Lincoln v Attorney-General
[2020] NZHC 117
•10 February 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-76
[2020] NZHC 117
UNDER the Bill of Rights Act 1990 IN THE MATTER
of a claim in tort and breach of s 27 of the New Zealand Bill of Rights Act
BETWEEN
RICHARD LINCOLN
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 10 February 2020 Counsel:
Plaintiff in person
K South and C White for Defendant
Judgment:
10 February 2020
ORAL JUDGMENT (NO. 1) OF CHURCHMAN J
[1] This matter has been set down for hearing to commence today 10 February 2020 and to run for five days. These proceedings have been before the Court for some years. They relate to matters, at least in the revised form, that stem from events that occurred in 2015.
[2] There are a number of applications that have been made on an interlocutory basis at the commencement of the hearing this morning. I will deal with each of them separately.
LINCOLN v ATTORNEY-GENERAL [2020] NZHC 117 [10 February 2020]
Adjournment
[3] The first application is an application by the plaintiff, Mr Lincoln, who is a litigant in person, for an adjournment of today’s hearing. That application was foreshadowed in an interlocutory hearing held by way of teleconference last week.
[4] In the minute issued on 4 February 2020 in respect of that teleconference, the Court indicated to Mr Lincoln that the only evidence that had been put before the Court at that stage, in relation to his mental health, was a two-lined medical certificate dated 4 February 2020 from Dr Van Gelswijk of the Linwood Medical Centre in Christchurch. The certificate was not entirely legible. It appeared that part of the right-hand margin had been cut off, presumably in the scanning and transmission process. That was recorded in [4] of the Court’s minute of 7 February 2020. That certificate, at least so far as it was legible, said:
This is to certify that the abovenamed patient is not fit for performance Court [and I infer here that there was a word or words missing between ‘performance’ and ‘Court’] due to his mental health and the post-traumatic stress in particular.
[5] That certificate did not provide any details of the post-traumatic stress and it was not clear to the Court the basis upon which the doctor had expressed that opinion. In particular, it was not clear whether the doctor was relying on self-reported information from Mr Lincoln. Neither was it clear whether Dr Gelswijk was Mr Lincoln’s regular GP and had access to other information about him, or whether she happened to be a GP who saw him that day.
[6] Because I was concerned at the potential of a finding that Mr Lincoln may be so mentally unwell as to be unable to conduct these Court proceedings, in the minute that I issued, I explained that before I could responsibly come to such a conclusion, I would need a greater amount of evidence. I invited Mr Lincoln to put such evidence before me indicating that I would address this matter at the commencement of this hearing. Although Mr Lincoln has filed other information in the Court, he has not provided any additional information that might explain the nature of his mental illness.
[7] In response to the initial application by Mr Lincoln, the defence filed an affidavit which covered a couple of matters, but in particular explained to the Court
that since the date of the events in 2015, which are the subject of these proceedings, Mr Lincoln has engaged in extensive litigation on his own behalf, including, it would seem, prosecuting as a private prosecution, two Police officers who are involved in these proceedings. It appears he has had some success in relation to the conduct of those proceedings. This undoubtedly reflects the fact that he has obtained a law degree and it would appear has completed the Law Professionals programme, although he is not admitted as a barrister and solicitor.
[8] That evidence is of some relevance because other than the two-lined medical certificate from Dr Gelswijk, the only other relevant evidence before the Court dates from 2015.
[9] In my minute of 7 February, I queried whether the person who had seen Mr Lincoln in 2015 was appropriately described as a psychologist as Mr Lincoln had referred to her, given that her qualifications indicated she was a registered community nurse, at least that is my understanding of the letters “RCN” after her name.
[10] This morning, Mr Lincoln confirmed that Ms Vermeulen was in fact a registered community nurse. He indicated the reason he had been unable to provide the Court with the copy of a psychologist’s report relating to psychological counselling that he had obtained in or after 2015, was because he had been unable to pay the psychologist for the report, and as I understood his comments for that reason, the psychologist would not provide a copy of the report to him.
[11] Ms South, appearing for the defendant, drew the Court’s attention to the fact that, although she had initially said there was no information other than the letter from the doctor and the extract from Ms Vermeulen’s 2015 report, that in her review of the plaintiff’s bundle of documents, she had identified documents at pages 262-265, as well as a certificate on page 266 that were potentially relevant. These documents were also completed in 2015 being dated respectively 22 September 2015 (Document 264) and 1 October 2015 (Document 262).
[12] Document 265 is a document that has been prepared by Dr Nicola Hayman of Timaru. It is dated 10 November 2015 and appears to have been submitted in support
of an application for an Aegrotat university exam. It refers specifically to an exam in the Course Laws 204 which took place on 9 November 2015. It indicated that when examined by Dr Hayman, Mr Lincoln was exhibiting post-traumatic stress symptoms.
[13] Document 266 is an Aegrotat certificate dated 10 November 2015. This documentation does indicate that at 2015, shortly after the relevant events, Mr Lincoln was finding matters sufficiently stressful so as to produce these medical certificates. Unfortunately, they are of no assistance to the Court in assessing Mr Lincoln’s current medical status. Since those certificates were issued, leaving aside for the moment the two-lined certificate from Dr Gelswijk, much has happened, and it appears that Mr Lincoln has been able to conduct quite complex legal proceedings on his own, performing extremely well for a lay litigant, and at the sort of standard one would expect from a qualified practitioner.
[14] In the arguments on the interlocutory matters this morning, Mr Lincoln has also been able to express his case clearly and coherently.
[15] In these circumstances, I am not prepared to make a finding that Mr Lincoln is so mentally unwell as to be unable to conduct these proceedings.
[16] There was a second limb raised this morning as to the request for adjournment. Mr Lincoln indicated that, on the basis that the opinion which his lawyer, Mr Tennet, had received 10 hours of funding to produce, had only just gone to the Legal Aid authorities. It was appropriate for the proceedings to be adjourned until that could be considered and a decision on it made.
[17] Whether or not Mr Lincoln ultimately receives a grant of legal aid is critical to the next application that I will discuss, namely the application for security for costs. As I have explained to counsel, should, following review of the opinion provided by Mr Tennet, the decision not to advance legal aid be reversed or modified, that would impact directly on whether or not the Court should make an order for security for costs. I indicated to Ms South that, given she was inviting the Court to proceed with the hearing this week, the fact that the Court would not be able to make a definitive decision on security for costs because the application legal aid was still unresolved,
would mean that, in effect, there would be no practical utility to an application for security for costs because if an order was made now, the requirement for payment of that would have to await the ultimate decision which could result in these proceedings having been run, the costs incurred and ultimately Mr Lincoln not being in a position to pay security for costs.
[18] Mr Lincoln confirmed that he was impecunious and that if the Court made an order for security for costs in a sum as modest as $10,000 he would have no means of paying it.
Security for costs
[19] My initial view was that it was appropriate for an order for security for costs to be made, however, while I intend making such an order, the reality is, if the case proceeds, then ultimately it may be of no benefit whatsoever should ultimately legal aid be denied and Mr Lincoln be impecunious. However, that is a risk that the defendant wishes to run.
[20] Accordingly, in terms of security for costs, I fix security for costs at $10,000. That is a substantially lesser sum than would normally be fixed by way of security in a case with multiple causes of action set down for a five days’ hearing, and it is also a sum smaller than sought by the defendant. However, I am obliged to stay the requirement to pay the order for security for costs until the outcome of the legal aid proceedings are finally known. What that may mean is that, effectively, the order may be of no utility to the defendant. So, I make such an order and make it clear that Mr Lincoln is not required to pay or provide that sum by way of security immediately, and it may ultimately be that the matter has been run, determined and cost orders made with the issue of security for costs becoming a complete side-line.
Amended statement of claim
[21] The next matter that needs attention is the amended proceedings. At the first of the two teleconferences last week, Mr Tennet indicated to the Court that causes of action numbered 1 and 2 were to be withdrawn. Subsequently, Mr Lincoln has advised
the Court and the defendant that all but five of the original 14 causes of action would be withdrawn.
[22] In my minute of 7 February 2020, I noted Mr Lincoln’s advice that the only remaining causes of action would be 3, 4, 9, 10 and 11. I directed Mr Lincoln file an amended statement of claim requiring, in accordance with the rules, that he file both a track-change version showing what had been deleted and a clean version with the remaining causes of action. Mr Lincoln has failed to comply with that direction.
[23] At the commencement of this morning’s hearing, Mr Lincoln handed to the Court what was said to be a second amended statement of claim. The Court did not have an opportunity of reviewing this. However, during the course of Mr Lincoln’s submissions on the various interlocutory matters, it transpired that he had not done what he told the Court last week that he would do in that the second amended statement of claim is not a document which has simply had deleted from the first amended statement of claim all causes of action other than 3, 4, 9, 10 and 11.
[24] When Mr Lincoln took me to various parts of the statement of claim, it appears that he has added additional material relating to matters which he said occurred last week. In particular, he has made a number of allegations in relation to the conduct of Ms South.
[25] I indicated to Mr Lincoln that given the close of pleadings dates has long since passed, and there is no application to amend the existing statement of claim and file additional causes of action, it was not appropriate for him to have added these extra pleadings.
[26] The Court has not yet had an opportunity of closely reviewing this statement of claim, but to the extent that some parts of it are clearly related to events that occurred on 3 February this year, I directed they be struck out. They include [34], [35], [36], [92], [93] and [94]. It may be that there are other paragraphs in the document that also infringe the prohibition on adding a cause of action after close of pleadings date without the leave of the Court.
[27] What I propose to do is to adjourn these proceedings briefly so that I can review the second amended statement of claim. If necessary, it may be that there are other parts of it that require to be struck out.
[28] Ms South indicated that over the weekend period, she received by email from Mr Lincoln, a number of iterations of the statement of claim, each one different to the other, and all different to the version that has been filed this morning.
[29] It is important before the Court commences the hearing of this matter that it understands exactly what it is that is currently being advanced before the Court.
[30] In that regard, I direct that Mr Lincoln immediately file a version of the statement of claim with the amendments to the current statement of claim (the second amended statement of claim) highlighted and track-changed as he should have done in response to my direction last week.
[31]The Court will resume at 12.30 pm.
Churchman J
Solicitors:
Raymond Donnelly & Co, Christchurch for Defendant cc: R Lincoln
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