UNDER
the New Zealand Bill of Rights Act 1990

and the Declaratory Judgments Act 1908

IN THE MATTER

of an unreasonable search and public compensation in the manner of Baigent damages

BETWEEN

ARTHUR WILLIAM TAYLOR First Plaintiff

PHILLIP JOHN SMITH Second Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing: On the papers

Counsel:
Appearances:

PJ Gunn for the defendant

AW Taylor and PJ Smith, plaintiffs in person

Judgment:

15 September 2017

JUDGMENT OF FITZGERALD J [As to mode and costs of appearance]

This judgment was delivered by me on 15 September 2017 at 9 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Taylor v The Attorney-General on Behalf of The Chief Executive of The Department of Corrections [2017] NZHC 2234 [15 September 2017]

Introduction

[1] Messrs Smith and Taylor are sentenced prisoners. They have commenced civil proceedings alleging that on 21 October 2016, the Department of Corrections carried out unlawful strip searches at Auckland Prison. They seek Baigent’s damages and declarations that the strip searches were in breach of the Corrections Act 2004 and the New Zealand Bill of Rights Act 1990.

[2] A three-day substantive hearing is set down to begin on 19 March 2018. The plaintiffs will represent themselves. They wish to appear at the hearing in person, rather than by Audio Visual Link (“AVL”) from their prisons. In effect, this would require the Court to make an “order to produce” pursuant s 65(3) of the Corrections Act 2004, directing the Managers of the respective prisons in which they are held to arrange for their attendance at court.

[3] The defendant, the Attorney-General for the Department of Corrections, submits that it is preferable and appropriate that the plaintiffs appear at the substantive hearing by way of AVL.

Submissions

[4] In short, the plaintiffs say it would be unfair and contrary to the interests of justice to compel them to appear by AVL. They note the serious public law allegations behind their claim, and say that natural justice requires that they appear on equal terms with the defendant. They also rely on factual and practical matters to support their position:

(a) Both plaintiffs propose to give evidence and will need to examine and cross-examine witnesses. This will inevitably involve the need to refer to and produce documents. The plaintiffs submit that this will be extremely difficult to do via AVL, and could prejudice their case.

(b)The hearing is scheduled for three days. The plaintiffs say it would not be humane, comfortable or practicable for them to use AVL suites for such a long period. The suites are said by the plaintiffs to be

poorly ventilated, have inadequate toilet facilities, and have inadequate table space for the plaintiffs properly to organise their documents and exhibits.

(c) The AVL audio quality can be poor and…

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 [2017] NZHC 2234
Case: [2017] NZHC 2234
Decision Date: 15 September 2017

CaseChat Overview and Summary

The plaintiffs, Arthur William Taylor and Phillip John Smith, are sentenced prisoners who have commenced civil proceedings against the Attorney-General for the Department of Corrections. They allege that on 21 October 2016, the Department of Corrections conducted unlawful strip searches at Auckland Prison. They seek Baigent’s damages and declarations that the strip searches were in breach of the Corrections Act 2004 and the New Zealand Bill of Rights Act 1990. The defendant, the Attorney-General, opposes the plaintiffs appearing in person at the substantive hearing. Instead, the defendant submits that the plaintiffs should appear via Audio Visual Link (AVL). The plaintiffs resist this, arguing it would be unfair and contrary to the interests of justice to compel them to appear by AVL. They rely on several arguments, including the practical difficulties of appearing by AVL, the quality of the technology, and the right to natural justice and a fair hearing. The court considered the statutory provisions, including sections 65 of the Corrections Act 2004 and 7 of the Courts (Remote Participation) Act 2010, as well as relevant authorities. The court found that it was in the interests of justice for the plaintiffs to appear before the court in person. The court made an order under s 65(3) of the Corrections Act directing the Managers of each of the prisons at which each of Mr Taylor and Mr Smith are accommodated at the time of the hearing to arrange for Messrs Smith and Taylor’s attendance in court for the hearing on 19, 20 and 21 March 2018. The court declined to make an order under s 65(4) of the Corrections Act, which would require the plaintiffs to deposit a sum sufficient to meet the expenses of appearing before the court in the proceeding.

Orders