Smith v Attorney-General - [2021] NZHC 1935

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-4

[2021] NZHC 1935

UNDER the New Zealand Bill of Rights Act 1990

BETWEEN

PHILLIP JOHN SMITH

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 16 July 2021

Counsel:

P J Smith (self-represented Plaintiff)

K Laurenson and R M McMenamin for Defendant

Judgment:

29 July 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 29 July 2021 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar
…..

SMITH v ATTORNEY-GENERAL [2021] NZHC 1935 [29 July 2021]

[1] The defendant applies to strike out the plaintiff’s claim. Unusually there is little, if any, dispute as to the factual allegations raised in the statement of claim. The application to strike out is brought on the grounds the plaintiff lacks standing as he has no connection to the events set out in the statement of claim and, in addition, that the plaintiff cannot advance a claim on behalf of others as he is not a solicitor.

Context and background

[2]What follows is from the submissions for the defendant and is not in dispute.

[3] On 7 January 2021 at Rolleston Prison, a group of ten prisoners from the Kia Marama unit were engaged in work in the prison garden. At the conclusion of the work, a harvest knife described as being large, could not be located. The staff involved from the Department of Corrections (the Department) decided to conduct a strip-search of the ten prisoners who were in the work party in order to find the knife. The knife was not found and it later transpired it was with a third party provider who had been assisting with the work in the garden.

[4] The plaintiff, Mr Smith, was not in the work party and was not one of those prisoners searched, although he was placed in the Kia Marama unit at that time and remains placed in it at present.

[5] The Department accepts that a metal detector or scanner should have been used at least as the first step to try and locate the knife and, as a result, the Department has made settlement offers to all 10 prisoners. Eight prisoners have executed a Deed of Settlement and Release. A further prisoner has accepted the offer by letter but has not yet signed a Deed of Settlement. The Department intends to continue attempts to settle with the remaining prisoner. That prisoner has not sought to be joined to these proceedings.

The statement of claim

[6] The statement of claim pleads the Corrections staff involved did not have reasonable grounds for the search, which renders the strip-searches of the 10 prisoners

on 7 January 2021 illegal and unreasonable, in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA).

[7] The plaintiff seeks a declaration that the search was illegal and in breach of s 98(3)(a)(i) of the Corrections Act 2004 (the Act), together…

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.

Continue reading Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2021] NZHC 1935
Case: [2021] NZHC 1935
Decision Date: 29 July 2021

CaseChat Overview and Summary

The plaintiff, Phillip John Smith, brought a claim against the Attorney-General, challenging the legality of a strip-search conducted on a group of prisoners in Rolleston Prison. The defendant sought to strike out the claim on the grounds that the plaintiff lacked standing and could not represent others as he was not a solicitor. The court was required to determine whether the plaintiff had the necessary standing to bring the claim, either on personal or public interest grounds.

The court found that the plaintiff did not have personal standing as he was not one of the prisoners who was strip-searched. The court held that the plaintiff's argument that he was at risk of being a victim of the same practice if it was not checked by the court was not enough to establish personal standing. The court also found that the plaintiff had public interest standing to bring the claim, as the substantive merit of the challenge was relevant to public interest standing, not the likelihood of relief. The court held that the defendant's concession that the search was unlawful and the settlements reached with the other prisoners did not render the claim moot or remove the public interest in the administration of justice and the vindication of the rule of law.

The court dismissed the defendant's application to strike out the claim and ordered the defendant to pay the plaintiff's disbursements if they could not be agreed upon. The plaintiff was also given ten working days to file a memorandum setting out his claim for disbursements if necessary.

Orders