Harriman v Attorney-General

[2012] NZHC 2148

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-881 [2012] NZHC 2148

UNDER  the Judicature Amendment Act 1972, Declaratory Judgments Act 1908, Parole Act 2002, Corrections Act 2004, Crown Proceedings Act 1950, State Sector Act

1988, New Zealand Bill of Rights Act
1990, International Covenant on Civil and
Political Rights, the Common Law

IN THE MATTER OF     an application for judicial review

BETWEEN  ALLEN LOUIS HARRIMAN Applicant

ANDATTORNEY-GENERAL First Respondent

ANDNEW ZEALAND PAROLE BOARD Second Respondent

Hearing:         Teleconference at 12:00 noon, 22 August 2012

Counsel:         Applicant in person

C A Griffin and L M Inverarity for the First Respondent
F M R Cooke QC for the Second Respondent

Judgment:      23 August 2012

JUDGMENT OF MALLON J

Introduction

[1]      Mr Harriman, a sentenced prisoner, seeks judicial review of actions by the

Department of Corrections and the Parole Board in respect of the Parole Board’s

consideration of his eligibility for parole.  He also claims against the Department of

HARRIMAN v ATTORNEY-GENERAL HC WN CIV 2012-485-881 [23 August 2012]

Corrections in tort for alleged misfeasance in a public office and  for breach of statutory duties and seeks a declaration and compensation in respect of that claim. He also claims compensation for alleged breaches of the ICCPR[1]  and the New Zealand Bill of Rights Act.  The respondents seek an order that the judicial review claims be determined first and  separately from  the other claims.   Mr Harriman opposes this order.

[1] International Covenant on Civil and Political Rights.

[2]      Mr Harriman is presently without legal counsel.   He is seeking a grant of legal aid so that he may secure the services of counsel.  He is unsure whether the lawyer he has instructed has lodged the application for legal aid and, if so, when that application will be considered.  If legal aid is not granted he would like to seek the appointment of an amicus curiae.   In view of Mr Harriman’s wish to have legal representation I enquired whether he wished to have the respondents’ application for a split hearing deferred until his legal aid application was determined.  Mr Harriman said that he did not.  I have therefore proceeded to consider it, on the basis of the matters set out in the memoranda and the submissions advanced during the telephone conference.

[3]      Mr  Harriman  raised  whether  the  respondents’  memorandum  could  be considered because it had been filed and served late.  I informed him that the time for filing and serving the memorandum was a procedural matter, and that I could and would consider the memorandum even though it was late.

Split hearings

[4]      Rule 10.4 of the High Court Rules permits the Court to order separate trials of causes of action “[w]hen justice requires”.  This is a broad discretion.  Relevant factors to the exercise of that discretion are set out in Turners & Growers Ltd v Zespri Group  Ltd.[2]      These factors  include  whether the first  trial  could  end  the litigation, whether there are demarcation difficulties if the trials are to be split (which

can lead to issues such as duplication and questions of issue estoppel), the likelihood

of delay in finally resolving the proceeding, and the public interest in shortening the litigation.

[2] Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010.

[5]      In Deliu v The New Zealand Law Society[3]  the Court of Appeal upheld an order directing separate hearings of four judicial review causes of action and the other seven causes of action which sought damages and other relief.  This was even though there was a commonality of parties and the period covered by the causes of action, and significant factual overlap.  The Court of Appeal acknowledged that in this kind of situation a consideration of the relevant factors would normally lead to there being one trial.  However the Court of Appeal considered that the situation may be different where judicial review is involved.   This was because of the public interest in the expeditious determination of judicial review proceedings.

[3] Deliu v New Zealand Law Society [2012] NZCA 359.

[6]      In this case the respondents have identified the paragraphs in the amended statement of claim that relate to the judicial review claims as being:

(a)       paragraphs 4-22 (background section)

(b)      The first and second causes of action to the extent that they require

determination of the lawfulness of the applicant’s parole hearing on

17 January 2012, including:

(i)the  allegations  that  actions  or  omissions  of  officers  or employees of the Department of Corrections were unlawful and thereby caused or contributed to an unlawful parole hearing;

(ii)      determining whether there has been any breach of ss 9, 22,

23(5) and 27 of NZBORA and/or arts 9 and 10 of ICCPR, including the availability of declaratory relief.

[7]      The respondents seek to have the third cause of action seeking compensation for breach of NZBORA/ICCPR and the claims in tort for misfeasance of public office and breach of statutory duties heard separately and later.

[8]      The respondents submit that the judicial review claims can be determined expeditiously with confined discovery, affidavit evidence and submissions.   They submit that if the judicial review is unsuccessful it is unlikely that the misfeasance claim could succeed and the compensation claims will fall away altogether.  They submit that there is a public interest in hearing the judicial review expeditiously. That is because Mr Harriman’s parole is subject to annual reviews.  The next review will take place in January 2013.  There is an interest in having the lawfulness of the Department of Corrections and the Parole Board’s actions determined before the next review (if that is feasible).   More generally the determination of Mr Harriman’s judicial review allegation may be relevant to others being reviewed for parole.

[9]      Mr Harriman responds by questioning whether there would be any saving in time if the judicial review claims are determined first.  He sees the whole proceeding as narrow and capable of determination on the basis of the documents (rather than evidence from witnesses).  He submits that the claims are contemporaneous, causally connected and arise out of the same context.  He also says that there will be no time saving, because if I rule in favour of a split trial he will appeal my decision to the Court of Appeal.   He also says that he will proceed with his misfeasance claim regardless of the outcome of the judicial review claims.

[10]     In my view this is an appropriate case for exercising my discretion under r 10.4 of the High Court Rules.   It is not always easy to anticipate whether split hearings will save time and avoid duplication.  However in this case I consider that there is a clear demarcation between the judicial review claims (as outlined by the respondents above), the judicial review claim can proceed more expeditiously than the other claims (the nature of these claims and the procedure that applies enables this) and there is the general public interest identified by the respondents in the expeditious determination of the judicial review claims.  It is also in Mr Harriman’s interest to have the lawfulness of the challenged actions resolved so that everyone knows the position when he is subsequently considered for parole.

Result

[11]     I order that the judicial review claims (as set out above at [6]) be determined first and separately from Mr Harriman’s tort claims and his third cause of action for compensation.

[12]     I also make timetable directions as set out at paragraphs 23.2 to 23.6 of the respondents’ joint memorandum dated 20 August 2012.  A one day fixture is to be allocated in December 2012 if there is an available Court date then (noting that Mr Harriman’s parole is to be reviewed again in January 2013) and dates for the filing and service of submissions will need to work back from the hearing date.  If there  is  no  available  date  in  December  2012,  then  I  make  directions  as  per paragraphs  23.7  to  23.9  of the  joint  memorandum  of the  respondents  dated 20

August 2012.  I note that Mr Harriman was agreeable to these timetable directions if

I ruled against him on the split hearing issue.

[13]     By consent I also direct that Mr Harriman may submit his Court documents in this proceeding in handwriting whenever he has difficulties in accessing typing facilities and while he remains without legal counsel.   He can resubmit those documents in typed form in due course if he wishes to do so.

[14]     Mr Harriman is to follow up whether the application for legal aid has been submitted.  He is also to advise the Court and the respondents when a decision about that  has  been  made.    Given  the interest  in  an  expeditious  determination  of the judicial review claim it is hoped that the decision on legal aid will be made soon.  In the meantime I make no comment on the request for an amicus except to say that it will only fall for consideration if the legal aid application is unsuccessful.

Mallon J

Solicitors:

Crown Law Office, Wellington for the respondents

Copy to:

A L Harriman, PO Box 45, Rolleston 7643.