Grant v Attorney-General
[2021] NZHC 1700
•8 July 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2020-442-38
[2021] NZHC 1700
BETWEEN SAMANTHA JANE GRANT
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 21 May 2021 Appearances:
Plaintiff in Person
M J McKillop and C N Tocher for Defendant
Judgment:
8 July 2021
JUDGMENT OF ISAC J
[On striking out application]
Introduction
[1]This proceeding concerns grievances in search of a cause of action.
[2] The plaintiff, Samantha Grant, has brought a wide-ranging set of claims against the defendant. The genesis of Ms Grant’s complaints is the belief that the New Zealand Police unlawfully disclosed inaccurate information to potential employers as part of a Police vetting process. Ms Grant perceives the disclosure of the information lead to a spiral of events that saw her lose her liberty, her employment, her home, and access to her children.
[3]The Attorney-General seeks to strike out Ms Grant’s claims on the basis they:
(a)are an abuse the Court’s process by seeking to relitigate matters already determined by another Court;
GRANT v THE ATTORNEY-GENERAL [2021] NZHC 1700
(b)disclose no reasonably arguable cause of action; or
(c)are so prolix and difficult to understand that the defendant would be significantly prejudiced if required to respond them.
[4] If any of the claims are not struck out, the Attorney-General seeks a security for costs order.
[5] For the reasons outlined below, I have reached the clear view that all but one of Ms Grant’s claims should be struck out.
Background
[6] The last decade has been difficult for Ms Grant. It has involved her losing work as a early childhood teacher, separation from two partners, loss of unsupervised access with her two children, criminal charges in relation to family violence and breaches of a trespass and protection order, a conviction for driving with excess breath alcohol, and incarceration as a remand prisoner.
Overview of Ms Grant’s litigation
[7] In 2017 Ms Grant complained to the Privacy Commissioner about the release of information to prospective employers in Police vetting reports. This information concerned eight alleged family violence incidents from 2009 to 2016. The incidents did not result in convictions, but in charges being withdrawn, a discharge without conviction, a warning and a dismissal (of one of the assault charges).
[8] In December 2017 the Privacy Commissioner wrote to Ms Grant informing her that there had been no interference with her privacy. Ms Grant asked the Commissioner to reconsider. The Commissioner reconsidered Ms Grant’s complaints and reached the same conclusion.
[9] Throughout 2018 Ms Grant (then using her former partner’s surname, Everett) filed three statements of claim in the District Court alleging the New Zealand Police
had improperly disclosed irrelevant and inaccurate personal information in Police vetting checks to potential employers and to Oranga Tamariki.1
[10] In March 2019, Judge Zorab struck out Ms Grant’s cause of action based on the Privacy Act 1993.2 Ms Grant filed another statement of claim, which resulted in an order for security for costs.3
[11] In March 2020, Judge Zorab struck out the remaining claims relating to the torts of invasion of privacy and intrusion into seclusion, defamation and the claim alleging publication of name supressed material.4 In ordering Ms Grant to pay the defendant’s costs, Judge Zorab in a separate judgment noted:5
The plaintiff’s claim was misguided and totally without merit…
[12] That same month Ms Grant filed another statement of claim alleging that her ex-husband taking possession of the family home pursuant to Family Court orders resulted in a breach of privacy, a breach of human rights, and humiliation. Judge Barkle struck out the claims on the basis that none of the proposed causes of action could succeed.6
[13] Ms Grant has also made two habeas corpus applications to this Court. Both were dismissed.7
[14] Finally, Ms Grant was also involved in relationship property proceedings involving her former partner, a result of which was for the family home to vest in
1 The first statement of claim was filed in May 2018, with two subsequent statements of claim being filed in September and October respectively.
2 Everett v New Zealand Police [2019] NZDC 4387. Leave was granted for Ms Grant (or Ms Everett as she then was) to amend her pleadings to include claims in tort of invasion of privacy and intrusion into seclusion if she wished to do so. The Judge also advised Ms Grant to amend her defamation pleading so as to provide sufficient particulars.
3 Everett v New Zealand Police [2019] NZDC 25738.
4 Everett v Attorney-General [2020] NZDC 2663.
5 Everett v Attorney-General [2020] NZDC 6341 at [4].
6 Grant v Everett [2021] NZDC 4457.
7 Grant v Chief Executive of the Department of Corrections [2020] NZHC 2944; Grant v Minister of Justice [2021] NZHC 740.
Ms Grant’s former partner, with him to take responsibilities for the mortgages secured over the home and to discharge the liabilities of Ms Grant in that regard.8
This proceeding
[15] Ms Grant has filed three documents which she wishes to be treated as her pleading. They are:
(a)the document entitled “statement of claim” dated 7 September 2020;
(b)the document simply entitled “pleadings” dated 25 March 2021;
(c)the document entitled “further to statement of claim as they unfolded after filing in March 2020”, dated 14 April 2021.
[16] I will refer to the documents collectively as “the pleading” unless the context otherwise requires.
[17] Most of the pleading is difficult to understand. It is a diffuse narrative involving a mix of opinion, submission and fact. The same themes, or grievances, are regularly repeated. Ms Grant is not a lawyer and so some departure from convention is to be expected, but the pleading is truly difficult to comprehend. I will nonetheless assess it against the criteria for strike-out, taking a generous view of the pleadings to the extent I am able to.
The 7 September 2020 statement of claim
[18] This document is 47 pages long. It has 256 paragraphs. It often skips from one subject to another and back again. The following passage may provide the reader with the flavour of Ms Grant’s approach to pleading:
34.The plaintiff does in fact believe the DUI conviction itself is enough on any Ministry of Justice VET check because “every persons’ individual body” reacts differently to the breath test. There are many arbitrary factors not taken into account on this formal evaluation.
8 Everett v Grant [2019] NZFC 10593. Ms Grant’s former partner was also ordered to account to Ms Grant for her half share in the equity of the property.
34.1“There is a common misconception that a person can avoid being defamatory by reporting something as an allegation which implies that it has not been substantiated.” This is not always true. Statements coached as allegations can be defamatory where the ordinary person is likely to conclude there is some factual basis to the allegation. “
35.The plaintiff to gain this reading had to try 27 times to breath into the electronic device. This is an insult to Justice. Not even the other office stopped the testing. The plaintiff had rib damage caused by the arrest. She only found this out when she went to hospital. The plaintiff will assure you her rib was broken because even today it still hurts when she looses weight.
36.Among other things Article 10 of the Human Rights Act states: “Everyone is entitled in full equality to a fair public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
37.To qualify, under the Defamation Act (1992) there is absolutely no defence for being presumed in a car and driving with 1197 breath alcohol. That is accusing someone of being drunk in a car! The plaintiff has been defamed by s 77 of the LTA. The Ministry of Justice Vet Check has recorded her DUI as 1197 breath alcohol under the official information act (1982) The United Nations Declaration of Human Rights states:
“(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantee's necessary for his defence.”
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
[19] Paragraphs [3]–[71] of the document relate to the disclosure by New Zealand Police of a vetting form. Ms Grant alleges a breach of privacy by way of the “1993 Privacy Act” and the tort of “breach of privacy by publishing private facts.”
[20] It is alleged the vetting form recorded eight family violence episodes involving Ms Grant. Ms Grant says that some, if not all, of the information recorded in the vetting form was defamatory or breached her privacy. The information was released by Police to an early childhood centre, which was considering employing Ms Grant. Ms Grant alleges the information in the Police vetting form failed to reflect the Criminal Records (Clean Slate) Act 2004.
[21] Interwoven in this part of the statement of claim is an allegation that “defamation has occurred due to s 77 of the LTA”. Briefly, the relevant circumstances underpinning this claim were these. Police responded to a report of irregular driving by Ms Grant and found her at her home shortly thereafter. She was intoxicated, and admitted that she had just driven from her home to a bottle store to purchase a bottle of spirits. She also advised Police that she had consumed a not insignificant volume of gin after she arrived home, just before the Police arrived.
[22] Police required Ms Grant to undertake an evidential breath test, which revealed Ms Grant was almost three times the breath alcohol limit.
[23] Ms Grant was prosecuted and convicted of driving with excess breath alcohol. She alleges her prosecution and conviction are defamatory because she claims she was not under the influence of alcohol when she drove to the bottle store. The essence of Ms Grant’s argument is that s 77 of the Land Transport Act, which presumes her breath alcohol level at the time she drove reflects her subsequent breath test, is defamatory.
[24] The claim goes on in this part to include various complaints against the Office of the Privacy Commissioner and the Independent Police Conduct Authority, to whom it appears Ms Grant complained to after the release of the Police vetting form and her prosecution for driving with excess breath alcohol.
[25] From [75] Ms Grant alleges Police officers that arrested her for breaching a protection order committed the tort of intrusion into seclusion by entering her bedroom. Ms Grant also takes issue with her ex-husband’s occupancy of the house, and the fact he changed the locks.
[26] A heading — ‘ISSUES WITH RELATIONSHIP PROPERTY DIVISION’— precedes a wide-ranging discussion of the relationship property judgment.9 Ms Grant appears to object to many — if not all — of the Judge’s findings. And Ms Grant again objects to the Police’s involvement in removing her from the house and their enforcement of the protection order. She says:
9 Everett v Grant, above n 8.
114. Multiple breaches of privacy have taken place. The plaintiff filed a Civil Suit in March 2020 on her ex husband to qualify that intrusion into seclusion by way of changing her locks and taking possession has occurred. Breach of Privacy under the Privacy Act (1993) and tort intrusion into seclusion.
[27] Focus then shifts to the events of 3 March 2020, when Ms Grant returned to the property. Essentially, Ms Grant says she entered the property, fell asleep on the couch and was woken by her ex-husband who then called the Police. She says:
125. These named people on the protection order had intruded into where Samantha was and proceeded to wake her up. The protection order clearly meant they were entitled to do this? Transcript 17 and 18th June 2020 [2020] NZFC 4521
[28]Ms Grant then alleges:
128.…and has the photograph evidence that she had been slapped two times across the face (causing two black eyes) and was strangled during this incident by her ex husbands partner. The Police chose to ignore the allegations the plaintiff had made during her arrest.
129.The plaintiff was arrested by the police. She was forcefully removed from the couch.
[29] Further issue is taken with how the Police responded to Ms Grant’s allegations of assault and how some household items were managed while she was in prison. Ms Grant was particularly concerned to ensure there were no drugs stored on her property, and that her ex-husband was not remotely accessing her computer. She says Police did not listen to her concerns.
[30] The next heading is ‘GOVERNMENT DEPARTMENT OF CORRECTIONS’. This section primarily relates to Ms Grant’s time in Christchurch Women’s Prison from May until late June 2020. There are again wide-ranging criticisms. These include: “Covid 19 breaches” as a result of soap not being available unless asked for, the fact Ms Grant was detained alongside convicted and maximum security prisoners, and a complaint relating to the fact she had to provide her full name, a photograph and her status (remand or accused) which she did not want to be made public.
[31] Ms Grant then confirms she was eventually granted bail. She says she is still trying to seek employment but that her time spent in prison is making that difficult.
She says she was not informed of her rights before going into prison, and she has written to the Prime Minister with suggestions on how to improve this. She also makes general complaints about her bail conditions, such as the Police checking on her in the early hours.
[32] A new heading — ‘GOVERNMENT DEPARTMENT MINISTRY OF JUSTICE NZ COURTS’— follows and appears to relate to legal aid services. On one occasion Ms Grant says she was turned down for legal aid but was granted legal aid for her relationship property proceedings. She says her having to have a lawyer has caused her undue financial hardship.
[33] Ms Grant then moves on to lengthy criticisms of the terms — and evidential foundation of — the variation to the parenting order against her, made by the Family Court in 2017.10 Particular attention is paid to disputing her alleged alcohol dependency. She concludes:
Absolutely no balance has been maintained. Instead the plaintiff has tried time and time again to change the initial parenting order…
[34]On the 39th page, Ms Grant explains her causes of action. She says:
THE ACTUAL CAUSE OF ACTION IS TO RECTIFY JUSTICE
….
CAUSE TO ACTION: LOSS OF DIGNITY, HUMILIATION, EMOTIONAL AND PHYCOLOGICAL IRREVERSABLE DAMAGE!!!
REMIDY FOR RELIEF: 5 MILLION DOLLARS
(a)Costs
(b)S9 money Act interest
[35]Ms Grant’s further causes of action relate to:
(a)breach of privacy, whereby she seeks implementation of a new Police vetting form to enable private notes to be concealed, and $1m in damages;
10 Everett v Irvine [2017] NZFC 10007.
(b)defamation, where she seeks “costs her career 20 years x $55,000 she will never teach again”.
(c)“breach of human right to be heard in front of a judge in a timely manner.”
[36]Under a heading entitled ‘REMIDIES FOR RELIEF’, Ms Grant then seeks
$1m to compensate for the fact she “has had her life so interfered with without any balance” and a further $1m for the emotional and physical harm she has endured.
[37] The final cause of action, at page 46, relates to Ms Grant’s children, who she says are victims of the Police, court process, and the Ministry of Justice. Ms Grant alleges there have been breaches of “Unicef for every child”— presumably the Convention on the Rights of the Child — specifically arts 5,8,18, and 25. Ms Grant seeks a letter to her children apologising for the actions of the Crown, extended counselling should they require it, and $1m dollars in “damages” for emotional harm and humiliation.
25 March “pleadings” document
[38]This document is 15 pages long and runs to a further 55 paragraphs.
[39] It makes reference to the Criminal Records (Clean Slate) Act 2004 and the United Nations Declaration of Human Rights. And, again, it refers to Ms Grant’s prosecution for driving with excess breath alcohol, noted above.
[40] Ms Grant outlines her complaint to the IPCA about being breath tested, the without notice protection order obtained by one of her former partners, aspects of the relationship property dispute with her former partner and trespass issues arising from that, and, once again, her incarceration in Christchurch Women’s Prison.
[41] Reference is made to the habeas corpus application Ms Grant filed, as well as the bail conditions imposed upon her release from prison. Ms Grant reiterates complaints about the Family Court care and access litigation concerning her two children and again makes reference to a claim for intrusion into seclusion.
[42] In contrast to the statement of claim, the “pleadings” document does not contain any clear reference to separate clauses of action or prayers for relief, although it does note:
Miss Grant had filed this civil proceeding in order to get money back that she lost in the house settlement. The man went too far when he committed perjury in court and his partner assaulted Miss Grant. Miss Grant wants the protection order removed.
[43] Overall, this document is also a disjointed mix of alleged fact, opinion and submission, with little logical connection between Ms Grant’s points of grievance and a cause of action.
The “further to Statement of Claim as they unfolded after filing March 2020” document
[44] This document was filed in April 2021. It is 13 pages long and 104 paragraphs in length. It begins with the words:
This document notifies you that more pleadings are valid:
[45] Ms Grant begins by seeking to “add” a challenge to a judgment of this court relating to her application for a writ of habeas corpus.11 Again it appears to be, apart from the reference to the application for habeas corpus, largely a repetition of the same grievances outlined in her previous two pleading documents. She gives a detailed perspective on allegations of assault both concerning her as an alleged perpetrator, and victim, and her experiences in prison, on which she says at one point:
After the hearing Miss Grant was sent back in CHC Women’s Prison? What the heck is this justicc system doing for Miss Grant? She stood out already, had to return and again the “old gang” was back together. Talking more about drug life this time. Miss Grant spent two further weeks in CHC before returning to Nelson. What happened to burden of proof, timely hearings of trials and worse innocence before guilt?
[46] Ms Grant also makes an allegation of negligence against the “Education Council” in what appears to have been a professional disciplinary investigation process following her unhappy involvement with the criminal justice process and her conviction for driving with excess breath alcohol.
11 Grant v Attorney-General, above n 7.
[47] The IPCA complaint is again raised, and Ms Grant also complains about her relationship property division case that was struck out. She says:
…where is it a judges right to explain it is ill pleaded, frivolous and vexatious?
[48]Other claims, such as her not being able to see her daughter, are again raised.
Strike out
[49]Rule 15.1 of the High Court Rules 2016 provides:
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[50] In this case there are essentially two broad grounds advanced in support of striking-out: the pleading discloses no reasonably arguable cause of action, or alternatively it is an abuse of the Court’s processes (the grounds in r 15.1(a) and (d)).
[51] The approach to striking out a claim that discloses no reasonably arguable cause of action is well settled:12
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction.
[52] Where a defect in the pleadings can be cured by an amendment, the Court will not generally strike the proceeding out. Instead, it will permit the plaintiff to make the amendment provided the cause of action is still within time.13
12 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267, as confirmed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
13 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 324.
[53] The principles applicable to second broad ground of strike out, the abuse of the Court’s processes, are also well-established:14
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – “otherwise an abuse of process of the court” – extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim
(footnotes omitted)
[54] Relitigating matters already determined, including bringing proceedings dressed in different garb but having the same effect, will amount to an abuse of process.15
Summary of Ms Grant’s claims
[55] The key themes, or grievances, in Ms Grant’s proceeding can be summarised as:
(a)information contained within the 2016 Police vetting document was defamatory and a breach of her privacy;
(b)her prosecution and eventual conviction for driving with excess breath alcohol based on the presumptive nature of s 77A of the Land Transport Act was defamatory;
14 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679, (2013) 26 NZTC 21-007, [2013] NZCCLR 10 at [89].
15 Dotcom v District Court at North Shore [2017] NZHC 3158 at [25] citing Rabson v Judicial Conduct Commissioner [2016] NZHC 2539; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL); and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586. See also Faloon v Planning Tribunal at Wellington [2020] NZCA 170 and Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421.
(c)her complaints in relation to Police conduct and errors to the Commissioner and IPCA were wrong in their findings;
(d)being denied proper care and access to her children;
(e)being removed from her home unlawfully;
(f)being wrongly incarcerated in prison and wrongly mixed in with the general prison population when she ought to have been kept separate with the remand prisoners; and
(g)more recently, Ms Grant appears to wish to re-litigate her two failed applications for habeas corpus.
[56] I agree with Mr McKillop’s submission during the hearing that the vast majority of the allegations in Ms Grant’s pleading are irrelevant to any of the discernible legal claims.
Discussion
[57] Due to the wide-ranging and discursive nature of Ms Grant’s pleading, the best approach in determining whether strike out is appropriate is to consider the themes, or the general topics Ms Grant has raised, as outlined at [55].
The Privacy claims
[58] The general breach of privacy and the tort of invasion of privacy were struck out as unarguable by Judge Zorab.16
[59] As the applicant notes, there is no jurisdiction to bring a claim under the Privacy Act in the High Court, and the only exception to this does not apply here.17
16 Everett v New Zealand Police, above n 2, at [66]; Everett v Attorney-General, above n 4, at [128]–
[133] and [215].
17 Privacy Act 2020, s 31 states that the information privacy principles s do not confer on any person any right that is enforceable in a court of law. The one exception to this is principle 6(1), which provides that an individual is entitled to receive confirmation that an agency holds personal information about them and to access that information.
The proper process is to make a complaint to the Privacy Commissioner at first instance, and then to the Human Rights Review Tribunal. Ms Grant did complain to the Commissioner who concluded that no breach of privacy had occurred.
[60]As Judge Zorab found:18
On any reasonable analysis of the facts of Ms Grant’s case, there is no basis on which this tort could apply
[61] This part of the claim therefore meets both grounds of strike out: it is unarguable (jurisdictionally and legally) and has in substance already been determined and is therefore an abuse of process.
Defamation
[62] This claim arises from the statutory presumption under s 77 of the Land Transport Act 1998 that the breath alcohol level a person is tested with is the level they were driving with. As I have already noted, Ms Grant says she has been defamed because of that presumption, and the subsequent recording of her breath alcohol level in the Ministry of Justice record of convictions and Police vetting report.
[63] Ms Grant also says the Police vetting report referring to family violence incidents she was involved in is defamatory.
[64] In relation to the Police vetting report, Judge Zorab said the claim fails at “the first hurdle”, as Ms Grant was unable to prove the defamatory meaning she alleged; that she is a drunk, a perpetrator of domestic violence and that she does not obey the law.19
[65]And in relation to the breath alcohol limit, Judge Zorab noted that:20
…. However, more importantly, no such cause of action could exist. The simple truth of the matter is that Ms Grant pleaded guilty to drinking and driving, and was later convicted of the charge, and was disqualified from holding or obtaining a driver’s licence. To suggest she has been defamed by the operation of s 77 of the LTA and/or by her conviction is bizarre.
18 Everett v Attorney-General, above n 4, at [128].
19 At [161].
20 At [205].
[66] Ms Grant is clearly relitigating this point. But I also agree with Judge Zorab that a claim founded on defamation in this context is untenable.21 Again, both grounds for striking out are made out.
Intrusion into seclusion
[67] Ms Grant says Police committed the tort of intrusion into seclusion by arresting her for breach of a protection order, as well as when they checked on, and arrested her, while she was on EM bail.
[68] Judge Zorab found this cause of action could not possibly be made out on the facts given the Police were acting within their duty when they visited Ms Grant’s house.22
[69] In any event, and if Ms Grant is now alleging the Police committed the tort on different occasions, it cannot be sustained. The first element of the tort is an intentional and unauthorised intrusion.23 The Police were authorised to enter Ms Grant’s home.
[70] This claim is therefore an abuse of process and discloses no reasonably arguable cause of action.
Criminal Records (Clean Slate) Act 2004
[71] Ms Grant says the Police breached the Criminal Records (Clean Slate) Act 2004 by including information in the vetting reports that either should have been exempted (information not resulting in convictions) or were subject to name suppression.
[72]Judge Zorab did not consider this claim to have been made out, noting:24
… the Clean Slate Act does not apply to non-conviction information. As Mr Mackay noted, non-conviction information, such as intelligence notings, interactions with police or Court outcomes other than convictions, held by
21 Notwithstanding the fact that the defamation claims have not been pleaded in accordance with s 37 of the Defamation Act 1992 and are time barred by s 15 of the Limitation Act 2010.
22 Everett v Attorney-General, above n 4, at [136].
23 C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672 at [94].
24 Everett v Attorney-General, above n 4, at [139].
NIA that may be relevant to an applicant’s role, and which were sufficiently substantiated, might be considered for inclusion in a Police Vet Check.
[73] Ms Grant’s allegation that name suppressed material was included in the vetting report is equally unsustainable, for the reasons noted by Judge Zorab. For one, breach of a suppression order is a criminal offence that cannot be dealt with in civil proceedings, but in any event it was appropriate for the facts of the case in which Ms Grant’s name was suppressed to be identified in the vetting report given the recipients’ legitimate need to know.25 I agree with this conclusion given Ms Grant’s profession.
[74] Both the IPCA and the Privacy Commissioner have rejected Ms Grant’s complaint too.
[75] Not only has this claim been considered before, it discloses no reasonably arguable cause of action.
District Court and Family Court claims
[76] As noted, Ms Grant makes a number of allegations relating to these two courts. The appropriate avenue for these allegations is through appeal, seeking judicial review of a particular decision, or applying for a discharge of an order. It is an abuse of process to bring the same allegations determined by those Courts in this proceeding.
[77] Equally, the pleadings relating to this broad theme appear to reflect an unhappiness with the outcome of the decisions, rather than a tenable or identifiable legal claim.
Department of Corrections claims
[78] As noted, these claims relate to Ms Grant’s time in Christchurch Women’s Prison. Essentially, Ms Grant says soap was not made available to her until she
25 At [210]–[213].
requested it (this was during COVID 19), and she was housed in the same wing as convicted prisoners (rather than the remand wing).26
[79] Ms Grant acknowledges she was given soap when she asked for it. It seems however her complaint is that prisoners should not have to ask for soap in the first place.
[80] The Attorney-General says the Corrections Act 2004 does not require Corrections to proactively provide prisoners with soap, but rather the Corrections Regulations 2005 provide that every prisoner must keep themselves clean, and that the manager of a prison must ensure that the means to comply with that requirement are available to every prisoner. The fact Ms Grant received soap when she asked for it demonstrates that the prison manager’s legal duty has been met, and that there has been no breach of a statutory duty that could provide the basis of a judicial review or tort claim.
[81] There is no doubt a distinction is made within the Corrections legislation (the Act and the Regulations) between minimum entitlements — which must be proactively provided by prisons — and other things such as cleaning products that must be “available”. Soap is not a minimum entitlement, unlike food and drink for example. This may be surprising, but given soap must only be made available, which it was, it is hard to see how Ms Grant’s complaint could form the basis of a claim.
[82] Ms Grant’s claim relating to being mixed with sentenced prisoners seems more capable of being the subject of a judicial review proceeding. As the defendant notes, reg 186 of the Corrections Regulations states as far as practicable, accused prisoners must be kept apart from other prisoners in a prison, and if it is not reasonably practicable to accommodate an accused prisoner in a separate unit from convicted prisoners, then the accused prisoner must be subject to a separate regime that ensures accused prisoners are kept apart from other prisoners as far as practicable.
26 Ms Grant also says other prisoners were provided with her name, photograph and status. Ms Grant relies on the Privacy Act for this complaint. As noted earlier, there is no jurisdiction to hear this claim. Ms Grant’s remedy lies in lodging a complaint to the Privacy Commissioner.
[83] Ms Grant was detained during the COVID-19 pandemic, so the issue may be whether it was not reasonably practicable to accommodate Ms Grant in a separate unit from convicted prisoners. The Court is not in a position in this strike-out application to assess this issue, but it seems there may be a genuine issue at play here. And, as Mr McKillop responsibly acknowledged, it is the one aspect of Ms Grant’s current proceedings that has not been previously been the subject of a judicial determination.
[84] However, given the wider context in which this claim sits — buried within a 47-page document — in order to determine whether this aspect of the proceeding ought to continue, it is necessary for Ms Grant to file an amended statement of claim and add further particulars or details of her claim in relation to what she says was an unlawful remand in custody, and for her to identify the legal basis for her complaint, and the remedy she seeks.
Are any of the causes of action “fresh” proceedings?
Education Council
[85] There remain some claims that feature throughout Ms Grant’s pleading that either have not been dealt with before or the defendant has not responded to.
[86] One of them is a claim that the Education Council was negligent. Exactly how that is so remains a little unclear, but it seems Ms Grant’s complaint relates to the investigation undertaken by the Council after Ms Grant’s manager advised the Council of Ms Grant’s behaviour (especially her drinking, and the DUI conviction) and her dismissal from employment. Ms Grant seems to take issue with the Education Council gathering the information it required to undertake its investigation, including information she says was private.
[87] But ultimately Ms Grant’s claim on this topic is unclear. Negligence is asserted but not explained. I do not consider this claim is capable of being re-pleaded either, as it is unclear what the claim is focused on.
Legal aid
[88] This claim relates to Ms Grant being turned down for legal aid where she says there was
… no step by step guide to the documentation she had to provide and the expectation of the contents of these documents from the courts…
[89] Ms Grant then appears to take issue with being granted legal aid for her relationship property proceedings, which she says has caused her “undue financial hardship”.
[90] This claim is equally as unclear. It appears Ms Grant’s issue is with the legal aid scheme in general, rather than an actionable legal claim. It is struck out.
Habeas corpus applications
[91] Ms Grant’s pleading frequently refers to the habeas corpus applications she made, one of which she made when she was not detained.27 These applications have been determined and dismissed. It is an abuse of process for Ms Grant to seek to relitigate them in this proceeding.
Conclusion and result
[92] Ms Grant’s proceeding, except to the extent it involves a claim that she was unlawfully detained with sentenced prisoners while on remand, is struck out.
[93] In respect of the latter claim, Ms Grant is to amend her pleading articulating the facts on which her claim is based, identifying the cause of action she advances and the remedy she seeks. I remind Ms Grant that she is only to focus on this aspect of her proceeding, as her other claims have been struck out. The amended statement of claim is to be filed within 20 working days of this judgment.
[94] The defendant’s application to strike out the proceeding is also adjourned insofar as it relates to the one aspect of the proceeding that has survived. The defendant
27 Above, n 7.
may renew its application, should it wish to, once Ms Grant’s amended pleading has been filed.
[95] I adjourn the defendant’s application for security for costs. I consider it can be considered further, if necessary, if Ms Grant’s amended claim survives strike out. The Court should also be in a better position at that point to assess the merits of the claim insofar as they might affect the consideration of security.
[96] As I noted at the hearing, the Crown has not made an application for a civil restraint order under s 166 of the Senior Courts Act 2016 and, as a matter of fairness to Ms Grant, I consider that question ought to be advanced through a formal application to which Ms Grant can respond. I do not consider it appropriate to deal with the matter in the context of the current application, given the limited information available to the Court. Without expressing a concluded view, however, Ms Grant’s conduct of litigation, including this proceeding, certainly appears worthy of examination in the context of s 166.
Isac J
Solicitors:
Crown Law Office, Wellington for Defendant
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