Cheng v Prison Director, Auckland South Corrections Facility (Serco)
[2022] NZHC 2701
•20 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-002268 CIV-2020-404-002252 CIV-2021-404-000164 CIV-2021-404-000360
[2022] NZHC 2701
BETWEEN THOMAS CHENG
First Applicant
JAMES ALLAN HEMANA
Second ApplicantAND
PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)
First Respondent
ATTORNEY-GENERAL
Second Respondent.../intituling cont over
Hearing: 4 October 2022 Appearances:
Applicants in person
JK Scragg and EM Greig for First Respondent EM Watt and SK Shaw for Second Respondent
Judgment:
20 October 2022
JUDGMENT OF DOWNS J
(Timetabling)
This judgment was delivered by me on Thursday, 20 October 2022 at 10 am
pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Crown Law, Wellington.
Duncan Cotterill, Wellington.
Meredith Connell, Auckland & Wellington.
Copy to: Applicants
CHENG v AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2022] NZHC 2701 [20 October 2022]
CIV-2021-404-001682
UNDER the Judicial Review Procedure Act 2016
and the New Zealand Bill of Rights Act 1990 IN THE MATTER of an application for judicial review
BETWEEN THOMAS CHENG
First Applicant
THOMAS ZEPACKIC
Second Applicant
JAMES ALLAN HEMANA
Third Applicant
ANDPRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)
First Respondent
ATTORNEY-GENERAL
Second Respondent
[1]This (brief) judgment addresses timetabling.
[2] The plaintiffs have filed five claims in relation to their imprisonment. The defendants have filed applications to strike out the claims and seeking security for costs. At the plaintiffs’ request, I convened a hearing to determine whether the interlocutory applications should be heard with the substantive claims or before then, as genuine interlocutories.
[3] The plaintiffs contend the interlocutory applications should be heard with their substantive claims. They argue to do otherwise may needlessly delay their claims— and permit oppression. The plaintiffs emphasise their vulnerability in relation to the defendants—their jailors—and stress the sincerity of their claims. They note, citing Cooke J in Wilson v Department of Corrections,1 strike out is not permissible as of right in relation to judicial review.
[4] These contentions must be assessed in light of the plaintiffs’ claims, according to the need to do justice in the round.
[5] First, the plaintiffs’ claims are extensive.2 They comprise 487 paragraphs across 81 pages; contain 26 causes of action; and allege 59 distinct breaches of rules, domestic and otherwise. Judicial review and public law damages are both sought.
[6] Second, the defendants’ concern about cost is reasonable. The claims will be costly to defend. If the applications for security for costs are not heard before the substantive claims, they would be moot.
[7] Third, Cooke J did not exclude the possibility of strike out in a judicial review context. Indeed, he noted in Wilson there “may well be circumstances where allowing [strike out] to be pursued may be the more efficient way to manage the proceedings”.3 In this case, the strike out applications may serve to limit, refine or confine the claims to more readily manageable ones.
1 Wilson v Department of Corrections [2018] NZHC 2977.
2 Schedule 1 contains a summary of the claims.
3 Wilson v Department of Corrections, above n 1, at [8].
[8] Fourth, the plaintiffs will not suffer material prejudice if the interlocutories are treated as just that. The delays that have accompanied the claims are unremarkable. They reflect the nature and number of the claims; the nature and number of other claims brought by Mr Cheng; the pandemic; and attendant, systemic pressure on the High Court. The plaintiffs’ concern of oppression lacks purchase as it is largely directed at Serco and the plaintiffs are no longer incarcerated by Serco. There is no evidence this is likely to change.
[9] Fifth, with suitably framed submissions, all of the interlocutory applications should be addressed within a single day of Court time.
Directions
[10] The Registrar is to allocate a one-day hearing for the determination of the interlocutory applications. The hearing need not be before me if an earlier date is available before another Judge.
……………………………..
Downs J
Schedule 1
AProceeding 2268 (Mr Cheng and Mr Hemana)
The amended statement of claim pleads four causes of action which concern:
1.The time taken to process prisoner emails at ASCF.
2.The time taken to process physical mail at ASCF.
3.Processes and rules relating to physical mail at ASCF.
4.Monitoring of Mr Cheng’s phone calls and mail.
5.Monitoring of Mr Hemana’s phone calls and mail.
6.Processes and rules relating to prisoner emails at ASCF.
7.Processes and rules relating to phone calls with legal counsel.
8.Charging Mr Cheng and Mr Hemana for printing and stationery items.
9.Facilitation and rules around legal counsel visits to ASCF.
10.A decision to place Mr Cheng in directed segregation.
11.A decision to place Mr Hemana in directed segregation.
12.The conditions applied to Messrs Cheng and Hemana in directed segregation.
13.Decisions as to the cell placement of Mr Cheng and Mr Hemana including as to double-bunking.
14.Engagement with other prisoners who are not party to the proceeding about separate proceedings.
B Proceeding 360 (Mr Cheng and Mr Hemana)
1.The time taken to process prisoner emails at ASCF.
2.The time taken to process physical mail at ASCF.
3.Processes and rules relating to physical mail at ASCF.
4.Monitoring of Mr Cheng’s phone calls and mail.
5.Monitoring of Mr Hemana’s phone calls and mail.
6.Processes and rules relating to prisoner emails at ASCF.
7.Processes and rules relating to phone calls with legal counsel.
8.Charging Mr Cheng and Mr Hemana for printing and stationery items.
9.A decision not to provide Mr Cheng with a laptop, printer, case law, access to a legal database, stationery and a media player.
10.A decision not to provide Mr Hemana with a laptop, printer, case law, access to a legal database, stationery and a media player.
11.The facilities provided to Mr Cheng and Mr Hemana to conduct civil and criminal litigation.
12.Processes and rules relating to the printing of documents for prisoners.
13.Decisions not to print certain documents for Mr Cheng.
14.Processes and rules relating to the sending of documents on behalf of prisoners.
15.Requiring Mr Cheng and Mr Hemana to attend a telephone conference from an AVL suite.
16.Technical issues with an in-cell computer.
C Proceeding 2252 (Mr Cheng only)
The statement of claim pleads five causes of action which relate to the seizure of cellotape, a shaver and a pack of razor refills from Mr Cheng’s cell.
D Proceeding 164 (Mr Cheng only)
The statement of claim pleads two causes of action which relate to:
1.The conditions for and processing of Mr Cheng’s requests to have AVL/Skype calls with family.
2.Technical issues which prevented scheduled AVL/Skype calls from taking place.
3.An incident at ASCFG which prevented a scheduled AVL/Skype call from taking place.
E Proceeding 1682 (Mr Cheng, Mr Zepackic and Mr Hemana)
1.The denial of the applicants requests for single cell accommodation.
2.The withholding of mail and legal documents.
3.Transfers out of ASCF.
4.Restrictions on access to legal/official phone calls and declining requests to store certain numbers on phone accounts.
5.Transfers of Mr Hemana and Mr Zepackic to high security wings within ASCF.
6.Charging for incomplete television set and for period that Mr Zepackic was not at ASCF.
7.Charging for canteen items not received and denying request to launder items soiled by rodent.
8.Failure to preserve CCTV footage of alleged incident involving Peter Rerekura.
9.Unlawfully charging to print documents and requiring court documents to be filed by post.
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