Conway v Attorney-General - [2015] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1813 [2015] NZHC 1651

BETWEEN
WILLIAM VICTOR GEORGE CONWAY

Plaintiff

AND

THE ATTORNEY-GENERAL Defendant

Hearing: 3 July 2015

Appearances:

Mr Banbrook for Plaintiff
Ms Todd for Defendant

Judgment:

15 July 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
15.07.15 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CONWAY v THE ATTORNEY-GENERAL [2015] NZHC 1651 [15 July 2015]

Introduction

[1] The defendants have applied to the Court for an order for security for costs in the sum of $21,000 against the plaintiff. If successful, the defendants seek stay of proceedings until security has been paid. The plaintiff opposes the application on the grounds that he is impecunious and his impecuniosity is a direct result of the conduct of the defendants.

Background

[2] In December 2009, Mr Conway was sentenced to a term of imprisonment in the District Court for environmental offences. He appealed against his sentence, which was heard and dismissed in the Court of Appeal on 24 September 2013. He filed an application for leave to appeal which was dismissed on 24 October 2013.

[3] An associated application for bail was also filed. The Supreme Court noted that the Court of Appeal’s order that the applicant, on 27 September 2013, is to surrender himself to the Registrar of the District Court at Auckland to commence his sentence had not yet been complied with and that it continued in force.

[4] A warrant for the plaintiff’s arrest was issued in the District Court and, some months later, on 23 January 2014, he was arrested in Orewa. He was then processed at a police station, taken to the District Court of the North Shore and, from there he was taken to the Mt Eden Correctional Facility (“MECF”). He arrived at MECF at approximately 7.30 pm and “routine health checks”, as the Crown described, were completed.

[5] The plaintiff said that during his arrest, he requested the police officers to let him return to his home address to uplift prescription medication that he was taking. This was to treat his hypertension. He alleged in his statement of claim, which I shall describe in more detail below, that they declined to allow him to do that and instead took him directly into custody.

[6] The plaintiff said that when he arrived at MECF, he advised the corrections officers that he suffered from a series of serious medical conditions and that he required daily medication to control those conditions. He said he was told that MECF would be in contact with his GP and would acquire the required information to enable the prescription of medication to control his conditions. He said that he stayed at MECF for approximately six days. On 29 January 2014, he was transferred to the Northland Regional Correctional Facility (“NRCF”). Mr Conway said that no medication was provided to him during the week that he remained at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conway v Attorney-General

Details

AGLC: Conway v Attorney-General [2015] NZHC 1651
Case: [2015] NZHC 1651
Decision Date: 15 July 2015

CaseChat Overview and Summary

In Conway v Attorney-General, the plaintiff, William Conway, sought to bring a claim against the defendant, the Attorney-General, for damages resulting from a stroke he suffered while in custody. The defendant applied for an order for security for costs, which the plaintiff opposed on the grounds of his impecuniosity. The court had to decide whether to grant the defendant's application for security for costs and, if so, the amount of the security and whether to stay the proceedings until the security was paid.

The court held that the application for security for costs should be declined. The court considered the merits of the plaintiff's claim and found that while there was a high barrier in the path of a party seeking to obtain an award of exemplary damages, it was not beyond contemplation that the plaintiff might be able to persuade the Court that, on at least the part of one staff member, there was a conscious running of high risks that, if prompt steps were not taken to arrange examination of the plaintiff, an adverse health event, such as a stroke, might occur. The court also found that the plaintiff was impecunious and that particular weight ought to be attached to the importance of not allowing security for costs provisions to bar access to justice for deserving plaintiffs. The court considered the public interest considerations in the case and found that if security for costs was ordered, the plaintiff's claim would likely not be able to proceed, which would not be a desirable outcome.

The court declined the defendant's application for security for costs and ordered that the parties confer on the question of costs relating to the application. If the parties were unable to agree on the issue, they were to file memoranda not exceeding four pages on each side within 10 working days of the date of the judgment.

Orders