Rerekura v Prison Director, Auckland South Corrections Facility (Serco)
[2021] NZHC 1555
•28 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-002259
[2021] NZHC 1555
BETWEEN PETER REREKURA
Plaintiff
AND
PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 17 and 18 May 2021 Appearances:
Applicant in Person
Thomas Cheng (as Applicant on interlocutory applications) in Person
Jonathan Scragg and Edward Greig for the First Respondent Sean Kinsler for the Second Respondent
Sarah Jerebine as counsel assisting the Court
Judgment:
28 June 2021
JUDGMENT OF MOORE J
This judgment was delivered by me on 28 June 2021 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
REREKURA v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2021] NZHC 1555 [28 June 2021]
Introduction
[1] Mr Rerekura has brought judicial review proceedings against the Prison Manager of Auckland South Corrections Facility (“ASCF”) which is operated by Serco.
[2] He alleges that as a serving prisoner under directed supervision in Serco’s ASCF facility he was subjected to inhumane and degrading treatment. In addition to the alleged breaches under the New Zealand Bill of Rights Act 1990 (“NZBORA”) he also claims mistake/error of law by Serco. He seeks declaratory relief and Baigent damages. The Attorney-General was joined by consent at the direction of this Court given that Mr Rerekura alleges that his rights under NZBORA were breached.1 Mr Rerekura has since been released from prison, but he maintains his claim which is yet to be set down for hearing.
[3] Mr Cheng is a serving prisoner presently incarcerated at Tongariro Prison which is administered by the Department of Corrections (“Corrections”). On 20 December 2020, while he and Mr Rerekura were both prisoners at ASCF, Mr Cheng assisted Mr Rerekura in filing the statement of claim in these proceedings. Mr Cheng says that Mr Rerekura has a permanently injured right hand which, according to Mr Cheng, led to Mr Rerekura, at least in part, to require his assistance with the paperwork.
[4] Ten days later, on 30 December 2020, Mr Cheng filed a further statement of claim. This appears to be very similar to the first but for some minor additions including the adding of a further cause of action under NZBORA. Where it does materially differ is that it purports to add Mr Cheng as a second applicant despite all causes of action appearing to relate to allegations of mistreatment of Mr Rerekura.
[5] On 10 February 2021, Walker J directed that the issue of whether Mr Cheng should be joined as a second applicant was to be addressed by way of interlocutory application.
1 Minute of Walker J dated 10 February 2021 at [6].
The applications
[6] Mr Cheng has since filed two applications; the first for him to be joined as a party to Mr Rerekura’s proceeding as directed by Walker J,2 and the second seeking orders appointing him Mr Rerekura’s McKenzie friend.3
[7] In an affidavit filed in support of his application to be joined, Mr Cheng explains his relationship with Mr Rerekura. It started when Mr Rerekura approached him for advice in late 2020. Mr Rerekura believed that the prison authorities had miscalculated his statutory release date. Mr Cheng assisted him in filing a judicial review which, I was advised, led to this Court releasing Mr Rerekura some months earlier than the date Serco had calculated, albeit in the form of an appeal against sentence out of time. Notwithstanding he was no longer in custody, Mr Rerekura maintained his judicial review proceedings which alleged various breaches of NZBORA and error of law/unreasonableness arising from his unlawful detention. Given that Mr Rerekura had been released and was no longer in custody Venning J unsurprisingly dismissed the application.4
[8] In his affidavit, Mr Cheng explains that he spoke with Mr Rerekura shortly after the alleged mistreatment with which the present claim is concerned. After filing Mr Rerekura’s proceedings he says he then initiated his own claim as part of these proceedings.
[9] The procedural background to the present applications is not without some complexity. It is described in my Minute of 3 June 2021. In short, on 22 April 2021, Duffy J vacated the two-day fixture allocated for Mr Rerekura’s substantive proceedings. Instead, she directed that three pre-trial applications be heard at that time. She also appointed counsel to assist the Court.
2 Filed on 18 March 2021.
3 Filed on 28 April 2021.
4 Rerekura v Prison Director at Auckland South Correction Facility [2021] NZHC 651.
[10]The three pre-trial matters directed to be heard were:
(a)Mr Cheng’s application to be joined as a plaintiff to Mr Rerekura’s proceedings;
(b)Mr Cheng’s application to assist Mr Rerekura as a McKenzie friend; and
(c)the adequacy of the disclosure by Serco of relevant CCTV footage within Spring Hill Prison at times material to the claims made by Mr Rerekura.
[11] In my Minute I disposed of the third application relating to the CCTV footage by agreement. I directed that the CCTV footage held by Serco was to be provided to Corrections to facilitate its viewing by Mr Cheng and that enquiries be made in this Court to permit Mr Rerekura viewing the material in the Court’s precincts.
[12] Thus, this judgment relates only to the two remaining interlocutory matters I heard on 17 and 18 May 2021, that is Mr Cheng’s application to be joined as an applicant/party to these proceedings and his application to assist Mr Rerekura as a McKenzie friend.
[13]I now turn to consider those applications.
Should Mr Cheng be permitted to assist Mr Rerekura as a McKenzie friend?
The parties and their positions
[14] Somewhat unusually, but consistent with Mr Cheng’s involvement in this and the many other proceedings he is associated with, it is Mr Cheng, rather than Mr Rerekura, who has filed this application to be appointed McKenzie friend.5
5 Interlocutory application (McKenzie friend) dated 29 April 2021.
[15] Mr Cheng, who has filed three affidavits relative to Mr Rerekura’s proceedings, including this application to be joined, relies on three grounds:
(a)there is no legal impediment to prohibit his appointment;
(b)Mr Rerekura understands and accepts the limitations which may result from Mr Cheng’s status as a serving prisoner; and
(c)Mr Cheng assisted Mr Rerekura prior to his release.
[16]The application is opposed by the first and second respondents.
[17]Mr Greig, for Serco, opposes the application on five grounds:
(a)Mr Rerekura does not have an absolute and unfettered right to a McKenzie friend of his choosing;
(b)Mr Cheng’s other roles in this proceeding as a witness (and his claimed personal interest and public interest in the proceeding) preclude his appointment as a McKenzie friend;
(c)Mr Cheng’s conduct of this proceeding and other proceedings in which Serco is a respondent amounts to an abuse of process and allowing him to assist Mr Rerekura in this way risks prejudice to both Mr Rerekura and Serco;
(d)Mr Cheng is a serving prisoner which presents practical and logistical challenges to his appointment; and
(e)Mr Rerekura has declined civil legal aid.
[18] For the Attorney-General, Mr Kinsler opposes the application on broadly similar grounds. Additionally, he submits that:
(a)a McKenzie friend is not an advocate and it will be rare for a Court to ever grant leave for a McKenzie friend to address the Court as it seems Mr Cheng intends;
(b)Mr Cheng’s background of overlapping claims puts him in a category which can be distinguished from other members of the public who can provide support;
(c)to appoint Mr Cheng would have the effect of imposing a significant burden on custodial facilities, both logistically and financially; and
(d)it is not in the interests of justice for Mr Cheng to be permitted to assist Mr Rerekura as a McKenzie friend.
[19] Ms Jerebine, appointed by Duffy J as counsel to assist,6 submits that while there is no legal impediment to Mr Cheng acting as a McKenzie friend, the Court should decline his application because:
(a)his personal and public interest in the outcome of the proceedings may be pursued at the expense of Mr Rerekura’s interests; and
(b)as a prospective party and, as a witness, his role as a McKenzie friend, objectively viewed, is materially compromised.
Legal principles
[20] A McKenzie friend is a support person who may attend Court hearings as a friend and sit beside an unrepresented party to litigation to provide support, take notes,
6 Minute of Duffy J dated 22 April 2021 at [2] and [12].
make suggestions and give advice.7 A McKenzie friend may propose questions and submissions to the litigant who may put them to the Court.8
[21] The Court of Appeal has confirmed that McKenzie friends are permitted in New Zealand, though they are not permitted to address the Court. In Faulkner v the Trustees of Allotment 5 Parish of Tahawai, the Court said:9
“McKenzie friends, where allowed, may provide advice to a litigant in person, but may not file documents, file submissions, or address the Court.”
[22] In R v Hill the Court referenced Mihaka v Police10 when confirming the role of the McKenzie friend:11
“…an unqualified person acting as a friend of a litigant may be permitted to sit beside him in Court, to take notes, to quietly make suggestions to the litigant and give advice, and to propose questions and submissions to the litigant who may put them to the Court. It is clear, however, that the friend is not permitted to address the Court by way of making submissions or asking questions. Only practitioners and parties representing themselves have a right of audience before the Court.”
[23] Whether a McKenzie friend is permitted to assist a litigant, rests with the discretion of the Court pursuant to its inherent jurisdiction to regulate its own processes. To preserve that discretion, the Justice and Electoral Committee struck out a clause specifically providing for McKenzie friends in what became the Senior Courts Act 2016. Thus, the practice remains subject to the common law.
[24] The onus lies on the person requesting the McKenzie friend to provide a suitable candidate.12
[25] There are, however, exceptions to those general principles. The Court retains a discretion to permit a McKenzie friend to play the greater role such as speaking for the party if the Court considers that appropriate, although the discretion to do so should be exercised sparingly and in accordance with the interests of justice. For example, in
7 McKenzie v McKenzie [1970] 3 WLR 472 (CA).
8 R v Hill [2004] 2 NZLR 145 (CA) at [48].
9 Faulkner v the Trustees of Allotment 5 Parish of Tahawai [2011] NZCA 196 at [2].
10 Mihaka v Police [1981] 1 NZLR 54.
11 R v Hill [2004] 2 NZLR 145 at [48].
12 MC v Chief Executive, Oranga Tamariki [2020] NZHC 50 at [35]-[42].
Currie v R, the Court of Appeal permitted the McKenzie friend to present oral submissions on the appellant’s behalf due to their health issues and in circumstances where that course was not opposed.13
[26] As will be apparent from the above, it should not be assumed that a McKenzie friend may be engaged in the hearing as of right. As this Court observed in Farquhar v Police:14
“…litigants do not have an automatic or absolute right to a McKenzie friend. In the present case, the transcript demonstrates that Mr Farquhar was cross- examining the complainant with considerable vigour and a reasonable level of skill. In those circumstances, the Judge was entitled, in my view, to conclude that Mr Farquhar was not entitled to the assistance of a McKenzie friend. That is particularly so given the fact that the proposed McKenzie friend did not arrive until well after the hearing had commenced.”
[27] Of particular relevance to the present proceedings are the recent observations of Palmer J in Bell v Chief Executive, Department of Corrections.15 Palmer J declined to permit Mr Cheng to assist another prisoner, Mr Bell, as a McKenzie friend. With respect, I agree with the Judge’s reasoning when he observed:16
“I do not consider I should order that Mr Cheng attend Mr Bell’s Court hearing. I have appointed a counsel to assist the Court by providing an independent view of the legal and evidential issues. I have already said that Mr Cheng is not Mr Bell’s legal representative and may not advocate for him in Court. If Mr Cheng were freely able to attend Court, I would have no problem in him acting as Mr Bell’s McKenzie friend. But, as a serving prisoner, he is not. And I do not consider there is good reason for me to order that Corrections go to the effort of transporting Mr Cheng to the Court, as well as Mr Bell, for the purpose of supporting Mr Bell.”
[28]With those principles in mind, I now turn to apply them to the present facts.
Discussion
[29] I am not satisfied that Mr Cheng should be appointed McKenzie friend to assist Mr Rerekura. My reasons follow.
13 Currie v R [2011] NZCA 624 at [3]; see also Employment Relations Authority v Rawlings [2008] NZCA 15, (2008) 8 NZELC 99,271 at [3].
14 Farquhar v Police HC Dunedin CRI-2011-412-1, 8 April 2011 at [23].
15 Bell v Chief Executive, Department of Corrections [2020] NZHC 3111.
16 At [24].
[30] First, Mr Cheng is a witness in these proceedings. As is noted, he has filed three affidavits. The first was made in support of his application for joinder/standing. The second appears to have been filed in support of Mr Rerekura’s substantive claims in this proceeding. The third is in support of applications Mr Cheng has made for access to facilities and resources in relation to the litigation in which he is involved.
[31] As noted by Walker J, it is likely Mr Cheng will be subject to cross- examination and may be subject to orders for exclusion during the cross-examination of other witnesses.17
[32] There are obvious and unavoidable tensions thus at play. They are both practical and principled.
[33] First, as a likely witness in Mr Rerekura’s proceedings, it is inappropriate that Mr Cheng is also engaged as Mr Rerekura’s McKenzie friend. As Ms Jerebine noted, it is a well settled and understood principle of practice that lawyers cannot act as both witness and advocate. The reasons are obvious. Counsel will always be at risk of losing their objectivity.18 That principle, in my view, must also apply to McKenzie friends for the same reasons.
[34] Next, there are likely to be practical limitations on Mr Cheng’s utility as an effective assistant to Mr Rerekura if he is required to remain out of Court during critical phases of the trial such as during the cross-examination of witnesses. Not only will he not see and hear the witnesses, but he will also be unable to provide effective assistance to Mr Rerekura in terms of note taking, advising on lines of cross- examination and practical matters of that kind which go to the core of a McKenzie friend’s role and duties.19
[35] Second, I am satisfied that it is not in the interests of justice and fairness for Mr Cheng to assist Mr Rerekura. I have already discussed the likely conflict of interest
17 Minute of Walker J dated 10 February 2021 at [9].
18 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [147]-[148].
19 R v Mitchell (1992) 9 CRNZ 537 (HC) at 542; R v Taylor (No 1) HC Wellington CRI-2004-091- 4321, 21 July 2006 at [12]-[15].
arising out of Mr Rerekura’s litigation and related litigation involving Mr Cheng (or other prisoners/applicants assisted by Mr Cheng).
[36] Additionally, it is well known to this Court that Mr Cheng is involved in a very substantial suite of litigation both as a litigant himself or as a facilitator on behalf of other prisoners.
[37] I am advised that Mr Cheng is a party to seven judicial review proceedings in which Serco is a respondent. These address many aspects of Mr Cheng’s personal experience with Serco including decisions regarding his personal property, the decision to place him in directed segregation, the search and seizure of property from his cell and his access to visits via Skype. Some 22 proceedings against Serco and Corrections were stayed by Downs J on 11 December 2020 on the basis they were defective.20
[38] It is difficult to avoid the impression, having regard to all the circumstances, that Mr Cheng’s motivation to bring the present application is driven, at least in part, by his interests in related proceedings involving the same or similar subject matter.
[39] Mr Cheng’s carriage of Mr Rerekura’s proceedings to date serves to further reinforce that impression. As noted, he has filed three applications. He has also filed an application seeking broad orders relating to the exercise of the discretion by Serco, with another prisoner, Mr Hemana, seeking access to facilities and resources at ASCF and other custodial facilities operated by Corrections.
[40] Third, there are significant cost and resourcing issues in the event orders were made. Mr Cheng is currently imprisoned at Tongariro Prison. In the course of his submissions, Mr Cheng advised he was required to undertake a two-day drive in a prison bus which he described as “a steel box within a steel box”. He was handcuffed throughout. During his appearance before me, he was accompanied in the dock by three guards.
20 Cheng v Chief Executive, Department of Corrections [2020] NZHC 3273.
[41] Even if Mr Cheng was accommodated in an Auckland facility, the expense of transporting him daily to and from this Courthouse would be very considerable, both logistically and financially. The cost to the taxpayer of permitting Mr Cheng to provide assistance to Mr Rerekura in prosecuting his private civil suit, should not be lightly dismissed.
[42] Fourth, it is notable that Mr Rerekura has declined to seek legal aid. I was advised that during the case management conference before Duffy J, her Honour encouraged Mr Rerekura to obtain legal aid.21 This is a relevant, albeit not determinative, factor in assessing whether the Court should appoint a McKenzie friend.22 More recent decisions suggest this factor may not carry as much weight as it once did.23 However, in the present case, I am satisfied it is a relevant factor worthy of consideration tending to operate in favour of declining this application.
[43] I have been advised that Mr Rerekura has been encouraged to seek legal aid. Mr Cheng candidly advised that if the application is not granted, he will assist Mr Rerekura in attempting to secure civil legal aid.
[44] Finally, it is apparent, and Mr Cheng confirmed this at the hearing, that he intends to advocate for Mr Rerekura if permitted to assist as a McKenzie friend. While, as noted, there is no absolute prohibition in doing so, the Courts have, for obvious reasons, limited the circumstances in which such a course may be adopted. Obvious examples might include where a party with disabilities has their ability to effectively participate in the legal process compromised. In the present case, Mr Rerekura addressed the Court as he did before Venning J. He is an articulate and well-spoken man who is obviously deeply indebted to Mr Cheng for his past assistance. The injury to his right hand does create some difficulties but it was not suggested to me that these challenges were insuperable or so significant that Mr Rerekura could not conduct the litigation himself, or if permitted, with the assistance of a McKenzie friend other than Mr Cheng. If Mr Rerekura requires
21 I note this observation is not included in Duffy J’s Minute of 22 April 2021.
22 R v Mitchell (1992) 9 CRNZ 537 (HC) at 542.
23 Craig v Slater [2017] NZHC 874, [2017] NZAR 649.
assistance in the form of an amanuensis, the Court may be prepared to permit such assistance, but it is not necessary that Mr Cheng is that person.
[45] Thus, in conclusion, I am satisfied that this is not a case where Mr Cheng should be permitted to assist Mr Rerekura as a McKenzie friend.
Should Mr Cheng be joined as a party to Mr Rerekura’s proceedings?
[46] The filing of this application preceded Mr Cheng’s McKenzie friend application. However, it is apparent that the two applications are connected.
[47] The position was captured by Duffy J in her Minute of 22 April 2021 when she listed the various pre-trial applications which required determination. The first was whether Mr Cheng qualified for public interest standing as a plaintiff in Mr Rerekura’s proceeding. She put it this way:24
“…Mr Cheng has applied to be joined as a plaintiff in the Rerekura proceedings. Mr Rerekura is not averse to the joinder of Mr Cheng. This issue overlaps the McKenzie friend issue. Mr Cheng maintains that as a serving prisoner he has an interest in the lawfulness of Serco’s implementation of Directed Segregation Orders. He accepts that he can pursue this interest either as a plaintiff in the Rerekura proceeding or as a McKenzie friend who assists Mr Rerekura in pursuing his claims against Serco.”
[48] Plainly, Mr Cheng’s intention in filing the amended statement of claim on 30 December 2020, and adding himself as an applicant, was designed to provide a right of audience in respect of these proceedings. However, that procedural pathway is by no means automatic and is not without its own procedural obstacles.
[49] The High Court Rules 2016 (“the Rules”) prescribe how a joinder in civil proceedings operates. Rule 4.1 prescribes limits on parties. It states:
“4.1 Limit on parties
The number of persons named or joined as parties to a proceeding must be limited, as far as practicable, to—
(a)persons whose presence before the court is necessary to justly determine the issues arising; and
24 Minute of Duffy J dated 22 April 2021 at [4](b).
(b)persons who ought to be bound by any judgment given.”
[50]Rule 4.2 prescribes how plaintiffs may be joined. The rule provides:
“4.2 Plaintiffs
(1)Persons may be joined jointly, severally, or in the alternative as plaintiffs,—
(a)if it is alleged that they have a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw; and
(b)if each of those persons brought a separate proceeding, a common question of law or fact would arise.
(2)On the application of a defendant, the court may, if it considers a joinder may prejudice or delay the hearing of a proceeding, order separate trials or make any order it thinks just.”
[51]Rule 4.56 deals with striking out and adding parties:
“4.56 Striking out and adding parties
A Judge may, at any stage of a proceeding, order that—
(a)the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or
(b)the name of a person be added as a plaintiff or defendant because—
the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
(2)An order does not require an application and may be made on terms the court considers just.
(3)Despite subclause (1)(b), no person may be added as a plaintiff without that person’s consent.”
[52] Once proceedings have been commenced, in this case by the filing of Mr Rerekura’s statement of claim on 20 December 2020, any addition to the parties must be made by way of a Court order pursuant to r 4.56. Parties cannot be added or
removed by the simple expedient of filing an amended statement of claim. As Mr Greig noted, the requirement to formally apply to add another party was recently discussed by Fitzgerald J in Gao v Starlight Capital Limited25 where her Honour observed that the r 4.56 requirement is “often overlooked by parties and their counsel, who simply file an amended statement of claim purporting to add new parties to the pleadings.”26
[53] The principles applicable to joinder of parties in judicial proceedings, albeit prior to the passing of the Judicial Review Proceedings Act 2016 (“the JRPA”), were described by Hammond J in Westhaven Shellfish Ltd v Chief Executive of the Ministry of Fisheries where Hammond J observed:27
“To the extent that it is possible to articulate useful guidelines, it may well be appropriate to join a party, where that party’s interests are directly or indirectly affected, or possibly even where that party has a distinctly arguable case to be so affected. This is because it would then be unjust to decide such issues in their absence.”
[54] While acknowledging the powers under s 14 of the JRPA are broad, I agree with Mr Greig that the question is whether Mr Cheng’s presence before the Court as a party may be necessary to adjudicate on and settle all questions involved in Mr Rerekura’s proceedings.
[55] Mr Cheng’s application for joinder, which in form more closely resembles a memorandum than an application, he claims that he has both personal and public interest standing. As for public interest standing, he states:
“The issues to be determined relate to the exercise of coercive powers that had affected [the applicants] within close proximity to time. It is further alleged that the exercise of statutory power was an abuse of power in retaliation for bringing proceedings against ASCF.”
25 Gao v Starlight Capital Ltd [2021] NZHC 730 at [11]; see also Smith v Noble Investments Ltd
[2017] NZHC 477 at [26].
26 The application of this rule to judicial review proceedings as set out in s 14 of the Judicial Review Proceedings Act 2016.
27 Westhaven Shellfish Limited v Chief Executive of the Ministry of Fisheries (2002) 16 PRNZ 501 (HC) at [14].
[56]Mr Cheng also says he has personal standing because:
“(a) all three applicants were affected by the exercise of coercive powers under the Corrections Act 2004, that deals squarely with the issue of Directed Segregation; and
(b)they were all litigations against Serco, and there is a demonstrable nexus between that and the alleged retaliatory action as a consequence.”
[57] Mr Cheng’s affidavit in support records his view that he has personal standing in Mr Rerekura’s proceedings because Mr Rerekura’s unlawful treatment was a retaliatory response by Serco to the proceedings which Mr Cheng commenced against the prison over Mr Rerekura’s sentence miscalculation in late 2020. Mr Cheng says he also suffered similarly motivated retaliation by Serco a month earlier.
[58] As for public interest, Mr Cheng submits that the Courts tend to favour a generous approach to public interest standing. He says the present case has an “immense public interest currency with the recent Waikeria riots and the torture allegations at Auckland Women’s Prison”. He says that there is personal standing for every prisoner involved in bringing proceedings against Serco, when Serco uses segregation as a tool to deter prisoner litigants from ventilating such unlawful acts in the Courts. The public interest favours the granting of the application because prisoners, too, must be protected from abuse of managers and officials, least NZBORA becomes something less than what was intended. The public has a right to made aware of allegations of abuse of power, Mr Cheng says.
[59] I shall consider both the public and private interests in determining whether Mr Cheng should be joined as a party. In doing so, I acknowledge, with gratitude, the submissions of all counsel including Ms Jerebine, appointed as counsel to assist.
[60] Ms Jerebine referred me to Palmer J’s observations in Smith v Attorney- General where he described the difference between personal standing and public interests standing in the following:28
“Personal standing is concerned with whether a litigant’s personal rights and interests are affected by the decision under challenge. Public interest standing
28 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094 at [2].
is more concerned with whether the decision under challenge is or may be unlawful.”
[61]The Judge continued:29
“I agree with the Crown’s summary of the current law of standing in New Zealand. A party who has a personal interest at stake, or whose personal rights and interests are affected, has standing to bring a proceeding. If not, he or she may be permitted to pursue a claim if that is warranted by the public interest in the administration of justice and the vindication of the rule of law. The apparent merits of the case are relevant to that assessment, as is whether a wider issue of general importance is raised. Standing is not automatic and decisions are made on the totality of facts, with a generous approach prevailing.
[28] Personal standing is concerned with whether a litigant’s personal rights and interests are affected by the decision under challenge. If they are, sufficient standing will exist to apply for judicial review of the decision. Public interest standing is more concerned with whether the decision under challenge is or may be unlawful. If so, standing is also likely to exist.”
[62] The principles relating to public interest standing do not apply in this case for the reasons she gives. The focus in public interest standing is whether or not the decision is or may be unlawful, such that it should be tested in the Courts. In this case, there is no need to assess whether or not the public interests will be served in allowing the applicant to bring the claim because the claim has already been filed by Mr Rerekura. As such, it is necessary to consider whether r 4.56 and/or s 14 of the JRPA permits joinder in the circumstances of this case.
[63] I agree with Ms Jerebine that on the basis of the facts as pleaded in the amended statement of claim, Mr Cheng’s rights against all liabilities in respect of the subject matter of the proceeding would not be directly affected by any order made. The same applies to the relief sought. It specifically relates to Mr Rerekura. The declarations sought are that Mr Rerekura’s rights were breached. The damages sought are to compensate Mr Rerekura. The breaches, as pleaded, are grounded on a specific factual basis that the challenged segregation-related decisions were made in respect of Mr Rerekura.
[64] For these reasons, in terms of r 4.56(1)(b), there is no proper basis to add Mr Cheng, either because he ought to have been joined or because his presence before
29 At [27].
the Court may be necessary to adjudicate on and settle all questions involved in the proceeding.
[65] I am also satisfied that Mr Cheng’s rights will not be directly or indirectly affected by the determination of this proceeding and, accordingly, there will be no injustice suffered by him if the proceedings are determined in his absence as a party.
[66] I do, however, accept that he has an interest in the outcome of Mr Rerekura’s litigation but only by virtue of his parallel proceedings in which he is a co-applicant with Mr Hemana.30 These proceedings claim that Serco used retaliatory action against Mr Cheng and Mr Hemana in response to civil proceedings brought by them against it. The alleged retaliation included the use of directed segregation “as a tool for oppression to also deter other prisoners from challenging Serco over breaches of rights and unlawful treatment”. Any interests which Mr Cheng may have in Mr Rerekura’s proceedings is only to the extent their outcome may affect his own proceedings.
[67] Finally, I agree that Mr Cheng’s application to be joined amounts to an abuse of this Court’s process. As Duffy J observed, the application for Mr Cheng to be appointed Mr Rerekura’s McKenzie friend and his application to be joined as a party are related. If either was granted, it would permit Mr Cheng to assume a leading and influential role in the carriage of Mr Rerekura’s claim when he is also an applicant with another prisoner in closely related litigation involving all but identical allegations and seeking similar relief by way of declarations and damages.
[68] For these reasons I am satisfied Mr Cheng’s application to be joined to these proceedings should be dismissed.
Result
[69] Mr Cheng’s application for appointment as Mr Rerekura’s McKenzie friend is declined.
[70]Mr Cheng’s application to be joined as a party to these proceedings is declined.
30 Cheng v Prison Director, Auckland South Corrections Facility (Serco), CIV-2020-404-2268.
Costs
[71] Although I did not canvas the question of costs in the course of the hearing, I am attracted to the approach adopted by Venning J31 that this may be a case where costs should lie where they fall, but that the issue of costs be reserved. If the respondents wish to pursue the question of costs, they are to file and serve memoranda no later than 5:00 pm on Monday, 12 July 2021. No memorandum is to exceed three pages. Mr Rerekura may file and serve a memorandum not exceeding three pages no later than 5:00 pm on Monday, 19 July 2021.
Moore J
Solicitors:
Duncan Cotterill, Auckland Meredith Connell, Auckland Ms Jerebine, Auckland
Copy to:
The Applicant
31 Rerekura v Prison Director at Auckland South Correction Facility [2021] NZHC 651 at [17] and [18].
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