Kumar v Chief Executive of the Department of Corrections

[2024] NZHC 836

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000249

[2024] NZHC 836

BETWEEN

PRAVIN KUMAR

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	15 April 2024
Appearances:	S Abdale for the Applicant M Dillon for the Respondent
Judgment:	18 April 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 18 April 2024 at 12 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/counsel: S Abdale, Hamilton M Dillon, Hamilton

Crown Law, Wellington

KUMAR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 836 [18 April 2024]

Introduction

[1]    Pravin Kumar is serving a sentence of preventive detention at Waikeria Prison. He has filed an application for judicial review against the Chief Executive of the Department of Corrections (Chief Executive).

[2]    This is an application by the Chief Executive to dismiss or stay Mr Kumar’s proceeding (the application).

[3]    Mr Kumar has filed two statements of claim in the substantive proceeding. In the first, dated 5 October 2021 (claim), Mr Kumar alleges the Chief Executive has failed to exercise his statutory powers to provide him with rehabilitation and reintegration opportunities. The amended statement of claim dated 7 December 2022 (amended claim) alleges there has been a breach of natural justice resulting in an unfair decision.

[4]    On 21 December 2022 the Chief Executive applied to strike out Mr Kumar’s amended claim (which purports to incorporate the claim by reference) on grounds that it is an abuse of process and there is no reasonably arguable cause of action. The application is opposed by Mr Kumar.

Procedural background

[5]    Mr Kumar was self-represented at the time he filed the claim. In summary, the claim alleges the following:

(a)Mr Kumar is eligible to be considered for release on parole with special conditions into the care of Community Probation Service.

(b)Mr Kumar has completed ten months of the Adult Sex Offender treatment programme and is currently undertaking prison-based employment inside the secure perimeter.

(c)A  Psychological  Report  dated  22  July  2021   recommends   that Mr Kumar be “assisted to engage in reintegration activities” and

“considered for work opportunities outside the unit”. That has not happened.

(d)Accordingly, Mr Kumar claims that the Chief Executive has failed to exercise his statutory powers and has failed to comply with international instruments to effect the recommendations contained in the Psychological Report.

[6]The relief sought is as follows:

The plaintiff seeks relief in the form of an order from the Court directing the respondent to exercise their statutory power to ensure that the plaintiff without delay receive outside the wire/unit employment including release to work.

[7]    On 14 July 2021 the Prison Director made a decision in which he did not approve Mr Kumar for work outside the prison perimeter on the basis that Mr Kumar has “outstanding misconduct that needs to be heard. Psych recommend further treatment before OTW1/Reintegration takes place”.

[8]    It appeared from the evidence in Mr Kumar’s affidavits that this decision is the subject of Mr Kumar’s claim. He says in one of his affidavits that the decision was in conflict with the recommendations contained in the Psychological Report to the  New Zealand Parole Board dated 22 July 2021 (which he acknowledges is after the Prison Director’s decision of 14 July 2021). But he says the Prison Director “must have seen” a draft of that report at the time of his 14 July 2021 decision.

[9]    However, in oral submissions, Ms Abdale says that the claim is a “general claim” and it relates to the alleged failure to exercise a statutory power to rehabilitate and reintegrate Mr Kumar in accordance with ss 5 and 6 of the Corrections Act 2004 and also international minimum requirements for the treatment of prisoners.

[10]   Ms Abdale was appointed as counsel for Mr Kumar in December 2021, after the claim was filed. A hearing was set down for 23 May 2022. The close of pleadings date was 23 March 2022. An agreed common bundle of documents and joint

1      Outside the wire.

memorandum of agreed facts were to be filed by 1 April 2022. The joint memorandum was also to identify any facts in dispute, and briefs of evidence as to any disputed facts were to be filed and served by 15 April 2022. A common bundle was to be filed by 18 May 2022.

[11]   The 23 May 2022 hearing was vacated because timetable directions had not been complied with: a common bundle of documents, joint memorandum of agreed facts and briefs of evidence were not filed. In addition, Mr Kumar’s counsel was unavailable on that date.

[12]   When vacating the 23 May 2022 hearing the Court directed the parties to file a joint memorandum within seven days setting out a timetable to ready the matter for hearing. No joint memorandum was filed within that period. Mr Dillon, counsel for the Chief Executive, advised the Court that Mr Kumar had signalled he intended to file further evidence and the Chief Executive was reluctant to commit to a timetable for how that evidence was to be dealt with, without first knowing what the evidence was.

[13]   Mr Kumar unilaterally filed and served a further bundle of documents on    14 June 2022. The Court Registry subsequently scheduled a hearing for 30 November 2022.

[14]Mr Kumar unilaterally served two further affidavits on 18 and 27 July 2022.

[15]   A minute of the Court dated 11 November 2022 records the advice of Mr Dillon that the further materials filed by Mr Kumar (further bundle of documents and two affidavits) had expanded Mr Kumar’s complaints beyond the current statement of claim. The minute records that there had been agreement between counsel that the applicant would file and serve an amended statement of claim by 28 October 2022. That did not occur.

[16]   As a consequence, the Court had no option but to vacate the half day fixture set for 30 November 2022 and directed that counsel file, by 21 November 2022, a joint memorandum proposing a timetable to ready the proceeding to a hearing. The Court’s

minute records that Mr Dillon signalled the Chief Executive may make an application to otherwise dispose of the proceeding.

[17]   Counsel filed a joint memorandum dated 23 November 2022 proposing a     2 December 2022 date for Mr Kumar to file his amended statement of claim. Orders were made accordingly on 28 November 2022.

[18]An amended statement of claim was filed and served on 7 December 2022.

[19]In summary, the amended claim pleads the following:

(a)Mr Kumar “repeats the paragraphs contained in his statement of claim dated 5 October 2021”.

(b)Mr Kumar made a complaint on 30 June 2021 alleging a failure to provide him with reintegrative activities, work outside the wire, and release to work or guided releases. The complaint was dismissed, and Mr Kumar sought a review of the decision to dismiss his complaint to the Office of the Inspectorate (which was unsuccessful) and to the Ombudsman (which was in the process of being assessed at the time).

(c)As a second cause of action Mr Kumar further claims that the Chief Executive has breached natural justice resulting in the unfair decision to not allow Mr Kumar access to reintegrative activities. This has resulted in harm to Mr Kumar in the form of his continued detention.

[20]The relief sought includes the following:

A declaration that the Respondent’s reasons decision (which has prevented the Applicant from being given access to rehabilitation) was wrong and the internal review of that decision was unfair.

[21]   On 21 December 2021, the Chief Executive made an application to dismiss or stay this proceeding.

[22]   There are two parts to the application. The first is that the amended claim should have clarified the issues to be determined and not doing so amounts to an abuse of process in the particular circumstances of this case as the amended claim introduces additional issues and causes further confusion; and second, that the pleadings do not disclose a reasonably arguable cause of action.

Are the two statements of claim an abuse of process?

[23]   Mr Dillon submits that the amended claim should have clarified the issues to be determined and not doing so amounts to an abuse of process in the circumstances of this case.

[24]   Mr Dillon refers to Cheng v Chief Executive of the Department of Corrections2 in which this Court stayed claims pending clarification of pleadings. After receiving further pleadings, the Court nevertheless maintained the stay, reasoning:3

[15] In this type of situation, it is tempting to conceive of the litigation in terms of David and Goliath and thus, by allegory, overlook the (significant) pleading problems. However, this risks needless expense and delay. Public resources are finite, including those of the Courts. Covid-19 related delays and adjournments have made this stark. Moreover, Mr Cheng has now had two opportunities to frame intelligible claims. Rather than focusing exclusively on the repleading exercise (in consequence of my earlier judgment), Mr Cheng instead chose to bring a suite of fresh claims, including, as observed, some with the same or similar subject matter to those stayed. Vexatious litigation compromises the ability of other litigants to access justice. For these reasons, I am not persuaded to lift the stay on these claims. Expressed another way, the claims as pleaded remain an abuse of process.

(footnote omitted)

[25]   Mr Dillon further submits that duplication arising from separate “live” statements of claim in one proceeding can amount to an abuse, and separate statements of claim with separate responses can bring about “significant potential for consequent confusion”.4

2      Cheng v Chief Executive of the Department of Corrections [2020] NZHC 3273.

3      Cheng v Chief Executive of the Department of Corrections [2021] NZHC 2725 (which follows on from Cheng v Chief Executive of the Department of Corrections, above n 2).

4      Mao v Green Land Investment Ltd [2018] NZHC 1348 at [35].

[26]   In Mr Kumar’s notice of opposition to the application and in written submissions, the position for Mr Kumar was that the two claims were adequately particularised, there was no confusion between the two of them and they should simply be read together. However, in oral submissions Ms Abdale properly acknowledged that there were defects in the pleadings, not only because of the fact that there are two statements of claim but also for other reasons.

[27]   She sought leave to file a second amended statement of claim5 which she said would encompass both the claim and the amended claim.

[28]   Where pleadings can be cured by amendment the Court may permit amendment rather than dismissing or staying the proceedings. In Marshall Futures Ltd v Marshall the Court distinguished a pleading “which is a total write off [from] one which is deficient but is capable of effective repair”.6

[29]In this case, I consider there are at least the following defects in the pleadings:

(a)There are two live claims. That is arguably an abuse of process in circumstances where Mr Kumar was given leave to file an amended claim to clarify his existing claim. He did not do that. He simply incorporated the claim into his amended claim which added a second cause of action. (If I were to give leave to file amended pleadings, the two claims should be combined into the one document.)

(b)It is not clear what decisions or omissions give rise to the alleged failure to comply with statutory obligations and the alleged failure to comply with international instruments. Those decisions or omissions will need to be particularised.

(c)It is also not clear from the claim whether the alleged failure to properly exercise statutory powers and comply with international instruments (which Ms Abdale says is a “general claim”) also includes the particular

5      High Court Rules 2016, r 7.77(4).

6      Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 324.

decision made by the Prison Director on 14 July 2021. If the Prison Director’s decision of 14 July 2021 is to form part of what I anticipate will be the first cause of action then that will need to be made clear. It will also need to be pleaded that the Prison Director must have seen the draft Psychological Report of 22 July 2021 (as claimed in Mr Kumar’s affidavit). It will further need to be made clear what the draft report recommended.

(d)The relief, seeking an order that the Court direct the Prison Director to ensure that Mr Kumar receive outside the wire/unit employment including release to work, is problematic. At best, the relief might seek a declaration, which would need to be carefully framed.

(e)As regards the amended claim, which I anticipate would be the second cause of action, further pleading in relation to the 14 July 2021 decision as referred to in (c) above is required.

(f)The amended claim contains a heading referring to natural justice and also refers to a breach of the “rights to justice  under s  27  of the  New Zealand Bill of Rights Act 1990”. But there is no pleading as to how the alleged “unfair decision” could engage a natural justice issue.

(g)The relief sought in the amended claim—a declaration that the decision (presumably the decision of 14 July 2021) is wrong—is also problematic. That requires amendment.

[30]   I will return to the issue of whether leave should be given to Mr Kumar to file an amended second statement of claim after first briefly considering the submissions for the Chief Executive on whether there is a reasonably arguable cause of action.

Is there a reasonably arguable cause of action?

[31]   Mr Dillon submits, first, Mr Kumar’s main point of contention seems to be that the Prison Director should have preferred Mr Kumar’s interpretation of a draft of the

22 July 2021 report over an earlier report of 8 June 20217 when he made his decision on 14 July 2021.

[32]   Mr Dillon submits that position will not take Mr Kumar anywhere even if he were granted leave to file a second amended statement of claim. Mr Dillon says the Prison Director’s decision not to grant release to work was superseded by the Parole Board in its decision of 1 September 2021 at which time the final Psychological Report of 22 July 2021 was before it. The decision of the Parole Board requires Mr Kumar to further engage with rehabilitative treatment before moving on to future reintegration activities.

[33]   Mr Dillon notes also that there was a second reason given by the Prison Director in his 14 July 2021 decision and that was that there was an outstanding misconduct charge against Mr Kumar that needed to be heard.

[34]   Mr Dillon goes on to submit that if the Prison Director was to have done what Mr Kumar submits he should have done, namely preferring a draft report over a final report, the Prison Director could be criticised for preferring a draft. It would not be unreasonable for the Prison Director to rely on a final report over a draft.

[35]   Mr Dillon notes that there are three recommendations in the final Psychological Report of 22 July 2021:

(a)individual treatment by a departmental psychologist;

(b)assistance to engage in reintegration activities such as securing approved accommodation and employment; and

(c)consideration for work opportunities outside the unit.

[36]   Mr Dillon notes that Mr Kumar’s interpretation is that all three steps are required to be implemented at the same time. But Mr Dillon says that is not consistent

7      That report was a “Psychologist’s Treatment Outcome Summary”.

with what the Parole Board decided on 1 September 2021 which was a staggered approach.

[37]   Strike out applications are governed by r 15.1 of the High Court Rules 2016 which states:

15.1     Dismissing or staying all or part of proceeding

(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.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)This rule does not affect the court’s inherent jurisdiction.

[38]   In Attorney-General v Prince, the Court of Appeal set out the principles that apply to strike out applications:8

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 …

[39]As the Court of Appeal commented separately:9

[7]       … The statement of claim must be beyond repair. It must be plain that even if it is reformulated the claim cannot succeed.

8      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.

9      Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).

[40]   I am not sure that it can be said with certainty that the claim cannot succeed. While I take account of Mr Dillon’s submissions, it would appear from Ms Abdale’s oral submissions that the claim encompasses decisions of the Prison Director apart from the 14 July 2021 decision. It is not yet clear what those decisions are. They will need to be particularised. As things presently stand I do not consider the exacting threshold to strike out a proceeding has been met.

Decision on application for leave to file second amended statement of claim

[41]   I return to whether Mr Kumar should be given leave to amend his pleadings. To give leave would involve further delay and would be an indulgence to Mr Kumar in circumstances where he has caused two substantive hearings to be adjourned and where, on being given leave to clarify his claim, he did not do so but simply incorporated the claim by reference into an amended statement of claim. In other words the uncertainty that existed in relation to the claim has persisted.

[42]   By a very narrow margin I have decided that Mr Kumar should be given leave to file a second amended statement of claim. While it was not his primary position, Mr Dillon fairly acknowledged that the Court could adopt the approach of granting the Chief Executive’s application to the extent of staying the proceeding while a second amended statement of claim is filed, and then giving the Chief Executive the opportunity to consider whether to pursue an application to dismiss once the second amended statement of claim is before the Court.

[43]   Despite all of his defaults I will give Mr Kumar a final opportunity to clarify his case.

Result and orders

[44]I make the following orders:

(a)Mr Kumar is to file and serve his second amended statement of claim no later than 5 pm on Friday 26 April 2024;

(b)In the meantime the proceeding is stayed pending the filing of a second amended statement of claim;

(c)The Chief Executive has leave to further apply to dismiss the proceeding following service of the second amended statement of claim.

Administrative directions

[45]   This proceeding has suffered from significant delays. I direct that it be called in callover at 9 am on Wednesday 8 May 2024. At that time counsel for the Chief Executive is to advise the Court if the Chief Executive intends to further apply to dismiss the proceeding. If so, timetable orders will be made towards the filing and hearing of that application.

[46]   If not, it will be necessary for a hearing date to be set for Mr Kumar’s claim and timetable orders made towards that hearing.

Costs

[47]   I did not hear from the parties on costs. The Chief Executive was the successful party in that his alternative application for a stay was granted.

[48]   The Court understands Mr Kumar is legally aided. If the Chief Executive does, however, wish to make an application for costs, a memorandum is to be filed within five working days of the date of this judgment. Mr Kumar may reply within five working days of service of the Chief Executive’s memorandum on him. Memoranda should not exceed four pages. I will determine costs on the papers.

Gordon J