Huritu v Attorney-General
[2022] NZHC 1500
•27 June 2022
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
[2022] NZHC 1500
BETWEEN LEON CHARLES HURITU AND OTHERS
Plaintiffs
AND
THE ATTORNEY-GENERAL
First Defendant
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Second Defendant
Hearing: 23 June 2022 Appearances:
J Mason and N Thrupp for Plaintiffs
D Jones and I McGlone for Defendants
Judgment:
27 June 2022
JUDGMENT OF ISAC J
[Application to adjourn trial]
Introduction
[1] Sixteen former and current inmates have brought proceedings against the defendants asserting serious violations of their fundamental human rights. Their claims relate to a period when the plaintiffs were imprisoned at Waikeria Prison, until a riot1 and fire destroyed part of that prison, and their subsequent treatment in other Department of Corrections facilities. The principal relief they seek are damages.
[2] A three-week trial starting on 12 September 2022 has been allocated to deal with some of the claims of six of the plaintiffs. The remaining ten plaintiffs, and the
1 I use the term “riot” in this judgment in its colloquial rather than legal sense.
HURITU AND OTHERS v THE ATTORNEY-GENERAL [2022] NZHC 1500 [27 June 2022]
balance of the claims of the six-September plaintiffs, will require a lengthy fixture at a later date.
[3] All 16 plaintiffs also face a criminal trial scheduled to commence in March 2023. The charges relate to their alleged involvement in the riot and, therefore, overlap to some extent with the events raised in their civil proceedings.
[4] The defendants have applied to adjourn the September fixture so that it can proceed after the criminal trial has been completed. In the alternative, they seek a modification to the timetable and a delay in the commencement of the hearing of two weeks. The September-plaintiffs oppose an adjournment. They say the issues for determination are urgent and the defendants are dragging their feet.
Procedural history
[5] Statements of claim by 16 plaintiffs were filed on 31 March 2021. Given their claims are closely related they have been case-managed together.
[6] Initially, the plaintiffs did not pursue a discovery order and instead made requests under the Official Information Act 1982 and the Privacy Act 2020 for material held by the defendants relevant to their civil claims.
[7] Unhappy with the outcome of the disclosure under those enactments, the plaintiffs requested a standard discovery order as recently as 30 March 2022.
[8] In a minute of 31 March 2022, Cull J directed the defendants to commence the process of providing unredacted confidential versions of documents which had been previously provided to the plaintiffs (in redacted form) pursuant to their Official Information and Privacy Act requests. Subsequently, on 1 April 2022, the plaintiffs sent a tailored discovery request to the defendants.
[9] By June this year, the defendants were increasingly in default of the discovery orders made by the Court. This was exacerbated by the unexpected loss of access to the document management programme the defendants had been using to facilitate the
discovery process. It seems clear that the discovery exercise has not been a small undertaking, or without complications.2
[10] Through an iterative process between late 2021 and June 2022, the number of plaintiffs and the scope of their claims have been progressively narrowed as a result of engagement with the Court. Two concerns appear to have shaped this approach to the September hearing:
(a)First, as noted, all defendants face trial on criminal charges commencing in March 2023 in relation to their alleged involvement in the Waikeria Prison riot. Given the plaintiffs are all likely to give evidence in support of their civil claims, there is a material risk that they will be compelled to give evidence on matters which could prejudice their defence in the criminal proceedings.
(b)Second, on any view, given the number of plaintiffs and the far- reaching claims they have advanced, a trial significantly longer than three weeks will be required. Accordingly, six plaintiffs have been selected on a “representative” basis. On 4 May 2022, Cull J directed that their claims for the September hearing be narrowed further to encompass only a challenge to the lawfulness of the conditions of their detention before, and after, the prison riot and fire.
[11] Discovery by the defendants has not been completed. The plaintiffs are concerned that their claims will be prejudiced by their inability to have access to all relevant documentary material held by the defendants.
[12]Finally, it is necessary to mention the current state of the pleadings.
[13] Only one of the six September-plaintiffs has filed a statement of claim accurately reflecting the agreed scope of issues for consideration in September. And, significantly, the defendants have not yet filed any statements of defence.
2 Some of the relevant material, according to submissions I received, consists of intelligence reports which may give rise to security issues given some of the plaintiffs remain in a prison setting. I was advised that in relation to Mr Te Hau there are in the order of 3,000 documents still under review.
[14] It is against this background that I turn to consider the defendants’ application for adjournment.
Applicable principles
[15]Rule 10.2 of the High Court Rules 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.
[16] As I have observed previously,3 r 10.2 confers a broad discretion on the Court. Nevertheless, 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.4
(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.5
(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.6
(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
3 Poutama Kaitiaki Charitable Trust and Pascoe v Taranaki Regional Council [2022] NZHC 628 at [38]–[39]. See also McGechan on Procedure (online ed, Thompson Reuters) at [HR 10.2.03].
4 Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8], approving
Commissioner of Inland Revenue v Patel [2013] NZHC 477.
5 O’Malley v Southern Lakes Helicopters Ltd HC Christchurch CP513/89, 4 December 1990, at 1–2.
6 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd [2019] NZHC 3479 at [15]. See also
Gray v Thom [1997] NZFLR 328.
factor.7
(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.8
Consideration
[17] As I identified at the hearing, there are three questions that need to be considered:
(a)Is there a risk of prejudice created by the civil proceeding occurring before the plaintiffs’ criminal trial?
(b)Are the September claims “representative” of the remaining claims, or is there a risk of multiplicity of proceedings on the same subject matter?
(c)Are the matters for determination in September urgent? Put another way, will an adjournment cause prejudice to the plaintiffs?
Risk of prejudice created by the civil proceeding occurring before the plaintiffs’ criminal trial
[18]All 16 of the plaintiffs’ claims, as originally filed, cover three time-periods:
(a)The first period spans treatment and conditions of detention in 2020 before the Waikeria Prison riot.
(b)The second period covers events during the riot, between 29 December 2020 and 3 January 2021.
(c)The third period relates to treatment and conditions of detention
7 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; and Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).
8 Shanghai Neuhof Trade Co Ltd, above n 6, at [15].
following the plaintiffs’ removal from Waikeria and imprisonment at other Corrections’ facilities.
[19] Given the obvious risk the defendants will give evidence in their civil proceedings on matters directly relevant to the criminal charges they face, a staggered approach was proposed by the parties. This would involve an initial hearing limited to the plaintiffs’ claims concerning the first and third time-periods. That is what the September hearing is intended to address.
[20] The difficulty with this approach is that the defendants’ case in relation to the third phase—treatment of the plaintiffs after the riot—is likely to rely on allegations and evidence pointing to the plaintiffs’ involvement in the riot. Narrowing the scope of the plaintiffs’ pleaded claims to exclude the period of the riot will not prevent the defendants putting those events squarely in issue when responding to the claims for the third period.
[21] Ms Mason confirmed all 16 of the plaintiffs are facing criminal charges which are proceeding to trial in March 2023. Given the scope of relevant issues is determined not only by the plaintiffs, but also by the defendants, there is every likelihood the plaintiffs will become compellable witnesses in the current proceeding on matters directly relevant to the criminal charges they face.
[22] Ms Mason argued the post-riot segregation decisions were made on a “blanket basis” without individualised consideration of each plaintiffs’ involvement in the relevant events. She submitted that, accordingly, the defendants would not be able to cross-examine her clients about their alleged involvement in the riot.
[23] I am unable to accept that submission. Even if the plaintiffs seek to avoid giving evidence-in-chief about events covered by the second time-period, it will still be open to the defendants’ counsel to put to the plaintiffs evidence which might point to their involvement. Such evidence could potentially go to both whether the segregation decisions in the third period were materially affected by illegality, and the quantum of any damages. And while the defendants have not indicated any intention to pursue a counterclaim or set-off, if their case is that the plaintiffs are responsible for
the unlawful destruction of property, it is difficult to see how the Court can prevent them making such claims if they elect to do so.
[24] There remains a real risk of prejudice to the plaintiffs’ fair trial interests should their civil claims proceed before the criminal charges are determined. Ms Mason’s suggestion of preventing cross-examination on the plaintiffs’ alleged conduct immediately prior to their removal from Waikeria is in turn likely to prejudice the defendants’ ability to mount their case.
[25] Added to these concerns is the fact that less than three months from trial the factual issues for determination remain ill-defined, or undefined, by the pleadings. The original statements of claim filed by the plaintiffs run to almost 60 pages, involving no less than 12 causes of action. On 15 April 2022, amended statements of claim were filed for five of the six “representative” plaintiffs. Those are each around 40 pages and involve six causes of action (seven in the case of Mr Ranapia). The only apparently settled statement of claim, that for Mr Taite, was filed on 22 June 2022. Despite efforts to narrow the scope of the issues, that pleading still runs to 28 pages and involves six causes of action. Further, Ms Mason responsibly conceded that two of the plaintiffs involved in the proposed September trial, Mr Te Hau and Mr Ranapia, have discrete personal elements to their claims which they wish to pursue at the hearing.
[26] In short, the pleadings are not settled and, as a result, neither is the scope of the September hearing. Given the pleadings also define the scope of discovery, it is little surprise that discovery has not been completed. Additionally, there is disagreement between the parties as to the scope to which the defendants might put in issue the plaintiffs’ alleged conduct during the prison riots. The trial is now less than three months away.
[27] In light of these concerns, I have reached the clear view that the interests of justice do not favour a limited trial in September 2022. Too much uncertainty remains. The risk of prejudice to both sides is too great.
Are the September claims “representative” of the remaining claims or is there a risk of multiplicity of proceedings on the same subject matter?
[28] Ms Mason responsibly acknowledged that while the claims of the September- plaintiffs have been referred to previously as “representative”, they are not representative claims in terms of the High Court Rules.9
[29] The other 10 plaintiffs continue to pursue their own individual claims in relation to the first and third periods. Accordingly, the September trial can only be an opening salvo in a much longer battle between the parties. The current phased structure to the litigation will require the Court to conduct two separate hearings covering the same events. But the evidence available to the Court at sequential hearings may well be different. That in turn gives rise to the risk of irreconcilable decisions on the same subject matter.
[30] Currently, there will be a further, lengthy and complex trial involving both the remaining 10 plaintiffs, and the six nominated for the September hearing, insofar as the balance of their claims are left unaddressed. So, the September fixture will not resolve any of the proceedings for any of the plaintiffs.
[31] In my view, efficiency and coherence favour determination of all matters at a single hearing.
Are the matters for determination in September urgent?
[32] The plaintiffs originally claimed the proceedings required urgent determination because they continued to be held under directed segregation.
[33] However, the position has changed. The Court was advised that only two of the six September-plaintiffs are currently held on directed segregation. I also understand two others have been released from prison and are on parole.
9 High Court Rules 2016, r 4.24.
[34]All of this drove Ms Mason to submit that:
This proceeding is not hinged on whether the Plaintiffs are in Solitary Confinement at present. Rather their concern is centred on the Department’s administration of the Solitary Confinement provisions in the Corrections Act 2004 … in an arbitrary, unfair and illegal manner. This effectively means they live in constant fear that they could be placed in Solitary Confinement at any moment, with little to no justification.
[35] While I readily accept that might be a genuinely held concern, given four of the plaintiffs are not currently held in directed segregation, the concern is purely speculative. For the two plaintiffs who have been released from prison, it is not even a theoretical risk. It is certainly not a sound basis for giving their proceedings priority ahead of others in the queue.
[36] More fundamentally, the claims are not really focussed as a challenge to the plaintiffs’ current conditions of detention. The prayers for relief seek damages for past treatment. As damages claims, they are not urgent.
[37] Ms Mason raised concerns in relation to Mr Te Hau’s on-going detention. It will be for Mr Te Hau to decide how best to address these concerns, but there are more efficient mechanisms available if that is what is desired.
Overall assessment
[38] For the foregoing reasons I have reached the clear view that it is no longer in the interests of justice to proceed with a hearing in September:
(a)The pleadings have not been settled. Discovery has not been completed. And the trial is less than three months away. There is no realistic prospect that the proceedings will be ready to proceed.
(b)While the Court and the parties have sought to confine the scope of the September hearing to avoid prejudice to the plaintiffs in their criminal proceedings, it is not feasible or fair to the defendants to avoid examination of events during the prison riot.
(c)The September claims are not representative. They will not dispose of any of the proceedings and a second much longer trial is inevitable. That is not an efficient use of Court resources, or of those of the parties. And there is a risk of inconsistent judgments dealing with the same subject matter.
(d)As currently pleaded, further delay in resolution of the plaintiffs’ claims will not cause them meaningful prejudice. Their claims are for damages relating to past conduct. They are not framed as a challenge to the lawfulness of their current conditions of detention.
[39] A twelve-week trial commencing on 14 August 2023 to determine all claims by all plaintiffs is available. If Ms Mason wishes to secure that fixture, she will need to advise the registry urgently.
[40] A further case management conference in late July should be held. Counsel are to confer in relation to appropriate timetabling directions to ready the proceedings for trial and are encouraged to file a joint memorandum.
[41] Finally, as I have observed at the hearing, no-one is to blame for the current position. The parties, and the Court, have earnestly sought to preserve a three-week fixture allocated late last year notwithstanding the complexities and risks that exist. Despite those endeavours, it is no longer viable to proceed with a hearing in September.
Isac J
Solicitors:
Phoenix Law Ltd, Wellington for Plaintiffs
Crown Law Office, Wellington for Defendants
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