IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-797 [2017] NZHC 2234
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…
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