Taylor v Attorney-General - [2019] NZHC 2767

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…

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 Taylor v Attorney-General

Details

AGLC: Taylor v Attorney-General [2019] NZHC 2767
Case: [2019] NZHC 2767
Decision Date: 30 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Arthur Taylor brought an action against the Attorney-General, alleging breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and negligence during his detention in Auckland Prison. Taylor sought various forms of damages and a judicially-supervised inquiry into his detention conditions. The Attorney-General applied to strike out certain aspects of Taylor's amended statement of claim, including allegations of torture predating 5 October 2011 and claims replicating those from an earlier proceeding. The court examined whether these claims disclosed a reasonably arguable cause of action, were an abuse of process, or otherwise met criteria for striking out.

The court held that Taylor could pursue claims for identifiable breaches of his rights occurring within the limitation period, such as instances of the Truth newspaper being withheld. The court rejected the Attorney-General's argument that declaratory relief should be time-barred by analogy with the Limitation Act. The court also found that Taylor's claim concerning his detention in D Block and the High Care Unit did not constitute an abuse of process, as the periods and conditions differed sufficiently from those in his earlier proceeding. Therefore, the Attorney-General's application to strike out parts of Taylor's claim was dismissed. Costs were reserved.

Orders