Taylor v Chief Executive of the Department of Corrections HC Auckland CIV 2009-404-7339

[2010] NZHC 1596

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-7339

AND UNDER                 the Judicature Amendment Act 1972 and the Declaratory Judgments Act 1908

IN THE MATTER OF     an application for Judicial Review and

Interim Relief

BETWEEN  ARTHUR WILLIAM TAYLOR Plaintiff

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:         18 August 2010

Counsel:         Plaintiff in Person

Victoria Casey and G J Robins for Department of Corrections

Judgment:      24 August 2010 at 4:30pm

RESERVED JUDGMENT OF HUGH WILLIAMS J

This judgment was delivered by The Hon. Justice Hugh Williams On

24 August 2010 at 4:30pm

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

A. Applications for interim relief/injunction and orders on Notice to Admit

Facts and Interrogatories adjourned part-heard.

B.   Mr   Taylor’s   application   for   the   appointment   of   an   amicus   or independent expert is dismissed.

C.  Telephone conference on 14 September 2010 at 9:00am.

ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2009-404-7339  24 August 2010

[1]      This fixture was convened to deal with the various outstanding interlocutory applications brought by Mr Taylor, the plaintiff.

[2]      Mr   Taylor   is   a   maximum   security   prisoner   in   Auckland   Prison   at Paremoremo and this proceeding is, at least in form, an application for judicial review of Corrections’ decision on 15 September 2009 to terminate visits to him by his daughter, S .  She was born on XX XXXX 2007 and is currently in the interim custody of the Children Young Persons and Their Families Service (”CYFS”).

[3]      In addition to a review of that decision, Mr Taylor is also challenging the lawfulness of the conditions imposed on prisoners – including female prisoners – and their visitors in New Zealand’s prisons.  However, to make the position plain, it is to be noted Mr Taylor’s current claim – that dated 31 March 2010 and date- stamped 21 April 2010 and on which Mr Taylor said he was prepared to go to trial – appears to be a little unclear just how wide-ranging Mr Taylor’s challenge may be. He certainly challenges the conditions in which all prisoners are detained in the East Division  of  Auckland  Prison  and  all  CB  classification  prisoners  in  other  New

Zealand  gaols,[1]    asserts  the  conditions  imposed  on  prisoners  are  “degrading,

[1] Para 21.

inhumane, unfair and devoid of respect for human dignity”,[2] and raises the position of female prisoners directly[3]  but the thrust of his claim appears to be rooted in the cancellation of his daughter’s visits as does the relief sought.

[2] Para 50.

[3] Para 57.

[4]      Certainly  Corrections’  defence  appears  to  take  the  view  Mr  Taylor’s challenge is not confined to the position of the plaintiff and his daughter and is preparing for trial accordingly, but the observation just made may be relevant not just to the form of the affidavits, as later reviewed, but also to the matters which the pleadings will put in issue for decision at the substantive hearing.

[5]      On 4 November 2009 Mr Taylor sought interim relief pursuant to s 8 of the Judicature Amendment Act 1972 seeking an order for reinstatement of his daughter’s visits.

[6]      That application was declined by Heath J in a reserved judgment delivered on

8 March 2010, principally on the ground of lack of jurisdiction to make the order sought.  Mr Taylor appealed against that decision.

[7]      Despite the fact that CYFS had agreed to reinstate S  ’s visits in a limited way, on 26 May 2010 (date-stamped 24 June 2010) Mr Taylor again sought resumption of his daughter’s visits on the same terms as applied up to 20 September

2009 by way of a second application for interim relief or for an injunction.[4]

[4] Without seeking the leave required by r 7.52.

[8]      That was one of the interlocutory applications due to be heard on 18 August

2010  but,  at  the  commencement  of  that  fixture,  Ms  Casey,  leading counsel  for Corrections, advised Mr Taylor that the Court of Appeal had, on 16 August 2010, delivered a judgment dismissing his appeal against Heath J’s judgment: Taylor v Chief Executive of Department of Corrections.[5]

[5] Taylor v Chief Executive of Department of Corrections CA165/2010, [2010] NZCA371, 16 August 2010. 

[9]      Although the Court of Appeal differed from Heath J to an extent on the jurisdiction issue, it observed:[6]

[6] Para [44].

These particular facts measured against the scheme and purpose of the Corrections Act show that Mr Taylor’s case is weak both on the merits and discretionary  grounds.     We  do  not  consider  it  necessary  to  formally determine the cross-appeal as the observation of Heath J about there being a serious question to be tried was an obiter observation only not related to the substance of his decision.  However, we have considered the merits of the application ... and do not agree that there is a serious question to be tried at least in relation to the relief sought.   We do not consider it likely that Mr Taylor at the substantive hearing will obtain an order that has the effect

of directing the prison manager to allow monthly contact visits.  Should he be successful the most Mr Taylor could expect would be a direction that prison management review the visiting policy and, possibly, that his position be considered afresh.

[10]     As this Court is bound by decisions of the Court of Appeal and the Court of Appeal’s judgment of 16 August 2010 would obviously impact significantly on his second application for interim relief, Mr Taylor did not proceed with the argument on that application.

[11]     Recognising that the only courses realistically available in relation to his applications for interim relief were either to seek leave to appeal to the Supreme Court against the Court of Appeal’s judgment of 16 August 2010 and leave the second interim relief application extant until that was concluded or to discontinue the second interim relief application, Mr Taylor was given until 27 August 2010 to advise Corrections and the Court which course he intended to adopt.

Notice to Admit Facts/Notice to Answer Interrogatories

[12]     On 15 April and 9 March 2010 respective, Mr Taylor served Corrections with a notice to admit facts and a notice to answer interrogatories and, the Department not having responded, on 15 June 2010 applied for orders requiring it so to do.   That application was also down for hearing on 18 August 2010.

[13]     The notice to admit facts contained some 37 matters where Mr Taylor sought concessions from Corrections.  A number would appear to be unexceptionable but the balance – probably the greater number – may be disputable.

[14]     Ms Casey, however, said Corrections’ stance concerning the notice to admit facts was that while the pleadings are now complete and Mr Taylor says he has filed all  the  evidence  he  intends  to  be  taken  into  account  on  the  judicial  review, Corrections still has to complete the filing of its evidence, evidence which - in its understanding of the broad spectrum of Mr Taylor’s challenge to New Zealand’s prison security régime – is likely to be extensive.   Until the filing of evidence is complete, it cannot be ascertained what, if any, portions of Mr Taylor’s notice to admit facts will still remain in issue.

[15]     Because   Ms   Casey’s   submissions   were   clearly   correct,   Mr   Taylor’s application for an order directing Corrections to admit facts in his notice was adjourned part-heard for later hearing if required.

[16]     It must be observed, however – and this comment was made during the fixture – that in terms of rr 8.14 and 8.15, it may be, at best for Mr Taylor, doubtful whether the Court will make the order he seeks.

[17]     In terms of r 8.14(4), if a party served with a notice to admit facts refuses or neglects to admit them, the sanction is not an order from the Court directing the party so served to admit the facts, but an order that the costs of proving them must be borne by that party unless the Court directs otherwise.  That part of the rule is also subject to a finding that the facts listed in the Notice are proved to be relevant to the issues in the case.  That bears on the necessity for them to be proved as part of, in this proceeding, Mr Taylor’s case.

[18]     Similar conclusions must be reached in relation to Mr Taylor’s notice to answer interrogatories.

[19]     With sub-parts, there are 26 of these, with again a division between those which are disputable and those which are not.   But what remains in issue after Corrections has completed filing its evidence will need to be assessed.

[20]     The application was accordingly also adjourned part-heard for further hearing if necessary.

Amicus - Independent Expert

[21]     On 19 March 2010 Mr Taylor applied for orders appointing either a amicus curiae or an independent expert for the purpose of putting before the Court evidence he  wished  to  adduce  from  a  criminologist  and  a  child  psychologist.     The criminologist he wished to have as a witness was Dr Newbold, a well-known practitioner in the field.  He had not selected the child psychologist.

[22]     The application was partially determined in this Court’s judgment of 13 April

2010 which, relevantly to the present application, observed:

[32]     At the present time – emphasising that phrase – it must initially be said that Mr Taylor’s applications face at least the following significant hurdles:

a)Whilst  Mr  Taylor  has  spoken  with  Dr  Newbold,  there  is  no indication on the file that Dr Newbold would be prepared to assist him or whether he feels that he has expert evidence which may be of assistance to the Court in deciding this case.

b)Similarly, as yet, Mr Taylor has not even identified an expert child psychologist, still less named that person and ascertained whether they, like Dr Newbold, are prepared to assist and believe they could give relevant evidence.

c)There is no indication on the file as to the likely cost of an amicus or a Court expert, still less the likely cost of involving Dr Newbold or a child psychologist.

d)Although the cases reviewed by Mr Taylor show that amici have been appointed on a number of occasions so as – putting it broadly – that the fairness of a trial to all participants can be preserved as far as possible, it remains the case that the basic role of an amicus is to assist the Court – not particularly to assist a litigant – and the basic role of a Court expert appointed under r 9.36(1) is to comply with the code of conduct for expert witnesses and “inquire into and report upon any question of fact or opinion not involving questions of law or of construction”. That role is well removed from the somewhat partisan evidence Mr Taylor obviously expects Dr Newbold and the child psychologist to provide.  ...

[33]      Whilst it is not difficult to conceive of the possibility a Court trying Mr Taylor’s substantive proceeding may derive relevant and useful evidence from Dr Newbold and a child psychologist, it remains a fundamental hurdle to Mr Taylor’s applications that the roles of an amicus curiae or a Court expert are essentially non-partisan – and fundamentally Mr Taylor wishes to engage them to obtain evidence which basically will be to help his case, not to help the Court.

[23]     Since that time, Dr Newbold has provided an extensive and knowledgeable brief of evidence,[7] but nothing is as yet on file from the child psychologist.

[7] And an estimate as to his costs.

[24]     The balance of Mr Taylor’s application for appointment of an amicus was also down for hearing on 18 August 2010.

[25]     In his submissions in support, Mr Taylor relied on Solicitor-General v Miss

Alice[8] and submitted that, had the Court taken that decision into account in its

[8] Solicitor-General v Miss Alice [2007] 1 NZLR 655 (CA).

13 April 2010 judgment, the result may well have been different.

[26]     The Miss Alice decision is, however, fundamentally different from this case. [27]     In the High Court, Mr Dobson QC and, later, Mr Lithgow QC were appointed

by the Court as amicus curiae to identify whether Miss Alice was in contempt of Court in releasing publicly a report which was confidential in coronial proceedings. They reported Miss Alice was in contempt and recommended the commencement of contempt  proceedings.     The  Solicitor-General  instructed  Messrs  Dobson  and Lithgow to act for him in the contempt proceedings and Miss Alice applied for an order debarring them from so doing because of their change of role from amici to counsel.   The High Court made an order to that effect, but that was set aside on

appeal, the Court of Appeal holding:[9]

[9] At [16]-[18] p 660.

[16] It is patently clear that it was always envisaged that Mr Dobson would first prepare a report as to whether there had been objectionable conduct and that he would then “prosecute” the contempt allegations, if his initial report raised  issues  that  the  Court  considered  merited  a  substantive  hearing (see para [5] of Ronald Young J’s Minute of 14 June 2005 (set out at para [] [10] above) and para [4] of Randerson J’s Minute of 7 September 2005 (set out at para [12] above)).

[17] There is nothing improper in amici taking a partisan role of this type. Indeed, as Ms Gwyn pointed out, they are commonly appointed for this very purpose (see Krislov, “The Amicus Curiae Brief: from Friendship to Advocacy” (1963) 72 Yale LJ 694). Amici have been appointed to present legal arguments for a party who does not appear (for example, in Wanganui District Council v Tangaroa [1995] 2 NZLR 706 and B v M [2006] NZSC

86), for a class of persons that might be affected by the judgment (for example, in NZ Dairy Workers Union Inc v New Zealand Milk Products Ltd [2004] 3 NZLR 652 (CA)), or for a person who is representing him or herself (for example, in Ambros  v  Accident  Compensation  Corporation (High Court, Auckland, CIV-2004-404-3261, 21 March 2005, Harrison and Heath JJ), where the appointment was continued for the appeal which is currently reserved for judgment).

[18] It is common in criminal cases for former counsel for an accused to be appointed as an amicus where the accused chooses to represent himself or herself, a practice approved by this Court in R v Lee [2006] 3 NZLR 42 at para [111]. There could well be instances where, for example, an accused

may wish to re-instruct the former counsel who has been acting as amicus. It would in our view be both wasteful of resources and unfair to an accused to require him or her to instruct totally new counsel if the amicus was prepared to act. The same situation might arise in other situations where the amicus had effectively been taking a partisan role. Where, as here, a change from a role as amicus to one acting for a party involves no change in function, then we cannot see any reason in principle why this should be proscribed.

[28]     That case, therefore, dealt with the situation where it was proposed  that counsel who had been appointed as amici in a case involving Defendant A were instructed as counsel against Defendant A in another case.

[29]     Here, Mr Taylor – though he may have consulted counsel informally at an earlier stage – is insisting that he wishes to run this case himself including appearing at the substantive hearing.  As mentioned in the 13 April 2010 judgment, amici are normally, in the case in which they are appointed, non-partisan.  But Mr Taylor is asking the Court to appoint a lawyer to in effect act for him at least in gathering evidence because he has difficulty doing that himself.  He is well aware of his right to seek legal aid to fund a lawyer to act for him – an application which might well be successful  given  Mr Taylor’s  circumstances  –  and  he  is  well  aware  that  a consequence of his continuing to insist on acting for himself is that, like any other lay litigant, he is likely to encounter difficulties in preparing his case for trial and arguing it at the substantive hearing.

[30]     Mr Taylor argued that any refusal of his amicus application would be in breach of his rights under s 25(f) of the New Zealand Bill of Rights Act 1990 (“NZBoRA”).[10]   But that argument is unsustainable.  Not only does s 25 apply only to criminal cases, but Mr Taylor can obtain the evidence he needs – and has indeed done so for the most part – should he choose to exercise his undoubted right to seek legal aid to fund a lawyer to obtain his evidence for him.

[10] The right to “obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.”

[31]     Given Mr Taylor’s circumstances, whether the Court appoints an amicus or he seeks legal aid for a lawyer, the cost of so doing is likely to be met from the public purse so it is highly likely there will be no financial consequences for him.

[32]     His right to self-representation is undoubted, but if he chooses to exercise that right, without assistance, then he must bear the consequences that inevitably flow from the exercise of that right.

[33]     The Court notes the Court of Appeal dismissed Mr Taylor’s application for review of his unsuccessful application to appoint an amicus in the appeal determined by the Court of Appeal on 16 August 2010.[11]

[11] Taylor v Chief Executive of the Department of Corrections [2010] NZCA 203 CA165/2010, 20 May 2010.

[34]     Mr Taylor’s application for the appointment of an amicus or independent expert is dismissed.

General

[35]     It may be helpful, given the substantive hearing of this case is approaching a fixture[12] to review the position concerning this file to reduce the chances of misunderstanding arising at the fixture and in the approach to it,.

1.        Interlocutory Applications

[12] But see the observations of the Court of Appeal at [39] of Taylor v  Chief Executive of the

Department of Corrections [2010] NZCA 371.

[36]     The only outstanding interlocutory applications on the file are the part-heard applications   concerning   the   notices   to   admit   facts   and   interrogatories   and Mr Taylor’s second application for interim relief (subject to the directions mentioned earlier).

[37]     At the hearing on 16 August 2010 he also asked the Court to re-visit its dismissal of his application to appoint counsel for his daughter, relying on Ye v Minister of Immigration.[13]    He claimed he was unable adequately to represent his daughter’s interests.

[13] Ye v Minister of Immigration [2010] 1 NZLR 104 at [49].

[38]     Mr  Taylor  was  advised  that  his  application  to  appoint  counsel  for  his daughter was dismissed in this Court’s reserved judgment delivered on 1 June 2002

and the only option therefore available to him would be to seek leave to appeal out of time if he considers that appropriate.

[39]     In any event, the passage in Ye on which Mr Taylor relied was to the effect that, at least in immigration disputes, parents should normally be regarded as adequately representing their children.  The plain differences between the two types of case mean that, had Mr Taylor referred to Ye at the earlier hearing it would have made no difference to the outcome.

2.        Pleadings

[40]     As earlier mentioned, Mr Taylor is prepared to go to trial on his second amended statement of claim dated 31 March 2010 notwithstanding the comments earlier made concerning that document.  As Corrections has filed its defence to that claim, the pleadings may be regarded as closed.

3.        Affidavits

[41]     The following affidavits are on the file:

a)       Mr Taylor’s initial affidavit dated 4 November 2009.   This was in support of his first application for interim relief.  A decision needs to be made whether this (and later) affidavits are to be read as evidence in the substantive hearing.[14]

[14] R 7.32.

b)Affidavits on behalf of Corrections by Ms Irwin and Mr Puohotaua, both sworn on 8 December 2009 in opposition to the first application for  interim  relief.    They  were  before  the  Court  of  Appeal[15]   and Heath J  dealt with them but a decision  also needs to be made in relation  to  these  affidavits  as  to  whether  they  form  part  of  the evidence on the substantive hearing.

[15] In [2010] NZCA 371.

c)       What appears to be a draft and unsworn affidavit by Mr Taylor dated more than November 2009 which was intended to be in response to an affidavit   on   behalf   of   Corrections’   from   a   Mr   Brown   dated

6 November 2009. The latter does not appear to be on the file and as Mr Taylor’s  affidavit  is  unsworn  and  in  draft  only  it  will  be disregarded at the substantive hearing.

d)       Affidavit by Mr Brown on behalf of Corrections sworn on 26 March

2010 in opposition to Mr Taylor’s amicus application.   The same decision needs to be made in relation to this affidavit concerning its status at the substantive hearing.

e)       Two copies of a affidavit sworn by Mr Taylor on 3 June 2010.  One copy was faxed through and appears to be in slightly different order from the original on the file.   The affidavit is said to be sworn in support of the applications for judicial review and interlocutory relief so presumably are to be read as part of the evidence at the substantive hearing.   The affidavit exhibits Dr Newbold’s brief and an affidavit sworn by a Ms Wood on 14 June 2010.   Dr Newbold’s brief being unsworn, a decision will need to be made as to whether it is to be taken as sworn and read as evidence in the substantive hearing.  The same applies to Ms Woods’ affidavit, even though it is sworn.  The Court of Appeal read both as part of the appeal against Heath J’s

judgment.[16]   (There is also a separate copy of Dr Newbold’s brief on

[16] [2010] NZCA 371 at [13]-[14].

the file in the ‘Affidavits’ section).

f)        Affidavit by Mr Taylor affirmed on 17 June 2010 which was again sworn as part of the evidence on the substantive hearing.   It again exhibits Ms Woods’ affidavit.

g)       Affidavit sworn by Mr Taylor on 17 August 2010 which exhibits material concerning New Zealand prison security arrangements which

may  reflect  Mr  Taylor’s  view  that  the  matters  in  issue  at  the substantive hearing are wider than might be thought to be the case from a perusal of his amended statement of claim of 31 March 2010.

h)Affidavits to be filed and served on behalf of Corrections on the substantive issues.

i)A variety of documents have been attached to various memoranda filed in the case and a decision will also need to be taken whether those documents are to be read as part of the evidence on the substantive claim and, if so, whether they need to be exhibited to further affidavits.  They include at least the following:

i)CYFS case report of October 2009 attached to Mr Taylor’s memorandum dated 3 December 2009.

ii)A photograph of the Paremoremo visiting room attached (at Mr Taylor’s request) to a memorandum of counsel for Corrections dated 5 February 2010.

iii)      A Ministry of Social Development letter dated 18 December

2009  to  Crown  Law  concerning  S    attached  to  a memorandum of counsel for Corrections dated 11 May 2010.

iv)Pages   22   and   23   (and   the   title   page)   concerning   the Ombudsman’s investigation of the Department of Corrections (undated) attached to Mr Taylor’s memorandum of 17 May

2010.

v)       Judge Rodgers’ directions in the matter of Arthur Taylor v

Carolyn  Taylor  and  Ministry  of  Social  Development  and

S    Taylor[17]attached  to  Mr  Taylor’s  memorandum  of

22 May 2010.

[17] Arthur Taylor v Carolyn Taylor and Ministry of Social Development and S   Taylor Family

Court, Manukau (FAM-2007-092-2232) 26 February 2010.

[42]     To  check  progress  on  preparing  this  case  for  hearing,  there  will  be  a telephone conference with Mr Taylor and counsel on 14 September 2010 at 9:00am.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Law Office, P O Box 2848 Wellington 6140 (Victoria[email protected] )

Copy for:
Mr Arthur William Taylor at Auckland Prison, Private Bag 50 124 Albany, 0752.

Case Officer:    Vasantha[email protected]