Genge v Visiting Justice at Christchurch Men's Prison
[2019] NZCA 583
•26 November 2019 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA350/2018 [2019] NZCA 583 |
| BETWEEN | RICHARD LYALL GENGE |
| AND | VISITING JUSTICE AT CHRISTCHURCH MEN’S PRISON |
| Hearing: | 9 September 2019 |
Court: | Kós P, Brown and Woolford JJ |
Counsel: | Appellant in person |
Judgment: | 26 November 2019 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe order restricting commencement or continuation of civil proceedings is quashed.
CThere is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Mr Genge was convicted of murder and rape in 1995. He has been denied parole, and remains a serving prisoner. He has filed four previous judicial review proceedings challenging aspects of the prison disciplinary process. None of these have succeeded.[1] On the other hand, he has also filed two judicial review proceedings in relation to his security classification, and both of these succeeded (at least in part).[2]
[1]Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 35 [First judicial review]; Genge v Visiting Justice Christchurch Men’s Prison [2017] NZHC 2936 [Second judicial review]; Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 3168 [Third judicial review]; and Genge v Chief Executive of the Department of Corrections [2018] NZHC 1827, [2018] 1 NZAR 1434 [Fourth judicial review].
[2]Genge v Chief Executive Department of Corrections [2018] NZHC 1302; and Genge v Chief Executive, Department of Corrections [2019] NZHC 172.
The present proceeding concerns a fifth discipline-related judicial review application. It concerns a decision of a Visiting Justice at Christchurch Men’s Prison finding Mr Genge guilty of breaching a rule forbidding prisoners from sparring or fighting. An affidavit in support of the application and submissions were filed in the High Court. A telephone case management conference was conducted before Nation J on 28 May 2018. Because of what we understand to be technical difficulties, neither Mr Genge nor counsel for the Department of Corrections participated in that conference. Counsel for the Visiting Justice, abiding the High Court’s decision, was the only other attendee at the telephone conference.
Following the abortive conference the Judge made an extended civil restraint order under s 166 of the Senior Courts Act 2016, restraining Mr Genge from commencing or continuing judicial review proceedings (including the present proceedings) challenging the validity of any part of the prison disciplinary process without leave for a period of three years.[3] The Judge did so of his own motion, without notice to the parties and without hearing from any of them on the issue. Mr Genge appeals the making of that order.[4]
Judgment appealed
[3]Genge v Visiting Justice Christchurch Men’s Prison [2018] NZHC 1457 [High Court judgment] at [32]–[33].
[4]Senior Courts Act 2016, s 169(8)(a).
In reaching the conclusion that such an order should be made, the Judge relied on three of the four previous failed judicial review applications brought by Mr Genge (one of the four had not yet been determined, although that too failed),[5] together with the Judge’s assessment of the merits of the present proceeding. Although that proceeding had not formally been heard, and the Judge did not have full submissions on the merits, he concluded that it too was without merit.[6]
[5]Fourth judicial review, above n 1.
[6]High Court judgment, above n 3, at [11]–[33].
The judgment continued:
[24] This proceeding is the latest instance of judicial review proceedings filed by Mr Genge to challenge decisions made by a Visiting Justice against him as part of the disciplinary process available under the Corrections Act [2004]. He has unsuccessfully attempted to have reviewed decisions finding him guilty of misconduct and behaving in a threatening and intimidating manner towards prison officers and doctors. Each time he has challenged various procedural parts of the prison disciplinary process. In one proceeding, he claimed that transferring the proceeding to a Visiting Justice pursuant to s 134 of the Corrections Act was unlawful, that adjourning the proceeding made the decision invalid, and that the decision was unreasonable because the Visiting Justice did not accept his evidence. Mr Genge has also made claims of perjury, collusion and bias within the disciplinary system. Gendall J dismissed those allegations as “unsubstantiated” and “entirely unsupported in any way”.
[25] His judicial review arguments have never been successful. In relation to one of the proceedings, Gendall J held that Mr Genge had “failed in all respects” and that his “conduct of the litigation can also be properly subjected to some criticism”. Gendall J also warned Mr Genge that:
If he intends to continue … to litigate a large array of dubious claims such as the present, he must also accept the jurisdiction of this and other courts to impose the usual discipline through costs orders where appropriate.
[26] The prison disciplinary process is designed to provide an efficient and relatively informal way of dealing with disciplinary offences. There is an inquisitorial aspect to the investigation, rather than being strictly adversarial, and the penalties tend to be significantly less severe than in criminal courts. The filing of a judicial review proceeding to challenge decisions of a Visiting Justice that a prisoner does not like is counter to all that the Corrections Act and regulations were designed to achieve.
(footnotes omitted)
The Judge noted correctly that s 169(3) gave him the power to make a civil restraint order on his own initiative.[7] No application had been made in this case by the Department of Corrections; indeed, it had not managed to appear at the abortive telephone conference preceding the making of the order. The Judge noted, also correctly, that a court should be slow to make a restraint order, because it amounts to a breach of a person’s right of access to justice under s 27 of the New Zealand Bill of Rights Act 1990.[8] The Judge also acknowledged that the courts should be particularly slow when making such an order against a person in custody. However, the Judge concluded this was a case where was is appropriate to exercise the jurisdiction under s 166 of the Senior Courts Act.[9]
[7]High Court judgment, above n 3, at [28].
[8]At [30], citing Attorney-General v Siemer [2014] NZHC 859 at [50]–[52].
[9]At [30].
The order made was confined both in scope (only judicial review proceedings challenging the validity of the prison disciplinary processes) and as to time (three years). The Judge noted that if Mr Genge had a genuine grievance relating to the prison disciplinary process in the future, he could apply to the High Court for leave to bring proceedings.[10] The Judge also restrained Mr Genge from continuing the present judicial review application.[11]
Submissions
[10]At [31].
[11]At [33].
Ms Todd, appearing for the Attorney-General, emphasised that the Attorney‑General appeared on this appeal not as a contradictor, but rather to assist the Court. The Attorney-General took no definite position as to the outcome of Mr Genge’s appeal.
First, Ms Todd submitted that Mr Genge’s appeal is likely to be a general appeal, rather than an appeal from a discretion.[12] That was consistent with the approach taken by this Court in Siemer v Attorney-General in dealing with an appeal against an order declaring Mr Siemer a vexatious litigant under s 88B of the Judicature Act 1908.[13] That section was the legislative predecessor of s 166 of the Senior Courts Act.
[12]Applying the principles outlined in Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [41]–[50].
[13]Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411.
Secondly, she submitted that a judge of the High Court was entitled to make a civil restraint order of his or her own motion under s 169(3). Section 167(2) provided that the threshold for making an extended civil restraint order (as was made here) was where the Judge considered that in at least two proceedings the proceedings “are or were totally without merit”. In the present case the Judge might be entitled to reach that view on the basis of three proceedings that had been determined against Mr Genge by the time of the making of the order, together with a fourth which had been heard prior to that date but in which the judgment had not yet been released:
(a)The first proceeding challenged the decision of the Visiting Justice in relation to the actions of a Corrections officer (with whom Mr Genge had had a verbal exchange in the presence of his family, who were visiting him in prison, and a subsequent exchange in the prison strip search room) on the grounds of error of law, unreasonableness, bias and breach of natural justice.[14] Each cause of action was dismissed, comprehensively, by Dunningham J.
(b)The second proceeding challenged both a penalty on a misconduct charge to which Mr Genge had pleaded guilty, and the Visiting Justice’s determination of a separate, second misconduct charge. Nation J dismissed each cause of action advanced. The first claim was not entirely without merit, albeit it was dismissed.[15] The second claim, however, was found meritless: Nation J observed, “I am quite satisfied that neither [a denial of natural justice nor a miscarriage of justice] occurred. Whatever difficulties he encountered during the hearing were of his own making but they have not resulted in his being treated unlawfully or unreasonably, either with regard to proof of the charge or as to the penalty imposed.”[16]
(c)The third proceeding belatedly challenged a 2013 decision of a Visiting Justice where a disciplinary charge of behaving in an offensive, threatening and intimidating manner towards a prison doctor had been proven. Gendall J found there was “no material evidence of any kind before me to bear out these allegations”.[17] In particular Gendall J dismissed claims that parties at the hearing before the Visiting Justice had lied or committed perjury. The Judge described those as “bald” and “unsubstantiated”.[18] The claim was held to have failed in all respects, and costs were ordered against Mr Genge.[19]
(d)The fourth proceeding, which had not been determined at the time the restraint order was made — although it had been heard — sought judicial review of the legality of a prison manager’s rule preventing prisoners from entering other prisoners’ cells, a prison officer’s decision to charge him with breaching that rule, and the decision of a hearing adjudicator finding the charge proven. The challenge to the legality of the prison rule was dismissed by Dunningham J, along with Mr Genge’s challenge to the decision to charge him.[20] The challenge to the hearing adjudicator’s decision was struck out on the basis that it was an abuse of process.[21]
[14]First judicial review, above n 1, at [32].
[15]Second judicial review, above n 1, at [69]–[72].
[16]At [115].
[17]Third judicial review, above n 1, at [49].
[18]At [91]–[94].
[19]Genge v Visiting Justice at Christchurch Men’s Prison [2018] NZHC 70 at [27].
[20]Fourth judicial review, above n 1, at [40] and [69].
[21]At [88].
Thirdly, Ms Todd submitted that the number of applications, all within a short period of time, in combination with their outcome, suggested a degree of vexatiousness that could support the making of an order. Mr Genge had failed to produce evidence to support claims, and other claims were contradicted by evidence produced by respondents. Unsubstantiated allegations of bias and perjury were also made, again indicating a need for restraint. While decisions of the Visiting Justice were of course amenable to judicial review, the prison disciplinary system was frustrated by repeated, unwarranted applications for review. Ms Todd therefore submitted that it was open for the High Court to make the restraint order.
Fourthly, and turning to the issue of whether the making of the order itself breached Mr Genge’s right to natural justice, Ms Todd acknowledged that the parties had not been notified that an order was under consideration, nor given an opportunity to be heard before the order was made. In that respect it was to be contrasted with three other decisions where a party had sought a restraint order, and orders were made following submissions.[22] Ms Todd acknowledged that s 88B(1) of the Judicature Act had provided that the intended subject of a vexatious litigant order had a right first to be heard. But that requirement had not been carried through to the Senior Courts Act. Very fairly, however, she acknowledged that that appeared to have occurred without specific discussion, and that while it was possible for the requirements of natural justice to be ousted through express words in the statute (or through necessary implication) a high threshold existed before implying such an intention in the current circumstances. The courts in particular stood in a special position, where the principles of natural justice have been said to apply “automatically” where an Act is silent on procedure.[23]
[22]Siemer v Attorney-General [2018] NZHC 3406; Singh v Boutique Body Corporates Ltd [2018] NZHC 3233; and Auckland Council v Mawhinney [2019] NZHC 299.
[23]Commissioner of Police v Tanos (1958) 98 CLR 383 at 395–396; and P A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [25.2.3].
Finally, Ms Todd submitted that if the Court did consider there was a breach of Mr Genge’s right to be heard, the error could be cured by the de novo appeal in this Court (bearing in mind that it was conceded that the appeal was a general appeal rather than an appeal against a discretion). The appellate process would protect Mr Genge’s rights: he was being heard on the appeal itself.[24]
Discussion
[24]Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [198], [204] and [218].
The disquiet of the Judge in dealing with another apparently meritless judicial review application by Mr Genge, challenging yet another prison disciplinary decision, may certainly be understood. But we are clear that an inadvertent failure of due process has occurred. Mr Genge’s appeal against the making of the restraint order must be allowed and the order itself quashed.
First, an order restraining a right so fundamental as that of seeking the protection of the High Court in the face of adverse acts by the executive branch of government (and with the concomitant liability to pay costs if the application fails) will normally engage a second associated right: the right to be notified that such an order is being considered, and to make submissions at a fairly conducted hearing before it is made. The fact that the Senior Courts Act provides a judge may issue a restraint order on his or her own motion does not oust that second right. Nor does the fact that the Senior Courts Act, unlike s 88B of the Judicature Act, makes no express provision for a hearing before the making of the order. It is apparent from the legislative history of the provision that Parliament and officials did not expressly advert to the point.[25] But silence on the subject of natural justice is by no means assent to its ouster. Rather, the operating principle is non-ouster unless express words or necessary implication speak otherwise — the starting point being that where a statute is silent as to the duty of fairness, “the justice of the common law will supply the omission of the legislature”.[26]
[25]See, for example, (5 December 2013) 695 NZPD 15299–15313; (18 February 2015) 703 NZPD 1725–1749; (23 August 2016) 716 NZPD 13168–13177; (11 October 2016) 717 NZPD 14121–14137; Law Commission Review of the Judicature Act 1908 — Towards a Consolidated Courts Act (NZLC IP29, 2012) at 190–193; Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at 158–168; Ministry of Justice Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (April 2014) at 39–46; Supreme Court, Court of Appeal and High Court “Submission to the Justice and Electoral Committee on the Judicature Modernisation Bill 2014” at [56]–[59]; and Judicature Modernisation Bill 2014 (178-2) (select committee report) at 2–4.
[26]Cooper v Wandsworth Board of Works (1863) 143 ER 414 at 420. See also Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [119]; Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at [36]; and Commissioner of Police v Tanos, above n 23, at 395–396.
Secondly, we have said the right to access to the courts will “normally” engage the right to natural justice. But we acknowledge that there may be a narrow class of case where prior notification or hearing before the making of a civil restraint order may not be required. The courts have always had an inherent jurisdiction to prevent egregious abuse of judicial process by, for instance, the repeated filing of claims already adjudicated and determined.[27] In such cases it has been commonplace for the High Court to direct that no further proceedings asserting the same claim be
received for filing.[28] That jurisdiction has been enlarged, legislatively, by r 5.35B of the High Court Rules 2016, inserted in 2017,[29] which permits proceedings which are a plain abuse of process to be struck out or stayed by a judge on receipt. The right to a hearing is expressly ousted, although there is (as here) a right of appeal.[30] Conceivably, and alternatively, a judge might instead adopt a parallel course of making an own-motion restraint order, without notice, confined to precluding what in substance is the refiling of a claim already adjudicated.
[27]Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28]; and Slavich v Judicial Conduct Commissioner [2012] NZCA 31 at [8]–[9].
[28]See, for example, Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 at [14], [16] and [19].
[29]High Court Rules 2016 Amendment Rules (No 2) 2017, r 8.
[30]High Court Rules 2016, r 5.35B(3).
Thirdly, this case does not however fall within that narrow exceptional class. Mr Genge’s claims are not an abuse of process in that form. They are simply ill‑conceived and prone to failure.[31] He is liable to pay costs, and costs have been ordered against him. But patently he cannot meet that obligation. Undeterred, and beyond any real risk to his pocket, he issues another review application where he perceives his rights have been infringed. His self-judgement on such matters is not good — as he candidly acknowledges — although (for what it is worth) he says he is learning. He is plainly at risk of an order being made under s 166 if he continues to advance serial, misconceived judicial review applications about the prison disciplinary system. Rather than foist the burden of such proceedings on the state, unrelieved by the payment of costs on failure, some supervision may be justified. In case it is not by now obvious, a restraint order is not an absolute bar. It precludes continuation or issue of proceedings without leave of the court. In short, the court is required to mark the application before it may issue forth and bother a defendant.
[31]In contrast, Mr Genge has been successful in two other claims relating not to the prison disciplinary system but his security classification: see above at [1].
Fourthly, all that, however, is for the future. It is not what has happened, and Mr Genge was not notified that he was at risk of a restraint order being made. The merits of his application for review were assessed, and the restraint order was made, without his being heard on either matter. We consider this infringed his right to a fair hearing, both at common law and under s 27 of the New Zealand Bill of Rights Act.
Fifthly, we are not satisfied that that infringement can really be cured on appeal now. It is open to a court to find the exercise of its remedial discretion is rendered unnecessary because the irregularity or unfairness in a hearing process has been “cured” by a further process of appeal or review.[32] However, as this Court said in Nicholls v Registrar of the Court of Appeal, there is no absolute rule of curing by appeal:[33]
The Court should first identify the error, or errors, which are said to vitiate the first instance decision. The second step is to examine what effect the appeal has had on the error, or errors, found at the first stage. If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the Court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown.
In deciding whether the later appeal has cured the earlier defect, an important criterion is therefore that there has been fresh or independent judgment. If this is not possible, the courts will be reluctant to conclude that unfairness can be cured on appeal.
[32]Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [109]. See also Attorney‑General v Chapman, above n 24, at [50], [198] and [218]; and Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at [79.2].
[33]Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 436–437. See also Singh v Attorney-General [2000] NZAR 136 (CA) at [9].
In this case there has been a double denial of natural justice in determining without notice and without hearing both the merits of the latest application for review and the making of the restraint order. It is not, in our view, a proper case for denial of a remedy on the basis that these breaches may perhaps be cured by due hearing in this Court. The perceived want of merit of the present application for review was integral to the decision to make the restraint order. We have not had a full merits argument either. That remains to be determined in the High Court. But the validity of a prison rule preventing sparring as part of a physical exercise programme, given the right to physical exercise provided in s 70 of the Corrections Act 2004, is at least arguable. We do not understand the respondents to contend otherwise in the absence of a strike‑out application.
Summing matters up, the appropriate process herefrom is this:
(a)In the absence of an application by the respondents to strike out the present application for review, it should be heard on its merits.
(b)A party may seek a civil restraint order in the event this proceeding, too, fails. Or the Court hearing the application may put Mr Genge on notice that such an order may be considered along with costs in the event of failure.
(c)A separate hearing to consider such order (along with costs) should then be convened if required.
That process will meet the requirements of natural justice.
Result
The appeal is allowed.
The order restricting commencement or continuation of civil proceedings is quashed.
There is no order for costs.
Solicitors:
Crown Law Office, Wellington for Third Respondent
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