifiable in the circumstances, or indeed if it were even lawful.

f.The respondent failed to apply relevant consideration on whether or not it had the authority to decline a statutory legal right for legal calls during normal working hours on Fridays. The respondent failed to apply statutory consideration on whether or not there was reasonable justification to limit such a right on a categorical manner.

g.The respondent failed to apply relevant consideration that the applicant being a foreign from the topics would require winter clothing when the mandatory features for providing appropriate heating in the segregation cells are absent.

h.The respondent failed to apply relevant consideration on whether or not the supper issued is of an adequate amount to justify the change in dinner issuing times by up to 4 hours earlier than the previous timing.

i.The respondent failed to apply relevant consideration on whether or not there was sustained reasonableness for the weekly Friday lockdown practice which curtails rights and privileges.

j.The respondent failed to apply relevant consideration on the fact that the applicant was a segregation prisoner denied of association when declining the request for extra recreation time to call his family and friends. The respondent failed to consider the least restrictive outcome for achieving the objective of the applicant’s safety, and failed to consider whether or not staff resources are available to accede to the request.

k.The respondent failed to apply relevant consideration on whether or not it was reasonably justifiable to subject the applicant in the circumstances to multiple daily searches despite constant surveillance and monitoring.

l.The respondent erred in law and in fact by failing to apply relevant consideration on the fact that the telephone monitoring systems are designed to mitigate identifiable risks.

[39]   Fourth, the claims’ overlapping nature. As observed, almost all overlap. Again, I give examples only. The first overlaps the third, fourth, fifth, sixth, seventh, twelfth, fourteenth, fifteenth, seventeenth and twenty-first claims in relation to clothing; meal times; use of audio-visual technology; conditions of segregation; Official Information Act requests; prison complaints procedures; Friday lockdowns; telephone calls; searches of property; and exercise. The third overlaps the first, second, fifth and ninth in relation to clothing; access of facilities; heating of cells; and mail monitoring. The thirteenth overlaps the fourteenth, eighteenth, and twenty-first in relation to exercise; segregation; and Friday lockdowns.

[40]   Fifth, deficiencies of pleading (beyond those already identified). Submission and fact are often intermingled. Take, for example, para 5 of the second claim:36

This issue of access to facilities have been well ventilated in the courts before. In 2001 the Court of Appeal observed that in the 21st century, perhaps Corrections might well reconsider its stance for issuing personal computers to prisoners. That was 20 years ago. The advances in technology have changed the way crimes are investigated and prosecuted. These facilities are ever-evolving and it would only make sense that access to them correspond with equanimity.

[41]Or, paras 49 – 54 of the eighth claim:37

In Wilson v NZ Customs Service it was held that prolonged delays was also within the ambit of s 21 of the New Zealand Bill of Rights Act. The applicant is entitled to his property and the respondent had failed to provide substantive effect to human rights and the rule of law that it draws its authority from.

The guarantees found in the New Zealand Bill of Rights are pervasive and are to be generously interpreted. In Alwen Industries v Comptroller of Customs, it was said that human rights have to be seen as transcending administrative efficiency.

The prime purpose of s 21 is to ensure that governmental power is not exercised unreasonably.  In R v Grayson and Taylor, it was held that “… A   s 21 inquiry is an exercise in balancing legitimate state interests against intrusions on individual interests. It requires weighing relevant values and public interests … the guarantee under s 21 to be free from unreasonable search and seizure reflects an amalgam of values …”

36     CIV-2020-404-62.

37     CIV-2020-404-79.

Section 6 of the New Zealand Bill of Rights Act requires the Courts to give preference to any other meaning so that it is consistent with s 21 Bill of Rights, so as to prevent unreasonable seizure.

In Hamed v R, it was held that section 21 gives effect to art 17 of the International Covenant on Civil and Political Rights, and that no one is to be subjected to arbitrary interference with his correspondence. Any interference authorised by state can only take place on the basis of law which must itself comply with the provisions, aims and objectives of the Covenant. It is also held that section 21 is properly interpreted to require authority of law for intrusion upon personal freedom.

There is a lack of reasonable grounds for the prolonged seizure of the applicant’s property after the applicant had sought its lawful return. To invoke a recital of claim under investigative purposes is insufficient grounds to seize the applicant’s property after legal custody has expired.

[42]Or, paras 7 – 11 of the ninth claim:38

The NZBORA, ICCPR, HRC and the common law have all enshrined individual rights above governmental interests, within justifiable limits. The rule of law applies to every person, even those representing the Crown.

The purpose of judicial oversight for applications against the security of unreasonable search and seizures is to ensure that there is a functioning mechanism to safeguard those rights in a balance with the justifiable limits.

Government agencies have to abide by the rules in their applications and ensure that it is in conformity to the criteria set out under the relevant statutes and in common law practices. The emphasis has always been that the state has to justify, through natural justice, why it should be allowed to breach the rights of the subjects in question. This is a fundamental feature in the administration of justice in a fair and democratic society.

The impartiality of judicial oversight is a safeguard against instruments of oppression and tyranny. The state must conform to the rigors of due process in order to lawfully breach the rights of others.

Once information is seen, it cannot be unseen.

[43]   The claims contain allegations of bad faith.39 Allegations of this nature attract a requirement of particularity; the person alleging bad faith must set out the basis or bases for the allegation. The claims do not do so. That Mr Cheng is self-represented does not exempt him from this requirement. The Court of Appeal has said those “who

38     CIV-2020-404-104.

39     For example, the third cause of action in claim five (CIV-2020-404-75), and aspects of claim nine (CIV-2020-404-104).

seek to portray themselves as well acquainted with the law … cannot shelter behind the barrier of unfamiliarity when it suits”.40

[44]   Moreover, many claims are framed at a level of generality. As Ms Shaw for Corrections and Mr Scragg for Serco observe, this puts the defendants in an invidious position. Much time and effort are required to identify what is being alleged. Framing an adequate response risks both under and over inclusivity.

[45]   These five features aggravate each other, making analysis of the claims difficult. It is thus difficult to dissect the trivial from the important; or distinguish the tenable from the untenable. Indeed, it is difficult to know when some claims end, and others begin.

[46]   In terms of r 15.1 of the High Court Rules 2016, the number of claims; breadth of subject matter; and use of prolix, overlapping and otherwise problematical pleadings; combine to make Mr Cheng’s claims prejudicial to the defendants; and an abuse of process of the Court. Many aspects of the claims are also frivolous and vexatious. But, as observed, sifting these aspects is difficult. Therein lies much of the problem. In short, defendants and Courts cannot respond to a tsunami of claims defying ready, reasonable analysis.

[47]   As foreshadowed, Mr Cheng did not contest this conclusion at the hearing. He accepted some claims could not succeed, and others should be directed elsewhere. However, Mr Cheng emphasised he should be given an opportunity to re-plead a manageable suite of claims given he is a serving prisoner; the claims are directed at his jailors; and some raise questions of human rights in a penal context. For their part, Corrections and Serco did not contest Mr Cheng should be given such an opportunity. Their stance accords my view,  which  reflects  the  (three)  reasons  advanced  by  Mr Cheng. It also reflects Commissioner of Inland Revenue v Chesterfields Preschools Ltd41 and Van der Kapp v Attorney-General,42 in which seriously deficient claims were stayed but plaintiffs given an opportunity to re-plead.

40     Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [16].

41     Commissioner  of  Inland  Revenue  v  Chesterfields  Preschools  Ltd  [2013] NZCA 53, [2012] 2 NZLR 679.

42     Van der Kaap v Attorney-General (1996) 10 PRNZ 162.

[48]   Mr Cheng asked if I would consider appointing amicus curiae to assist his re-pleading of claims, adding he was “prepared to work” with amicus curiae.

[49]   I am not persuaded  this  is  commensurate  with  the  interests  of  justice.  Mr Cheng made clear throughout the hearing he did not want a lawyer to represent him in these claims.43 That election tends against the appointment of amicus. Appointment sits awkwardly with the civil legal aid regime. It could also encourage other inmates who would not qualify for civil legal aid to file a multitude of claims in the hope they obtain, de facto, the services of a lawyer they could not otherwise retain. Moreover, Mr Cheng is highly intelligent. I am confident he understands the key rules of pleadings—and much more.

[50]   The re-pleading opportunity should not be mistaken for one in which 23 better pleaded claims emerge. The number of claims is an important aspect of my conclusion the claims are prejudicial and an abuse of process. So too breadth of subject matter. Courts do not manage prisons (or any other institution). That, for example, Mr Cheng was not allowed to exercise 28 February this year, or use a prison dayroom in the week of 30 November last year, lie beyond this Court’s concerns. Courts do not legislate either. They do not, for example, devise prison complaints regimes, nor order prisoners be issued personal telephones, mobile or otherwise. Mr Cheng should also appreciate prison staff do not need to provide reasons in writing for every decision they make, irrespective of importance. Prisons could not function otherwise.

[51]   I summarise. Mr Cheng must re-plead a manageable (rather than oppressive) number of claims, confined to legitimate, justiciable grievances appropriately examinable in the High Court. Failure to do so risks more than disappointment; litigants in person are not immune from adverse costs orders.

Result and orders

[52]The applications for strike-out are granted as below.

43     Mr Cheng has legal representation in his criminal case. He was elliptical when I asked, more than once, if he had sought civil legal aid.

[53]   All Mr Cheng’s claims are stayed, except the twenty-second44 and twenty- fourth45 claims.

[54]All proposed re-pleaded claims:46

(a)Must be attached to a single application for permission to proceed;

(b)Must be filed and served together (behind the application for permission to proceed) by 31 March 2021.

[55]The Registrar must arrange a telephone conference beyond this date.

[56]No proposed re-pleaded claim may proceed without this Court’s permission.

[57]The applications for security for costs are adjourned.

Postscript

[58]   This judgment was about to be released when Mr Scragg filed a memorandum of counsel. The memorandum invited my attention to two new claims by Mr Cheng against Serco. One alleges Serco wrongly removed sellotape, a shaver, and razorblades from Mr Cheng’s cell, presumably recently. The second alleges Serco wrongly segregated Mr Cheng and another prisoner, again, presumably recently. I convened a telephone conference. Mr Scragg made clear Serco was not seeking to include these claims in its applications. Nothing more need be said about these claims for now, other than they are not governed by the orders above.

……………………………..

Downs J

44     CIV-2020-404-1291.

45     CIV-2020-404-1704.

46     This suite borrows Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 35, at [119].