Marong v Chief Executive of the Department of Corrections

[2024] NZHC 3382

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-595

[2024] NZHC 3382

UNDER

the Judicial Review Procedure Act 2008 and other Acts

IN THE MATTER

of an application for review

BETWEEN

SAINEY MARONG

First Applicant

LANCE MICHAEL LEE
Second Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

BEI CHEN

Second Respondent

Hearing:	(On the papers)
Representation:	S Marong (First Applicant) in person L M Lee (Second Applicant) in person
Judgment:	13 November 2024

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 13 November 2024 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MARONG v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 3382

[13 November 2024]

Introduction

[1]    The first applicant in this matter, Sainey Marong, is self-represented. The second applicant, Lance Lee, is also self-represented. They have filed a statement of claim alleging breaches of ss 9, 19 and 23(5) New Zealand Bill of Rights Act 1990 and a breach of a statutory duty of care under the Corrections Act 2004. The proceeding has been referred to me by the Registrar under  r 5.35A High  Court Rules 2016 seeking directions under r 5.35B.

Rules 5.35A and 5.35B

[2]    The way in which rr 5.35A and 5.35B work was accurately summarised by Churchman J in Boyd v Australia Federal Police, where the Judge recorded:1

Rules 5.35A and 5.35B

[2]        Rule 5.35A allows a Registrar, if they believe that a proceeding tendered for filing is, on the face of it, “plainly an abuse of the process of the court”, to accept the proceeding for filing but refer it to a Judge for consideration and directions under r 5.35B.

[3]        If the Judge is satisfied the proceeding is plainly an abuse of the process of the court, under r 5.35B the Judge may make an order or give directions to ensure that the proceeding is disposed of or proceeds in a way that complies with the rules, including an order under r 15.1 that the proceeding be struck out or stayed. There is no requirement that a party have an opportunity to be heard before making such an order.2

[4]        These powers enable the Court to prevent misuse of its process when the procedure being adopted would be manifestly unfair to another party or would otherwise bring the administration of justice into disrepute.3 In exercising the power to strike out a proposed proceeding as an abuse (which ought to be exercised sparingly),4 the Court should consider whether it would be manifestly unfair to the respondent that they be required to respond, and whether right thinking people would regard the Court as “exercising very poor control of its processes if it were to allow the applicant's document to be regarded as a proper document.”5

1      Boyd v Australia Federal Police [2023] NZHC 2358.

2      High Court Rules 2016, r 5.35B(3).

3      Mathiesen v Fildes [2017] NZHC 2258, (2017) 24 PRNZ 405 at [4].

4      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6], citing Mathiesen v Fildes, above n 3, at [4]; and Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at [9].

5      Gorgus v Chief Executive of the Department of Corrections[2020] NZHC 2249.

The claims

[3]    Mr Marong, who is unrepresented, is currently serving a life sentence at Rolleston Prison in Christchurch.

[4]    His statement of claim asserts that his rights under the New Zealand Bill of Rights Act were violated between 2016 and 2018. He asserts that as a result he cannot witness and let state officials abuse their power of authority towards any other vulnerable prisoner without doing something about it. The second named applicant, Lance Lee, is also an inmate currently incarcerated at Rolleston Prison.

[5]    The statement of claim then contains a series of allegations as to Mr Lee’s physical and mental health, before going on to make allegations that the respondents have breached Mr Lee’s rights under the New Zealand Bill of Rights Act and/or breached their statutory duties towards him. For remedies, it is stated that Mr Marong seeks declarations in relation to such breaches. It is stated additionally that Mr Marong seeks two forms of specific relief relating to Mr Lee’s health.

[6]    The statement of claim, although not required to be signed, bears signatures which are stated to be those of Mr Marong and Mr Lee.

Discussion

[7]    Mr Lee, for his part as the second named applicant, has grievances he wishes to pursue. He has standing to pursue those on his own behalf and is entitled to represent himself.

[8]    The same does not apply to Mr Marong. The grievances outlined in the statement of claim relate to Mr Lee’s situation and to his physical and mental wellbeing.

[9]    It appears that Mr Marong seeks to link the subject matter of Mr Lee’s grievances to his own experience by suggesting his (Mr Marong’s) rights were similarly violated in the 2016–2018 period. After that period, from an undefined time

after Mr Lee was imprisoned in 2019, it is alleged Mr Lee suffered in some similar way.

[10]   Nothing in the statement of claim justifies Mr Marong’s claim to have standing. He plainly has no personal standing. Nor is he entitled to represent another person with standing.

[11]Mr Marong’s claim is therefore an abuse of process of the Court.

[12]   That said, to the extent Mr Lee has associated himself as second applicant, his personal claims are not themselves on their face plainly an abuse of process. To that extent the statement of claim should not be struck out under r 5.35B. Mr Lee should instead be given the opportunity to file an amended statement of claim in which he is the single applicant.

Outcome

[13]I refrain from making an order under r 5.35B High Court Rules 2016.

[14]   I instead make an order staying this proceeding until and unless Mr Lee files and serves an amended statement of claim in which there are no longer references to Mr Marong.

[15]   In the event Mr Lee does not file and serve such an amended statement of claim by 9 December 2024 the proceeding will be struck out for want of prosecution.

[16]   I direct the Case Officer to forward a copy of this judgment, together with the statement of claim, to the Crown Law Office.

Osborne J