O'Neill v Attorney-General
[2018] NZHC 1073
•16 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2475
[2018] NZHC 1073
BETWEEN CHRISTOPHER JOSEPH O’NEILL
Applicant
AND
ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent
THE DEPARTMENT OF CORRECTIONS
Second RespondentSERCO NEW ZEALAND
Third Respondent
Hearing: 27 February 2018 Appearances:
C J O’Neill, Applicant in person
S M Earl for First and Second Respondents
L Clark and B A Mathers for Third RespondentJudgment:
16 May 2018
JUDGMENT OF PALMER J
This judgment is delivered by me on 16 May 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Meredith Connell, Auckland (First and Second Respondents) Kensington Swan, Wellington (Third Respondent)
And to:
The Applicant
O’NEILL v ATTORNEY-GENERAL OF NZ [2018] NZHC 1073 [16 May 2018]
Summary
[1] Mr Christopher Joseph O’Neill complains he served a sentence shorter than it should have been, meaning he was eligible for parole later than he should have been. He filed proceedings which were struck out by Associate Judge Christiansen. He applies to review that decision. It does seem Mr O’Neill was denied the opportunity to apply for parole due to an error by the Department of Corrections. But he has failed to plead his case so that the defendants can have any idea of the legal basis for his claims, other than his claim of false imprisonment which is not arguable. Litigants in person are entitled to latitude in abiding by technical legal rules. But they are not entitled to throw a mass of factual allegations at defendants without specifying their legal basis. If Mr O’Neill wishes to pursue any of his complaints he will need to file a proper statement of claim, identifying not only the facts he relies upon but the legal basis for his claim. I decline his application to review the decision.
What happened?
Mr O’Neill’s convictions and sentence
[2] Mr O’Neill was convicted by a jury in the District Court of five charges of criminal harassment and four charges of breaching a restraining order under the Harassment Act 1997. He also pleaded guilty to 10 charges relating to breaches of the Postal Services Act 1998. The charges related to Mr O’Neill sending abusive letters and materials to government departments, ministers, lawyers, judges, court officials, the Medical Council, the Police, the Human Rights Review Tribunal and the Ombudsmen. He also sent such material to friends, relatives and neighbours of some of those people. In sentencing him on 31 October 2012 for these offences, Judge Blackie stated “the material has to be summarised as disgusting and depraved and anybody that writes that sort of material must have been exercising some form of depraved mind”.1
1 R v O’Neil DC Manukau CRI-2011-004-11817, 31 October 2012 at [5].
[3] In sentencing Mr O’Neill, Judge Blackie convicted and discharged him on the postal offences.2 In relation to the Harassment Act charges he sentenced Mr O’Neill as follows:3
(a)In respect of the charges for breaching the Harassment Act, in relation to criminal harassment, you are sentenced on each of those charges to two years’ imprisonment and they will be concurrent;
(b)In respect of each of the charges under the Harassment Act for breaching the restraining order, I am reducing the starting point of six months’ imprisonment to a final sentence of two months’ imprisonment taking into account the mitigating factors that have been outlined, including the period that you have spent under electronically monitored bail. That two months, however, will be cumulative upon the two years. Therefore the overall sentence that you will serve on a cumulative basis is one of two years and two months’ imprisonment.
[4] The Judge signed two warrants of commitment in respect of each of those sets of charges. The warrants were silent as to whether the sentences were imposed cumulatively or concurrently, although the Judge’s sentencing notes, quoted above, made clear they were cumulative.
Mr O’Neill’s release
[5] Corrections calculated Mr O’Neill’s release date on the basis of a total sentence of two years’ imprisonment which is a “short-term” sentence according to the definition in s 4 of the Parole Act 2002. This meant he was eligible for release after serving half of his sentence.4 He was released on 7 August 2013 in accordance with Corrections’ then method of calculating release dates for short-term sentences. He would have been eligible for release on a short-term sentence on 6 June 2013 if it had been calculated in accordance with the Supreme Court’s subsequent decision in Booth v R.5
[6] If Mr O’Neill’s sentence had been calculated as two years and two months’ imprisonment, consistent with the Judge’s sentencing notes, it would have been a
2 At [25](c).
3 At [25].
4 Parole Act 2002, s 86(1)
5 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
“long-term” sentence under the Parole Act.6 That would have meant he was eligible for release on parole after serving one third of his sentence, which would have been 24 February 2013.7
[7] Mr O’Neill complained about Corrections’ calculations. On 3 or 4 October 2013, another judge signed a new warrant of committal specifying the sentence was imposed cumulatively, consistent with the sentencing notes. On 26 November 2013, the Department of Corrections offered to apologise and pay Mr O’Neill $2,000 as an ex gratia payment to resolve the matter.
Mr O’Neill’s proceeding
[8] On 7 September 2016, Mr O’Neill filed an application for judicial review against the Government of New Zealand, the Department of Corrections and Serco New Zealand Ltd (Serco), which managed the relevant prison. The two-page statement of claim alleged he was held illegally in prison for 164 days, illegally restricted on probation for 134 days and the defendants failed to protect him from two threats against his life by a Serco employee.
[9] At the first case management conference, on 10 November 2016, Corrections complained the statement of claim was deficient. Peters J noted in her minute the appropriate course was for Corrections to serve a notice under r 5.21 of the High Court Rules 2016, requiring a more explicit pleading.8 It did so on 14 November 2016. Peters J also struck out the Government of New Zealand and substituted the Attorney-
General as the correct representative of the government.9
[10] In a memorandum of 12 November Mr O’Neill provided, though he did not file, an amended 15-page statement of claim. It is dated 12 November 2016 at the end, but is headed “Statement of Claim as Decreed by Peters J 10-11-2016”, which may be why Associate Judges Doogue and Christiansen referred to it as the 10 November statement of claim. The statement of claim mixes allegations of fact and law in a series
6 Parole Act 2002, s 4.
7 Parole Act 2002, ss 20(1)(a) and 84(1)
8 Minute of Peters J of 10 November 2016 at [4].
9 At [2].
of overlapping statements, not always in whole sentences, of which it is difficult to make sense. It appears to allege, in summary:
(a)The defendants caused Mr O’Neill to be illegally held in prison for 164 days and illegally held on probation (which he sometimes calls bail) for 134 days. This was orchestrated and preventable. Judge Blackie forged two illegal warrants on 31 October 2012 which are invalid, and a third was forged later but dated the same date. The Chief District Court Judge ignored Mr O’Neill’s complaint about the lying judges.
(b)Corrections’ offer of $2,000 compensation for kidnapping and wrongful incarceration was to pervert justice but shows acceptance of guilt and wrongdoing, illegally contravening New Zealand and international law.
(c)There is precedent for compensation to be paid to those illegally held. The defendants’ actions breached the New Zealand Bill of Rights Act 1990.
(d)Mr O’Neill’s life was put at risk while he was held at Mt Eden Prison, run by Corrections, in 2010. Four different Corrections employees falsified official forms and recorded false information about him in 2010 including: suggesting he had committed domestic assault; suggesting he had alcohol and drug issues; referring to him by a government “code name”; and attempting to claim he was insane.
(e)His public defence lawyer, the Office of the Ombudsman, the Minister, the Chief District Court Judge and the Commissioner of Police did not assist him.
(f)Serco handed him a “Notification of Remand Time” with gross inaccuracies as to accounts and accusations of his violence, his criminal history, escape offences and the two forged warrants. When Mr O’Neill exercised his legal right to review and challenge this document by
handing a reply addressed to the Minister for Corrections to a Serco guard, this was ignored.
(g)A Serco employee threatened to kill Mr O’Neill on 29 April 2013. His complaint about this was ignored and he withdrew it under duress. There was a second threat to kill him on 22 July 2013 and no action was taken on his complaint.
(h)Mr O’Neill complained to the New Zealand Law Society about his public defence lawyer, which exonerated him. Court staff subsequently interfered with his filing of proceedings against the NZLS and the LCRO.
[11]Under the heading “Cause of Action” the document states:
Cause of Action
Relief Sought
That – The Court award compensation for the time I was wrongfully held in prison and on probation.
That – The Court recognize that had things been done correctly such was preventable.
That – The Court use its powers to achieve justice for me by whatever means available to it, and cause…
A court hearing to address the facts that I served a sentence not handed down.
That I did not serve the sentence given, which until this is officially addressed hangs over my head, as nothing was done officially, all that occurred was to cover arses.
The Court direct Police and Government to act as directed by McKegg J and their findings to be tabled in Court.
The Court order the release to me of all re the secret “code name” given to me by government and consider the NZPC and Privacy Act re such a release, to me alone.
The Court cause an enquiry into: My sentencing.
My imprisonment
My illegal bail.
The failure of the Parole Board to act.
The denial to me of the protection of police. The prison inspectorate.
And adequate legal representation.
The Court cause to exist the correct official documentation to cancel probation.
That– The Court recognize, and accept as fact that an orchestrated attack was visited on me, a character assassination, by government, and its agencies, that saw me denoted wrongly as…
A drug addict. An alcoholic. A nutter.
A prison escaper.
Recidivist criminal.
Violent.
A wife beater – when not one accusation was true, but such put before the Court to induce further abuse of me, and harsher prison time on a higher security rating.
This no doubt also effected my sentence.
That I was denied access to redress and suffered further from the orchestrated cover-up.
That my life was put at risk x 3, by government, Corrections and Serco.
That all was preventable.
That – The Court decree official recognition of this, and records to be corrected so I don’t continue to suffer from such.
And compensation awarded.
[12] At the call of the proceeding in the Judicial Review List on 24 November 2016, Corrections submitted the amended statement of claim sought compensation and so should proceed as an ordinary proceeding rather than an application for judicial review. Peters J agreed and adjourned the matter to the Duty Judge List for further
directions.10 She also recorded Corrections’ complaint the amended statement of claim did not respond to its notice of 14 November 2016. Peters J observed “[a] defendant is entitled to a statement of claim which fully informs them of the case they are required to meet, and has remedies under the Rules if the pleading is deficient”.11
[13] At the next case management conference, on 3 February 2017, Mr O’Neill advised the Court he intended to proceed on the basis of the November 2016 statement of claim.12 Counsel for the Attorney-General sought to be removed from the proceeding since it was being defended by Corrections. Mr O’Neill opposed that, in part on grounds he had written to the Attorney-General to raise concerns about what had happened to him as alleged in the statement of claim but the Attorney-General took no action. Associate Judge Doogue recorded he “queried Mr O’Neill as to whether there is a pleaded cause of action in relation to the last matters and the position that I was left in was of some uncertainty whether there is”.13 Counsel for Corrections set out in a memorandum what Corrections understood to be the key issues in Mr O’Neill’s claim. But Associate Judge Doogue recorded Mr O’Neill “is not minded to accept that the statement of issues is correct”, believing he would be agreeing to release various parties from the proceeding, so no progress could be made on refining the issues.14 Associate Judge Doogue recorded Corrections’ contention the statement of claim did “not suffice to meet the purposes of the Rules which are to clearly and fully inform the defendant of the nature of the case which the second defendant has to meet”.15 Corrections advised it would make an application for orders regarding the statement of claim accordingly.
[14] On 28 February 2017, Mr O’Neill made disclosure of 11 bundles of documents, carefully organised by topic and with commentary, labelled A to K.
10 Minute of Peters J of 28 November 2016 at [5].
11 At [7].
12 Minute of Associate Judge Doogue dated 3 February 2017 at [1].
13 At [3].
14 At [5].
15 At [5].
Strike-out
[15] On 6 and 7 April 2017, Corrections and Serco applied to strike out the proceeding. In his judgment of 30 June 2017, Associate Judge Christianson granted the application.16 In summary, he found:
(a)Mr O’Neill’s detention was lawful. Mr O’Neill’s claim otherwise is not reasonably arguable and cannot succeed.17 The deficiency of the original warrants, in not making clear the sentences were cumulative, did not render the warrants invalid and did not affect the lawfulness of detention.18 Corrections was entitled to rely on them.19 He was not detained beyond his statutory release date.20
(b)If Mr O’Neill has any claim at all, it was “that he missed out on a chance to be released earlier than he was” but “there was no guarantee he would have been released earlier”.21
(c)The legal basis of Mr O’Neill’s claim about threats to kill are unclear, no cause of action is identified, or can be identified, as connected to that allegation and no loss or harm is identified.22
(d)It is not clear what cause of action Mr O’Neill relies on in his claim of illegal bail or probation, which appears to relate to his release on standard conditions, and it is inevitable any relief sought would be refused since at least standard conditions apply to every release.23
(e)Mr O’Neill’s claim about prison records discloses no cause of action, he can use the Privacy Act 1993 to get them corrected if he wishes, and
16 O’Neill v Attorney-General [2017] NZHC 1491.
17 At [42].
18 At [45]–[47].
19 At [48].
20 At [49].
21 At [50].
22 At [51]–[52].
23 At [53].
there is no proper basis on which to allege records were deliberately falsified or his life put at risk as a result of any alleged errors.24
Review
[16] On 21 July 2017, Mr O’Neill applied to the Court of Appeal for leave to appeal the Judge’s decision. By Minute of 5 October 2017, the Court of Appeal referred the application to the High Court and directed it be treated as an application for review of the Associate Judge’s decision by the High Court filed on 21 July 2017.
[17] Mr O’Neill requested a two or three-day hearing of the application for review. One day was scheduled. Despite Mr O’Neill taking me exhaustively through his bundles of documents, only half a day was used.
Law of review, strike-out and pleadings
[18] In reviewing an Associate Judge’s decision under s 26P of the Judicature Act 1908, the High Court is empowered “to make such order as may be just”. In essence, Mr O’Neill must persuade me Associate Judge Christiansen’s decision was wrong, in fact or law.25
[19] The law governing the striking out of proceedings is well established. Rule 15.1 of the High Court Rules provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
24 At [54]–[55].
25 Murmeister v O’Brien [2008] 3 NZLR 842 (HC) at [29]; Wilson v Neva Holdings Ltd [1994] 1 NZLR 481 (HC) at 485–486.
[20] As summarised by the Court of Appeal in Attorney-General v Prince and a minority of the Supreme Court in Couch v Attorney-General:26
(a)the facts pleaded are assumed to be true;
(b)the causes of action must be so untenable the court is certain they cannot possibly succeed;
(c)the jurisdiction is to be exercised sparingly and only in a clear case;
(d)the jurisdiction is not excluded by the need to decide difficult questions of law; and
(e)particular care is required in areas where the law is confused or developing.
[21] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal stated:27
The procedural requirements for statements of claim are spelled out in the [High Court Rules]. For present purposes r 5.17 (distinct matter to be stated separately), r 5.26 (statement of claim to show nature of claim) and r 5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:
·The pleading must be accurate, clear and intelligible.
·Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.
·While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
·Separate causes of action must be separately stated.
·The pleading should set out all the elements of the cause of action (in this case misfeasance).
·The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.
…
26 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267. Approved by Elias CJ and Anderson J in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
27 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [84], [87] and [89] (footnotes omitted).
If a statement of claim has been drafted in compliance with the above requirements, then both the court and the defendant parties should have a clear understanding of what is being alleged and against whom. However, verbose, ill-drafted pleadings may defeat the purpose of a statement of claim to such an extent that it is an abuse of process. This principle is intended, as Odgers suggests, to “prevent the improper use of [the court’s] machinery”. Pleading should not be permitted to be a means of oppressive conduct against opposing parties.
…
The grounds of strike out listed in r 15.1(1)(b)-(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – “otherwise an abuse of process of the court”
– extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
[22] One point may be obvious to lawyers, from the above, but bears stating explicitly. A statement of claim must not only inform the Court and defendant of the facts relevant to the claim but, also, “[b]oth the defendant and the Court are entitled to be informed of the legal basis for the plaintiff’s claim for relief in the clearest terms”.28
Should the proceeding be struck out?
Submissions on strike-out
[23] Mr O’Neill submits the claim should be a judicial review challenging Corrections’ offer of compensation, three alleged attempts to injure him, the alleged threats to kill him and the other matters listed in his statement of claim. In his notice of application for leave to appeal to the Court of Appeal, treated as his application to me for review, Mr O’Neill sets out 13 grounds. In summary:
28 Pearce v Accident Compensation Corp (1991) 5 PRNZ 297 (HC) at 303.
(a)Associate Judge Christiansen did not have jurisdiction to strike out the claim against the Attorney-General as the Attorney-General did not apply for strike-out.
(b)It was not enough for the Associate Judge to say the warrants were valid and ignore the fact that all parties knew them to be in error at the time.
(c)Mr O’Neill was entitled to bring the matter as an application for judicial review, and it should not have been altered against his wishes or dismissed as such.
(d)His filings could not be said to be unclear given he filed his entire case, replete with all evidence and consistent with the directions of the court, which was then ignored by Associate Judge Christiansen.
(e)Mr O’Neill has exhausted all other avenues of redress, leaving the court as the appropriate venue.
(f)The Associate Judge ignored evidence filed demonstrating the warrants were forgeries, records were falsified and his life was at risk.
[24] At hearing, Mr O’Neill comprehensively traversed the 11 bundles of documents relating to his claims, which he complains were not dealt with by Associate Judge Christiansen. In the course of doing so, he made various extravagant allegations of wrongdoing against various official institutions. Mr O’Neill submits there is nothing in the statement of claim that is irrelevant or vexatious and it all comes back to the warrants. He submits, if his claim were thrown out, the Court would be saying it is all right to do all the things he alleges were done to him.
[25] Counsel for Corrections submits the strike-out is clearly justified on the pleadings which were beyond repair and seriously deficient in not identifying causes of action, not pleading relief and containing irrelevant material. Corrections did not apply for strike-out immediately, taking into account that Mr O’Neill is self-
represented and the nature of the claims, but ultimately decided that was its only option.
[26] Counsel for Serco submits there is no error in fact or law in the Associate Judge’s decision and it should be upheld, as Mr O’Neill’s pleadings are simply not in a form that can be regarded as tenable. She also submits that Serco did not make any decision that could be the subject of judicial review.
Decision on strike-out
[27] I do not consider Associate Judge Christiansen was wrong in fact or in law to strike out Mr O’Neill’s proceeding.
[28] It does seem Mr O’Neill was denied the opportunity to apply for parole due to an error by the Department of Corrections. That could be the subject of a proceeding for judicial review. But it is not a claim he was unlawfully imprisoned or illegally held on probation, which is the case Mr O’Neill has advanced. The substance of Mr O’Neill’s statement of claim did not disclose an application for judicial review. It did not, for example, identify any decisions to be reviewed. Rather, it identified a cause of action for false imprisonment and a claim for damages. The direction of Peters J that the case should be managed as an ordinary civil proceeding did not prevent Mr O’Neill from bringing an application for judicial review, but simply reflected the substance of his statement of claim alleging false imprisonment.
[29] Associate Judge Christiansen was correct the detention was lawful. Mr O’Neill was taken into custody in accordance with Judge Blackie’s sentencing order which was clearly recorded. The error in the warrant did not render his detention unlawful.29 Even if the defendants knew the warrant contained an error, this would not have rendered Mr O’Neill’s detention unlawful. Mr O’Neill was not detained for longer than the period for which he was sentenced by Judge Blackie. The claims Mr O’Neill
29 Reekie v Attorney-General [2012] NZHC 1867 at [39]; Forrest v Chief Executive of the Department of Corrections [2014] NZHC 1205 at [24]–[25]; R v Fisher T236/95, 4 October 1995 at 7 (confirming an oral order for remand in custody is sufficient to make remand in custody lawful); Henderson v Superintendent of Manawatu Prison CA27/05, 19 May 2005 (holding erroneous sentences are not nullities and orders of the court subsist until set aside even if erroneous). And see McCreaner v Ministry of Justice [2014] EWHC 569 (QB), [2015] 1 WLR 354 at [33].
has made of being unlawfully imprisoned or illegally held on probation cannot succeed at law. Neither can I discern any legal basis on which Corrections’ offer to Mr O’Neill of compensation and an apology, in exchange for settlement of any claims, could be illegal.
[30] The other claims, including about Mr O’Neill’s life being put at risk and falsification of information, are essentially factual. But they lack any specified legal basis. Exactly what legal provisions does he say the defendants have breached? As the Court of Appeal has stated, pleadings “must be sufficiently detailed to state a clear issue and inform the opposite party of the case to be met”.30 That includes informing the defendants of the legal basis for the plaintiff’s claim for relief in the clearest terms. Litigants in person are entitled to latitude in abiding by technical legal rules.31 But they are not entitled to throw a mass of factual allegations at a defendant and make the defendants figure out their legal basis. I do not accept Mr O’Neill’s submissions the defendants could have understood the pleadings in the context of all his other evidence or that Judge Christiansen disregarded this material. The other evidence does not disclose the legal basis for these claims either.
[31] The legal basis of Mr O’Neill’s claim of false imprisonment is clear but it is not arguable on the facts. Otherwise, Mr O’Neill has failed to plead his case so that the defendants can have any idea what he says is the legal basis for his claims and, therefore, what the legal issue is. Corrections has consistently complained about Mr O’Neill’s pleading. He has had a number of opportunities to remedy it. He has refused to do so. It is not fair to the defendants for them to continue to face claims without knowing what they are. Mr O’Neill submits he is entitled to be heard on applications for judicial review. But that does not mean he is entitled to be heard on applications that are untenable or insufficiently pleaded.
[32] Nor was Judge Christiansen wrong to strike out the proceedings in their entirety, including against the Attorney-General. He held the claim was speculative
30 Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998 at 19.
31 Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 3281 at [14]-[15]. And see Bridgette Toy-Cronin “I Ain’t No Fool: Deciding to Litigate in Person in the Civil Courts” [2016] New Zealand Law Review 723.
and so clearly untenable it could not possibly succeed. It was therefore appropriate to strike out the proceeding against all parties.
[33] If Mr O’Neill wishes to pursue any of his complaints he will need to file a proper statement of claim, identifying not only the facts he relies upon but the legal basis for his claim. I strongly suggest he consult a lawyer in order to do so.
Result
[34] I decline Mr O’Neill’s application to review Associate Judge Christiansen’s decision to strike out the proceeding. I award costs to the defendants on a 2B basis.
………………………….
Palmer J
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