Taylor v Attorney-General HC Auckland CIV 2010-404-6985
[2011] NZHC 1688
•11 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-6985
BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff
ANDATTORNEY-GENERAL Defendant
Hearing: 14 July 2011
Appearances: Plaintiff in person
V Casey and G Robbins for defendant
Judgment: 11 November 2011
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Friday 11 November 2011
Solicitors/Party:
A W Taylor, Private Bag 50124, Albany 0752,Auckland: fax 094426794
Crown Law, Wellington, [email protected]
TAYLOR V ATTORNEY-GENERAL HC AK CIV 2010-404-6985 11 November 2011
[1] Mr Taylor is a maximum security prisoner at Auckland Prison, (Paremoremo). He has commenced a series of civil proceedings against the authorities responsible for the administration of prisons. Some of those cases have reached the appellate courts.
[2] In this present proceeding, Mr Taylor sues the Attorney-General in right of the Crown, as being liable for breaches of the New Zealand Bill of Rights Act 1990 (NZBORA), and certain international instruments. It is further claimed that the Attorney-General is vicariously liable for the acts and omissions, joint and several, of the Department of Corrections, including individual employees, servants or agents, together with the public prisons service and its predecessor, the Penal Division of the Department of Justice.
[3] Mr Taylor makes a number of claims with respect to his treatment as a prisoner. He alleges breaches of several provisions of the NZBORA, and in relation to the later periods of his alleged mistreatment he pleads negligence, breach of statutory duty and breach of fiduciary duty.
[4] The defendant now applies to strike out portions of the statement of claim. Ms Casey argues that some of the plaintiff’s claims are simply untenable, while others require significant repleading.
Strike out principles
[5] The principles governing the determination of strike out applications are well established.
[6] The court may strike out all or part of a pleading, under r 15.1, High Court
Rules, 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.
[7] The principles attaching to an application to strike out pleadings under r 15.1 were set out by the Court of Appeal in Attorney-General v Prince,1 and affirmed by the Supreme Court in Couch v Attorney-General.2 In summary:
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action or defence must be clearly untenable so that it cannot possibly succeed.
(c) The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e) The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.
[8] Further, in Couch, Elias CJ said:3
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.
1 Attorney-General v Prince [1998] 1 NZLR 262 (CA)
2 Couch v Attorney-General [2010] 3 NZLR 149 (SC).
3 Couch at [33].
The statement of claim
[9] Mr Taylor’s allegations are wide ranging, both in respect of the scope of the impugned conduct and the period of time over which it is alleged to have occurred. The statement of claim, which runs to 27 pages, is in places couched in a somewhat discursive style. Elsewhere the pleading is drafted with some skill, as might be expected of a litigant who is now very experienced in litigation of this type.
[10] His allegations are concerned with three separate periods during which he alleges he was the subject of actionable mistreatment. The periods concerned are:
(a) between November 1993 and March 1994, when he was held in
Auckland Prison’s detention block (the 1993 Segregation Claims);
(b)periods totalling about 17 months from June 1998 to May 1999, and again from June 1999 to about October 1999, when he was allegedly subject to “BMR-type conditions” (the 1998 Segregation Claims);
(c) the period from 15 March 2010 to the present time, during which he continued to be detained in D Block at Paremoremo under conditions which he asserts to be in breach of various duties owed to him by the Department of Corrections (the Current Conditions Claims).
[11] I will endeavour to summarise as briefly as I can the key allegations made by
Mr Taylor in respect of each of these three periods.
The 1993 Segregation Claims
[12] Mr Taylor alleges that between 10 November 1993 and March 1994 he:
was confined to a dimly lit cell with inadequate ventilation and no fresh air for at least 23 hours a day;
was required to eat all meals in that cell with no access to any food or liquid between about 4 pm and the next morning;
hadall meals served on paper plates, which he was obliged to eat with flimsy plastic cutlery;
was excluded from any association or contact with other prisoners;
was in darkness or semi-darkness for at least half of every day, the cell light being turned off at about 8.30 pm and not turned on again until after 8 am;
had no access to water between 4 pm and 8 am each night;
hadan uncovered toilet in his cell with limited access to cleaning materials;
was permitted exercise out of the cell for only one hour per day on his own in a heavily meshed yard;
on some days, by reason of staff shortages, was not unlocked at all.
On such days he was unable to shower or clean his cell;
was permitted no phone calls, and correspondence was delayed or not delivered at all;
was permitted no rehabilitative or recreational activity;
was unable to access reading material from the prison library and was denied the opportunity to attend religious services;
was strip searched every time he left and returned to his cell (since he had no contact with other prisoners he alleges the only purpose of such searches was to humiliate, demean and belittle him);
was permitted no personal property in his cell;
was permitted only one non-contact visit of 30 minutes each week;
received no daily visits by the superintendent or medical staff.
[13] Mr Taylor alleges that these conditions were inferior to those suffered by inmates undergoing the punishment of cell confinement. Such inmates were held in an area of the detention block where they could communicate with each other and were subject to cell confinement conditions for a maximum duration of 15 days only. Mr Taylor alleges also that the conditions to which he was subject were inferior to those applied to all other maximum security prisoners, including those who were placed on non-voluntary segregation. He alleges that the cumulative effect of the conditions to which he was subjected devastated, disorientated, and distressed him, so resulting in on-going psychological, physical and mental damage. He further asserts that his complaints were ignored until he was able to complain to a visiting
justice, who caused him to be removed from the detention block to D Block. Once in D Block he said that heavy steel chains were wrapped around the doorpost of his cell at any period when prison officers were not in the block. He was the only prisoner subjected to that measure.
[14] He complains that, because his cell door could not be unlocked in the same manner as other prisoners, there was a serious risk to his safety in the event of fire. The chain and padlock were removed once a visiting justice pointed out the adverse safety and health implications.
The 1998 Segregation Claims
[15] Between 1998 and 2004, the Department of Corrections operated a Behaviour Modification Regime, later renamed the Behaviour Management Regime (BMR), at Auckland Prison. Prisoners who were placed on this regime were subject to stringent conditions. The regime was the subject of extensive scrutiny by the Court of Appeal in Attorney-General v Taunoa,4 and subsequently by the Supreme Court in
Taunoa v Attorney-General.5
[16] Mr Taylor alleges that during the relevant period he was subject to “BMR-
type conditions” in D and C Blocks for a total of at least 17 months.
[17] During the course of oral argument, Mr Taylor explained that all prisoners in D and C Blocks at the time the BMR was operating were subjected to the regime’s conditions to some degree, regardless of whether particular inmates had formally been put on the regime or not. He says that the conditions of detention to which he was subjected were far more restrictive than those applied to “ordinary” maximum security prisoners at Auckland Prison.
[18] He explained, in the context of a detailed chart appearing at paragraph 6.2 of the statement of claim that a prisoner’s movement through a series of phases
corresponded with a progressive relaxation of what began in each case as a very
4 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA).
5 Attorney-General v Taunoa [2008] 1 NZLR 429 (SC).
restrictive regime during phase 1. In summary, Mr Taylor alleges that there was either a complete failure to provide to him, or at least a substantial derogation from his legal entitlements to:
exercise;
educational and/or rehabilitative programmes;
constructive use of time;
proper facilities for personal hygiene and laundry requirements;
access to legal counsel;
personal visits;
telephone access;
lawful classification;
daily visits by the superintendent or his delegate;
adequate periods of time when not confined to his cell;
not to be strip searched except in accordance with lawful authority;
associate with other prisoners.
[19] Mr Taylor alleges that the specific conditions to which he was subjected largely mirror those identified by the Court of Appeal in Taunoa in the context of the BMR, which in both the Court of Appeal and Supreme Court was held to be unlawful.
Current Conditions Claims
[20] Mr Taylor pleads that from 15 March 2010 down to the present time he has been detained in D Block. In respect of this period, he makes the following claims about the conditions of his detention. He:
had no contact visitation with private visitors;
had no exercise in fresh air;
had no access to direct sunlight;
was unable to take exercise or use sports equipment;
was given no opportunity to use his time constructively;
was not provided with any educational or rehabilitative programmes;
was locked in a cell measuring about 10 x 6 ft for at least 19 hours a day (and on some days was not unlocked at all);
was given only paper plates and plastic cutlery;
was provided with only one hot meal a day;
had no means of refrigerating milk rations in his cell;
had no access to television or radio.
Further, he claims that:
At times when he was obliged to work on a number of legal proceedings, he was permitted only two and a half hours a day out of his cell, during which time he was required to undertake cleaning, showering and make any necessary phone calls.
He was confined with prisoners who suffered from severe psychological problems or who were mentally impaired.
For two months from 15 March 2010, there were no automatic laundry facilities and he was obliged to wash his clothes and bedding in water in a bucket. The washing machine was subsequently repaired but Mr Taylor advised the court from the bar it has since broken down again.
He was given insufficient time within which to work in the only area in which he was able to prepare his defence to criminal charges in the District Court and High Court.
The preparation of his defence to criminal charges was disrupted by the removal of his computer without notice for forensic examination.
Both outgoing and incoming mail was either delayed or not delivered at all.
Complaints about his detention conditions were ignored.
The defendant’s position
[21] Although contending that the whole of the statement of claim ought to be struck out because it has no prospect of success, Ms Casey concentrated her argument on certain particular alleged deficiencies in Mr Taylor’s pleading. In summary she argues that:
a) The 1993 Segregation Claims ought to be struck out as a result of the
plaintiff’s delay in bringing the claims;
b) None of Mr Taylor’s claims, even when viewed cumulatively, could justify a finding that he had been subjected to torture for the purposes of s 9 of the NZBORA;
c) Mr Taylor ought to be required, in the context of the 1998 Segregation Claims, to clarify whether he claims to have been subject to the BMR regime itself, or simply to conditions which were equivalent to BMR, but outside the regime. As discussed below, the defendant’s stance in respect of the 1998 claims depends upon whether or not Mr Taylor alleges that he was subject to the BMR regime itself;
d) Mr Taylor is unable to demonstrate that there is a tenable argument to support a breach of a duty of care, or of a statutory duty or a fiduciary duty;
e) The facts pleaded do not support a claim to exemplary damages.
The 1993 Segregation Claims –strike out on limitation grounds
[22] The defendant seeks to strike out the 1993 Segregation Claims on limitation grounds. Ms Casey signals a similar argument in respect of the 1998 Segregation Claims, although for reasons discussed below, the limitation argument is not formally advanced at this time in relation to that later claim period.
[23] In respect of the 1993 Segregation Claims, Mr Taylor alleges breaches of s 9 of the NZBORA, asserting that aspects of his treatment constituted cruel, degrading or disproportionately severe treatment or punishment, or alternatively, amounted to torture. He also relies upon the alleged breach by the authorities of certain international instruments. In that regard, it is to be noted that the existence of such
instruments do not confer a direct cause of action upon an applicant,6 although
6 Miller v New Zealand Parole Board [2010] NZCA 600 at [13].
international jurisprudence as reflected in such instruments may assist in the application of particular provisions of the NZBORA to established facts.
[24] Mr Taylor pleads also in respect of this first cause of action, further alleged breaches of NZBORA in that the authorities have:
(a) failed to treat him with humanity and with respect for the inherent dignity of his person (s 23(5));
(b)breached his right to observe his religion by worship in community with others (s 15);
(c) denied him natural justice (s 27).
[25] In relation to the s 9 claim, Mr Taylor seeks declaratory relief, together with enhanced or aggravated public law compensation totalling $250,000. For the other claimed breaches he again seeks declaratory relief, together with enhanced or aggravated public law compensation of $300,000, although it is to be noted that this sum is claimed globally in respect of breaches alleged to have occurred over each of the three relevant time periods.
[26] The present proceeding was filed in October 2010, more than 16 years after the most recent date (March 1994) in respect of which Mr Taylor alleges actionable conduct by the authorities with respect to the 1993 Segregation Claims.
[27] Ms Casey submits that this aspect of Mr Taylor’s claim is barred by analogy with the Limitation Act 1950, that there is no obvious valid explanation for the delay, and that no question of discoverability arises (because Mr Taylor is a routine litigant against the Department of Corrections who is, and has for some time been, aware of the rights conferred by NZBORA). Further, Ms Casey emphasises, Mr Taylor has not been in prison for the whole of the period since March 1994, so there have been periods during which he has not been inhibited in mounting and pursuing this claim by prison restrictions.
[28] The applicability of the provisions of the Limitation Act 1950 to claims brought under NZBORA was extensively discussed in PF Sugrue Ltd v Attorney- General.7 There, in relation to a claim for damages for breach of s 21 of NZBORA, the Court held that s 4(1)(d) of the Limitation Act 1950 did not apply. That subsection imposed a limitation period of six years from the date on which the cause of action accrued in respect of “Actions to recover any sum recoverable by virtue of any enactment …”
[29] The Court held that public law, or Baigent, damages were not “…recoverable by virtue of [an] enactment” because there was no provision in NZBORA for the payment of such damages. Rather, the Court in Baigent,8 having recognised the need for an effective remedy for breach, devised a monetary remedy to be available where compensation was the proper vindication in an appropriate case. At the same time, the Court in Sugrue acknowledged that neither is there any other provision in the
Limitation Act which explicitly bars claims for Baigent damages on limitation grounds.9
[30] That is not to say that a claim for Baigent damages should be able to be brought no matter how belatedly the claimant chooses to put it forward. The Court of Appeal emphasised that:10
Baigent damages are a form of compensation which the Court awards, as we have noted, in the exercise of a discretion. In that respect they bear a resemblance to compensation awards in equity. And, as with equitable awards, the Court should be able to refuse monetary relief if the plaintiff delays too long in bringing a Baigent claim. The Court must have a degree of flexibility in determining how long a delay is too much.
[31] The Court identified a number of factors that should be taken into account in considering whether a limitation argument should succeed:11
All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff’s rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim should be considered. Appropriate and significant weight should
7 PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA).
8 Simpson v Attorney-General [Baigent’s Case) [1994] 3 NZLR 667 (CA).
9 Sugrue fn 7 at [69].
10 Sugrue at [70].11 Sugrue at [70].
obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the Court will still be guided to an extent by the periods set for bringing of common law and statutory claims in the Limitation Act, just as it is when there has been delay in commencing a claim in equity...
[32] Sugrue was considered by Wild J in Marsh v Attorney-General,12 where the plaintiff sued the Director-General of Social Welfare for damages in respect of alleged physical, psychological and sexual abuse by his adoptive parents, and later by staff and pupils at a boys’ home and a school for long term training. He alleged that the Director-General was liable for breach of fiduciary duty and for cruel and unusual punishment under art 10 of the Bill of Rights Act 1688. In that case, Wild J upheld the defendant’s limitation argument:
[63] Thirdly, the plaintiff must establish that a cause of action for public law compensation based on the 1688 Bill of Rights is not subject to a limitation period, either directly or by analogy.
[64] In PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 the Court of Appeal confirmed that a claim for Baigent damages is not barred by any provision in the Limitation Act.
[65] At [73] the Court rejected the suggestion that treating such a claim as time-barred would deny the plaintiff an effective remedy and place New Zealand in breach of the ICCPR. It said that a declaration might well remain appropriate, despite delay, to vindicate the plaintiff’s right.
[66] In Pearson v Canada 2006 FC 931, a decision of the Canadian Federal Court, Y de Montigny J reached the same conclusion, in a case where the plaintiff was suing the Crown for compensatory damages for breaches of his rights under the Canadian Charter of Rights and Freedoms (essentially, being unjustly sent to jail). At [54] the Judge said:
[54] The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. As long as the government is not trying to do indirectly what it could not do directly, I see no reason not to apply a limitation period.
[67] Similarly, the European Court of Human Rights in Stubbings v United Kingdom (1996) 23 EHRR 213 upheld limitation periods as consistent with human rights protections because they:
[51] … serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took
place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time …
[68] Accordingly, the plaintiff’s claim for Baigent damages is, by analogy, time-barred. No persuasive reason for permitting it to be brought out of time has been advanced. The reasoning in Stubbings is particularly apt here. It suggests that the plaintiff’s claim should not now be permitted.
[33] Although it was not a case under the NZBORA, I am satisfied the principles discussed by Wild J are equally applicable to NZBORA claims. Particularly noteworthy are two points made in the cases cited by Wild J. The first is the observation by Y de Montigny J in Pearson to the effect that a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. The second is the importance of bearing in mind the predicament of a defendant forced to face stale claims in circumstances where evidence may have become unreliable and incomplete. That was a point made also by the European Court of Human Rights in Stubbings.
[34] I am satisfied that the very significant period between the events alleged in relation to the 1993 Segregation Claims and the filing of this proceeding in October
2010 is simply too long to justify a refusal to strike out on limitation grounds. Mr Taylor argues that it was not until the Taunoa proceedings that he realised that the conditions of his detention were unlawful and in breach of his rights. I do not accept that as a valid explanation for the plaintiff’s delay. As the defendant highlights, the plaintiff brought claims for damages for alleged breaches of his rights under NZBORA in relation to his conditions of imprisonment as early as 1996, for example in the North Shore District Court (Plaint No NP 1178/96). It may therefore be assumed that for almost a decade before Taunoa, the plaintiff was aware of his ability to claim damages for alleged breaches of his rights under the NZBORA in relation to the conditions of his imprisonment.
[35] Further, as the defendant argues, I accept that, given the time that has elapsed, there would be insurmountable difficulties in obtaining useful evidence to counter at least some aspects of these claims. Mr Taylor’s statement of claim is wide-ranging, it challenges many aspects and details of the conditions of his detention. It is inevitable that the defendant will have lost contact with many potential witnesses,
that the memories of those who are available will have dimmed, and that documentary records will now be somewhat unreliable and incomplete.
[36] In Sugrue, Blanchard J thought that, although in a given case a claim for damages may be struck out on limitation grounds, a prayer for a declaration for breach of a guaranteed right might survive in appropriate circumstances.13 I uphold Ms Casey’s argument that, in this case, it would not be appropriate to preserve the plaintiff’s right to claim declaratory relief. In the first place, it is to be remembered that the vindication of a plaintiff’s right might, at least in some instances, be counterbalanced by the damage to individual reputations of those against whom Mr Taylor levels his accusations. But in addition, where the delay, as here, has been
lengthy, the authorities are seriously prejudiced in their ability to defend the claim at all. In other words, to maintain the right to declaratory relief would be at odds with the protection which limitation principles are designed to safeguard.
[37] In many NZBORA cases (of which this appears to me to be one), declaratory relief may properly be thought to constitute the primary remedy. Baigent damages exist in order to provide additional vindication to a plaintiff in particularly serious cases.
[38] Here the delay has been too long and the defendant would be very seriously prejudiced in his ability to defend the claim at all.
[39] Accordingly, the 1993 Segregation Claims are struck out in their entirety on limitation grounds.
The 1998 Segregation Claims – discussion
[40] Mr Taylor makes the same claims in respect of the 1998 period as he does for the earlier events, save that there is no allegation of a breach of a duty to permit him to worship in community with others, contrary to s 15 NZBORA.
[41] The relief claimed is co-extensive with that claimed in respect of the earlier period.
[42] Ms Casey developed her argument in respect of this portion of Mr Taylor’s claim in a limited fashion. She explains that the defendant’s principal concern at this point is to obtain clarification of Mr Taylor’s pleading by ascertaining whether he is alleging that he was subjected to the formal BMR regime, or whether he is simply pleading that he was subjected to conditions that were similar to those imposed on those prisoners who were under the formal regime.
[43] During the course of oral argument, Mr Taylor readily clarified his position. He does not assert that he was formally placed upon the BMR regime, but rather that the conditions to which he was subjected largely mirrored those to be found within the regime itself.
[44] The distinction is of some importance to the defendant, in that the BMR, which was maintained at Auckland Prison by the Department of Corrections and
1998 and 2004, was subsequently found to have been unlawful in many of its aspects by this Court, the Court of Appeal and the Supreme Court. In the Supreme Court, Blanchard J described the elements of the regime as follows:14
[127] As the five prisoners in this appeal experienced it, the BMR had four phases designed to last at least six months in total. In essence, placement on the BMR involved cell confinement and the denial of association with other inmates for 22 – 23 hours a day, combined with a significant reduction in the ordinary conditions and privileges of maximum security inmates in the east division. All prisoners began on the most restrictive phase and remained there for at least 14 days. Privileges were gradually restored as prisoners moved to later phases, but misconduct could result in summary regression to a previous phase.
[128] The High Court Judge made extensive findings about the day-to-day experience of prisoners on the BMR. These findings survived close analysis by the Court of Appeal with only minor and specific corrections. Many of them demonstrated failings by Corrections in the exercise of its statutory responsibilities. For the purpose of introducing the present appeal, it is necessary only to summarise those aspects of the BMR that particularly concerned the courts below. They include the following:
•Overall, the cell conditions on the BMR, in the Court of Appeal’s words, “fell well short of the proper standards of hygiene required
14 Taunoa fn 5 at [127]-[128].
for a person living in one place for 22 – 23 hours per day”. There was poor natural lighting and, sometimes, lack of fresh air; laundry conditions, particularly in relation to clean clothing and bedding, were unacceptable; the system operating for prisoners to clean their own cells was unhygienic; and toilet paper was rationed in an unnecessarily controlling manner.
•The Superintendent and medical officers failed in their respective duties to monitor individual prisoners regularly. There was also inadequate regular and ongoing assessment of the BMR prisoners’ mental health, notwithstanding their vulnerability as segregated prisoners.
•At least two, and probably all, of the appellants had an inadequate opportunity to exercise, particularly outdoors.
•Like other maximum security cells, the BMR cells allowed prisoners no effective privacy. There were incidents of the BMR prisoners being left naked or with just a towel in a cell after control and restraint (C & R) techniques had been used to defuse dangerous situations. Most concerningly, there was a clearly unlawful practice of routine strip-searches and questionable justification for other strip-searching practices (including searches conducted in a passageway with limited privacy). The Court of Appeal considered that this, in itself, came “very close to degrading treatment in terms of s 9 of the Bill of Rights”.
•There were no rehabilitation programmes available to the BMR prisoners. Further, prisoners were needlessly deprived of access to books and television in the earlier phases of the BMR, and there was not necessarily a fit between the time allowed for phone calls and the maximum value of phone cards that prisoners were allowed to purchase.
•Prisoners were given unclear and inadequate information about the operation of the BMR and the reasons for their placement and continuation on the regime. There were isolated instances of improper seizure of items, including legal papers, during cell searches. Furthermore, verbal abuse of prisoners by Corrections officers was sufficiently common to be concerning.
[45] The Supreme Court found that the BMR was a punitive regime, for which there was no legislative support.15 The regime was to be distinguished from “an administrative segregation”, another form of non-voluntary segregation used for the management of difficult prisoners. However, unlike the BMR, administrative segregation was found by the Supreme Court to have been “…clearly lawfully
imposed under s 7(1A) of the Penal Institutions Act 1954”.16
15 Taunoa fn 5 at [129].
16 Taunoa fn 5 at [135].
[46] For obvious reasons therefore, it is important to the defendant to have the plaintiff distinguish between the unlawful BMR regime and other prison restrictions or conditions which did not fall within a formal regime branded as unlawful by the Courts.
[47] If Mr Taylor had advised that his statement of claim was to be read as incorporating an allegation that he was placed on the BMR, then the defendant has indicated it would apply for summary judgment. If, on the other hand (as occurred during the hearing), Mr Taylor relies on an alleged close correspondence between the conditions to which he was subjected and those applying in the BMR, then the defendant has signalled he will pursue a limitation argument, and seek significant further particulars.
[48] Although confirming that he did not claim to have been subject to the BMR as such, Mr Taylor nevertheless explained in oral argument that the conditions to which he was subjected were, to all intents and purposes, the same as those applying to BMR prisoners. Importantly, he claimed that all prisoners in D Block at Auckland Prison, and most of those in C Block, were effectively subject to conditions that replicated the BMR. He told the court from the bar that prisoners were moved from landing to landing in accordance with their progress through the various phases of a process akin to that of the BMR. The four most restrictive phases are expressly pleaded by him at paragraph 6.2 of his statement of claim.
[49] In reality, he says, the regime to which he was subjected during 1998 was equivalent to the BMR, although those in C Block were usually placed in phase 4 at the outset, so omitting the first three more restrictive phases. All of this occurred, Mr Taylor says, in relation to virtually all prisoners in C and D Blocks, irrespective of whether they presented behaviour management problems.
[50] As it stands, the statement of claim makes no reference to the existence of a BMR type regime, except insofar as it related to Mr Taylor personally. His indications from the bar that the conditions to which he was subjected during 1998 were widespread and applied routinely to all D Block prisoners and in a diluted form to C Block prisoners, raises fundamental questions about prison administration and
the extent to which the alleged conditions, if established, were distinguishable from the BMR or not. Against that background, it is understandable that Ms Casey wishes to reserve the defendant’s position about much of this portion of the statement of claim. She advises the court that the defendant will seek to obtain detailed particulars of the 1998 Segregation Claims as clarified by Mr Taylor. Given the thrust of his oral argument, unpleaded to date, insofar as it purports to extend to a prisoner group beyond Mr Taylor himself, it would appear that the 1998 Segregation Claims require significant repleading.
[51] The defendant will be seeking to argue that the 1998 Segregation Claims ought to be struck out on limitation grounds. But as I understand it, Ms Casey does not press the court to address the limitation question at this stage. It would be premature to do so. The pleadings need to be settled before considerations of the sort described in Sugrue at [70] can properly be considered.
[52] Likewise, it is in my opinion premature to address the question of whether Mr Taylor can maintain a s 9 argument. Although the majority of the Supreme Court in Taunoa considered that the case did not fall within s 9 of the NZBORA, Elias CJ and Blanchard J dissented in respect of Mr Taunoa himself. Mr Taylor says his case is worse than that of Mr Taunoa, and that by analogy, it is at least arguable that he is entitled to both declaratory and monetary relief under s 9.
[53] Ms Casey argues that this aspect of Mr Taylor’s case is hopeless, and that the s 9 claim ought to be struck out now. But in my view, the decision as to whether the s 9 claim ought to be struck out should not be made until Mr Taylor’s pleadings are settled. They are not yet settled because Ms Casey indicates, understandably, that she will be seeking extensive further particulars.
[54] Among the particulars so sought will no doubt be those relating to what Mr Taylor now says was a quasi-BMR regime, applying to most, if not all, prisoners in Blocks C and D. Accordingly, I consider that a decision as to his reliance on s 9 of the NZBORA in respect of the 1998 Segregation Claims, is premature. The defendant may renew the strike out application when the form of Mr Taylor’s statement of claim is finally settled.
[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.
[56] That said, Mr Taylor seeks to maintain a variety of claims under the
NZBORA under the umbrella of his Current Conditions Claims. He alleges:
(a) a failure on the part of the defendant to treat him with humanity and with respect for the inherent dignity of his person;
(b) discrimination against him on the grounds of his sex;
(c) a denial to him of adequate time and facilities to prepare a defence in criminal and civil proceedings, and a failure to provide legal assistance without charge;
(d)the placement of unlawful restrictions on his right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form; and
(e) a denial of natural justice.
As in respect of the other claims, he seeks both declaratory relief and Baigent
damages of $300,000 in respect of alleged NZBORA breaches.
[57] As I understand it, Ms Casey does not, at least at this point, press for the striking out of claims based on the NZBORA, save for those invoking s 9. Mr Taylor accepts that he cannot maintain a claim under that section for his Current Conditions Claims.
[58] But Ms Casey does challenge other causes of action pleaded in respect of the current conditions claims. The first concerns a claim that the defendant has breached its statutory duties. As Ms Casey points out, this claim is completely unparticularised in that Mr Taylor does not identify the statutory provision or regulation said to have been breached by the Department of Corrections. By way of example, she lists some of Mr Taylor’s complaints which ought to be the subject of particularisation insofar as he seeks to invoke a claim based on breach of statutory duty:
(a) lack of constructive use of time;
(b) having meals served on paper plates and only one hot meal a day; (c) no freely available television or radio;
(d) the mental state of some of the plaintiff’s co-prisoners; (e) the fact that the washing machine had broken down;
(f) the width of the discretion allowed to the prison manager to restrict the entry of objectionable material;
(g) the uncertainty as to whether his mail is being treated lawfully;
(h) the emotional impact of the potential loss of access to a computer.
[59] Ms Casey requires Mr Taylor to plead in each case the legislative provisions said to have been breached. I consider that the defendant is entitled to such particulars. In the meantime, she says, even if the factual allegations are assumed to be true, none of them would appear to constitute a breach of the legislation with the possible exception of the claim about inadequate exercise and fresh air, a matter that could be addressed promptly by the defendant. It ought not to require the intervention of this court. In that respect she cites two recent judicial observations as
to the role of the court in the context of the day to day administration of prisons. The first appears in Miller,17 in which the Court of Appeal approved the observation of MacKenzie J in this court to the effect that the court does not sit as a Commission of Inquiry into general prison conditions. The second is the passage in Taylor v Chief Executive of the Department of Corrections,18 where the Court of Appeal underscored the general reluctance of the courts to interfere in the day to day operations of a prison.
[60] Accordingly, Mr Taylor must replead by specifying, to the extent that he relies on breach of statutory duty, the duty claimed to have been breached in respect of each of his factual allegations.
Breach of duty of care
[61] Ms Casey also seeks an order striking out the whole of the Current Conditions Claims insofar as they rely upon the breach of an alleged duty of care. She argues that the defendant owes no such duty to the plaintiff in respect of the ordinary administration and day to day management of the prison, and that such a duty would be inconsistent with the scheme and purpose of the Corrections Act and its accompanying regulations. No authority is cited.
[62] For his part, Mr Taylor, although contending for a duty of care, was unable to cite any authority directly on point either.
[63] I accept that a common law duty of care will generally sit unhappily alongside a detailed legislative framework in a setting such as this. Mr Taylor relies upon ss 5 and 6 of the Corrections Act, but they set out in general form the statutory purposes and objectives of the Act. To the extent that any such duty is owed to the Legislature and general public. In my view it is not possible to spell out a duty of
care owed to individual prisoners from those sections.
17 Miller fn 6 at [18].
18 Taylor v Chief Executive of the Department of Corrections [2011] 1 NZLR 112 (CA) at [28]-[32].
[64] But it is clear that there are cases in which the superintendent or manager of a prison may owe a duty of care to a prisoner at common law. The cases suggest that the circumstances in which a duty of care may be established are relatively limited. For example, in Morgan v Attorney-General,i19 Tompkins J found that a duty existed to exercise reasonable care for the safety of prisoners, and that a workplace injury suffered by the prisoner whilst in custody was actionable.
[65] Likewise, in Reeves v Commissioner of Police,20 the House of Lords noted that the Commissioner accepted that he owed a duty of care to the deceased who committed suicide whilst in police custody. A case which is even closer to the present facts if R v Deputy Governor of Parkhurst Prison ex parte Hague,21 where there were allegations of prisoner mistreatment. In one of the two appeals, the plaintiff had been lawfully detained pursuant to a sentence of imprisonment, but claimed damages for false imprisonment on the basis that prison officers had, without good cause, dragged him from his cell, kept him without clothes in a strip
cell and assaulted him. Lord Bridge of Harwich considered that a duty of care to a prisoner might arise in certain extreme cases:22
Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian’s duty of care for which the law should award damages.
[66] Lord Ackner was of the same opinion.23
[67] Oral argument in respect of the pleaded duty of care in this case was very brief and unsupported by any authority. It would not be safe to strike out the pleaded cause of action in negligence because it could not be said that such a cause of action
would be certain to fail.
19 Morgan v Attorney-General [1965] NZLR 134 (HC).
20 Reeves v Commissioner of Police [2000] 1 AC 360 (HL) at 379.
21 R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 AC 58 (HL).
22 At 166.23 Fn 21 at 166.
Breach of fiduciary duty
[68] The plaintiff also pleads breach of fiduciary duty. This cause of action is confined to the operation of the purchase scheme by the prison in respect of so- called P 119 items. Under this scheme, the prison authorities purchase on behalf of prisoners certain requested items chosen from a list of available articles.
[69] Mr Taylor claims that the Department of Corrections is required by s 46(5) of the Corrections Act to ensure that a purchasing system is established, through which prisoners may buy approved items. He submits that the Department owes a fiduciary duty to the plaintiff to ensure that due care and skill is exercised when making purchases on behalf of the plaintiff under the system, in order to ensure he is not subjected to unreasonable pricing. Mr Taylor argues that the defendant has abused its monopoly position and exploited a captive market, so as to impose unreasonable and excessive prices on P 119 articles that the plaintiff and other prisoners can purchase. By way of example, he refers to the fixed charges for a banana and an orange at $1 and $1.05 respectively as being unacceptably high. He complains also that the quality of the purchased fruit is often inferior to that available to the public.
[70] Mr Taylor not only claims special damages, to be quantified after the completion of discovery, but maintains also that he is entitled to exemplary damages of $50,000 because he says, the alleged breach of fiduciary duty was “…flagrant and wilful, or alternatively reckless”.
[71] The defendant submits that this cause of action should be struck out, on the basis that there is no available cause of action for damages for breach of fiduciary duty on the facts pleaded.
[72] A fiduciary is one who stands in a position of trust and confidence with the principal. A fiduciary undertakes or agrees (either expressly or impliedly), to act for, or on behalf of, or in the interests of, another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical
sense.24 A fiduciary relationship may exist whenever there is a relationship of confidence, such that equity imposes a duty upon the person in whom the confidence is reposed, in order to prevent the possible abuse of confidence.25
[73] An inherent element of the fiduciary relationship is the position of disadvantage or vulnerability on the part of one of the parties which causes him or her to place reliance on the other, and which requires the protection of equity acting on the conscience of the other.26
[74] In my opinion, whilst a prisoner is vulnerable with respect to the Department of Corrections because, for the duration of his incarceration he is subject to decisions made by the Department, a prisoner does not repose trust and confidence in the Department. Moreover, although the Department has a statutory obligation to provide adequate minimum conditions of detention for prisoners in accordance with the Corrections Act, it is not obliged to prioritise the prisoner’s interests above all others in all circumstances. Instead, the Department must take into account a number of competing considerations in the exercise of duties and responsibilities to prisoners, including the overall good management of the prison, budgetary and resource constraints and other public policy considerations. The operation of these factors all negate a finding that the defendant owes a fiduciary duty to the plaintiff. Specifically, these considerations negate also the imposition of the fiduciary duty on the defendant when making purchases on behalf of the plaintiff.
[75] I am satisfied that fiduciary duty principles do not extend to the relationship between the plaintiff and the defendant in the context of the P 119 purchasing system. Mr Taylor’s remedy (if any) lies elsewhere. His cause of action for breach of fiduciary duty is struck out.
[76] That is not to say, however, that Mr Taylor has no avenue for redress. As emphasised in Taylor v Chief Executive of the Department of Corrections,27 (the
contact visits case) various alternatives are open to a prisoner who is unhappy with
24 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41.
25 Cook v Evatt (No.2) [1992] 1 NZLR 676 (HC).
26 Chirnside v Fay [2007] 1 NZLR 433 (SC) at [80].27 Taylor v Chief Executive of the Department of Correction fn 18 at [33].
aspects of the administration of the prison. There is an internal complaints system, found in sub-part 6 of Part 2 of the Corrections Act. There are prison inspectors who may investigate complaints,28 and visiting justices who visit prisons and inquire into the treatment and conduct of prisoners.
[77] Further, prisoners may lay a complaint with an ombudsman or a representative under the Ombudsmen Act 1975.
Exemplary damages
[78] Ms Casey seeks to strike out also all of Mr Taylor’s claims for exemplary damages. She says that such damages are only available where a defendant has acted deliberately, so as to cause harm to a plaintiff, or has acted with subjective and outrageous recklessness. The facts pleaded in the statement of claim, even if assumed to be correct, do not approach this threshold, she maintains.
[79] Again, this aspect of the argument was addressed only briefly by counsel. Given that Mr Taylor will be repleading in a manner which will require much of his material to be completely recast, I consider it is premature to deal with this aspect of the strike out application, which may be renewed in the light of the amended statement of claim.
Matters already the subject of other proceedings
[80] Given that extensive repleading is required, Mr Taylor must omit from his list of complaints certain matters which are already the subject of other proceedings. To permit them to remain in the present pleading would be to condone an abuse of process. To the extent that he complains of restricted access to a computer and other research facilities to assist him in the defence of current criminal or civil proceedings, the issue is the subject of his claim in Taylor v Department of
Corrections.29 The issues in that case are the subject of my judgment of 5 August
2011, in which I declined to grant an interim order restoring computer access on the
28 Corrections Act 2004, ss 156-159
29 Taylor v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-3227,
5 August 2011.
terms sought by Mr Taylor. That proceeding is the proper forum for argument over computer access and other related issues.
[81] Second, to the extent that Mr Taylor’s complaints concern visiting rights and the difference in treatment between male and female maximum security prisoners in that context, they are the subject of other proceedings in this court in Taylor v Department of Corrections.30 This matter is also before the Human Rights Review Tribunal, although it is currently stayed.31 Again, the present proceeding does not provide an opportunity to Mr Taylor to relitigate matters already before the court in
other properly constituted proceedings.
[82] Finally, I am advised that Mr Taylor is also suing the Department of Corrections in respect of claims relating to his mail. In that proceeding he alleges breaches of s 14 of the NZBORA. The proceeding was commenced in the North Shore District Court under CIV-2010-044-1686.
[83] The topics raised in each of these extant proceedings must be omitted from any repleading in the current proceeding.
Summary
1993 Segregation Claims
[84] The plaintiff’s 1993 Segregation Claims are struck out on limitation grounds. Given the significant time between the events alleged and the filing of the proceeding, the defendant would face insurmountable difficulties in obtaining useful evidence to counter at least some aspects of these claims.
1998 Segregation Claims
[85] The plaintiff must re-plead his 1998 Segregation Claims. His statement of claim must be amended in order to acknowledge that he was not formally placed
30 Taylor v Chief Executive of the Department of Corrections HC Auckland CIV 2009-404-7339,
24 August 2010: Taylor v Chief Executive of the Department of Corrections fn 18..
31 HRRT15/2010.
upon the BMR regime, but rather that the conditions to which he was subjected largely mirror those to be found within the regime itself.
[86] A decision as to whether the plaintiff’s s 9 claim should be struck out in relation to the 1998 period is premature at this stage. The defendant may renew the strike out application when the form of the plaintiff’s statement of claim is settled.
Current Conditions Claims
[87] The plaintiff must amend his statement of claim by deleting any reference to s 9 insofar as it relates to the Current Conditions claims.
[88] The plaintiff must re-plead his claim by specifying, to the extent that he relies on breach of statutory duty, the duty claimed to have been breached in respect of each of his factual allegations.
[89] The defendant’s application to strike out the Current Conditions Claims insofar as they rely upon the breach of an alleged duty of care is declined. At this early stage in the proceedings it cannot be said that such a cause of action would be certain to fail.
[90] The plaintiff’s cause of action for breach of fiduciary duty is struck out. Fiduciary duty principles do not extend to the relationship between the plaintiff and the defendant in the context of the P 119 purchasing system.
[91] It is premature to deal with the defendant’s strike out application insofar as it concerns the plaintiff ’s claim for exemplary damages. The defendant may bring a new application in the light of the amended statement of claim.
[92] The plaintiff must omit from his amended statement of claim matters which he has already raised in other proceedings. To permit the following matters to be relitigated would be to condone an abuse of process:
(a) His complaints of restricted access to a computer and other research facilities to assist him in the defence of current criminal or civil proceedings;
(b)His complaints concerning visiting rights and the difference in treatment between male and female maximum security prisoners;
(c) His complaint against the Department of Corrections in respect of claims relating to his mail.
Costs
[93] Costs are reserved. Memoranda may be filed if the parties are unable to agree.
C J Allan J
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