Mitchell v Attorney-General

[2013] NZHC 2836

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000624 [2013] NZHC 2836

BETWEEN  KERRYN MITCHELL Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

CIV-2013-485-000766

BETWEEN  KERRYN MITCHELL Plaintiff

ANDTHE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS First Defendant

THE PRISON MANAGER OF AROHATA PRISON

Second Defendant

Hearing:                   24 October 2013

Counsel:                  Plaintiff in person (via AVL)

D Harris for Defendant in proceeding CIV-2013-485-000624
D Perkins for First and Second Defendants in CIV-2013-485-
000766

Judgment:                29 October 2013

JUDGMENT OF COLLINS J

Introduction

[1]      Ms Mitchell has commenced two proceedings in which she seeks to judicially review the lawfulness of aspects of the way she was treated as a prisoner in Arohata

MITCHELL v THE ATTORNEY-GENERAL [2013] NZHC 2836 [29 October 2013]

Women’s Prison (Arohata).1    At the hearing Ms Mitchell also communicated an intention to add causes of action for breaches of the New Zealand Bill of Rights Act

1990 (NZBORA).  The defendants, whom I will refer to collectively as the Crown, have applied to strike out both sets of proceedings.

[2]      The question I have to consider is whether Ms Mitchell’s statements of claim:

(1)      disclose no reasonably arguable causes of action;  or are

(2)       frivolous, vexatious, or otherwise an abuse of the process of Court and ought therefore to be struck out.

Context

(A)      First proceeding

Ms Mitchell’s letters to Mr Taylor

[3]      On 28 March and 22 April 2013, Ms Mitchell wrote to Mr Taylor, a prisoner at Paremoremo Prison, Auckland.

[4]      The first of those letters was two pages long and contained the following paragraph:

The funny thing is (cause you have to have a sense of humour in jail) is that the prison manager gave me drugs on 26 February 2013 to make me sleep (only four days worth though).

[5]      The second of Ms Mitchell’s letters to Mr Taylor was four pages long and contained the following paragraph:

I am well aware of Arohata’s “bullshit” especially since A M Abraham2 started  in  2009.   At  one  stage,  the  whole  prison  ran  out  of  paper  and envelopes for writing because she blew her budget!  When I came in for this lag ... wings had shut down and the prison manager couldn’t pay the power bill on the remand wing!

1      Ms Mitchell is now a prisoner at Auckland Women’s Prison.

2      Prison Manager.

[6]      On 28  March  and  22 April  2013  the prison  manager  at Arohata (prison manager) wrote to Ms Mitchell and explained that her two letters to Mr Taylor were withheld because it was reasonably believed the two paragraphs I have set out above were likely to:

(1)       threaten or intimidate the recipient;  or

(2)       endanger the safety or welfare of another person;  or

(3)       affect another person adversely;  or

(4)       posed a threat to the security of the prison;  or

(5)refer to, involve, or facilitate the commission or possible commission of an offence.3

These criteria can be found in s 108(1)(b) Corrections Act 2004 (the Act) which sets out the basis upon which a prison manager may withhold mail between a prisoner and another person.4

[7]      On  29  March  2013  Ms  Mitchell  lodged  a  complaint  against  the  prison

authorities’ decision to withhold the letter of 28 March 2013.

[8]      On  15  April  2013  Ms  Mitchell  commenced  her  first  judicial  review proceeding.  That proceeding explained Ms Mitchell’s concerns about the way her first letter to Mr Taylor had been withheld.   Soon thereafter, the prison manager

revoked her decision to withhold Ms Mitchell’s first letter to Mr Taylor.

3      However, in her letter, the prison manager referred to s 107 instead of s 108 of the Act.

4    A prison manager may withhold mail between a prisoner and another person if—

...

(d)   it is correspondence that the manager believes on reasonable grounds is likely to— (i)      threaten or intimidate a person to whom it is being sent by the prisoner; or (ii)       endanger the safety or welfare of any person; or

(iii)     pose a threat to the security of the prison; or

(iv)     promote or encourage the commission of an offence, or involve, or facilitate the commission or possible commission of, an offence; or

(v)     prejudice the maintenance of the law (including the prevention, detection, investigation, prosecution, and punishment of offences, and the right to a fair trial); or

(vi)    breach an order or direction of any court or constitute contempt of court.

[9]      On 9 July 2013 Ms Mitchell amended her first judicial review proceeding and in doing so explained her concerns about the way her second letter to Mr Taylor had been withheld.  Soon thereafter the prison manager revoked her decision to withhold Ms Mitchell’s second letter to Mr Taylor.

Ms Mitchell’s letters requesting revocation of segregation orders

[10]     On 26 February 2013 Ms Mitchell was placed in segregation pursuant to s 58(1)(a) of the Act.5   That period of segregation was for 14 days.  This segregation period was extended for a further 14 days on 17 March 2013.

[11]     On  18  March  2013  Ms  Mitchell  wrote  to  the  Chief  Executive  of  the

Department of Corrections and requested that the segregation order of 17 March

2013 be revoked.  Ms Mitchell’s letter was not received by the Chief Executive of the Department of Corrections until 27 March 2013.

[12]     Ms Mitchell was ordered into segregation again on 8 April 2013 for a period of ten days.  On the same day Ms Mitchell wrote to the Visiting Justice for Prisons, care of the Department of Corrections and requested that the latest order segregating her be revoked. That letter appears to have been received on 10 April 2013.

[13]     On 15 April 2013 Ms Mitchell wrote another letter to the Visiting Justice, care of The Chief Executive of the Department of Corrections, again requesting the segregation order of 8 April 2013 be revoked.   That letter appears to have been received on 15 April 2013.

[14]     On 15 April 2013 Ms Mitchell requested a list of all her mail that had been withheld.  On the same day the Chief Executive of the Department of Corrections wrote to Ms Mitchell telling her that no letters requesting revocation of segregation

orders had been withheld.

5(1) The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—

(a)  the security or good order of the prison would otherwise be endangered or prejudiced;

or

...

Ms Mitchell’s newspapers

[15]     When she was a prisoner in Arohata Ms Mitchell received the Dominion Post newspaper  each  morning.    However,  her  newspaper  for  30  January  2013  was withheld by prison authorities because it contained an “unauthorised external communication”.   The communication was apparently from the Dominion Post newspaper and was to the effect that Ms Mitchell’s newspaper was to be delivered to her (apparently some of Ms Mitchell’s newspapers were not received by her which prompted her to complain to the Dominion Post).

[16]     The prison manager’s letter explaining why the newspaper was  withheld again purported to rely upon s 108(1)(d) of the Act and claimed that the prison manager suspected on reasonable grounds that the Dominion Post’s communication was likely to:

(1)       threaten or intimidate the recipient;

(2)       endanger the safety or welfare of any person; (3)        affected another person adversely;

(4)       posed a threat to the security of the prison;  or

(5)refer to, involve, or facilitate the commission or possible commission of an offence.6

[17]     On 7 February 2013 Ms Mitchell complained to prison authorities that her copy of the Dominion Post newspaper was received by her without its plastic wrapping and blue tie.  This complaint appeared to be resolved on 11 February 2013 when Arohata authorities resolved that Ms Mitchell’s paper would be checked by

staff each morning, delivered to the guard room and then issued to Ms Mitchell.

6      Again the prison manager’s letter mistakenly refers to s 107 instead of s 108 of the Act.

[18]     On 16 April 2013 Ms Mitchell complained that approximately 12 plastic bags that were used for wrapping her newspaper each morning were removed from her cell.

[19]     Ms Mitchell has pleaded that each of the matters set out above involved the Crown “illegally and unlawfully either [withholding] or [interfering] with [her] instruments of mail”.

[20]     In her judicial review proceeding Ms Mitchell seeks a declaration that the actions of the prison authorities that she complains of were unlawful acts.  During the course of the hearing of the Crown’s strike-out applications Ms Mitchell also advised that she was going to seek damages for breaches of her rights under the NZBORA.  Ms Mitchell’s right to freedom of expression under s 147 and her right to

be free from unreasonable search and seizure under s 218  of the NZBORA would

appear to be most relevant.

(B)      Second proceeding

[21]     In her second proceeding, Ms Mitchell pleads that between 29 April and

6 May 2013 the authorities at Arohata failed to provide her with a mattress.  She also pleads at the same time she was not provided with sufficient bedding for warmth, health and reasonable comfort.

[22]     Ms Mitchell pleads that the actions of the authorities at Arohata in denying her a mattress for six days breached s 69(1) of the Act which sets out the minimum entitlements of every prisoner.   Those minimum entitlements include “a bed and bedding”.9     Section 69(2) of the Act provides that a prisoner may be  denied a minimum entitlement for a reasonable period if “the health or safety of any other

person is threatened ...”.10

7    Section 14 states:

“Everyone has the right to freedom of expression, including the freedom to seek, receive, and

impart information and opinions of any kind in any form.”

8      Section 21 states:

“Everyone has the right to be secure against unreasonable search or seizure, whether of the

person, property, or correspondence or otherwise.”

9      Corrections Act 2004, s 69(1)(b).

10     Section 69(2)(c).

[23]     The Crown says that Ms Mitchell was denied a mattress and bedding on the six days in question because on each of the preceding four days Ms Mitchell destroyed four mattresses that had been provided to her.   The Crown says that support for its position can be found in records of disciplinary action taken against Ms Mitchell in which Visiting Justices found that she had destroyed four mattresses that were provided to her between 26 April and 29 April 2013.

[24]     Ms Mitchell does not dispute that she destroyed the mattresses that had been supplied to her between 26 April and 29 April 2013.  She described those mattresses as not being “fit for purpose” because of their inadequate dimensions and thickness. Ms  Mitchell  explained  that  the  mattress  supplied  on  6  May  2013  was  “fit  for purpose” and had a cover that could not be easily ripped.

Strike-out principles

[25]     The principles to be applied when determining a strike-out application are well settled.11   The jurisdiction is to exercise sparingly and the cause of action must be clearly untenable.  Pleaded facts will be assumed to be capable of proof, except where they are highly speculative and without foundation.12   I should be particularly hesitant to strike out causes of action that are based upon new and emerging common law claims.13

Should Ms Mitchell’s first proceeding be struck out?

[26]     I  share  Ms  Mitchell’s  concerns  about  the  prison  manager’s  decision  to

withhold her two letters to Mr Taylor and the Dominion Post sent to Ms Mitchell on

30 January 2013.  I am particularly concerned that the prison manager endeavoured to justify withholding this mail on the grounds set out in s 108(1)(d) of the Act.

[27]     Ms Mitchell’s letters to Mr Taylor, and the Dominion Post’s communication

which accompanied the newspaper sent to Ms Mitchell on 30 January 2013, could never have been reasonably thought to be likely to:

11     Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; confirmed in Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

12     Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

13     Couch v Attorney-General, above n 11, at [33].

(1)      threaten or intimidate the intended recipient; (2)      endanger the safety or welfare of any person; (3)      pose a threat to the security of Arohata;

(4)promote,   encourage    or    facilitate   the    commission    or    possible commission of an offence.

[28]     The prison manager’s decision to withhold Ms Mitchell’s mail involved the unlawful exercise of a statutory power of decision which, on its face, also breached the rights guaranteed to Ms Mitchell in ss 14 and 21 of the NZBORA.

[29]     However, the prison manager’s errors were rectified, albeit, in relation to Ms Mitchell’s letters to Mr Taylor, only after Ms Mitchell commenced her first judicial review proceeding.

[30]     To   this   extent,   Ms   Harris   for   the   Crown   correctly   submitted   that Ms Mitchell’s proceeding was moot.  The prison manager plainly made an error and remedied that error when her mistake was drawn to her attention.

[31]     In these circumstances I do not think it appropriate for the parties to incur the further costs that would be associated with Ms Mitchell being allowed to proceed to seek a formal declaration that the prison manager had acted unlawfully under s 108 of the Corrections Act.

[32]     In reaching this conclusion I am not trivialising the prison manager’s errors or the apparent breaches of Ms Mitchell’s rights under ss 14 and 21 of the NZBORA.

[33]     I am much less sympathetic to Ms Mitchell’s pleadings in relation to the alleged delays in the sending of her letters concerning her requests to have her segregation orders revoked.  There was a delay in relation to the letter sent on 18

March 2013 which was not received until 27 March 2013.  All other letters were promptly dispatched by Arohata authorities.   However, unfortunately though the

delay was in relation to a letter of 18 March 2013 it is not a matter that justifies the parties in expensive judicial review proceedings.

[34]     Ms Harris is correct when she submits that any complaints Ms Mitchell wishes to pursue about delays in relation to her mail being sent are best processed through the prison inspectorate system, and if necessary the Ombudsman.  Judicial review in this context is a remedy of last resort.14

[35]     Ms Mitchell’s complaints about the wrapping around her newspaper and the removal of approximately 12 of those plastic wrappings from her prison cell is so trivial that is not amenable to judicial review.  Allowing this part of Ms Mitchell’s dispute to proceed to a judicial review would involve the High Court “micro- managing the prisons”15 and trivialising the judicial review procedure.16

[36]     For these reasons, I am driven to the conclusion that Ms Mitchell’s first judicial review proceeding must be struck out because it discloses no reasonably arguable cause of action or is frivolous.

[37]     Ms Mitchell has said that she would like to amend her proceeding to include a claim for damages for breaches of her rights under the NZBORA.  If Ms Mitchell were to pursue a damages claim for a breach of NZBORA she would have to clearly specify how any of the rights protected by NZBORA were breached by the Department of Corrections.  In my assessment, it is appropriate for Ms Mitchell to be given the opportunity to replead her proceeding and convert her claim for judicial review into a claim for damages for breach of NZBORA rights.

Should Ms Mitchell’s second proceeding be struck out?

[38]     I am also going to strike out Ms Mitchell’s second proceeding for judicial review.  In my assessment, Ms Mitchell’s actions in destroying the four mattresses

14     Gill v Attorney-General [2010] NZCA 468, [2011] NZLR 433 at [19].

15     Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1605, 18 December

2008 at [9];  Daemar v Hall [1978] 2 NZLR 594 (SC) at 603-604; Morgan v Chief Executive of the Department of Corrections HC Auckland CIV-2004-404-70, 15 July 2005 at [26].  See also Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR

112 at [29].

16     Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [69].

provided  to  her  from  26  to  29 April  2013  justified  the Arohata  authorities  in withholding a new mattress for her for the six day period she complains of.  But for Ms Mitchell’s own actions, she would have had the benefit of a mattress during the relevant period, albeit not one she considered was “fit for purpose”.

[39]     It  is  not  the  task  of  the  High  Court  in  judicial  review  proceedings  to determine if prison authorities are providing mattresses that are not “fit for purpose”. That is precisely the type of question that is appropriately addressed through the prison inspector’s process and, if necessary, the Ombudsman.  Again, requiring the High Court to assess the appropriateness of the mattresses provided to Ms Mitchell and  whether she was  appropriately deprived of  a  mattress  for the six  days  she complains of, would involve the High Court “micro-managing” the prison system and trivialising the High Court’s judicial review procedure.

Conclusion

[40]     Both proceedings for judicial review are struck out.  However, Ms Mitchell is permitted to change her first proceeding into a claim for damages for breach of the NZBORA.

[41]     The Crown has sought costs on a scale 2B basis.  I am not going to award costs to the Crown at this stage.  Costs should be determined when Ms Mitchell’s

claim for damages for breach of the NZBORA is resolved.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Defendants