Cheng v Prison Director, Auckland South Corrections Facility (Serco)

[2024] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002268 CIV-2021-404-000360 CIV-2021-404-001682 CIV-2021-404-000164

[2024] NZHC 1235

BETWEEN

THOMAS CHENG

First Applicant

JAMES HEMANA
Second Applicant

THOMAS ZEPACKIC
Third Applicant

AND

PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing:

15 May 2024

Counsel:

AL Hill for Applicants

LM McKeown and MJ Holmes for First Respondent HT Reid for Second Respondent

Judgment:

21 May 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 21 May 2024 at 2 pm pursuant to r 11.5 of the

High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Law, Wellington.

Duncan Cotterill, Wellington.

Meredith Connell, Auckland & Wellington. AL Hill, Wellington.

CHENG v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2024] NZHC 1235 [21 May 2024]

What this judgment is about

[1]    This judgment addresses pre-trial applications in the context of claims against a former jailor. Earlier judgments of mine concerning the same litigants provide additional background.1

[2]    Auckland South Corrections Facility2 is managed by Serco New Zealand Ltd.3 Mr Cheng, Mr Hemana and Mr Zepackic were imprisoned at the facility in 2020 and 2021. Mr Cheng, Mr Hemana and Mr Zepackic have filed claims against Serco and the Attorney-General alleging Serco violated their rights and acted unlawfully.  Serco applies:

(a)To stay Mr Cheng’s claim until he pays outstanding costs.

(b)For security for costs from all plaintiffs, as well as a stay of their claims until security is paid.

(c)To strike out aspects of the claims, which it considers prejudicial.

[3]    The Attorney-General applies to sever the judicial review claims from those seeking public law damages under the New Zealand Bill of Rights Act 1990.

The claims

[4]    The claims comprise the first amended consolidated statement of claim dated 25 August 2023. The briefest history explains  the  somewhat  cumbersome  title. The plaintiffs filed four individual claims: one in 2020, and three in 2021. They were then unrepresented. Ms Hill now acts for the plaintiffs, on legal aid. She recast the four claims into a consolidated claim, which she filed 25 August 2023.

1      Cheng v Chief Executive, Department of Corrections [2020] NZHC 2158; Cheng v Chief Executive, Department of Corrections [2020] NZHC 3273; Cheng v Prison Director, Auckland South Corrections Facility (Serco) [2021] NZHC 3466; Cheng v Chief Executive, Department of Corrections [2021] NZHC 2725; and Cheng v Prison Manager, Auckland South Corrections Facility (Serco) [2022] NZHC 3015.

2      The facility.

3      Serco.

[5]    The consolidated claim alleges Serco habitually breached the men’s rights in response to  litigation brought by Mr Cheng on  behalf  of  himself, Mr  Hemana,   Mr Zepackic and other prisoners in Serco’s custody. So, for example, the consolidated claim alleges Mr Cheng was placed on directed protective segregation in the absence of any credible threat to his safety; Serco did so to inhibit the litigation Mr Cheng had commenced; that after his segregation was revoked, Serco unreasonably interfered with Mr Cheng’s communications with his lawyers (and others); only to then double- bunk Mr Cheng while his previous cell remained unoccupied.

[6]    Similar, not identical, allegations are ventilated in relation to Mr Hemana and Mr Zepackic. The premise unifying the allegations is that Serco targeted the plaintiffs because of their perceived litigiousness against Serco.4

[7]    The consolidated claim contains nine causes of action. The third cause of action  in  relation  to  each  plaintiff  alleges  infringement  of  rights  under  the   Bill of Rights Act. Public law damages are sought: $80,000 for Mr Cheng; the same amount for Mr Hemana, and $60,000 for Mr Zepackic. Materially, allegations based on identical factual premises also animate causes of action for judicial review. Therein lies the concern of the Attorney-General, hence her application for severance.

Should the claims be severed?

[8]    In Attorney-General v Dotcom, the Court of Appeal held it is not ordinarily appropriate for judicial review claims to include other claims for compensation.5 Judicial review claims should be progressed in a convenient, simple, and expeditious manner.6 So, Courts should be “cautious” in allowing additional claims for damages to be heard alongside judicial review claims.7

4      Serco has not yet filed a statement of defence. I was told it is highly likely Serco will deny the allegations.

5      Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213. At [49]–[51] the Court upheld Winkelmann J’s decision in the High Court that permitted a claim for damages to be attached to judicial review proceedings.

6      At [45] and [47].

7 At [47].

[9]    The Court of Appeal has not considered these principles since Dotcom, beyond this observation in a case also involving Mr Dotcom:8

On appeal, this Court acknowledged that generally it would not be appropriate to include claims for Baigent damages in judicial review proceedings. And the practice was not to be encouraged. But that proposition was not one of universal applicability.

[10]   Ms Hill responsibly acknowledged the coterminous nature of the claims. She argued “blended” claims have been allowed to proceed together.9 Ms Hill said two hearings was “one too many”, particularly given the strain upon the High Court in a pandemic or post-pandemic environment. Ms Hill also invited attention to the obvious: the delay and additional cost if there were two hearings, not one.

[11]   It would be difficult at best for a Judge to try the claims together. The likely issue in the Bill of Rights Act claim is whether the conduct occurred. The focus, therefore, will be upon determining the facts. That focus sits awkwardly  with judicial review. In judicial review, the facts are typically known, or at least within a confined compass. The issue tends to be whether what occurred—or whether what was decided—was lawful. That inquiry  requires  settled  facts.  The  facts  in  the Bill of Rights Act claim will be far from settled. Indeed, settling them will be the primary task in the trial of that claim.

[12]   An associated procedural point highlights the problem. Judicial review is typically conducted with affidavits and little, if any, discovery. This reflects what I said above: the facts are either known, or within a confined compass. The trial of a Bill of Rights Act claim is typically conducted differently. Briefs of evidence are exchanged; cross-examination forms an important part of the process. That, of course, reflects the need to determine the facts. However, cross-examination is not permitted in judicial review unless permission is given. Permission is given only exceptionally.

[13]   It follows a Judge hearing these claims together would be pulled in competing directions. She or he would be told the conduct (or decisions) was unlawful, even though the fact of the conduct (or decisions) remained in question.

8      Dotcom v Attorney-General [2018] NZCA 220, [2018] NZAR 1298 at [12] (footnote omitted).

9      Cripps v Attorney-General [2022] NZHC 1532.

[14]   These reasons also explain why it is important to try the Bill of Rights Act claims first: the facts must be settled before anything else.

[15]   The plaintiffs will not be prejudiced by this course. They are no longer incarcerated at the facility. Indeed, Mr Cheng and Mr Zepackic are no longer prisoners. Another point looms large. Determination of the Bill of Rights Act claims first is likely to determine the judicial review claims. In other words, severance is likely to produce only one hearing, not two. This addresses what is probably Ms Hill’s strongest point.

Should Mr Cheng’s claim be stayed until he pays outstanding costs?

[16]   Mr Cheng owes Serco $48,543, plus interest of $4,435.76.10  This because  Mr Cheng has been ordered to pay costs against Serco on three distinct occasions.  Of these costs, Mr Cheng has paid only $400.

[17]   Serco and Mr Cheng reached agreement in relation to the payment of its costs. Mr Cheng has not fulfilled his obligations under that agreement.

[18]   Against this background, Serco contends Mr Cheng’s claim should be stayed until he pays costs in full. On behalf of Serco, Ms Holmes contends it would be contrary to the interests of justice for Mr Cheng to continue his litigation against Serco when he has not met his responsibilities in relation to the same litigant.

[19]   The argument has force. The administration of justice ultimately rests on public confidence. That confidence could be eroded if litigants were seen to flout Court orders and continue litigation or initiate fresh litigation.

[20]   Considerations of this nature underlie Khatri v Tomar, in which I prevented Mr Tomar from continuing existing litigation or commencing fresh litigation unless he paid $98,998.15 in outstanding costs to his former wife.11 That case was rather different though. Mr Tomar had engaged in a swathe of wasteful litigation. He was an especially difficult litigant too, a proposition reflected in awards of increased costs.

10     As at 1 May 2024.

11     Khatri v Tomar [2021] NZHC 3091.

[21]   Tomar remains the only case in which such an order has been made, at least on counsel’s research. Plainly, an order of this nature is not made lightly.

[22]   I am not persuaded to make an order in this case. Two points are important. First, Mr Cheng’s allegations are serious: they concern the systemic abuse of public power.12 There is, therefore, a public interest in the allegations being determined. Second, Mr Cheng’s claims pre-date the costs orders against him. This is not a case in which a litigant has brought claims after incurring unpaid costs awards. Expressed another way, Mr Cheng seeks to conclude pre-existing litigation rather than prosecute fresh claims.

Should security for costs be granted? If so, should the claims be stayed until security is paid?

[23]   Rule 5.45 of the High Court Rules 2016 permits security for costs if the plaintiff is resident outside of New Zealand—which Mr Cheng and Mr Zepackic are— or there is reason to believe the plaintiff will be unable to pay the costs of the defendant if the claim is unsuccessful. This second limb is also engaged as there is little prospect Mr Cheng, or the other plaintiffs, could afford to pay costs. As observed, all of the men have legal aid. Mr Hemana remains a prisoner. Mr Cheng is a self-described “bushman” (in the Philippines).

[24]   The question then becomes whether security for costs is, in terms of the rule, “just in all the circumstances”. That the plaintiffs are legally aided tells against the imposition of security for costs, without being dispositive.13

[25]   On behalf of Serco, Ms McKeown contends security should be ordered because:

111.1The applicants’ claims have little prospect of success. They lack merit and the required factual foundations, as set out above.

111.2The applicants have not adopted a proportionate nor cost-effective approach to these Proceedings. Multiple statements of claim have been filed, along with several affidavits in support (some still unsworn

12     Serco exercises a public function as a jailor.

13     Exceptional circumstances are required before costs are awarded against a litigant with legal aid; see Legal Services Act 2011, s 45(2).

seven months later). The first respondent has engaged with all iterations of the claims, and evidence filed, to ensure that as full a picture as possible is available.

111.3Many of the applicants’ claims could have been resolved through alternative means rather than tying up the respondents and the Court’s time and resources.

111.4Mr Cheng and Mr Hemana have continued to pursue proceedings despite the adverse results in earlier, similar proceedings.

111.5Mr Cheng has failed to pay numerous costs orders, dating back to 2021.

111.6The threshold in s 45 of the Legal Services Act (“exceptional circumstances”) is met. The conduct of the applicants has caused the first respondent to incur unnecessary costs; the applicants have not availed themselves of other means to resolve their claims; and the applicants’ conduct abuses the processes of the court (as explained above).

[26]   It is not clear—or at least not sufficiently clear— the claims have little prospect of success. The next three points identified by Ms McKeown probably reflect the men’s self-represented status and should not be taken too far. That Mr Cheng has not paid outstanding costs I have already addressed. Whether exceptional circumstances exist is very much open to doubt. In any event, the decisive feature is this. The public interest in the determination of the allegations weighs more heavily than the risk of unpaid costs in relation to the public purse. Again, the allegations concern systemic abuse of public power.

[27]No issue of a stay arises.

Should aspects of the claims be struck out on the basis of prejudice?

[28]   Serco’s concern is best introduced with an example of the pleadings in the consolidated claim:14

Particulars

13.1From 11 November 2020 or thereabouts, the first respondent purported to introduce a rule that all emails considered too long (the prohibited length being expressed variously as over 1000 characters, 1000 words or two pages) would not be processed or passed on to prisoners. Emails to Mr Cheng containing legal resources were

14     Emphasis added.

withheld in accordance with this rule. Further, Mr Cheng was not notified that the emails were withheld;

Particulars

13.1.1On or  about  6  March  2021,  an  email  from  lawyer Phillip Hamlin’s office was withheld from Mr Cheng;

13.1.2On or  about  9  March  2021,  an  email  from  lawyer Phillip Hamlin’s office was withheld from Mr Cheng;

13.1.3On dates which Mr Cheng was not notified of, emails from Emily Blincoe, a lawyer, were also withheld from Mr Cheng.

13.2Between 30 January 2021 and 9 February 2021, the computer in    Mr Cheng’s cell was switched off;

13.3On or about 21 February 2021, Mr Cheng requested access to facilities to assist him in litigation. The request is pleaded here as if set out in full. The application was declined by the Prison Director;

13.4On multiple dates, including 5 February 2021, 11 February 2021 and 14 March 2021 the first respondent delayed receiving, processing, filing and printing legal documents and legal mail for Mr Cheng, and failed to process messages received from lawyers for him;

13.4.1On 30 December 2020, mail sent by Mr Cheng’s lawyer Chris Tennet was received at ASCF,  but  not  provided  to Mr Cheng until 6 January 2021. In addition, ASCF staff failed to respond to enquiries made by Mr Tennet about the couriered legal mail. The plaintiff pleads the complaints made by Mr Tennet as if set out here in full;

13.4.2On other dates including, but not limited to, 27 November 2020 and 19 January 2021, mail sent by courier and post was received at ASCF but not provided to Mr Cheng in a timely manner;

13.4.3On multiple dates that are not able to be further particularised by the first applicant, the first respondent did not convey messages requesting legal phone calls from lawyers, who included Antony Shaw, Emily Blincoe, Monique van Alphen Fyfe and Sam Vincent.

13.5On multiple dates, the first respondent failed to facilitate Mr Cheng’s contact with his lawyers.

13.5.1On dates including, but not limited to, 3 March 2021, ASCF staff declined requests by Mr Cheng to phone his lawyer;

13.5.2On 22 March 2021 Mr Cheng requested legal phone calls with Monique van Alphen Fyfe and Antony Shaw. The requests were declined without good reason on 23 March 2021;

13.5.3The first respondent took approximately four months to approve some of Mr Cheng’s legal numbers; and

13.5.4The first respondent unreasonably declined to approve the phone number for Antony  Shaw,  a  lawyer  working  with Mr Cheng.

[29]   Serco argues the italicised pleadings and the many others like it in the consolidated claim risk prejudice:15

Aspects of the pleadings are vague and lack the necessary factual foundations for the first respondent to be able to identify relevant issues and provide a response.

This level of generality puts the respondents in an “invidious position”. Much time and effort will be required to understand and identify what is being alleged. In framing an adequate response, the respondents risk both over and under inclusivity.

On 13 July 2023, the first respondent gave notice requesting that the applicants provide further and better particulars. The applicants have filed their amended consolidated statement of claim, however the pleadings are  still deficient (i.e. the applicants have already been given the opportunity to cure the deficiency, to no avail). It would therefore be appropriate to strike out the Deficient Pleadings (if not the entire Proceedings).

Responding to the four initial claims and two consolidated statements of claim has involved incurring further costs and expended the resources of counsel, the first respondent and the Court in reviewing, considering, and responding to the allegations made by the applicants.

[30]   Serco contends its concerns are heightened as the subject matter of some of the pleadings is the same or similar to other claims brought by the plaintiffs that have been stayed or discontinued:

For example, in Cheng v Chief Executive, Department of  Corrections  [2020] NZHC 3273, Mr Cheng raised questions about segregation decisions, prisoners’ entitlements, telephones, 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. Almost all these issues are canvassed (again) in the present Proceedings.

[31]   Consequently, Serco contends the impugned pleadings are “likely to cause prejudice or delay” in terms of r 15.1(b) of the High Court Rules and should, therefore, be struck out. As observed, Serco emphasises it asked the plaintiffs for particulars

15     Footnotes omitted.

(in July 2023, before the consolidated claim was filed), yet the consolidated claim remains deficient.

[32] I accept the pleadings could be improved, as did Ms Hill at the hearing. Paragraph 13.1.3 of the consolidated claim provides a convenient example; see [28]. While Mr Cheng may not be aware of the dates Serco allegedly withheld email from Ms Blincoe, that allegation must be founded on email sent by Ms Blincoe to Mr Cheng, and presumably, those email are dated. It should, therefore, be straightforward for Ms Hill to amend the pleading to identify the email relied upon, including dates. In this way, an otherwise open-ended allegation is delimited, and risk of prejudice potentially eliminated or mitigated.

[33]   Similarly, impugned pleadings referring to “multiple dates including ….” should identify all of the dates underlying or animating the pleading. Again, by such amendment, an otherwise broad allegation is narrowed, and risk of prejudice potentially eliminated or mitigated.

[34]   Some of the impugned pleadings—see, for example 13.4.3 at [28]—refer to “multiple dates that are not able to be further particularised”. Others refer to “regular and repeated dates that are not known to the applicants”.16 In relation to these and analogous impugned pleadings, Ms Hill should identify, in writing to Serco, the material to be offered in proof of the allegation (for example, testimony from X, and records A, B and C). The same process may also result in Ms Hill providing particulars or otherwise narrowing the allegation. Therein lies a key aim.

[35]   As will be apparent then, I do not accept Serco risks suffering material prejudice or delay, provided the proposed steps are undertaken. Nor do I accept Serco’s largely tacit submission the impugned pleadings constitute an abuse of process. However, it remains open to Serco to apply to strike out pleadings in any resulting amended claim, or for particulars in connection with any resulting claim. Expressed another way, strike out of pleadings at this juncture would be premature.

16     For example, para 33.1.

Summary of conclusions

[36]   The interests of justice require severance of the Bill of the Rights Act claims. So too an order directing progression and trial of those claims first.

[37]   Mr Cheng’s claims should not be stayed even though he has not met his costs obligations. The public interest favours adjudication on the merits. Security for costs in relation to any of the plaintiffs would not be apt either, essentially for the same reason.

[38]   The impugned pleadings do not risk material prejudice or delay, provided the process at [32]–[34] is undertaken. Strike out at this juncture would be premature.

Result and orders

[39]The application for severance is granted with the order at [36].

[40]   The applications for a stay against Mr Cheng and security for costs in relation to all plaintiffs are dismissed.

[41]The strike out application is dismissed, with the caveats at [32]–[34].

[42]The Registrar is to convene a case management conference after 26 June 2024.

……………………………..

Downs J