Marong v Attorney-General
[2022] NZHC 1489
•22 June 2022
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 to file a statement of defence. It did so on 14 April 2022.
[7] On 28 April 2022, I made directions for the filing of the defendant’s opposition to Mr Marong’s leave application and directed the Registrar to set the application down for hearing.
[8] On 16 May 2022, the defendant filed a notice of opposition, and on 26 May 2022 an affidavit of Craig McLintock. Mr McLintock is a Principal Corrections Officer with the defendant who was working at the ARU during the period Mr Marong was held there.
[9] Mr Marong has responded to the defendant’s opposition with two memoranda. The first is dated 18 May 2022, in which he asserts his entitlement to summary judgment. The second is dated 26 May 2022 (filed 3 June 2022) and is a lengthy document (54 handwritten pages) containing submissions responding to Mr McLintock’s affidavit.
The High Court Rules
[10] A plaintiff’s application for summary judgment is brought pursuant to r 12.2(1) of the High Court Rules 2016. It provides:
The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[11] An oft cited summation of the correct approach to summary judgment applications is contained in Krukziener v Hanover Finance Ltd as follows:3
[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that
3 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.
there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at
341. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
[12] The High Court Rules contemplate a plaintiff’s application for summary judgment will be made at the time a proceeding is commenced and served on the defendant. Under r 12.4(2) an application may be made at a later time with leave of the Court. There is not any guidance in the Rules as to when leave of the Court will be granted.
[13]The commentary in McGechan on Procedure states:4
… The question is clearly a discretionary one, and it will be up to the party applying for leave to show why it should be granted. If the absence of a defence has only become apparent after discovery or the exchange of briefs, this may well be an adequate reason for granting leave. In many cases, as with appeals, the leave question will be bound up with the merits, and it may be difficult to determine the leave question without some consideration of the merits.
[14] Case law has identified some factors that are relevant in determining whether to grant leave. In Tip Top Ice Cream Co Ltd v Polarland Ltd, Master Faire considered three factors assume importance, namely:5
(a)Has the delay been satisfactorily explained?
(b)Are the merits of the applicant’s case for the relief sought particularly strong and therefore deserving of determination by the Court at a later time than is prescribed by the Rules?
(c)Is there any risk of a miscarriage of justice by determining the application at the later point in time?
4 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR12.4.01A.
5 Tip Top Ice Cream Co Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 (HC) at [28].
[15] These are not the only factors to be considered. The overriding consideration must be the interests of justice having regard to the stated objectives of the High Court Rules to secure the just, speedy and inexpensive determination of proceedings. It would not, for instance, be appropriate to grant leave to a plaintiff to apply for summary judgment where that will not save the parties time or expense or would only prolong the proceeding. 6
Mr Marong’s application
[16] Mr Marong’s leave application was filed before the defendant filed a statement of defence and just four weeks after he commenced the proceeding. Despite the absence of any explanation from him as to why he did not apply for summary judgment immediately, no prejudice arises from his failure to do so. Accordingly, I would not dismiss his application on that basis. There are, however, other reasons why I must do so.
[17] The first matter is that Mr Marong has not filed a substantive affidavit in support of his applications for summary judgment or for leave. The affidavit upon which he relies is dated 24 January 2022 and contains no narrative.
[18] Furthermore, Mr Marong’s affidavit does not comply with the mandatory requirement of rule 12.4(5). He has not verified by affidavit the allegations in the statement of claim or deposed to a belief that the defendant has no defence to his allegations.
[19] The next matter is that it would be futile to grant Mr Marong leave to apply for summary judgment in circumstances where his application has no prospect of success. That would be contrary to his interests and would prolong the proceeding unnecessarily. It would also put the defendant to unnecessary costs.
[20] I am satisfied Mr Marong’s claim is unsuitable for summary judgment. The first reason relates to Mr Marong’s statement of claim. While clearly the product of much industry it requires a great deal of work to isolate the allegations being made
6 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592.
and to remove evidence as well as legal and factual submissions. The defendant submits, and I accept, that it is not practical to require it to respond to such a pleading in the summary judgment context. As it is, Mr Marong is critical of the attempt the defendant has made to plead to the statement of claim.
[21] More importantly, there are very clearly factual disputes in relation to each of the claims made by Mr Marong that cannot be resolved on a summary judgment application. While Mr Marong has produced many documents to support his claims, they are open to different interpretations. Whether the defendant breached Mr Marong’s rights in any of the respects alleged can only be appropriately determined following discovery and at a hearing involving the examination of witnesses.
Future conduct of the case
[22] Mr Marong’s case is complex. The allegations he makes are serious and are treated by the Court as such. I am concerned that Mr Marong will not be able to adequately represent himself. I have spoken to Mr Marong about the possibility of applying for civil legal aid, which I consider is the first step that should be taken before the case is progressed. He agrees that he will make an application. Mr Taffs has helpfully offered to provide Mr Marong with contact details for counsel who may be able to assist him in this regard.
Result
[23] At the conclusion of the hearing I made the following orders, which were not opposed:
(a)Mr Marong’s application for leave to apply for summary judgment is dismissed; and
(b)The Registrar is to arrange for a further telephone conference in 6 weeks to allow Mr Marong to make application for civil legal aid.
[24]Costs are reserved.
O G Paulsen Associate Judge
Solicitors:
Crown Solicitor’s Office, Raymond Donnelly & Co, Christchurch Copy to: Mr S Marong
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