T v Attorney-General - [2020] NZHC 394

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PLAINTIFF OR IDENTIFYING PARTICULARS OF OTHER PERSONS NAMED IN THE JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-000881

[2020] NZHC 394

UNDER The New Zealand Bill of Rights Act 1990 and the Corrections Act 2004

IN THE MATTER OF

Negligence, breach of duty of care, breach of statutory duty and breach of constitutional rights

BETWEEN

T

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: 27 February 2020

Appearances:

Plaintiff in person

A Powell & L Dittrich for the Defendant

Judgment:

4 March 2020

JUDGMENT OF DOOGUE J

Introduction

[1] The plaintiff is a prisoner currently serving his sentence at Waikeria Prison. He brings a proceeding against the Attorney-General on behalf of the Department of Corrections (“Corrections”) for an alleged failure to adequately protect him from attacks by two other prisoners (Mr M and Mr N) while he was a prisoner in Whanganui Prison in 2017. The assaults (the existence of which are not contested) occurred in January, April and June of that year.

T v ATTORNEY-GENERAL [2020] NZHC 394 [4 March 2020]

[2] This proceeding involves three different causes of action: one in tort (negligence); one for alleged breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (“NZBORA”); and one for alleged breaches of s 9 of NZBORA.

[3] The plaintiff seeks aggravated and exemplary damages totalling $215,000 under the cause of action in tort. He also seeks a total of $80,000 in damages for the two NZBORA claims.

[4]There are a number of interlocutory matters for consideration:

(a)The plaintiff’s application dated 19 January 2020 for a second set of interrogatories.

(b)The plaintiff’s application dated 19 January 2020 challenging the defendant’s confidentiality claims.

(c)The plaintiff’s alternative application dated 19 January 2020 for discovery.

(d)The defendant’s application for witnesses to appear by audio-visual link (“AVL”) at the hearing.

Plaintiff’s application for further interrogatories dated 19 January 2020

[5] The plaintiff served notice to answer interrogatories on the defendant on 28 August 2019. The defendant objected to answer some of the interrogatories on the basis they contained questions of law or mixed facts and law.

[6] The plaintiff has accepted some of the defendant’s objections as valid but disputes the defendant’s objections in respect of those matters set out below in [8].

[7] As a result, he has filed an application requiring the defendant to answer a second set of interrogatories. He relies on r 8.1 of the High Court Rules 2016.

[8]The interrogatories sought are:

(a)Provide:

(i)Photographs of main gates of unit 3 and 4 of Te Moanga Unit of Whanganui Prison.

(ii)Identify the measure of any gaps within these gates, and identify whether these gaps are sufficient to allow physical interactions between prisoners through the gates (arm or leg through the gate) from both sides of the gates.

(b)How was [Mr N] able to come out of his unit and assault the plaintiff while plaintiff was…

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 T v Attorney-General

Details

AGLC: T v Attorney-General [2020] NZHC 394
Case: [2020] NZHC 394
Decision Date: 4 March 2020

CaseChat Overview and Summary

The plaintiff, a prisoner serving time in Waikeria Prison, brought a proceeding against the Attorney-General on behalf of the Department of Corrections for an alleged failure to protect him from attacks by two other prisoners at Whanganui Prison in 2017. The plaintiff seeks damages for negligence, breaches of the New Zealand Bill of Rights Act 1990, and breaches of the Corrections Act 2004. The court was required to decide on various interlocutory matters, including the plaintiff's application for a second set of interrogatories, a challenge to the defendant's confidentiality claims, an alternative application for discovery, and the defendant's application for witnesses to appear by audio-visual link at the hearing.

The court found that the plaintiff's application for a second set of interrogatories was declined, except for answers in relation to CCTV. The court granted the plaintiff's application for further discovery to the extent of disclosing relevant parts of Mr M and Mr N's previous convictions and redacted sentencing notes. The court declined the plaintiff's application for waiver of the defendant's claimed confidentiality. The court granted the defendant's application for witnesses to appear by AVL, as it was satisfied that the grounds set out in the Courts (Remote Participation) Act 2010 had been made out.

The hearing was adjourned, and a case management conference was set down before the court in the week commencing 6 April 2020. The plaintiff was required to appear by AVL, and counsel to assist the Court was appointed to review authorities, identify relevant matters for the Court's consideration in evaluating whether or not a duty of care may exist, and provide submissions to the Court no later than three weeks before the hearing. The court also noted the plaintiff's need for counsel due to the novelty and potential implications of the issues to be tried, as well as the plaintiff being self-represented.

Orders