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 person be made a party; or

(b)an existing party be made a party in another capacity.

1      Pursuant to High Court Rules, r 7.43A(1)(c) and (e).

2      Nuku v Attorney-General [2018] NZHC 2941.

(2)An application without notice may be made for an order that the proceeding be carried on between the continuing parties and the new party (a new parties order).

…

[8]    As noted in Smytheman v Clark, the purpose of the rule is to facilitate the carrying on of proceedings without undue expense or delay.3

[9]    In La Famia No 1 Ltd (in liq) v Gan, Associate Judge Osborne held that an application for a new parties order must establish:4

(a)that there has been a qualifying event (of change or transmission of interest or liability or the coming into existence of an interested person); and

(b)the event makes it “necessary or desirable” that there be a new parties order.

[10]   As to r 4.52 falling under the heading of “Change of parties by death, bankruptcy, or devolution”, Mr Nuku submits that subheadings within the HCR are only a guiding factor, relying on s 5 of the Interpretation Act 1999. However, even disregarding the subpart heading, r 4.52 itself refers to an event causing a change or transmission of interest or liability, or an interested person coming into existence.5 It is my view that there has been no qualifying event making it necessary or desirable for there to be an order under r 4.52 to make the Attorney-General on behalf of the Police a party to this proceeding and to do so would not be appropriate in the circumstances.

[11]   However, Mr Nuku submits that, if it is determined that a new parties order is not appropriate, the application can be saved with resort to the Court’s inherent jurisdiction and the following HCR and provisions of the Judicial Review Procedure Act 2016:

High Court Rules, r 1.4 Application

…

3      Smytheman v Clark [1935] NZLR 604 at 606.

4      La Famia No 1 Ltd (in liq) v Gan [2014] NZHC 3158 at [5].

5      Obvious examples of interested parties coming into existence would be a child born since the proceeding began or new statutory corporations: Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR4.52.06].

(3)These rules are subject to—

(a)the enactments referred to in section 146(5) of the Act:

(b)the Evidence Act 2006:

(c)any statute prescribing the practice and procedure of the court in a proceeding or an appeal or application for leave to appeal under that statute:

(d)rules made under section 148 of the Act prescribing the procedure applicable in respect of any class of civil proceedings.

(4)If in any civil proceedings any question arises as to the application of any provision of these rules, the court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks just.

High Court Rules, r 1.9 Amendment of defects and errors

(1)The court may, before, at, or after the trial of any proceeding, amend any defects and errors in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.

(2)The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.

(3)All amendments under subclause (1) or (2) may be made with or without costs and on any terms the court thinks just.

(4)This rule is subject to rule 7.7 (which prohibits steps after the close of pleadings date without leave).

Judicial Review Procedure Act, s 14 Orders and directions

(1)A Judge may make any of the orders and directions specified in subsection (2)—

(a)at a case management conference held under section 13; or

(b)at any other time before the hearing of the application.

(2)The orders and directions referred to in subsection (1) are orders and directions to—

(a)settle the issues to be determined at the hearing:

(b)direct that—

(i)a person be named, or not named, as a respondent; or

(ii)the name of any party be added or struck out:

…

[12]   Although technically it would be possible for the Court to make an order under either r 1.9 or s14 of the Judicial Review Procedural Act, the reality is that this case has already been expanded well beyond a normal judicial review proceeding. The close of pleadings date was some eight months ago and the matter will shortly proceed to hearing. In these circumstances, it would not be appropriate to add another party.

Second amended statement of claim

[13]   The respondent notes that the Court heard a defended interlocutory hearing on setting aside subpoenas and orders to produce documents pursued by Mr Nuku on the basis of the claim as it was then pleaded on 12 November 2018. In the Court’s judgment dated 13 November 2018, it was said:6

[18] Of significance in the present case is the fact that, although the Court has permitted an amendment of the pleadings to include a claim for Baigent damages, these proceedings essentially remain judicial review proceedings. Such proceedings are supposed to be “simple, untechnical and prompt”.

[14]   Noting that orders to produce documents that, in substance, sought discovery against a non-party, the police, were set aside,7 the respondent submits that, against this background, it is not open to Mr Nuku to amend the statement of claim in a delayed attempt to plead allegations against Police as a new party. It is further noted that both parties’ briefs of evidence for the hearing set down for 15-17 July 2019 have already been prepared, filed and served and it is of concern that further amendments to the pleadings would put this July fixture at risk.

[15]   Mr Nuku, however, submits that he has been prejudiced by the manner in which the Attorney-General has approached this case since the claim was initially filed, there having been a breach of candour in that not all relevant information has been put before the Court, nor has it been made available to him as the plaintiff. He states, amongst other things, that information contained in the Attorney-General’s

6      Above n 2, at [18], citing Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].

7 At [37].

supplementary affidavit of documents of 21 December 2018 blatantly contradicts information previously relayed to him and in briefs of evidence filed. He submits that the new cause of action to be introduced against the Attorney-General on behalf of the Police is relatively confined and would not jeopardise the July fixture date, nor would the new cause of action brought against the Attorney-General on behalf of Corrections.

[16]   During the course of the teleconference, it emerged that what Mr Nuku really wanted to do was to refer to documentation relating to a Department of Corrections employee, Tom Sherlock. Ms Shaw indicated that the relevant documentation had been annexed to an affidavit of discovery and could also be part of the agreed bundle. If the document is included in the agreed bundle, as Ms Shaw has indicated it will be, Mr Nuku will be able to refer to it and make submissions on it without Mr Sherlock having to be called.

[17]   The same reasoning applies to Mr Nuku’s application for leave to file a second amended statement of claim as does his application to add a further defendant. It is now much too late to add another cause of action given that the evidence has been filed, close of pleadings date was long ago and the hearing is imminent. Accordingly, that application is declined as well.

Churchman J

Solicitors:

Meredith Connell, Wellington for Respondent cc:       K Nuku, Rimutaka Prison, Upper Hutt