Nuku v Attorney-General - [2019] NZHC 618

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2786

[2019] NZHC 618

BETWEEN
KARL NUKU

Plaintiff

AND

ATTORNEY-GENERAL

Respondent

Teleconference: 27 March 2019

Counsel:

Plaintiff in person

S Shaw for Respondent

Judgment:

28 March 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] The plaintiff, Mr Nuku, who is a prisoner, initially brought these proceedings against the Attorney-General on behalf of the Department of Corrections as an application for judicial review. He claims breach of privacy, loss of opportunity to claim privilege in regard to legal materials, and breach of statutory obligations, arising from what was alleged to have been an illegal cell search. The matter was later expanded to include a claim for Baigent damages in the sum of $20,000.

[2] Mr Nuku, who is self-represented, says that, as a result of further discovery documentation being provided since his amended statement of claim dated 26 April 2018 was filed, it has now come to his attention that the Police and Corrections were actively working together in conducting the illegal search of his cell. He accordingly seeks leave to file a second amended statement of claim and requests a “new parties order” so as to introduce the Attorney-General on behalf of the NZ Police into the

NUKU v ATTORNEY-GENERAL [2019] NZHC 618 [28 March 2019]

proceeding. Mr Nuku also seeks an interlocutory order requiring disclosure of his prison intelligence file1 and for leave to file an amended brief of evidence.

[3] The respondent opposes these orders, arguing that the claim is on the trial track with evidence and discovery complete, and the proposed expansion would go beyond what was contemplated in this Court’s interlocutory ruling of 13 November 2018.2

[4] Both parties have requested a case management telephone conference to deal with the filing of an amended statement of claim and the orders requested therein.

[5] These proceedings have a complicated history. The initial statement of claim just seeking judicial review was filed in the Auckland Registry on 21 November 2017.

[6] Notwithstanding the expansion of the nature of the claim to include a claim for Baigent damages, they have been managed as if they were judicial review proceedings. They have been transferred from the Auckland Registry to the Wellington Registry. They have been allocated a firm fixture for a three-day hearing in the Wellington High Court between 15-17 July 2019. The close of pleadings date was 8 June last year, and all parties have now filed and served briefs of evidence.

New parties order

[7] Rule 4.52 of the High Court Rules (HCR) falls within subpart 8 of the HCR, that part being entitled, “Change of parties by death, bankruptcy, or devolution”. It relevantly provides as follows:

4.52 New parties order

(1)Subclause (2) applies if, after a proceeding has commenced, there is an event causing a change or transmission of interest or liability (including death or bankruptcy) or an interested person comes into existence, making it necessary or desirable—

(a)that a…

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.

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Details

Case: [2019] NZHC 618
Decision Date: 28 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Nuku, a prisoner, filed proceedings against the Attorney-General on behalf of the Department of Corrections as an application for judicial review. He claimed that there was a breach of privacy, a loss of opportunity to claim privilege in regard to legal materials, and a breach of statutory obligations, all arising from an alleged illegal cell search. Mr Nuku also claimed Baigent damages of $20,000. The proceedings were initially brought in the Auckland Registry but were transferred to the Wellington Registry. A three-day hearing was set for July 2019.

The legal issues before the court were whether there was a qualifying event that made it necessary or desirable for there to be an order under r 4.52 of the High Court Rules to make the Attorney-General on behalf of the Police a party to the proceeding, and whether it was appropriate to allow Mr Nuku to file a second amended statement of claim. The court considered whether the matter had already been expanded well beyond a normal judicial review proceeding and whether further amendments to the pleadings would put the July fixture at risk. It was also noted that the close of pleadings date was some eight months ago.

The court held that there had been no qualifying event making it necessary or desirable for there to be an order under r 4.52 of the High Court Rules to make the Attorney-General on behalf of the Police a party to the proceeding, and to do so would not be appropriate in the circumstances. The court also held that it was too late to add another cause of action given that the evidence had been filed, the close of pleadings date was long ago, and the hearing was imminent. Accordingly, both applications were declined.

There being no orders.

Orders