Reid v Attorney-General

[2013] NZHC 2386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3579 [2013] NZHC 2386

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF       the Corrections Act 2004 and the

New Zealand Bill of Rights Act 1990

AND  an application for judicial review

BETWEEN  LIAM JAMES REID Applicant

ANDATTORNEY-GENERAL Respondent

Teleconference:       12 September 2013

Counsel:                  Applicant in person

C A Griffin for Respondent (and for Chief Executive of
Corrections and New Zealand Police)
D Harris for District Court at Auckland
A Hall for Serco New Zealand Limited

Judgment:                12 September 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1]      Before  me  today  is  an  application  by  Mr  Reid  for  adjournment  and  an application by the Crown for stay.   As Mr Reid is a prison inmate, serving a life sentence for the murder of Ms Emma Agrew in 2007, these matters were dealt with in a teleconference.

Background

[2]      This proceeding (CIV-2013-404-3579) is the third in a sequence commenced by Mr Reid. There is a very high degree of overlap between them:

LIAM JAMES REID v ATTORNEY-GENERAL [2013] NZHC 2386 [12 September 2013]

(a)      Proceeding CIV-2013-404-2182 was brought by Mr Reid against the Visiting   Justice   at   Auckland   Prison,   Chief   Executive   of   the Department   of   Corrections,   the   New   Zealand   Police,   Serco New Zealand Limited, and the District Courts at Auckland and the North Shore.   It was commenced on 30 April 2013.   It challenged disciplinary penalties and processes by the Visiting Judge (matters on which I had earlier ruled in favour of Mr Reid on 26 July 2012).  But in   particular   it   challenged   the   interception   of   communications between Mr Reid and his counsel, Ms Murray.   Those intercepted communications  were  subsequently  used  in  the  prosecution  of Ms Murray for unlawfully delivering a cellphone, packet of cigarettes and lighter to Mr Reid, contrary to s 141(1)(c) of the Corrections Act

2004.[1]   Ms Murray is yet to be sentenced. This proceeding was stayed

[1] Police v Murray DC Auckland CRI-2013-004-003095, 1 August 2013, at [52].

by Dobson J on 8 May 2013.  The proceeding was incompetent.  The purported instructing solicitor on the face of the documents had had no responsibility for the proceeding.

(b)Proceeding CIV-2013-404-2429 was filed on 10 May 2013.   It was brought in person by Mr Reid, without a solicitor acting or purported. Its statement of claim is identical to that in CIV-2013-404-2182.  The defendants were identical to those in proceeding CIV-2013-404-2182. On 24 June 2013.   This proceeding was discontinued by Mr Reid unilaterally.   Gendall J later ordered costs of approximately $15,400 in favour of the defendants. They remain unpaid.

(c)      Proceeding  CIV-2013-404-3579,  the  present  proceeding,  traverses some of the matters in the earlier proceedings.   But in a more economical fashion.  It focuses on the interception and monitoring of the calls between Mr Reid and Ms Murray.  A key point of difference is that on this occasion only the Attorney-General is nominated as defendant.  I am satisfied that it is in substance seeking the same relief as was sought in relation to the interception issue in proceeding CIV-

2013-404-2429.

Application for adjournment

[3]      A memorandum was received from Mr Reid yesterday seeking adjournment to enable:

(a)      a fellow inmate, a Mr Arthur Taylor, to join as a plaintiff in these proceedings;

(b)to  enable  consideration  of  the  appointment  of  Ms  Murray  as Mr Reid’s  McKenzie  friend.     Mr  Reid  seeks  leave  that  she  be appointed in that capacity.

[4]      After hearing Mr Reid this morning in support of his application, I declined it.  No proper basis has been established as to why Mr Taylor has a relevant interest in this proceeding.   Nor, given Ms Murray’s direct interest in the outcome of proceeding CIV-2013-404-3579 (which appears to be a collateral attack on evidence admitted in the prosecution against her), would she be approved by this Court to assist as a McKenzie friend.

[5]      I record Mr Reid’s further submissions to me following my declining his application for adjournment:

Well, we’re wasting our time here then aren’t we?  I’ll see you in Court then.

I’ll get you turfed and get another Judge.  Click.

Mr Reid left the telephone conference.

Stay

[6]      As  I  have  said,  this  proceeding  seeks  to  repeat  relief  sought  in  the discontinued proceeding CIV-2013-404-2429.  Costs in favour of Crown and other entities remain outstanding in that proceeding.

[7]      Further, this proceeding seeks declarations that intercepted calls produced in the  prosecution  against  Ms  Murray  were  unlawfully  recorded.     I  agree  with Ms Griffin’s submission that this is plainly a collateral attack on the final decision (and guilty verdict) of Judge Collins in Ms Murray’s criminal trial.

[8]      Rule 15.24 provides:

A  plaintiff  who  discontinues  a  proceeding  (proceeding  A)  against  a defendant may not commence another proceeding (proceeding B) against the defendant if proceeding B arises out of fact that are the same or substantially the same as those relating to proceeding A, unless the plaintiff has paid any costs  ordered  to  be  paid  to  the  defendant  under  r 15.23  relating  to  the proceeding A.

In  this  instance,  the  defendant  in  the  third  proceeding  is  the Attorney-General, whereas the defendants in the second proceeding were an assortment of entities, some of them being parts of the Crown.

[9]      I am satisfied that this is a proper case in which a stay should be entered, and that I have jurisdiction to do so:

(a)      I am satisfied that in any event the Attorney-General is not the proper defendant  in  this  proceeding,  and  that,  were  this  proceeding  not stayed, the Attorney-General would be struck out and the original parties in proceeding CIV-2013-404-2429 reinstated;

(b)      regardless of that fact, two of the defendants in proceeding CIV-2013-

404-2429 are parts of the Crown; and

(c)      this Court has inherent jurisdiction beyond the strict terms of r 15.24 to restrain an abuse of process.

This is a clear abuse of process and a stay should be entered. [10]     This proceeding is stayed.

Stephen Kós J

Solicitors:

Crown Law, Wellington

Kensington Swan, Wellington