Forrest v Attorney-General - [2023] NZHC 863

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-173

[2023] NZHC 863

UNDER the New Zealand Bill of Rights Act 1990

BETWEEN

BRENDAN DOUGLAS FORREST

Plaintiff

AND

THE ATTORNEY-GENERAL OF

NEW ZEALAND (on behalf of the New Zealand Police)

Defendant

Hearing: 24 March 2023

Appearances:

No appearance (written submissions only) by or for Plaintiff S B McCusker for Defendant

M McMenamin for Department of Corrections

Judgment:

20 April 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] The plaintiff, Brendan Forrest, is suing the Attorney-General on behalf of the New Zealand Police, alleging breaches of the New Zealand Bill of Rights Act 1990. Mr Forrest commenced this proceeding in March 2022. His statement of claim asserts that between 2000 and 2009 he was strip searched on about 12 occasions at the Nelson Police Station. He says that these strip searches breached his rights under to ss 21 and 23(5) of the Act.

[2] Mr Forrest originally sought a declaration that his rights have been breached and damages of approximately $12,000. More recently he has indicated that he is only

FORREST v THE ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZHC 863 [20 April 2023]

seeking declaratory relief. Particularly, in his notice of opposition to the defendant’s application which is the subject of this judgment, Mr Forrest gave formal notice that he is no longer seeking damages.

[3]There are two extant interlocutory applications before the Court:

(a)an application by Mr Forrest for an order for non-party discovery against the Department of Corrections; and

(b)an application by the defendant for an order pursuant to r 15.1 of the High Court Rules 2016 striking out Mr Forrest’s statement of claim or, alternatively, an order pursuant to r 5.45 for security for costs.

[4] Both of those applications were set down for hearing on 24 March 2023, and pre-hearing directions made by consent.

Procedural History

[5] The plaintiff and the defendant have complied with those directions. The Department of Corrections has been unable to do so. It provided certain material to the plaintiff late on 21 March 2023, three days before the hearing.

[6] The plaintiff raised this issue with the Court by memorandum dated 22 March 2023 and sought a telephone conference. A conference was convened for 3.00 pm on 23 March 2023. Mr Forrest and counsel for both the defendant and the Department of Corrections participated. The net outcome was a determination that the plaintiff’s application could not go ahead but that the defendant’s application could proceed.

[7] During the course of the conference, Mr Forrest informed the Court that he relied on his written submissions and did not propose to appear at the hearing. I told Mr Forrest that I had already read his submissions, and asked whether he wished to file any further submissions prior to the hearing. He said that he did not wish to do so.

[8] Later the same day Mr Forrest emailed the Registry saying that he had omitted…

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 Forrest v Attorney-General

Details

AGLC: Forrest v Attorney-General [2023] NZHC 863
Case: [2023] NZHC 863
Decision Date: 20 April 2023

CaseChat Overview and Summary

In Forrest v Attorney-General, the plaintiff, Brendan Forrest, filed a lawsuit against the Attorney-General of New Zealand on behalf of the New Zealand Police, alleging breaches of the New Zealand Bill of Rights Act 1990. The case involved claims that Forrest was strip searched on about 12 occasions at the Nelson Police Station between 2000 and 2009, which he alleged were unlawful. The primary legal issues before the court were whether the claim could proceed given the significant delay in bringing the action and whether there was sufficient evidence to allow for a fair trial.

The court found that the claim should be struck out. It determined that the delay in bringing the action, coupled with the lack of specific evidence and the absence of contemporaneous records, made it highly unlikely that the matter could proceed fairly. The court emphasized that while the plaintiff was not attempting to abuse the court's process, the passage of time and the unavailability of relevant records meant that proceeding to trial would be an abuse of process. Consequently, the court made an order striking out the claim under rule 15.1 of the High Court Rules. The court reserved the question of costs, noting that while the defendant might be entitled to costs, there were practical reasons why an order for costs might not be appropriate.

Orders