Taylor v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-3227
[2011] NZHC 850
•5 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-3227
BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant
Hearing: 15 July 2011
Appearances: Plaintiff in person
V Casey and G Robins for defendant
Judgment: 5 August 2011
JUDGMENT NO.2 of ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4 pm on Friday 5 August 2011
Party:
A W Taylor, Private Bag 50124, Albany 0752, Auckland: fax 094426794
Solicitors:Crown Law, Wellington, [email protected]
ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV 2011-404-3227 5 August 2011
[1] Mr Taylor is a prisoner in the East Division of Paremoremo Prison. That wing accommodates prisoners who are considered to present a high security risk.
[2] Earlier this year, Mr Taylor was convicted and sentenced on a charge of conspiracy to supply methamphetamine, offending that took place while he was a maximum security prisoner in the East Division. Mr Taylor represented himself at his trial. In order to assist him in preparing for and running his trial, the prison authorities afforded him access to a computer placed in a separate room where he was able to carry out legal research and generally prepare for his trial.
[3] Mr Taylor is also engaged in several sets of civil proceedings, most of them involving the present defendant. He was permitted to use the computer for the purpose of conducting his civil litigation as well.
[4] Following Mr Taylor’s conviction, the prison authorities took steps to bring his computer access to an end. As a result of vigorous representations by Mr Taylor the Prison Manager modified his initial decision, but it remains the intention of the prison authorities, in the longer term, to substantially restrict Mr Taylor’s access to a computer for litigation purposes.
[5] In this proceeding, the plaintiff seeks judicial review of the decision of the Prison Manager to restrict his access to a computer. Mr Taylor pleads four grounds of review:
(a) Breach of natural justice; (b) Unreasonableness;
(c) Illegality and/or failure to take into account relevant considerations; (d) Breach of legitimate expectation as to process.
[6] Mr Taylor now applies for an interim order pursuant to s 8 of the Judicature
Amendment Act 1972, declaring:
That until further order of the Court, the Defendant ought not to deprive the Plaintiff of access to computer facilities, the legal materials that relate to the cases the Plaintiff is currently working on and access to a dedicated area to use that computer and work on his current legal cases under the same conditions as the Plaintiff currently enjoys.
[7] The Prison Manager is opposed to the making of any interim order. His position is:
(a) His decision is not unlawful and the plaintiff does not have a seriously arguable case for the claimed relief;
(b)There are strong public interest factors against the making of the interim order which would override his decisions on operational matters affecting the security and good order of the prison and Mr Taylor’s proper management. An interim order would also involve the Court in on-going supervision of the day to day management decisions of the prison;
(c) The interim order sought, if granted, would improve Mr Taylor’s
position, not simply preserve it.
Jurisdiction
[8] Section 8(1) and (2) of the Judicature Amendment Act 1972 respectively provide:
8 Interim orders
(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:
(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.
(2) Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order,—
(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:
(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.
[9] The metes and bounds of the Court’s s 8 jurisdiction have been extensively discussed in various appellate authorities. In Carlton & United Breweries Ltd v Minister of Customs, Richardson J observed:1
Section 8 of the Judicature Amendment Act 1972 does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of an interim order. Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.
[10] More recently, the Supreme Court observed that:2
Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant's claim for review, and all the repercussions, public and private, of granting interim relief.
1 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430-431.
[11] In a recent case also involving Mr Taylor, the Court of Appeal said:3
As these statements indicate, s 8(1) is broadly expressed. The exercise of discretion where necessary for the purpose of preserving the position of the applicant is central but it is not appropriate to limit the discretion by reading qualifications into its broad terms. Section 8(1)(c) expressly empowers a court to declare that any licence that has been revoked or suspended in the exercise of the statutory power will continue and, if necessary, be deemed to have continued in force. By definition this empowers a Court to declare that a state of affairs that previously existed and which has been revoked should resume pending the substantive hearing. Subsection (1)(c) can apply against the Crown as respondent. It gives the Court a declaratory rather than a directive power, and is not excluded by subsection (2) from application to the Crown, as are subsections (1)(a) and (b).
[12] The Court also observed that while orders and declarations under s 8 which in substance require a respondent to take positive steps would be relatively rare, there is no jurisdictional bar to orders having that effect where it is necessary to preserve the plaintiff’s position, and where, as a matter of discretion it is appropriate to make
such an order.4
Factual background
[13] Mr Taylor is currently engaged in a number of cases as a self-represented party. Following his conviction on drug related charges, Mr Taylor has filed an appeal to the Court of Appeal against both conviction and sentence. No date has been set for the hearing of the appeal, but it is safe to assume that it will be many months away.
[14] In addition to the current proceeding, there are two other High Court cases. The first (CIV-2010-404-6985), is a claim against the present defendant for alleged “torture” and other mistreatment under what Mr Taylor characterises as Behaviour Management Regime type conditions. As he says, this is a comprehensive case that deals with treatment allegedly inflicted on him at Paremoremo Prison between 1993
and the present time.
3 Taylor v Chief Executive of the Department of Corrections [2011] 1 NZLR 112 (CA) at [23].
[15] The defendant has applied to strike out much of that claim. I recently heard the strike out application. My decision stands reserved at present.
[16] The other proceeding is concerned with Mr Taylor’s claim to be entitled to contact visits from his very young daughter, (CIV-2009-404-7339). That proceeding has already been to the Court of Appeal and the Supreme Court, but awaits a substantive hearing in this court.
[17] There are also two separate proceedings in the Family Court, relating respectively to Mr Taylor’s son and daughter. He tells the Court also that he has petitioned the United Nations Human Rights Committee in Geneva, complaining that the New Zealand Courts have breached his rights under the International Convention on Civil and Political Rights to be free from double jeopardy.
[18] All of these matters are ongoing. Mr Taylor argues that he is entitled to access to a computer and to associated facilities in prison, in order to represent himself in a meaningful fashion.
Statutory background
The prison system
[19] Mr Taylor’s sentence of imprisonment is administered by the prison system, pursuant to the provisions of the Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations). Section 5 of the Act sets out the purposes of the corrections system. It provides:
5 Purpose of corrections system
(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a) ensuring that the … custodial sentences … imposed by the courts … are administered in a safe, secure, humane, and effective manner;
[20] Section 6(1)(a) provides that the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision.
[21] In Taylor,5 the Court of Appeal was required to consider an appeal by Mr Taylor against the refusal in this Court of interim orders sought by him in order to ensure the continuation of contact with his young daughter. In that case, the Court of Appeal said:
The operation and control of prisons is provided for in the Corrections Act
2004 and regulations made under its authority. The purpose of the corrections system, as stated in s 5(1) of the Corrections Act, is to “improve public safety and contribute to the maintenance of a just society”. Section
6(1)(a) provides that the “paramount consideration” in decisions about the management of persons under control or supervision is that public safety is
maintained. While a prisoner is not wholly deprived of the rights available to other citizens, the particular need in prisons to maintain order and discipline
has been recognised in a number of decisions. In his dissenting judgment in Drew v Attorney-General, McGrath J commented in relation to the Penal Institutions Act (the predecessor to the Corrections Act):
[85] ... It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security …
The Prison Manager
[22] The role of prison manager is specifically provided for in the Act, s 12 setting out the powers and functions of prison managers. He or she is tasked with:
Ensuring that the prison operates in accordance with the purposes set out in s 5 and the principles set out in s 6.
[23] Regulation 6 provides that, subject to the Act and to the control of the Chief Executive, the manager of a prison is responsible for its good management and the fair, safe, secure, orderly and humane management and care of its prisoners. In discharging his or her duties, the prison manager, and indeed all prison officers, must
observe the requirements of reg 150(1), which provides:
5 Taylor fn 3 at [28].
In every prison, discipline and order must be maintained with firmness and fairness.
Minimum entitlement of prisoners
[24] Detailed provision is made in the Act for minimum prisoner entitlements. Section 69(1) provides:
69 Minimum entitlements
(1) Every prisoner has the following minimum entitlements: (a) physical exercise, as provided for in section 70:
(b) a bed and bedding, as provided for in section 71:
(c) food and drink, as provided for in section 72:
(d) access to private visitors, as provided for in section 73: (e) access to statutory visitors and specified visitors:
(f) access to legal advisers, as provided for in section 74:
(g) to receive medical treatment, as provided for in section 75: (h) to send and receive mail, as provided for in section 76:
(i) to make outgoing telephone calls, as provided for in section 77(3):
(j) to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or
medium of communication:
(k) access to information and education, as provided for in section 78.
[25] Such minimum entitlements may be denied only where there is an emergency in the prison, or the security of the prison, or the health or safety of any person is threatened,6 or upon disciplinary grounds.7
[26] Sections 79 to 82 set out further obligations resting ultimately on the Chief Executive in respect of making provision for religious, spiritual and cultural needs, working conditions and proper standards for cell accommodation and furnishings.
Authorised property
[27] Beyond the minimum entitlements, prisoners may be issued with, or allowed to keep, any property declared to be authorised property by regulations made under
the Act. Section 43 provides:
6 Corrections Act 2004, s 69(2).
7 Corrections Act 2004, s 69(4).
43 Authorised property
(1) A prisoner may be issued with, or allowed to keep, any property declared to be authorised property by regulations made under this Act subject to—
(a) the condition described in section 44(1); and
(b) any special conditions imposed by the Prison Manager relating to the use of the property; and
(c) any condition set out in regulations made under this Act.
(2) Despite subsection (1), the Prison Manager may refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that—
(a) the item may be used to injure the prisoner or any other person, or to damage property; or
(b) the item is a camera, tape recorder, or electronic device that may be used to record security features or actions in the prison; or
(c) the item may be used to circumvent practices or procedures in the prison; or
(d) the item has been obtained through coercion of a prisoner or as a result of other improper behaviour; or
(e) the item is objectionable; or
(f) the item may assist a prisoner to—
(i) discover new methods of committing offences; or
(ii) continue offending; or
(g) the item may interfere with the effective management of the prison.
(3) Despite subsection (1), the Prison Manager may refuse to issue or allow a prisoner to keep any item of authorised property—
(a) if the prisoner is—
(i) subject to a penalty of forfeiture of privileges imposed under subpart 5 of Part 2; or
(ii) the subject of a direction under section 60 for the reason described in section 60(l)(b) (which relates to assessing or ensuring the prisoner's mental health); or
(iii) subject to cell confinement imposed as a penalty under subpart 5 of Part 2; or
(b) if the prisoner is detained in a police jail and, in the opinion of the manager, having regard to the facilities available at the police jail and the resources available, it is not practicable to allow the prisoner to keep the item; or
(c) in any other circumstances specified in regulations made under this Act.
[28] Schedule 1 of the Regulations sets out in some detail items of property that are authorised property. A computer provided by the prison is not included, save that in Part C, provision is made for a personal computer to be kept in a cell for the purpose of completing an educational course, or where there are other exceptional circumstances.
[29] Access to items of authorised property may be removed under s 43(3)(a) (for example, pursuant to a disciplinary penalty).8 Section 43(3)(c) further provides that authorised property may be removed by prison management on a number of other grounds, including prison security.9 Section 43(2) provides that the prison manager may refuse to issue or allow a prisoner to keep an item of authorised property on certain stipulated grounds.
Prohibited items
[30] Items that are not authorised are prohibited. It is a disciplinary offence for a prisoner to have in his or her possession an article without the approval of an officer.10
[31] Section 141A specifically provides that it is a criminal offence, punishable by imprisonment, for a prisoner to knowingly possess an electronic communication device, except with the express authority of the prison management or the Chief Executive. The expression “electronic communication device” is defined in s 3 as
follows:
8 Corrections Regulation 2005, reg 158.
9 Corrections Regulation 2005, reg 33.
10 Corrections Act 2004, s 128(1)(f).
electronic communication device—
(a) means an electronic communication device (other than a device used to assist with a disability) that is capable of any or all of the following actions:
(i) transmitting sound:
(ii) computing information: (iii) functioning as a telephone:
(iv) communicating in any other way using any technology (including telecommunication, radiocommunication, Internet, and broadcasting technology):
(b) includes any part of an electronic communication device (for example, a SIM card) regardless of whether the part—
(i) is capable of any of the actions specified in paragraph (a);
and
(ii) is detachable and may be used in other electronic communication devices:
(c) includes any device that enables or facilitates the functioning of an electronic communication device (for example, a recharger or charging device):
(d) does not include—
(i) any telephone facility provided for the use of prisoners under section 77; and
(ii) any telephone facility or telephone system (whether inside or outside a prison) that a prisoner is permitted to use by a person under whose control or supervision the prisoner is.
[32] The list of “unauthorised items” as defined in s 3 includes electronic
communication devices.
[33] Under s 196 of the Act, the Chief Executive publishes the Prison Services Operation Manual (PSOM), which sets out official policy and provides guidance on the interpretation of the Act and the Regulations. There are also detailed guidelines and instructions relating to procedures to be followed in prisons.
[34] The PSOM provides a Prohibited Items Schedule.11 The Schedule includes the list of items that are nationally prohibited; it includes electronic communication devices.
[35] It is convenient here to mention two issues relevant to the statutory scheme, upon which Mr Taylor and Ms Casey differed. Ms Casey argues that the definition of the term “electronic communication device” includes computers; Mr Taylor says it does not. The second question concerns the proper construction of s 43(1). Mr Taylor argues that the computer to which he had access was “issued” to him for the purposes of the Act and the Regulations, and that certain consequences flow from that. Ms Casey says that the computer was not “issued” to Mr Taylor for the purposes of s 43; he was merely permitted to have access to a facility provided by the prison.
[36] I will return to these two separate points of difference below.
Access to computers
[37] For present purposes it is unnecessary to determine whether the definition of the expression “electronic communication device” includes a computer. I incline to the view that it does. A computer is capable of “computing information” and of communicating through the internet and so would appear to fall within the definition. Assuming a computer is an electronic communication device, it is therefore an “unauthorised item” within the meaning of that term as defined in s 3 of the Act.
[38] As Ms Casey further points out, it is arguable that the definition of “electronic communication device” as an “unauthorised item” overrides the discretion of the Prison Manager under Part D of Schedule 1 of the Regulations to allow a prisoner access to a computer under any circumstances. However, the Department operates on the basis that access to a computer may be allowed at the discretion of the Prison Manager in certain circumstances, and the PSOM makes
extensive provision for computer access, where that is considered to be appropriate.
11 P.01.SCH.04.
[39] The PSOM deals specifically with requests for access to facilities to assist in litigation.12 For criminal proceedings the Prison Manager is bound by reg 193 which provides:
193 Assistance with proceedings
(1) This regulation applies to—
(a) any prisoner who is appealing or applying for leave to appeal against any conviction, order, or sentence; and
(b) any accused prisoner who is preparing his or her defence or plea in mitigation; and
(c) any prisoner detained under the Immigration Act 2009 who is preparing for any process or proceeding under that Act.
(2) When a prisoner to whom this regulation applies is preparing an appeal, application, defence, or plea, or preparing for any proceeding under the Immigration Act 2009, the manager of a prison must, as far as is reasonably practicable in the circumstances,—
(a) ensure that the prisoner is provided with adequate facilities to do so, to the extent that this is consistent with the maintenance of safety and security requirements; and
(b) facilitate contact between the prisoner and any adviser or assistant (other than another prisoner) helping the prisoner to do so.
(3) Subclause (2) is subject to clauses 4 to 7 of Schedule 4.
[40] The PSOM notes that for other types of litigation the Prison Manager may at his or her discretion provide access to the facilities prescribed under regulation 193 for criminal and immigration proceedings.
[41] The PSOM provides a detailed set of considerations for Prison Managers who are required to deal with prisoner applications for access to facilities to assist in litigation.13 The manual relevantly provides:
1.Upon receipt of F.07 Form 01 Application for access to facilities to assist in litigation, and before determining the application, the Prison Manager must consider the following:
a. the maintenance of public safety.
12 PSOM F.07.
13 PSOM F.07.03.
b.the fair, safe, secure, orderly and humane management and care of prisoners.
c.the maintenance of security and good order within the prison.
d.the extent to which the prison is able to reasonably provide such facilities to prisoners within existing resources.
e. the impact on other prisoners’ access to facilities and the fair
use of facilities by other prisoners.
f. the impact on the good management of the prisoner, and
g. in relation to the proceedings listed in Criteria for access to facilities to assist in litigation, the obligation under regulation 193 to ensure that the prisoner is provided with access to adequate facilities as far as is reasonably practicable in the circumstances, and consistent with the maintenance of safety and security requirements.
2.The Prison Manager must also consider the following if the prisoner has requested access to a computer:
a. resources (including hardware, software, support and
supervising staff) currently available within the unit and the prison.
b.the availability and cost of accessing specialist resources to monitor the use of the computer.
c. whether there is a demonstrated need to access computer
facilities, for example arising from the likely volume of documentation involved, a requirement for data manipulation, or a personal characteristic of the prisoner.
d.whether the demonstrated need could be met by other means.
e.the willingness of the prisoner to accept and comply with i. time limitations
ii. use restrictions, and
iii. searches of the computer and related items for objectionable material or other misuse.
f. any previous non-compliance of the prisoner with such conditions.
g. any history or concerns about the prisoner in respect of electronic communication equipment or other unauthorised items.
h. any security issues or other concerns relating to the prisoner. i. any security issues or concerns relating to the use of a
computer in the unit/prison.
j. the type of offences committed by the prisoner and the
prisoner’s previous conduct (eg offences relating to fraud, or possession of objectionable material, concerns about witness intimidation etc).
k. the prisoner’s IDU status.
3.The Prison Manager must also consider the following if the prisoner has requested access to legal research material, such as copies of legislation, case law or text books:
a.the ability of the prisoner to access that material by other means (for example, through a lawyer).
b.whether the requested material is available within the prison and, if not, the likely cost of obtaining that material.
c.whether the prisoner agrees to and does meet the cost of obtaining the material.
d.the resources required in terms of staff time to access the requested material.
Note: Prison Managers should refer to this section’s policy every time they are required to consider an application requesting access to facilities to assist in litigation.
[42] As Ms Casey points out, the policy provides guidance for Prison Managers. Of itself, it does not create an entitlement for prisoners to be allowed access to a computer, even if they are able to demonstrate that they meet the policy criteria. That is because the Prison Manager must take into account not only issues personal to the prisoner but also wider matters, including questions of resources, overall prison security, and the need for good order in prisons.
[43] For completeness it is convenient to set out also reg 196 which deals with the question of legitimate expectation in respect of prisoner privileges.
196 No legitimate expectation as to conditions, etc
(1) To avoid doubt, a prisoner does not have any legitimate expectation of—
(a) being accommodated in, or of being provided with, the same or similar conditions during the whole term of his or her sentence, period of remand, or other period of detention; or
(b) being provided with the same or similar programmes or opportunities during the whole term of his or her sentence, period of remand, or other period of detention.
(2) Subclause (1) does not affect any entitlement conferred on a prisoner by the Act or these regulations.
The facts
[44] The defendant relies upon the affidavit of Mr Neil Beales, who is the Prison Manager at Paremoremo. His extensive affidavit provides a great deal of background material about the prison system, the plaintiff and in particular his disciplinary record, and the circumstances in which Mr Taylor has had ongoing use of a computer in respect of his litigation activities.
[45] Mr Taylor formally objects to the Court receiving the affidavit. He argues that much of it is irrelevant to the matters for present determination. In particular, he argues that anything associated with his criminal record and his disciplinary record in prison ought to be excluded. In the alternative, he argues that he ought to be permitted to file an affidavit in reply.
[46] I reject Mr Taylor’s complaint. Much of the impugned material simply sets out matters of record which Mr Taylor would be unable to dispute. I accept that where the Prison Manager proffers his opinion as to aspects of Mr Taylor’s record, there may be room for another view, and Mr Taylor is entitled in argument to endeavour to persuade the Court that the opinion Mr Beales expresses is unjustified. However. in my view, it is particularly important that Mr Beales be permitted to give evidence of the latest disciplinary incident involving Mr Taylor. It occurred on
14 June 2011, when a search of his cell disclosed a quantity of contraband material, including a late model cell phone with associated ancillary equipment. Mr Beales says that the cell phone, which is a prohibited item, is capable of receiving and transmitting e-mails, and of providing direct access to the internet. As a result, the plaintiff was placed in directed segregation pursuant to s 58 of the Act.
[47] All of that material is highly relevant. Indeed, Mr Taylor endeavoured, somewhat remarkably, to utilise Mr Beales’ evidence, to the extent of submitting that, because illegal cell phone use was rife in the prison, there was little point in restricting his access to a computer.
[48] Mr Beales explains in some detail the difficulties faced by Prison Managers in coping with requests for computer access by prisoners. He says:
61. there are a number of concerns with allowing high and maximum security prisoners access to computers, including the following:
61.1Computers can be used for unmonitored communications between prisoners and persons in the community. It is becoming increasingly straightforward for a computer to be temporarily connected to the internet through small and easily concealed devices. When Prisoner Taylor’s computer was initially seized by the police (as part of the Operation Web which led to his latest criminal conviction), police expressed concern to the Prison Manager at the time that Prisoner Taylor may have been using the computer to facilitate organised
crime activities from inside the prison. A copy of the e-mail dated
10 November 2008 to the prison is attached and marked H.
61.2Computers can be used to directly facilitate further offending in other ways. For example, the ability to copy and paste signatures and letterhead using computers can be used to facilitate fraudulent transactions for gain, or to circumvent security.
61.3Computers can be used to receive, store and communicate unauthorised material, such as pornography or other offensive or illegal material. Trade in such items between prisoners also becomes easier, with the small and easily concealed devices now available for transferring data between computers.
61.4Computers can be used to store and communicate information about the prison, particularly photographs of security features, and information about staff and their families.
61.5Even without internet access, computers can be used for unauthorised and unmonitored communications. Passing hidden information in and out of the prison via disc or memory stick becomes feasible if access to computers is permitted, particularly given the technical possibilities for hiding and disguising data on such devices, and the impossibility of routine effective searching of the content of such devices. This has been a particular concern with Prisoner Taylor as he has been receiving computer discs on the basis that these contain legal material for his various cases. We are aware that other, unauthorised material has been on at least some of these discs received from Carolyn Taylor, whom Prisoner Taylor describes as his “legal assistant”. This includes a software programme that could be used to disguise unauthorised content on the computer.
62 One of the critical problems with computers in the prison is the particular difficulty of detecting unauthorised conduct.
63 Wireless internet connections can now be achieved through cell phones, and through other devices which are small and easily concealed. Computer content can be encrypted and hidden, as can material on computer discs and memory sticks that may be sent to or from a prisoner who is allowed access to a computer.
64 These concerns have led to computers being classed as prohibited items under the 2009 amendments to Corrections Act 2004. The current Policy Standard provides that no prisoner should have access to computers. A copy of the current policy is annexed and marked I.
65. Prison Managers have the power to allow exceptions to this rule. Some low security prisoners are allowed access to computers, for example, for educational courses. Prisoners may also be allowed access to computer facilities in the context of defending criminal charges or immigration proceedings, in accordance with regulation 193 of the Corrections Regulations 2005. The current policies concerning such access to facilities are annexed and marked J.
66. The decision to allow access to computers is made by the Prison Manager depending on the individual circumstances and the current assessment of the risks involved, and the available resources within the prison at the time. The decision to allow access to computer facilities is always subject to the overriding requirement of the maintenance of safety and security.
[49] Mr Taylor was afforded access to a prison computer some considerable time before his criminal trial concerning his prison based drug offending. Earlier still, he had had access to another computer which was seized by the police as part of their investigation into those offences.
[50] In the criminal proceedings a significant proportion of police disclosure was proffered by way of computer disc only. It was not practicable or possible for all of it to be provided by way of hard copy. The disc based material included audio records of intercepted communications and interviews. In the light of that, Mr Taylor was permitted to use a modified computer, capable of reading and storing information provided on disc.
[51] In October 2009, Mr Taylor entered into a written agreement with the then manager of the prison. The agreement is an extensive document running to four closely spaced typewritten pages. It is headed “Terms and conditions for Prisoner Taylor to access to computer and printer facilities for the purpose of defending criminal proceedings: October 2009”. It was signed by the then Prison Manager and Mr Taylor on 9 October 2009.
[52] The following provisions in the agreement are particularly relevant for present purposes:
1.Prisoner Taylor is being provided with a modified computer approved by the Prison Manager for the purpose of allowing him to view material provided to him by way of disclosure in the current criminal prosecution against him following Operation Web.
2.The Prison Manager has determined that Prisoner Taylor should not be allowed access to a computer generally or for the purposes of his ongoing civil litigation, and that only the necessity of viewing material provided by way of disclosure in the current criminal prosecution provides sufficient justification for the security risks involved in providing access to any type of computer to Prisoner Taylor.
3.Prisoner Taylor acknowledges that once the prosecution against him is completed (including all appeals), his access to this modified computer will be terminated.
…
7.The Prison Manager has agreed to allow loading of a suitable programme to enable use of this computer for word processing functions. This programme will be sourced and loaded by prison staff.
8.While Prisoner Taylor has access to this computer for the purposes of defending his criminal prosecution only, the Prison Manager has agreed that as a matter of practicality, Prisoner Taylor may also use this computer and printer for the purposes of his other litigation as listed below.
…
9.Prisoner Taylor acknowledges that the permission to use this computer for the purpose of the following civil proceedings will not result in his retention of this computer once the criminal prosecution is completed.
13.Prisoner Taylor is only to use the computer in the designated area set aside for him to work on the above listed legal matters. No other prisoner is to have access to the computer.
…
16.Staff will attempt to maximise the time available for Prisoner Taylor to have access to his computer facilities in his designated area. However this will be dependent on the operational requirements of the prison and the unit, and the provisions of any management plan in place for Prisoner Taylor.
18.In the event that access to this computer is withdrawn prior to the completion of the criminal prosecution, Prisoner Taylor will be given the opportunity to arrange (under supervision) for the printing of any relevant material contained on the computer or storage devices. Arrangements will be made for any further material received by way of disclosure in the prosecution to be obtained in hard copy. Alternatively, the Prison Manager may decide to allow supervised viewing of disclosed material or put other arrangements in place.
19.At the completion of the criminal proceedings (including any appeals), if Prisoner Taylor has retained access to the computer up until that point, Prisoner Taylor will be given the opportunity to print out material from the computer before it is removed and the content wiped. Prisoner Taylor may also copy the content of the computer onto a storage device provided by Prisoner Taylor and approved by the Prison Manager, which will be held for him pending release.
[53] The agreement includes a list of the criminal and civil proceedings affecting
Mr Taylor, and then in train.
[54] Notwithstanding the signed agreement, Mr Taylor considered that the arrangements had been forced upon him. He filed proceedings in this Court for the purpose of challenging the adequacy of the facilities made available to him, in the context of his forthcoming criminal trial.14 The proceedings were aimed at obtaining orders of the Court which required the Prison Manager to facilitate access to actual and prospective witnesses, legislation and case law, and persons outside the
prison who were helping him to prepare or conduct his defence.
[55] White J declined to grant the declarations under the Declaratory Judgments Act 1908 sought by Mr Taylor. He considered the procedure under that Act to be inappropriate for resolution of the issues in dispute. He also considered that it was premature to conclude that Mr Taylor’s rights would be impeded to such an extent that he would be deprived of his right to a fair trial. In essence, White J held that the question of access to facilities ought to be determined as part of the criminal trial procedure in the context of all of the circumstances then existing.
[56] Mr Beales says that he came close on a number of occasions to removing the plaintiff’s access to a computer prior to the criminal trial, but that he deferred taking any action because he was concerned about fair trial issues. Specifically his concerns about on-going computer access were related to:
(a) safety and security issues and the burden on prison resources in attempting to address those issues;
(b)ongoing difficulties with Mr Taylor, including repeated breaches of prison discipline;
(c) the impact of the inequality of treatment between Mr Taylor and others in East Division at Paremoremo, and consequential difficulties
14 Taylor v North Shore District Court HC Auckland CIV-2009-404-2350, 24 March 2010.
in respect of the management of other prisoners and the security and good order of East Division.
[57] Following Mr Taylor’s conviction and sentencing in this Court, Mr Beales decided to review the plaintiff’s access to the computer and other facilities. Initially he considered that the computer could be removed immediately, once Mr Taylor had time to print out whatever he had stored on it that might be needed for other cases. He would also be given an opportunity to pack up all his papers from his room.
[58] Mr Taylor objected. That resulted in an extension of time for the removal of the computer, both to enable him to complete the transition arrangements and to permit him to complete his notice of appeal to the Court of Appeal in the criminal proceedings. That occurred on 17 June 2011. There has since been a further extension to accommodate the hearing on 15 July and the delivery of this judgment.
[59] There appears to have been a degree of misunderstanding between Mr Taylor and the prison authorities in respect of Mr Taylor’s hard copy materials. Mr Taylor says he was told that all his papers would have to be sent off site. Mr Beales says that is not so. They are to be boxed, and can be stored within the prison, available for access by Mr Taylor as required. They are not however to be stored in a room specially set aside for Mr Taylor’s sole use. Rather, he will be allowed to take reasonable amounts of paper to his cell to work on.
[60] The Prison Manager is not prepared to permit Mr Taylor to have access to a computer on the terms which had prevailed for several years. But, as appears below, he is prepared to consider computer access in respect of some aspects of Mr Taylor’s criminal appeal.
Preservation of the status quo
[61] Mr Taylor says that, prior to the Prison Manager’s decision to remove the computer, he was allowed access to a computer on the terms and conditions set out in his agreement with the Prison Manager. As to that, I accept Ms Casey’s submission that the agreement between Mr Taylor and the Prison Manager did not
constitute an enforceable contract, nor did it confer on Mr Taylor an ongoing entitlement to continuation of the computer access arrangements. The terms of the agreement itself expressly provide for termination in the discretion of the Prison Manager, on grounds of public safety or the security of good management of the prison. The right to a computer does not fall within a prisoner’s enforceable minimum statutory entitlements. Under the Act the starting point is that computers are prohibited, albeit that current prison policy appears to allow a degree of computer access in appropriate cases. Nor does Mr Taylor have an ongoing entitlement by
reason of his past access to a computer.15 In the non-contacts visit case, the word
“entitlement” was held to mean an actual statutory entitlement, rather than
entitlement arising as part of the overall statutory purpose.16
[62] During the course of his oral argument in reply, Mr Taylor articulated for the first time an argument based on s 43 of the Act. He maintains that, the computer having been “issued” to him, the provisions of s 43 entitle him to retain it unless the requirements of s 43(2) or (3) are engaged. In other words, having afforded Mr Taylor access to a computer, the prison authorities are stuck with that decision until there is a triggering event which entitles the Prison Manager to curtail or terminate computer access.
[63] Because this was completely new material, I permitted Ms Casey to address the Court briefly in response. I accept her submission that the answer to Mr Taylor’s argument is that the computer was not “issued” to him at all, rather he was simply afforded access to a prison facility. In any event, as she submits, one or more of the circumstances set out in s 43(2) has arisen. I am satisfied that Mr Taylor is unable to place any reliance on s 43 for the purposes of the present application.
[64] Ms Casey’s principal submission is that an applicant for an order under s 8 may not improve his position by means of an interim order. Section 8 is directed at preserving the status quo, not at conferring temporary advantages. She argues that the interim order sought by the plaintiff would improve his position to the point at
which access to a computer and a special work room would be governed by court
15 Corrections Regulations 2005 reg 196(1) and see Taylor fn 3, at [31].
16 Taylor fn 3, [32] and [35].
order, and not by the directions of the Prison Manager. To that extent, the Prison Manager would be inhibited from performing his statutory functions during the currency of the order.
[65] Moreover, she argues, it is not seriously arguable that the Court could make a final order requiring the Prison Manager to provide computer and work room facilities on a permanent basis.17
[66] In Taylor v Chief Executive of the Department of Corrections, the Court of Appeal held that Mr Taylor could not obtain an order having the effect of directing the Prison Manager to allow monthly contact visits. The most he could expect would be a direction that the Prison Manager review the visiting policy, and possibly that Mr Taylor’s position be considered afresh.
[67] Ms Casey submits that Mr Taylor has no realistic prospect of obtaining the orders sought in his statement of claim, and cannot therefore secure interim orders that would confer on him benefits that could not be sustained at trial.18
[68] I consider Ms Casey’s argument to be unanswerable. In effect, Mr Taylor seeks to obtain, by way of interim order, relief which the Court would not grant at the hearing of the substantive proceeding, and which would supplant the existing discretions vested in the Prison Manager by the Act and Regulations. That is not to say that he has no rights at all to proper facilities in the context of his ongoing litigation. Those rights are discussed below in the context of an analysis of Mr Taylor’s substantive claims. But he cannot obtain by way of interim order a benefit or privilege that he cannot secure at trial.
Prison administration issues
[69] An interim order, if granted in the terms sought by Mr Taylor, would impinge upon the management of the East Division, which houses all of New Zealand’s
maximum security prisoners. The safe and secure management of the East Division
17 Taylor fn 3, [43] and [44].
18 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) and New Zealand Maori Council v
Attorney-General [1996] 3 NZLR 140 (CA) at 151.
is plainly in the public interest. The making of what would be in effect a mandatory interim order, is in my opinion, capable of significantly inhibiting a discretion which must sometimes be exercised in circumstances of considerable urgency and importance. In the non-contact visits case19 the Court of Appeal emphasised at [26] that:
…There are strong policy reasons against a court making mandatory interim orders or declarations requiring positive action. Such orders may not be able to be monitored, may require interaction between parties who are at arm's length, and may involve inappropriate intervention by the court in decisions about the best use of scarce resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities.
[70] An interim order would override the Prison Manager’s ongoing assessment of what is properly required for the safe and secure management of the prison. It might also involve the Court in monitoring and directing the day to day operational management decisions of prison management, including those which relate to the allocation of resources. Such considerations were regarded as important in the non-
contact visits case,20 where the Court expressed concern that a mandatory interim
order might compromise public safety, regarded as the paramount consideration.21
[71] On this issue, Ms Casey submits that:
(a) The order would require the Prison Manager in the interim to revoke a decision he has made in the interests of good management in the context of maintaining security and good order in the prison.
(b)The order would mandate the prison to take positive action, in particular to provide a computer, make a room available and expend resources, in the face of concerns expressed by the Prison Manager about those arrangements, both in terms of cost and effectiveness in maintaining security and good order.
(c) An interim order would place Mr Taylor in an exceptional and privileged position in relation to other inmates, who are not accorded
19 Taylor fn 3, at [26].
20 Taylor fn 3, at [29].
21 Taylor fn 3, at [28].
the same privileges. That consideration is important in terms of the good order of the prison, and the management of Eastern Division.
(d)The plaintiff has other more suitable pathways to pursue his complaint.22
(e) The making of an order would disincentivise Mr Taylor in bringing the case to a conclusion.
[72] In broad terms I accept the thrust of Ms Casey’s submission, for the reasons expressed in the non-contacts visits case. Ordinarily it will not be in the public interest to make an interim order having the effect of overriding the Prison Manager’s statutory discretion. It is certainly not appropriate to do so here.
The strength of the substantive claim
[73] I have already indicated that I consider it unlikely that Mr Taylor could secure relief in the form set out in the statement of claim. That is because the Court is not well placed to dictate to the Prison Manager the manner in which he should exercise his discretion. As the Court of Appeal emphasised in the non-contacts visits case, there is little scope for review of that discretion unless the impugned decision
impinges on a prisoner’s statutory minimum entitlements.23
[74] This is a judicial review proceeding, not a merits-based appeal. The focus must be on issues of process and lawfulness. Quite apart from the nature of the relief sought, it is difficult to ascribe any great weight to the pleaded causes of action.
Unreasonableness
[75] Unreasonableness can be ruled out. The Prison Manager must take into account a wide range of factors in making various decisions. In doing so he will rely
on his knowledge and experience of prison administration and in particular, upon his
22 Taylor fn 3, at [33].
23 Bennett v Attorney-General HC Rotorua CP61/00, 9 August 2001 at [25].
knowledge of the East Division and Mr Taylor. He must take into account also questions of resourcing and of public safety, as well as security and good order within the prison. There is nothing to suggest that an unreasonableness argument could be credibly mounted in the present case.
Illegality
[76] It is claimed also by Mr Taylor that the decision to withdraw his access to a computer in a dedicated room is unlawful. In this respect he refers to the International Covenant on Civil and Political Rights. But an international instrument of that type is not directly enforceable in a New Zealand court.24
[77] In considering this aspect of Mr Taylor’s statement of claim, it is necessary to distinguish between criminal and civil proceedings. There is an extant appeal to the Court of Appeal from his conviction and sentence in the High Court for conspiracy. He has made a further application for access to the computer in the context of that forthcoming appeal, the hearing of which he agrees is many months away yet.
[78] The Prison Manager is bound to have regard to reg 193 in determining the extent of the facilities to be made available by the prison for the purposes of Mr Taylor’s criminal appeal.
[79] As to that, Mr Beales says in his affidavit:
126. In relation to Prisoner Taylor’s criminal appeal, I have an obligation under regulation 193 to ensure, as far as reasonably practicable in the circumstances, that Prisoner Taylor is provided with adequate facilities to prepare his appeal, to the extent consistent with the maintenance of safety and security requirements.
127. Meeting that obligation in light of the above concerns is not going to be straightforward. I am aware that while Prisoner Taylor can print out almost all the material on his computer and use it in hard copy form, there is still a part of the criminal disclosure he received from police that is only available electronically. I would expect that arrangements can be put in place for Prisoner Taylor to view that material for a limited time under the
24 Taunoa v Attorney-General [2006] NZSC 30 at [1], although arguments on based on international conventions may be relevant to establishing New Zealand Bill of Rights Act breaches. See also Miller v New Zealand Parole Board [2010] NZCA 600 at [12]-[13], [19] and [49].
direct supervision of an officer, if he finds it necessary to refer to it in preparing his appeal.
128. I would expect to consider a request to view that material once Prisoner Taylor has a timetable from the Court of Appeal for filing his submissions and for the hearing of his appeal.
[80] Mr Taylor is dissatisfied with that proposal. He argues that he ought to be permitted to have ongoing access to a computer for the purpose of conducting legal research into a number of topics, including the law relating to conspiracy, and aspects of alleged procedural unfairness at the trial. He relies on ss 24(d), 25(h) and
27 of the New Zealand Bill of Rights Act 1990 (NZBORA), and will argue at the trial of this proceeding that, taken together, they oblige the Prison Manager to allow him more general access to a computer and a special work room than is currently contemplated, to enable him to prepare for his forthcoming appeal.
[81] Section 25(h) is, in my opinion, much more confined in its operation than Mr Taylor asserts. It simply guarantees a right to appeal against conviction and sentence. It is not suggested that Mr Taylor is precluded in any way from exercising his right of appeal.25
[82] Section 24(d) provides that everyone who is charged with an offence shall have the right to adequate time and facilities to prepare a defence. But the subsection is not to be read in isolation. It is a component of the primary right to a fair trial, and does not represent an absolute right to be realised for its own ends.
[83] While the Court of Appeal has observed as obiter, that adequate facilities today will include access to a computer, that observation was made in the context of the right to a fair trial, rather than the exercise of a right of appeal.26
[84] In my opinion, it will be difficult for Mr Taylor to argue successfully that s 24(d) obliges the Prison Manager to furnish him with largely unrestricted access to
a computer and a dedicated office for the purpose of conducting his appeal.
25 Taylor v North Shore District Court, fn 14 at [72].
26 R v Greer CA197/01, 4 June 2003 at [39].
[85] It is also to be borne in mind that Mr Taylor chooses to represent himself. A trial Judge would not lightly conclude that, having made that choice, Mr Taylor is entitled, as of right, to be furnished with all of the materials and facilities (including computer access) that would be available to counsel if he had chosen to brief one.
[86] Section 27 of the NZBORA which guarantees a litigant the right to observance of principles of natural justice by any Tribunal or public authority, adds nothing to Mr Taylor’s argument. As was observed by the Court of Appeal in R v McFarland,27 the decision by a litigant to represent himself must be respected, but the litigant must live with the consequences. That was said in the context of a fair trial argument, but it is nevertheless apposite here. Mr Taylor is unlikely to be able
to persuade a trial Judge that, because he chooses to represent himself, he is entitled under the Corrections legislation and the NZBORA, to be placed in precisely the same position as he would have been in had he retained counsel, or if he had been living in the community. There is no suggestion that he could not instruct counsel should he wish.
[87] His decision to represent himself was made in the context of the restrictions imposed by Corrections legislation and regulations, which may well inhibit a prisoner who is self-represented from presenting the best possible case. Persons who are imprisoned face restrictions in areas such as access to the internet, availability of proper office facilities, visiting arrangements, and in Mr Taylor’s case, lack of access to a computer. And indeed, Mr Taylor seeks an advantage over someone who is not in prison, because he expects to be provided with facilities at the expense of the state.
[88] Finally, there is much cogency in a point made by Ms Casey in her written synopsis:
85. … even if the rights recognised in ss 24(d), 25(h) and/or 27 of the Bill of Rights Act could be properly read to encompass this type of positive obligation to provide such facilities to a litigant who chooses to be self- represented, the requirements of the Corrections Act and regulations, and in particular the necessity of prison management retaining an ability to manage the prison in the interests of security and good order, would constitute a
27 R v McFarland [2007] NZCA 449 at [54].
justifiable limit to those rights as they applied to prisoners, under s 5 of the
Bill of Rights Act.
[89] I consider there are serious difficulties in the way of Mr Taylor’s argument, insofar as it is based upon alleged breaches of the NZBORA. His prospects of success at trial are not strong, insofar as his need to prepare for his criminal appeal is concerned.
[90] The position is even less promising in respect of his ongoing civil litigation.
[91] Mr Beales has outlined his current approach to Mr Taylor’s civil proceedings
in the following way:
122. Regulation 193 does not apply to civil proceedings. Prisoner Taylor is a long standing routine litigant against the Department and I expect that he is likely to continue to have active claims against the Department for as long as he remains in prison. I also understand that he has on-going cases in the Family Court.
123. I will therefore need to address the issue of access to facilities for Prisoner Taylor’s civil proceedings as being part of the normal conditions of his imprisonment, not as short term events where special arrangements might be made for a limited time.
124. I would be looking at long term arrangements along the following
lines to accommodate Prisoner Taylor’s civil litigation:
124.1 Access to his papers will be provided on the basis outlined above;
124.2The prison will continue to receive and send faxes for urgent legal work as needed, but we will expect Prisoner Taylor to use the ordinary mail system where possible;
124.3I would be prepared to consider allowing Prisoner Taylor to make arrangements to being in a typewriter;
124.4Prisoner Taylor will not be provided with a special room set aside for his sole use. He will be able to work in his cell or in the recreation areas, but will usually be expected to comply with normal daily routines.
125. Such arrangements may of course be adjusted as circumstances change, although I would expect variations to the standard arrangements to be rare.
[92] Mr Taylor argues that he is entitled to meaningful adherence to the provisions of s 27 of the NZBORA. He supports that broad submission by arguing that:
(a) a computer is not a prohibited item;
(b)his present computer has been “issued” to him for the purpose of s 43 of the Act;
(c) it can therefore be removed only if the provisions of s 43 are complied with;
(d)in terms of his agreement with the Prison Manager he is entitled to access to the computer on existing terms for the conduct of his civil litigation, so long as any aspect of his criminal matter (including the forthcoming appeal) remains outstanding.
[93] None of these arguments enjoy any great prospect of success at trial for the reasons discussed earlier. Insofar as Mr Taylor places reliance on the earlier agreement, reg 196 provides a complete answer. The agreement is not a contractual document which he has any entitlement to enforce.
[94] Mr Taylor referred extensively in argument to the judgment of White J in Taylor v North Shore District Court but that was a case in which the Court was concerned with Mr Taylor’s rights to a fair criminal trial. He referred also to R v Donaldson,28 which is authority for the proposition that the authorities must not obstruct the right of an accused person to mount a defence. But again, that case involved a criminal proceeding.
[95] Similarly, observations by the Court of Appeal in Drew v Attorney-General,29 are of little assistance in the context of civil proceedings. That case involved a consideration of whether a prisoner has the right to legal representation in prison
disciplinary hearings.
28 R v Donaldson [1995] 3 NZLR 641 (CA).
29 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
Breach of natural justice and legitimate expectation as to process
[96] Finally, Mr Taylor’s statement of claim pleads breaches of natural justice and of procedural legitimate expectation. In essence, his argument is that before a change was made to the existing computer access arrangements, he ought to have been consulted and given an opportunity to argue for retention of the current arrangements.
[97] It is difficult to see how that aspect of his claim could succeed at trial either. In Taylor v Chief Executive of the Department of Corrections,30 Clifford J held that the statutory scheme did not give rise to an obligation to allow the plaintiffs to be heard before the issue of a Visitor Prohibition Order against Mr Taylor’s wife, even though the decision impacted on the visitor’s interests and the prisoner’s entitlements. After the making of the Order, Mr Taylor had an opportunity to argue for its variation or cancellation. That opportunity was regarded by Clifford J as significant. More widely, His Honour considered that the management regime established by the Act imposed no duty on the Prison Manager to consult Mr Taylor
before making his decision.
[98] As Ms Casey submits, it is highly likely that a Court determining Mr Taylor’s substantive proceeding would reach a similar conclusion here. Indeed, Mr Taylor has made representations to the Prison Manager about the terms of his access to a computer, and has been successful in obtaining postponements and variations on two occasions.
[99] In summary therefore, I consider that Mr Taylor’s prospects of success on any
of his causes of action are extremely limited.
Conclusions
[100] The interim order sought by Mr Taylor goes well beyond the preservation of his position. If granted, it would improve his situation by substituting an order of the
30 Taylor v Chief Exeutive of the Department of Corrections HC Wellington CIV-2006-485-897,
11 September 2006.
Court for the discretionary basis upon which he currently enjoys access. Moreover, it would be practically impossible for the Court to monitor compliance with the order given the prison environment and the need for the Prison Manager to make decisions as conditions in the prison change, often without warning.
[101] That consideration overlaps with the second, namely the public interest in ensuring that good order and discipline is maintained in prisons.
[102] The substance of Mr Taylor’s case is weak and the prospects of his obtaining any substantive relief are not high. Further, Mr Beales has indicated that arrangements will be made to enable Mr Taylor to work on his forthcoming criminal appeal and upon his various civil cases. I set out the detail of those arrangements earlier. In my view, they are sufficient to preserve Mr Taylor’s position until this proceeding reaches trial. It is for him to bring the substantive proceeding on for trial as soon as possible, if he believes that the Court will ultimately uphold one or more of his causes of action.
Result
[103] For the foregoing reasons, the plaintiff’s application for an order pursuant to
s 8 of the Judicature Amendment Act 1972 is dismissed. [104] Costs are reserved.
C J Allan J
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