Greer v Chief Executive, Department of Corrections

[2019] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-000372

[2019] NZHC 65

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

application for Judicial review

BETWEEN

ALAN IVO GREER

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Respondent

PRISON MANAGER AT RIMUTAKA

Second Respondent

NATIONAL COMMISSIONER, DEPARTMENT OF CORRECTIONS

Third Respondent

Hearing:

On the papers

Counsel:

Applicant in person

R S May for the Respondents
J W Pohl for the Chief Ombudsman

Judgment:

5 February 2018

JUDGMENT OF COOKE J

[1]    These judicial review proceedings brought by Mr Greer, a serving prisoner, focus on an alleged unlawful failure to allow him access to computer facilities to assist him participating in Court proceedings. Some of the background to the proceedings is described in my judgment of 30 May 2018 in which I declined Mr Greer interim relief.1

1      Greer v Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571.

GREER v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2019] NZHC 65 [5 February 2018]

[2]    By document dated 19 November 2018 Mr Greer has filed applications, supported by a bundle of documents, for orders recalling my judgment referred to above to enable different discovery orders to be made. He also seeks orders to join the Ombudsman’s Office to these proceedings as an additional respondent, among other directions which need not be detailed here. He asks that the orders be made on the papers.

[3]    Counsel for the respondents have indicated to the Registry that the respondents can respond to these materials if the application were to be accepted by the Court, whilst noting that Mr Greer had previously been warned regarding the use of unacceptable language in his submissions to the Court.

[4]    By memorandum dated 14 December 2018 counsel for the Chief Ombudsman opposes joinder, relying on ss 25 and 26 of the Ombudsmen Act 1975, and also on the basis that the claims against the Ombudsman are plainly untenable. The Ombudsman supports the matter being dealt with on the papers.

[5]    I have concluded that it is appropriate to deal with what has been filed on the papers, and that there is no need to ask the respondents to file further materials. That is because the orders sought by Mr Greer are not appropriate. That is so for a series of reasons.

Abuse of process

[6]    First, Mr Greer has on a number of occasions been warned about the inappropriate language he has used in his submissions to the Court. Cull J indicated that he should remove the “gratuitous and offensive language” from his pleadings in her minute of 27 June 2017. Then by minute dated 26 February 2018 Ellis J recorded:

[2] I discussed with Mr Greer Mr May’s concerns about Mr Greer’s continued use of intemperate and abusive language in Court documents. Cull J has formerly noted this and directed that it stop. As I explained to Mr Greer he not only risks being found in contempt and having the offending passages excised but he detracts from the message he is trying to convey. If Mr Greer is unable to rein himself in appropriately then it will be open to the respondent to make an application either to have the material not read in its entirety or to have it judicially edited.

[7]    In the interim relief application considered by me Mr Greer continued to use inappropriate language in his written material. At the hearing I explained to Mr Greer that it did not advance his case to do so, and that it was more appropriate to focus on his arguments rather than engage in written comments that were in the nature of abuse.

[8]    Unfortunately the written material now received by the Court reverts to quite inappropriate use of language. The very first paragraph of the first document he refers to his claims as being as a result of “… an effective cartel of highly positioned, educated, and resourced criminals”. And he goes on to say, for example:

6.  The departmental criminal conspiracy to suppress victims of their   crimes, [continues] and has been given support by significant neglect or duplicity from their legal section and the [judiciary].

[9]    Such use of language occurs throughout the documents. In my view the materials now filed involve an abuse of process. Had there been any potential substance to the matters raised in the application, the appropriate course would have been to reject the document for filing and to require any application to be re-filed without the inappropriate language.

Is there any substance?

[10]   There is, however, no substance in the application made by Mr Greer. Even if I ignore the abusive language, the applications should not be granted.

[11]   First Mr Greer invited me to recall my judgment so that I could make different discovery orders. The grounds for recalling a judgment are set out in the judgment of Wild CJ in Horowhenua County v Nash (No 2).2 None of the grounds are made out in the present case. The fact that Mr Greer disagrees with my earlier judgment, and suggests that I ought to make more extensive orders by way of discovery, are not a reason for recall.

[12]   It is best to reiterate that discovery has a more limited role in judicial review given the focus of legality of decision making. The discovery that has been ordered here is directed at clearly identifying the materials relevant to the challenged decisions,

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.

and the interactions with the Department about them. The Court’s orders have been made, and broader discovery orders have not been accepted as appropriate.

[13]   Given the focus of the judicial review proceedings as set out in my judgment of May 2018 there is no basis upon which the Ombudsman should be joined. I refrain from considering the scope of ss 25 and 26 of the Ombudsmen Act (which would not likely exclude judicial review of the Ombudsman), but it is clear that the Ombudsman’s office should not be involved as a party to this proceeding, as its position is essentially irrelevant to the underlying judicial review claims that are in issue. I dismiss the application for joinder.

[14]   I also dismiss the residual requests for directions or orders to the extent they can be identified in Mr Greer’s written material.

Directions for proceeding

[15]   In my earlier judgment I gave directions for the provision of discovery, and the subsequent filing of amended statement of claim. As I understand it compliance with the discovery orders has been attended to, which has prompted Mr Greer to make this further application for effectively challenging the adequacy of discovery. In terms of the amendment to the statement of claim, I identified in paragraphs [36]–[38] of my judgment the ground of challenge which might have the most prospect of success, noting it was not within the existing pleading. I reiterate the importance for Mr Greer to focus on his key points for the purposes of this challenge.

[16]   Mr Greer has not filed an amended pleading. Mr Greer should have a further opportunity to file a focused amended statement of claim for judicial review. I order that he file and serve such a document within 15 working days of the release of this judgment. Once that document is received a fixture can be given for the substantive proceeding, and directions can be given for the steps leading up to the fixture.

[17]   It is possible that those directions could be made on the papers. Once the amended pleading is filed I would encourage Mr Greer and the respondents to give thought to that.

[18]   Should the amended pleading continue to use inappropriate language, however, there is a prospect it will not be received, and it may even be necessary to consider whether the proceedings should be struck out as an abuse of process. But if the amended pleading duly focuses on the claims that Mr Greer is plainly entitled to bring to the Court, then the proceeding can be properly progressed.

Cooke J

Solicitors:

Luke Cunningham & Clere, Wellington for Respondents J W Pohl for the Chief Ombudsman

Solicitors: