Marong v Attorney-General - [2022] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000008 [2022] NZHC 1489

UNDER the New Zealand Bill of Rights Act 1990, Human Rights Act 1993, Mental Health (CAT) Act 1992, Correction Act 2004, Declaratory Judgment Act 1908

BETWEEN

SAINEY MARONG

Applicant

AND

THE ATTORNEY-GENERAL sued in

respect of the DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 22 June 2022

Counsel:

Applicant Mr Marong, self-represented W S Taffs for Respondent

Judgment:

22 June 2022

Reasons:

23 June 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 23 June 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MARONG v THE ATTORNEY-GENERAL [2022] NZHC 1489 [22 June 2022]

[1] The plaintiff, Sainey Marong (Mr Marong) makes allegations against the Department of Corrections that he was subjected to abuse, in-humane treatment and unlawful discrimination during a period in 2016 and 2017 when he was detained in the At Risk Unit (ARU) at Christchurch Men’s Prison. He seeks declarations that his rights under the New Zealand Bill of Rights Act 1990 were breached and compensation.

[2] This judgment deals with Mr Marong’s application under r 12.4(2) of the High Court Rules 2016 for leave to apply for summary judgment. During the hearing, Mr Marong accepted that the application could not succeed. I advised him that I was going to dismiss the application and would record this in writing with reasons. These are those reasons.

Procedural background

[3] Mr Marong commenced this proceeding on 11 January 2022. He is representing himself. His statement of claim is voluminous. It runs to 161 handwritten A4 pages. It makes numerous allegations grouped under five causes of action. There are extensive references to case law as well as file notes and other records of the Department of Corrections.

[4] On 27 January 2022, Mr Marong filed an application for summary judgment. The application was accompanied by two affidavits. The first affidavit explains difficulties Mr Marong was having preparing his claim and refers to bundles of documents, filed at the same time, that Mr Marong relies upon. The second affidavit purported to be made pursuant to r 12.4(5)(b) of the High Court Rules but it does not comply with the requirements of that rule. It contains no narrative of events but simply cross-references the statement of claim to documents in Mr Marong’s bundles.

[5] As his application for summary judgment was not made at the time the statement of claim was served on the defendant,1 Mr Marong requires leave to apply for summary judgment.2 He filed an application for leave on 9 February 2022 (the

1 The defendant was served with the statement of claim on 18 January 2022.
2 High Court Rules 2016, r 12.4(2).

leave application). The leave application was accompanied by an affidavit of service but no other affidavit.

[6] Given the length and scope of Mr Marong’s statement of claim the defendant was given an extension of time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marong v Attorney-General

Details

AGLC: Marong v Attorney-General [2022] NZHC 1489
Case: [2022] NZHC 1489
Decision Date: 22 June 2022

CaseChat Overview and Summary

The case of Marong v Attorney-General was heard in the High Court of New Zealand. The applicant, Sainey Marong, alleged that he was subjected to abuse, inhumane treatment, and unlawful discrimination while detained in the At Risk Unit at Christchurch Men's Prison in 2016 and 2017. Marong sought declarations that his rights under the New Zealand Bill of Rights Act 1990 were breached and compensation. The court was required to decide on Marong's application under rule 12.4(2) of the High Court Rules 2016 for leave to apply for summary judgment. The court was to consider the factors relevant to granting leave, including whether the delay was satisfactorily explained, the merits of the applicant's case, and the risk of a miscarriage of justice. The court found that Marong's application was not suitable for summary judgment due to the complexity of the case and the existence of factual disputes. The court also noted that Marong's statement of claim was voluminous and required much work to isolate the allegations being made. The court ordered that Marong's application for leave to apply for summary judgment was dismissed and arranged for a further telephone conference in six weeks to allow Marong to make an application for civil legal aid.

The court's reasoning was that Marong's application for leave to apply for summary judgment was not suitable for the reasons mentioned above. The court found that Marong's application had no prospect of success, and granting leave would be contrary to his interests and would prolong the proceeding unnecessarily. The court also found that it would be futile to grant Marong leave to apply for summary judgment in circumstances where his application has no prospect of success. The court noted that there were very clearly factual disputes in relation to each of the claims made by Marong that could not be resolved on a summary judgment application. The court further found that the defendant's statement of defence was not practical to require it to respond to such a pleading in the summary judgment context. The court also expressed concern that Marong would not be able to adequately represent himself and advised him to apply for civil legal aid. The court's decision was that Marong's application for leave to apply for summary judgment was dismissed, and a further telephone conference was arranged in six weeks to allow Marong to make an application for civil legal aid. The court's orders were not opposed, and costs were reserved.

Orders