Taylor v Attorney-General
[2019] NZHC 2767
•30 October 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-802
[2019] NZHC 2767
UNDER the New Zealand Bill of Rights Act 1990 BETWEEN
ARTHUR WILLIAM TAYLOR
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 11 October 2019 Appearances:
Plaintiff in person
S Kinsler for defendant
Judgment:
30 October 2019
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
Introduction
[1] The plaintiff, Mr Arthur Taylor, sues the defendant, the Attorney-General, alleging breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and negligence. The allegations concern the period between June 2011 and February 2019 during which Mr Taylor was detained in Auckland Prison. Mr Taylor’s amended statement of claim dated 19 December 2018 includes allegations of breaches of s 9 (torture or cruel treatment), s 14 (freedom of expression), s 19 (freedom from discrimination), s 21 (unreasonable search and seizure), s 23(5) (treatment with humanity and respect for dignity) and s 27(1) (natural justice) of NZBORA. As to relief, Mr Taylor seeks Baigent damages of $100,000, aggravated damages of
$150,000 in respect of the torture claim and compensatory damages of $300,000 in
TAYLOR v ATTORNEY-GENERAL [2019] NZHC 2767 [30 October 2019]
respect of the negligence claim. He also seeks a judicially-supervised inquiry into the conditions of his detention and treatment.
[2] By interlocutory application dated 29 July 2019, the Attorney applies for an order striking out aspects of Mr Taylor’s amended statement of claim. In particular, the Attorney applies to strike out Mr Taylor’s claim of torture insofar as it replicates an earlier claim brought by Mr Taylor on the basis that it is an abuse of process. The Attorney also applies to strike out particulars in the statement of claim insofar as they relate to events occurring prior to 5 October 2011 on the basis that any component of the claim based on those pleadings is time-barred under the Limitation Act 2010. By notice of opposition dated 4 August 2019, Mr Taylor opposes the Attorney’s application.
Principles relating to applications to strike out pleadings
Rule 15.1 of the High Court Rules 2016 provides:
(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.
[4]The principles are well settled:1
(a)Pleaded facts are assumed to be true for the purpose of determining the application unless they are entirely speculative and without foundation.
(b)For the claim to disclose no reasonably arguable cause of action, it must be clearly untenable — the Court must be certain the claim could not succeed at trial.
1 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
(c)The jurisdiction to strike out a pleading is to be exercised sparingly and only in clear cases.
(d)The need to decide difficult questions of law is not an impediment to an order striking out a pleading.
(e)The Court will, however, be slow to strike out claims or defences in developing areas of law.
The limitation issue
[5]Section 11 of the Limitation Act provides:
(1)It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based …
[6] A “money claim” is defined in s 12(2)(c) to include a claim “for monetary relief for a breach of the New Zealand Bill of Rights Act 1990”.2 That reflects a change from the Limitation Act 1950, which, understandably, did not explicitly address monetary relief under NZBORA. Mr Kinsler helpfully took me through the background to this change in the law. It is not necessary, however, to cover that ground here.
[7] Mr Taylor filed this proceeding on 5 October 2017, so the relevant limitation date is 5 October 2011. Mr Taylor does not dispute this. Nor does he contend he had late knowledge of any aspect of his claim.
[8] The amended statement of claim is a lengthy document, running to some 43 pages. It includes descriptions of decisions and events occurring from June 2011, four months beyond the commencement of the limitation period. The Attorney takes issue with pleadings concerning the following decisions and events:
(a)the conditions of Mr Taylor’s detention on segregation in D Block from 15 June 2011 (paragraphs 3 and 4);
2 See Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case].
(b)the lawfulness of documents purporting to authorise segregation pursuant to s 58(1) of the Corrections Act 2004 from 15 June 2011 (paragraph 10);
(c)an alleged breach of r 62 of the Corrections Regulations 2005 on 8 September 2011 (paragraphs 25–27);
(d)fires that occurred in close proximity to Mr Taylor’s cell on 27 June 2011 and 5 July 2011 (paragraph 34);
(e)a decision on 22 June 2011 prohibiting prisoners from receiving the
Truth newspaper (paragraph 35); and
(f)parole hearings held on 12 January 2010, 4 May 2010 and 10 May 2011 (paragraph 39).
[9] Mr Taylor accepts that he is precluded from claiming monetary relief for events occurring prior to 5 October 2011. He told me he had included particulars concerning events prior to 5 October 2011 in his amended statement of claim by way of background because they provide relevant context to his claims in respect of events that occurred within the limitation period.
[10]Mr Taylor also says he had made this clear to the Attorney’s advisers.
Truth
[11] Mr Taylor did take issue with the inclusion of his claim concerning the Truth newspaper in the list set out above. He said that while the original decision to prohibit prisoners receiving the newspaper did occur outside the limitation period, the prison staff acted weekly to withhold individual copies of the newspaper when they arrived at the prison. Mr Taylor submitted that this was a case of “continuous breach”, contending that to the extent that these acts fell within the limitation period he was entitled to relief — including monetary relief — in relation to them.
[12] Mr Kinsler submitted the “continuous breach” analysis advanced by Mr Taylor would undermine the legislative purpose of the Limitation Act and is contrary to authority, in particular, the Supreme Court’s judgment in Paki v Attorney-General (No 2).3 In that judgment, the Court was dealing with a claim that the Crown had breached fiduciary obligations to Māori land vendors in the late 19th century by failing to disclose that the Crown would automatically acquire part of the riverbed when purchasing land adjacent to the Waikato River. When considering whether the claim was time-barred, William Young J rejected an argument by the appellants that the Crown had been in continuous breach of its fiduciary obligations. His Honour observed that this presupposed the Crown’s fiduciary obligations persisting after acquisition of the riverbed, a contention that his Honour did not accept.
[13] First, it appears William Young J rejected the argument based on continuous breach in Paki v Attorney-General (No 2) not because of any principled objection to the concept of a continuous breach but because it was not evident on the facts of that case that the breach was continuous. Second, Mr Taylor’s claim is quite distinct from that in Paki v Attorney-General (No 2). Mr Taylor is able to point to distinct acts that occurred within the limitation period, each of which might arguably give rise to a claim for breach of s 14 of NZBORA. Mr Taylor’s claim is therefore not truly an example of continuous breach. Rather, it relates to an on-going series of discrete actions. In the report upon the Limitation Act, the Law Commission explained:4
In most cases a series of acts (copyright infringements, for example) will be severable with a separate limitation period applying to each.
[14] For those reasons, I am satisfied Mr Taylor is entitled to pursue his claim for monetary relief in relation to identifiable examples of copies of the Truth newspaper being withheld that occurred after 5 October 2011. That, of course, is to say nothing of the merits of the claim; merely Mr Taylor’s entitlement to bring it.
3 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [301].
4 Law Commission Limitation Defences in Civil Proceedings (NZLC R6, 1988) at [170].
Declaratory relief
[15] Another area where the parties differed was on the application of the Limitation Act to the declaratory relief Mr Taylor seeks. Mr Taylor’s contention is that Parliament has expressly considered how limitation periods should be applied to claims under NZBORA and has decided there should only be a time-bar in respect of monetary relief. Mr Taylor pointed to consideration of the position for declaratory relief by the Law Commission and argued that if Parliament had intended to introduce a limitation period for declaratory relief it would have done so when it enacted the current Limitation Act.
[16] Mr Kinsler’s submission was that the Court retains a discretion to bar declaratory relief under NZBORA by analogy with the Limitation Act. In support of this submission, Mr Kinsler referred to s 9 of the Limitation Act, which expressly states: “Nothing in this Act prevents it from being applied by analogy to a claim in equity to which no defence prescribed by this Act applies.” Mr Kinsler argued that declarations are equitable in origin and can therefore be time-barred by analogy.
[17] Mr Kinsler submitted that the Court should exercise its discretion here to bar declaratory relief because the Attorney would be prejudiced by having to respond to allegations from 2011. He referred to the maxim that “equity follows the law”.
[18] The discretion to time-bar equitable claims by analogy is an old one deriving from the courts of equity. In 1872, Lord Westbury said:5
… where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point in time by the Statute of Limitations, the Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation.
[19] As the Court of Appeal explained in Johns v Johns, the doctrine of limitation by analogy is far from automatic and involves a relatively rigorous exercise:6
There will be a bar by analogy only when the [equitable] claim parallels the statute-barred claim so closely that it would be inequitable to allow the statutory bar to be outflanked by the [equitable] claim. In order to determine
5 Knox v Gye (1872) LR 5 HL 656 at 674.
6 Johns v Johns [2004] 3 NZLR 202 (CA) at [80].
how close the parallel is the Court must examine not only the underlying facts but also the nature of the relationship between the parties and the policy and purpose of the different causes of action. If there is a sufficient difference in any material respect, the suggested parallel is unlikely to be close enough to make it appropriate in equity to apply an analogous bar.
[20] It is therefore insufficient to invoke the doctrine of limitation by analogy that declaratory relief is equitable in origin. It must be shown that the particular declaration sought would so closely resemble another form of relief that is time-barred by the Limitation Act that it would be inequitable to allow it. It is not obvious to me that there is any other form of relief addressed in the Limitation Act that resembles a declaration on a breach of a right protected by NZBORA.7 Monetary relief for a breach of NZBORA is quite distinct from declaratory relief. Monetary relief is focussed on compensation, while a declaration is purely vindicatory.8 For this reason alone, there are no grounds for this Court to apply the Limitation Act by analogy.
[21] Furthermore, it would generally be inappropriate to bar a claim for declaratory relief under NZBORA. New Zealand has obligations under the International Covenant on Civil and Political Rights to “ensure that any person whose rights or freedoms as [recognised in the Covenant] are violated shall have an effective remedy”.9
[22] The importance of this obligation, and its differing implications for claims for Baigent damages and declaratory relief, was acknowledged by the Court of Appeal in P F Sugrue Ltd v Attorney-General:10
[73] Nor do we accept the argument that by dismissing a Baigent claim for delay the Court would be denying the plaintiff an appropriate and effective remedy and in so doing placing New Zealand in breach of its obligations under the International Covenant on Civil and Political Rights, itself affirmed in the Bill of Rights. It would not follow from the exercise of the discretion to dismiss a monetary claim for undue delay, that the Court would on the same basis dismiss a claim for non-monetary relief, such as a declaration of breach of a guaranteed right. It might well remain appropriate, despite the delay, to vindicate the plaintiff’s right in that way, and thereby admonish the Crown and warn against any repetition of the conduct in question.
7 There may, however, be other declarations under the Declaratory Judgments Act 1908, for instance declarations as to a monetary entitlement or ownership of land, that are arguably analogous to provisions of the Limitation Act 2010.
8 See generally Taunoa v Attorney-General [2008] 1 NZLR 429 (SC) at [317]–[324] per Tipping J.
9 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 2(3)(a).
10 P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA).
[23] Finally, in its 1988 report, the Law Commission considered whether declaratory relief ought to be explicitly addressed by the limitation statute. It concluded there was no convincing reason to do so because there was “no obvious mischief to be remedied”.11 In particular, the Law Commission observed that the Court has a wide discretion to refuse to issue a declaration. It considered this was sufficient to prevent abuse of declaratory relief. While these comments were made prior to the enactment of NZBORA, they appear to me to be applicable to a declaration on a breach of a protected right.
[24] For those reasons, I am satisfied Mr Taylor may seek declarations in relation to conduct occurring prior to 5 October 2011.
Conclusion
[25] Given the conclusions I have reached in relation to limitations, it will be evident that the narrative aspects of the amended statement of claim to which the Attorney objects must remain.
[26] However, it needs to be made very clear that Mr Taylor is not entitled to claim monetary relief in respect of any cause of action that is found to have arisen prior to the communication of the limitation period — a position that he says he understands.
Abuse of process
[27] The second ground of strike-out concerns the allegations of torture or cruel treatment arising from Mr Taylor’s detention in two special units of Auckland Prison referred to as D Block and the High Care Unit (HCU). Mr Taylor was held in these units on directed segregation pursuant to s 58(1) of the Corrections Act. This segregation lasted from June 2011 to May 2012. Between 21 December 2011 and 18 February 2012, and again between 2 March 2012 and 11 March 2012, Mr Taylor was held in the HCU, which he describes in the amended statement of claim as “solitary confinement”.
11 Law Commission, above n 4, at [332].
[28] Mr Taylor has listed the conditions of his detention in some detail in his amended statement of claim. Merely by way of example, these are said to have included deprivation of sunlight, time spent outside his cell and contact with visitors. He claims these conditions amounted to torture or cruel treatment. He dedicated a considerable proportion of his written submissions in opposition to the Attorney’s strike-out application to justifying this claim by reference to international jurisprudence, including decisions of the United Nations Human Rights Committee. He also attached several photographs intended to illustrate the conditions he complains of. Ultimately, the substance of those claims is a matter for trial, and it is neither necessary nor appropriate to engage with them here.
[29] Relevantly, however, the list of conditions in the amended statement of claim closely mirrors a similar list included the statement of claim in earlier NZBORA proceedings brought by Mr Taylor against the Attorney-General. In fact, many of the conditions are described verbatim as they were in the earlier statement of claim. The relevance of this is that, as Mr Kinsler submitted, Mr Taylor’s earlier claim was addressed by Allan J in a judgment dated 11 November 2011.12 Allan J recorded in his judgment that Mr Taylor accepted in the course of argument that he could not succeed in his claim under s 9 of NZBORA:
[55] This aspect of the claim relates to the conditions under which Mr Taylor has been detained in D Block since 15 March 2010. Currently, he places reliance, inter alia, on s 9 of the NZBORA. However, during the course of argument he accepted that he could not succeed in a claim based on that section, and undertook to amend his claim by deleting any reference to s 9 insofar as it concerned the current conditions claims.
[30] Mr Kinsler submitted it is an abuse of process for Mr Taylor to attempt to re-litigate that contention in this proceeding.
[31] Mr Taylor pointed out that the periods of time to which the two claims relate are different. He also pointed out that the earlier claim only concerned D Block and not the HCU. Mr Taylor argued he could not be expected to have raised these matters in his earlier claim because they occurred after that claim had been disposed of.
12 Taylor v Attorney-General HC Auckland CIV-2010-404-6985, 11 November 2011.
[32] Mr Kinsler acknowledged the periods of time do not overlap but submitted the conditions complained about are identical and it would equally be an abuse of process to argue that a different outcome arises from the same conditions at a different time.
[33] The principles underlying abuse of process of this kind were summarised by Somers J in New Zealand Social Credit Political League Inc v O’Brien:13
Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts - that a matter once determined may not be again litigated, that a matter which could and should have been raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures.
[34] It has long been considered an abuse of process to commence a proceeding seeking to rely on issues or facts that could and ought to have been raised in a previous proceeding.14 That would be the case if Mr Taylor sought relief in relation to the same period of time covered by his earlier proceeding.
[35] I accept it could also be an abuse of process to commence a proceeding on different but materially identical facts while seeking to advance a position contrary to a determination on those materially identical facts in a previous proceeding. For instance, advancing the exact same claim in relation to a different period of time.
[36] But some caution is, however, necessary. No two sets of facts are completely identical. The abuse of process derives not from the similarity of the facts to existing authority but from the attempt to relitigate a matter already determined. The mischief lies in the collateral attack on a final determination of the Court, in much the same way as it does for the doctrines of res judicata and issue estoppel. This is distinct from the mischief of pursuing an argument that is generally speaking contrary to existing authority, which will only be grounds for strike-out if the argument discloses no reasonably arguable cause of action. The Attorney did not advance this limb of his case on the basis that Mr Taylor’s claim is not reasonably arguable.
13 New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA) at 95.
14 Johnson v Gore Wood & Co [2002] 2 AC 1 (HL) at 31 per Lord Bingham, citing Henderson v Henderson (1843) 3 Hare 100.
[37] I am satisfied it is not an abuse of process for Mr Taylor to advance his claim for a breach of s 9 of NZBORA based on the time he was detained in D Block and the HCU between June 2011 and May 2012. Again, it needs to be said that that is to say nothing of the merits of the claim. The period for which Mr Taylor seeks relief is quite different from the period addressed by Allan J in the earlier proceeding. Mr Taylor was not held in the HCU until after Allan J had released his decision. In those circumstances, it cannot be said that Mr Taylor ought to have raised these concerns in his earlier proceeding.
[38] Equally, I am not convinced any material similarity between the conditions in D Block in March–October 2010 and June 2011–May 2012 can render Mr Taylor’s current claim an abuse of process. Mr Taylor conceded his s 9 claim before Allan J. That claim was therefore not subject to a fully reasoned determination. For that reason, the amended statement of claim cannot be seen as a collateral attack on an earlier judgment of the Court and is not an abuse of process. If the Attorney wished to challenge the s 9 claim on its merits, as he did before Allan J, he could have sought to have the claim struck out on the basis it disclosed no reasonably arguable cause of action. He has not done so.
[39] In any event, Mr Taylor’s case is that the conditions of his detention deteriorated during 2011 and 2012. He contends that this gives rise to a new issue for determination. The exact nature of Mr Taylor’s conditions including the level of similarity with the conditions addressed by Allan J, and the relevance of that, if any, will be a matter for the trial judge.
Conclusion
[40] For the above reasons, the Attorney has failed to satisfy me that Mr Taylor’s claim under s 9 of NZBORA amounts to an abuse of process.
Result
[41]The Attorney-General’s application is dismissed.
Costs
[42] Costs are reserved. Mr Taylor is self-represented, so it may be that there are no costs issues. If I am wrong in that regard, and the parties are unable to resolve any costs issues that do exist, then they may come back to the Court by memoranda.
Associate Judge Johnston
Solicitors:
Meredith Connell, Wellington for defendant
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