Huritu v Attorney-General
[2023] NZHC 2173
•14 August 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-157 TO 166
CIV-2021-485-169 TO 174
[2023] NZHC 2173
BETWEEN LEON HURITU AND OTHERS
Plaintiff
AND
THE ATTORNEY-GENERAL
First Defendant
AND
THE VISITING JUSTICE OF THE DEPARTMENT OF CORRECTIONS
Second Defendant
Hearing: 14 August 2023 Counsel:
J Mason and N Thrupp for Mr Huritu, Mr Ranapia, Mr Taite, Mr Cuff, Mr Paul, Mr Haere, Mr Tuilotolava, Mr Te Hau,
Mr Larkins, Mr Taipari, Mr Kiel and Mr Lote-Telea D Ewen for Mr Soames, Mr Tarau and Mr Manu
A Ngapo and G Whata for Mr Ronaki
D Jones and S Cvitanovich for DefendantsJudgment:
14 August 2023
Reissued:
15 August 2023
JUDGMENT (No 3) OF ISAC J
[Application for adjournment of trial]
Introduction
[1] The plaintiffs are all former inmates of Waikeria Prison. They have brought proceedings against the defendants under the New Zealand Bill of Rights Act 1990 relating to their conditions of detention and treatment by Corrections both at Waikeria and subsequently.
HURITU & ORS v THE ATTORNEY-GENERAL [2023] NZHC 2173 [14 August 2023]
[2] The proceedings were commenced by statements of claim filed on 31 March 2021. Originally a three-week trial commencing on 12 September 2022 was allocated to deal with only some of the claims of six of the plaintiffs. The remaining 10 plaintiffs and the balance of the other six plaintiffs’ claims would require a lengthy fixture at a later date. In a judgment of 27 June 2022,1 I vacated the September hearing, and instead set down all of the plaintiffs’ claims for a 12-week trial commencing on 14 August 2023—that is, today.
[3] By joint memorandum of counsel of 11 August 2023, the parties sought to vacate the trial following an agreement (referred to as an interim deed of settlement) [redacted – reference to terms of agreement].
[4] At a hearing this morning counsel further advised that the terms of settlement are such that the Court can be confident that there is no realistic prospect of the proceedings requiring a lengthy fixture to deal with contested issues of fact. In particular, the settlement agreement contains two clauses which the parties rely on to support their submission. The first of those clauses provides that:
[Redacted]
[5]The second clause is in these terms:
[Redacted]
[6] On this basis, all counsel supported an application to adjourn the trial to permit the [redacted] settlement process to be completed. The limited scope of further judicial intervention, according to counsel, would only arise should the parties require clarification or determination of a requirement for settlement that they had been unable to resolve for themselves.
[7] Based on these submissions, I was satisfied that the interests of justice supported adjournment of the trial. My reasons follow in this judgment.
1 Huritu v Attorney-General [2022] NZHC 1500.
Applicable principles
[8]Rule 10.2 of the High Court Rules 2016 provides that:
10.2 Adjournment of trial
The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.
[9] This confers a broad discretion on the Court.2 The following principles inform its application:
(a)The interests of justice require consideration of not only the interests of the parties before the Court, but also of those awaiting a hearing who will suffer delay to their own cases should an adjournment be granted.
This reflects the public interest in the efficient use of court resources.3
(b)As between the parties, the decision to grant or decline an adjournment is essentially a balancing exercise. It involves a consideration of the prejudice that will accrue to the applicant as well as the harm to the respondent if an adjournment is granted or denied.4
(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.5
(d)The strength of the reasons in support of the application, and the prejudice said to follow from continuing with the trial, is a material factor.6 So too is the presence of an offer by the applicant to pay the wasted costs of the respondent should an adjournment be granted. An adjournment may be granted on conditions, including a requirement to
2 McGechan on Procedure (online ed, Thompson Reuters) at [HR 10.2.03].
3 Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8], approving
Commissioner of Inland Revenue v Patel [2013] NZHC 477.
4 O’Malley v Southern Lakes Helicopters Ltd HC Christchurch CP513/89, 4 December 1990, at 1–2.
5 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd [2019] NZHC 3479 at [15]. See also
Gray v Thom [1997] NZFLR 328.
6 So it has been recognised that the late illness of a party or their witness, or counsel, may be a proper ground for an adjournment. See Feasey v Dominion Leasing Corp Ltd [1974] 1 NZLR 593 (SC) at 595–596; Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).
pay the wasted costs of the other party.
(e)Also relevant is the right of the parties to a fair trial and the need for resolution of the proceedings, including the likely impact of further delay on the quality of the evidence and the difficulties of reorganising witnesses for a later trial date.7
Consideration
[10] As all parties support adjournment of the trial, no issue of prejudice between them arises. The guiding principle is the overall interests of justice.
[11] While there is an obvious concern about the adjournment of a lengthy trial in order to accommodate a settlement process, with a risk of wasted public resources, given the assurances of counsel and the terms of the interim settlement agreement, I accept that there is no real prospect that the proceedings will return to the Court for substantive determination. Given the broadly accepted position of the parties based on the pleadings, their desire to resolve the issues [redacted], and [redacted], I was satisfied that an adjournment meets the requirements of justice notwithstanding the loss of trial time.
[12] By consent, I direct the allocation of a case management conference in late February 2024 at which time it is expected the parties will be in a position to confirm completion of the settlement process and discontinuance of the proceedings.8
The claims of the non-active plaintiffs
[13] In Minute No. 10, I recorded that the Court was minded to dismiss, for want of prosecution, the claims of four plaintiffs, namely Messrs Soames, Taipari, Kiel and Lote-Telea.9
7 Shanghai Neuhof Trade Co Ltd, above n 5, at [15].
8 The one exception noted by counsel is the possibility of a joint request by the parties for the assistance of the Court in resolving matters of clarification or the scope of orders which the parties have been unable to resolve themselves.
9 Huritu v Attorney-General HC Wellington CIV-2021-485-157 to 166 and CIV-2021-485-169 to 174, 8 August 2023 (Minute (No 10) of Isac J) at [14].
[14]As I noted:10
[12] An unless order was made in relation to all defaulting plaintiffs on 3 May 2023. Following the unless order, all but the above four plaintiffs applied for relief from the order, and were granted it by Associate Judge Skelton on 21 July 2023.
[13] Ms Hill, who appeared for Mr Soames, advised her client did not wish to participate in the trial but she had been unable to obtain written instructions to discontinue his claim. At the last case management conference Ms Mason, who represents the remaining three plaintiffs in this category, advised that the reason her clients had not filed any evidence was that they had instructed her they did not wish to do so.
[14] At present, I would be minded to dismiss the proceedings of these four plaintiffs for want of prosecution given:
(a)they have failed to comply with a long standing and entirely conventional direction to provide briefs of evidence and documents in support of their claims;
(b)the allocation of a lengthy trial to hear their claims, and the likely inability of the defendants at this point to prepare and provide evidence in reply; and
(c)the decision of three defendants not to comply with the requirements of the direction to file evidence and, subsequently, the unless order.
[15] At the hearing this morning counsel representing the relevant plaintiffs (Mr Ewen for Mr Soames, and Ms Mason for the rest) indicated that they had no instructions to oppose the Crown’s application for an order dismissing the proceedings for want of prosecution.
[16]Rule 15.2 of the High Court Rules provides:
15.2 Dismissal for want of prosecution
Any opposite party may apply to have all or part of a proceeding or counterclaim dismissed or stayed, and the court may make such order as it thinks just, if—
(a)the plaintiff fails to prosecute all or part of the plaintiff’s proceeding to trial and judgment; or
(b)the defendant fails to prosecute all or part of the defendant’s counterclaim to trial and judgment.
10 Footnotes omitted.
[17] Access to justice is a fundamental human right.11 For that reason, a court will not lightly dismiss a proceeding for want of prosecution. The common principles applied are that the applicant must show the plaintiff has been guilty of inordinate delay, such delay must be inexcusable, and it must lead to serious prejudice to the defendant.12 However, the overarching criterion in this case is whether the proper administration of justice requires that the court should intervene.13 As the Court of Appeal has observed in a different context, misuse of the judicial process causes unfairness for others involved, including the opposing party. It also undermines public confidence in the administration of justice.14
[18] In the present case, it seems at least three of the four plaintiffs instructed their counsel that they would not comply with a conventional timetabling direction requiring them to prepare and serve a brief of evidence and supporting documents on the defendants. Subsequently, they do not appear to have provided their counsel with any ongoing instructions in relation to the proceedings. I infer that they have, effectively, abandoned their claims. Additionally, the “inactive” plaintiffs were subject to an unless order debarring them from filing evidence unless granted leave. While 12 of the remaining plaintiffs made the appropriate application, and were granted leave,15 the inactive plaintiffs did not do so.
[19] I am satisfied it is no longer appropriate to burden the defendants and the Court with proceedings by parties who appear to have abandoned their claims. Whether intended or not, leaving proceedings on-foot while choosing to ignore the Court’s directions or taking steps to pursue the claim amounts to a misuse of the judicial process with attendant unfairness for the other parties. Nor would the community consider the court was exercising appropriate control over its procedures if it failed to act in these circumstances. Accordingly, the proceedings of Messrs Ali Taipari,16
11 Faloon v The Planning Tribunal at Wellington [2020] NZCA 170 at [1]; and O’Neill v New Zealand Law Society [2020] NZCA 500 at [14].
12 Lovie v Medical Assurance Soc NZ Ltd [1992] 2 NZLR 244 (HC) at 248.
13 O’Neill v New Zealand Law Society, above n 11, at [17].
14 At [17].
15 Huritu v Attorney-General [2023] NZHC 1927.
16 CIV-2021-485-166.
Bronson Kiel,17 Siaumau Lote-Telea18 and Taimana Soames19 are dismissed for want of prosecution. I make no order in relation to costs.
Parts of claim not subject to settlement
[20] In the joint memorandum of 11 August 2023 the parties identified two aspects of the claim that they submitted were excluded from the settlement process. They were identified as:
(a)the claims advanced by all plaintiffs in relation to their treatment during the period of the Waikeria Prison riots;
(b)Christopher Ranapia’s claims that he was assaulted by Corrections officers on 20 July 2020.
[21] However, after clarification by counsel, all parties were agreed that it is only Mr Ranapia’s claim that forms part of the current proceedings.
[22] Given its discrete nature, and the ongoing criminal prosecution involving the relevant Corrections officers, I granted a stay without opposition of this aspect of Mr Ranapia’s claim in a judgment of 23 December 2022.20 Leave is reserved to Mr Ranapia to apply to lift the stay once those proceedings are resolved.
[23] I also direct that this aspect of Mr Ranapia’s civil claim should be set down for a case management conference in early 2024 to monitor progress, if the matter has not been brought on for directions before then.
Confidentiality orders
[24] The settlement process between the parties is confidential. Despite this, in order to support their application for an adjournment, counsel and parties made reference to provisions of the interim settlement agreement.
17 CIV-2021-485-163.
18 CIV-2021-485-169.
19 CIV-2021-485-172.
20 Huritu v Attorney-General [2022] NZHC 3624 at [83].
[25] As I indicated in chambers, it is appropriate to preserve the confidence that exists between the parties. I direct redaction of any publicly available copy of this judgment of those aspects of the judgment touching on the nature and content of the interim deed of settlement. I also made an order suppressing any publication or report of the submissions made at the hearing today.
[26]Costs are reserved.
Isac J
Phoenix Law Ltd, Wellington for Plaintiffs Crown Law Office, Wellington for Defendants
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