Tomar v Attorney-General
[2019] NZHC 3485
•20 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-703
[2019] NZHC 3485
BETWEEN AKHIL TOMAR
Applicant
AND
ATTORNEY-GENERAL
First Respondent
AND
MASSEY UNIVERSITY
Second Respondent
Hearing: 7, 8 and 11 November 2019 Appearances:
Plaintiff appears in Person
E J Watts and D Ballinger for First Respondent
A B Darroch and L S Castle for Second RespondentJudgment:
20 December 2019
JUDGMENT OF GRICE J
Contents
Introduction [1]
Background [4]
Relationship between Massey University and the Department [9]
Mr Tomar’s study [26]
The University library service [51]
Communications [56]
Mr Tomar’s suggestions for better communication [64]
The statutory framework [69]
Analysis [78]
Breach of statutory duty [80]
Massey University’s failure to perform contractual obligations [91] The Department’s failure to perform contractual obligations [112] Misfeasance in a public office [121]
Breach of s 19(1) of NZBORA [133]
Breach of s 23(5) of NZBORA [141]Damages and loss [148]
Other applications [150]Conclusion [153]
Costs [155]
TOMAR v ATTORNEY-GENERAL & MASSEY UNIVERSITY [2019] NZHC 3485 [20 December 2019]
Introduction
[1] Mr Tomar is a serving prisoner. He has been taking extramural courses while in prison through Massey University. He is eager to take as many university courses as possible while in prison. He says it will assist in both his rehabilitation and give him better prospects when released from jail.
[2] This case centres on the difficulties Mr Tomar says he has encountered in trying to enrol in university courses and to undertake his study. He says he has been prevented from doing the number of courses he had wanted to do and his study has been made more difficult because of barriers which have been put in his way by both the Department of Corrections (the Department) and Massey University.
[3] Mr Tomar says the Department and Massey University have each acted or omitted to act in ways which have led him to achieving lower grades than he might have had they better assisted him with his studies. He says they had legal obligations in that regard which they have breached. Mr Tomar claims damages and compensation for the loss of earnings and other less tangible benefits which might have accrued to him in the future had he been able to do the courses he had wanted to do and had achieved higher grades.
Background
[4] Incarceration poses particular problems for students wanting to take university level courses.
[5] Prisoners are not allowed internet access nor to use computers except under strict supervision. Some specific internet “white sites”, which are few in number, are accessible. These sites have been thoroughly checked by the Department for security issues.
[6] Selected external providers, such as Massey University and the Open Polytechnic, offer courses suitable for incarcerated students. The Department itself also provides internal courses for prisoners on topics such as numeracy and literacy.
[7] Only 19 of the approximately 30,000 students enrolled with Massey University are prisoners. The total prison population in New Zealand is approximately 10,500.
[8] Mr Tomar is one of those 19 prisoner/students. In his submissions Mr Tomar emphasised the importance of education to him and for rehabilitation generally. In his view, education is the remedy for all suffering in the world. He emphasised that lack of education drove irrational behaviour, uninformed decisions and unhelpful thinking patterns that caused suffering. Mr Tomar submitted that if a prisoner decides to gain education it usually means they are willing to change. In his view there is little utility in continuing imprisonment if the prisoner changes for the better. Mr Tomar approached this case with those views firmly in mind.
Relationship between Massey University and the Department
[9] Massey University puts in place specific arrangements for any course delivered to an incarcerated student. This involves the cooperation and goodwill of the University’s academic colleges, heads of school, the individual course co-ordinators and lecturers. They must be willing to contribute significant effort over and above what is needed for general students. The Department’s internal tutors must also be able to provide the required level of support to the prisoner for the relevant course.
[10] Massey University has for many years allowed serving prisoners to enrol as students in self-directed learning through extramural courses nominated by the University. These courses must be tailored to accommodate the restrictions that apply to prisoners which do not apply to general students. In particular, the courses must be able to be completed without access to the internet or using online teaching. Most Massey University courses at the under graduate level are reliant on online teaching methods. There is extra work required by University staff to tailor a course for delivery to a prisoner to exclude and replace the usual online components.
[11] A study guide called “Studying from Prison” is published annually. It sets out the courses available to a prisoner for study in each year and summarises the key points and processes for incarcerated students. In the introduction the study guide notes that the lack of internet access is a significant constraint.
[12] Dr Sandbrook, Massey University’s director of student administration, said that the suitability of a course in general ultimately depended on the individual. It depended on their path of study, qualification sought and their background academic history. The University reserves the right in the case of all students not to offer a placement in a particular course or programme.
[13] Dr Sandbrook also noted there were additional restrictions on incarcerated students beyond internet access. This included the time available to the prisoner to devote to the course, which must dove-tail with the other requirements on the prisoner. Massey University, he said, will abide by whatever requirements the Department has in that regard. He said, typically, taking one course per semester has an average work requirement of 12 to 15 hours per week. A full time general student’s work load without other commitments is usually four courses. Most general students at Massey University take part time loads due to their other commitments.
[14] Dr Sandbrook says the annual study guide contains a list of the courses which, in Massey University’s experience, are suitable for incarcerated students. However, other courses may be made available or tailored to fit on a case by case basis. He said that to deliver a course designed for online learning in a hardcopy format without using the website required the lecturer to teach in a way for which the course was not designed. The conversion of materials and methods could be labour intensive. This imposed limitations on what courses could be offered at various levels. If required courses were not available, the prisoner must readjust the intended qualification to take this into account. This might mean, for instance, completing a certificate rather than a diploma or a diploma rather than a degree.
[15] Massey University’s website is sophisticated and is regularly updated. Dr Sandbrook, said that a student enters the Massey University online system through an online portal, which is, in effect, the entry point for multiple enterprise IT systems operating within the portal. These include a customer relationship management system and student management system as well as learning, timetable and library management systems. Each of those systems has a further layer of different access requirements and security conditions.
[16] A small part of the system called the Student Management System is designed to manage students’ private information. It contains data to which access can be restricted an individual student. The learning management system called Stream, is integrated into the portal, and is by its nature open.
[17] Dr Sandbrook said the website provides a social community for students. Massey University has little ability to control where and to which parts of the internet a student can access through and from the portal. It cannot control, for example, a student’s communications once the student is on the website. In addition, the website requires regular updating and changes. Each time this occurs the security of the entire site is affected. These regular changes would make it almost impossible for the Department to manage security. This alone makes the University’s online system unsuitable for access by prisoners.
[18] The relationship between Massey University and the Department has developed over a number of years. The Department has its own internal policies and requirements within which the University must work. Any arrangements for a prisoner will be disrupted if, for instance, the student is transferred between prisons at short notice.
[19] A Department staff member is designated as an “education tutor” for each studying prisoner. The tutor performs a first screening function to assess the student’s willingness and ability to study. The tutor has an essential and ongoing role in facilitating communication between the University and the prisoner. The tutor will organise the study materials required and assist with other administrative requirements. The tutor has authority from the student to access the University’s learning management system on behalf of the student in order to upload or download material and certain course materials as well as to communicate with the lecturer. The education tutor is familiar with the relevant course planning pathways for various qualifications including certificates, degrees and diplomas. They are also knowledgeable about the impact of the restrictions on prisoners, including the lack of internet access as well as the timing requirements for getting the forms to the University for enrolment and other administrative requirements.
[20] Dr Sandbrook said the University preferred that communications about a prisoner’s study and course requirements was between the Massey University Special Cohorts team and the education tutor, preferably by email so there was a trail. The Special Cohorts team is a team that has specialist knowledge of the requirements of and constraints on incarcerated students. The University call centre staff are directed to put calls from prisoners through to the Special Cohorts team. There had been confusion in the past when staff had dealt with a student on the phone without realising the query was from an incarcerated student which resulted in the wrong information being provided. Direct access to the lecturer would vary depending on the lecturer’s agreement. A lecturer was not required to have telephone contact with the prisoner.
[21] The arrangements between Massey University and the Department were outlined in a Memorandum of Understanding executed in December 2018.
[22] Ms Matsis, a senior education advisor with the Department, was responsible for putting this in place. She said that the Memorandum of Understanding was initiated to achieve New Zealand prison wide consistency in the Department’s arrangements with Massey University.
[23] Ms Matsis said that before her appointment as a senior education advisor for the Department in mid-2017 she had been an education tutor based at Rimutaka Prison from July 2015. She had been the education tutor for Mr Tomar in late 2016.
[24] Dr Sandbrook said that recently following discussions between Department and Massey University staff there was an agreed preference an incarcerated student’s study would normally be limited to one course per semester and the course would be signed off not only by the student education tutor but by the prisoner’s general case manager and the assistant prison director who was responsible for the prisoner. One of the key reasons for this was there had been a number of students who had taken more than one course but had not completed or had failed courses in each semester. However, he said there remained a discretion in the case of an individual student and there was no absolute rule on the number of courses one student could study.
Mr Tomar’s study
[25] Mr Tomar has been a serving prisoner for several years. He is a keen student. He does his own personal study as well as University courses. Since being in jail he has completed twelve courses – three in 2017, seven in 2018 and two in 2019. Seven of those courses are toward a Diploma in Arts and five are for a Diploma in Business. In terms of grades he has achieved one D (a fail), one P (pass), two C+, three B+ and five Bs.
[26] Mr Tomar requires a further 30 points, or two courses, to complete his Diploma in Arts. These can be undertaken from prison.
[27] Mr Tomar also requires a further 60 points, or four courses, to complete his Diploma of Business. He cannot complete that while incarcerated due to the lack of available courses suitable for prisoners according to Massey University.
[28] On a number of occasions Mr Tomar has asked Massey University for permission to study towards a Bachelor of Business Studies or a Bachelor of Science. Massey University first advised him on 1 September 2016 that he could not do the Bachelor of Business Studies as the required courses that depended on internet delivery and interaction which were not available to a serving prisoner. It has responded to his later requests on that topic similarly.
Studying in 2016
[29] In October 2016 Mr Tomar first met with Ms Matsis, then his education tutor, to assess his education needs.
[30] She noted down his literacy levels, which she says were taken from an earlier assessment he had completed. His literacy level was assessed at below that required for university study. She then recommended he undertake an Open Polytechnic course as a step towards university.
[31] Mr Tomar, with Ms Matsis’ assistance, completed a document which included that literacy assessment information called the “learning pathway report”. There is no dispute the document was completed with Mr Tomar’s input.
[32] The Learning Pathway document was updated in November 2016. It recorded Mr Tomar’s reading literacy level as below that required for study at Massey University. Mr Tomar disputes the accuracy of the literacy assessment. He says by that time he had put in a lot of work to increase his literacy and he should have been reassessed. There is no indication, however, he asked to be reassessed. He did not apparently bring up that point when the document was completed.
[33] Mr Tomar also says Ms Matsis told him that he needed University Entrance (UE) to take a university course. He said this was incorrect as he was exempt from that requirement as a mature student. Ms Matsis said it is unlikely she would have told Mr Tomar this as she was very familiar with entrance requirements and knew he was a mature student. I accept Ms Matsis’ evidence on this point. According to her, the focus at the assessment meeting was on assessment rather than a general discussion of entrance requirements. In any event, it is unlikely she would have given him that advice given her knowledge of the educational requirements. She recommended an open polytechnic study course for Mr Tomar as a stepping stone to University and he accepted that recommendation. He enrolled in a course at the Open Polytechnic. Ms Matsis sent a letter of support to the Open Polytechnic in relation to that course for Mr Tomar.
[34] In October 2016, Mr Tomar obtained approval to phone Massey University’s 0800 number as it was listed as a permitted number for him to call from prison.
[35] In December 2016 Mr Tomar was transferred from Rimutaka Prison to Whanganui Prison.
Studying in 2017
[36] On 24 May 2017 Mr Tomar sent an enrolment form to Massey University seeking enrolment for semester two in 2017. He wanted to enrol in six subjects. One of the subjects, Mr Tomar says, was an alternative course in case he could not get into
one of the other five courses. I note that four courses is the usual full-time course load for a general student with no other commitments or constraints.
[37] In June 2017 the Department sent a letter of support to Massey University approving Mr Tomar’s enrolment without reference to any specified courses. The University responded with an offer of a place in two of the courses he had applied for. The other courses were unavailable to him as an incarcerated student.
[38] In October 2017 the Department sent an enrolment form for summer school courses to the University on behalf of Mr Tomar. Although his enrolment form was sent in with plenty of time to meet the time frame prescribed by Massey University, it could not finalise his course selection in time due to issues at its end. This meant Mr Tomar’s enrolment was too late and Massey University refused to enrol him in the summer school courses.
[39] Dr Sandbrook acknowledged there had been delays in dealing with Mr Tomar’s enrolment for summer school in 2017. Dr Sandbrook explained these had been caused by lecturers who needed to agree to the enrolment requests. In some cases their responses had been too slow. However, even without this tardiness, Dr Sandbrook says the application would have been declined because of the requirements of the courses. Massey University has dealt with this issue by allowing Mr Tomar to enrol for free in a course the following year. Mr Tomar has accepted and used the free enrolment for a course the following semester.
[40] Mr Tomar was transferred from Whanganui Prison to Springhill Corrections Facility in December 2017.
Studying in 2018
[41] In February 2018 Mr Tomar was again transferred, this time from Spring Hill to Rimutaka Prison.
[42] In that same month, Ms Auvaa, Mr Tomar’s new education tutor, sent a letter of support to Massey University for Mr Tomar’s enrolment. The University sent
confirmation of his enrolment in three courses for semester one 2018 and one course in semester two 2018.
[43] However, the materials for the semester one courses did not arrive in a timely manner. Mr Tomar lodged a complaint with the Department in which he alleged failures by Ms Auvaa in March 2018. It turned out the materials had been sent to the previous prison in which Mr Tomar had resided. The matter was partly resolved by Ms Auvaa obtaining the study materials from the old prison. Unfortunately, some of the material was wrong and Mr Tomar remained waiting for materials in two courses.
[44] In April 2018, following the receipt of Mr Tomar’s internal complaint, a phone call for Mr Tomar to Massey University was arranged. Ms Auvaa said she would print out the study materials. She followed that up with Massey University as she needed access to the relevant materials. Ultimately, she was able to print out all the material Mr Tomar needed. The lecturer gave Mr Tomar an extension for his first assignment due to the delays by the University.
[45] Mr Tomar wrote an apology to Ms Auvaa in relation to the complaint he had made against her noting that the delay with the materials was the University’s fault, not hers.
[46] In April 2018 Mr Tomar again asked Massey University about doing the Bachelor of Business qualification. Ms Auvaa was advised by University representative that Mr Tomar could not do it without internet access. It was also noted Mr Tomar did not meet the pre-requisites and progression requirements in relation to a number of the required topics.
[47] In May 2018 Ms Auvaa, on behalf of Mr Tomar, emailed the University with his queries about enrolling in seven listed courses. He wanted to do them all from prison. A University representative responded explaining the Bachelor of Business courses were not available to study from prison because of the lack of internet access. Therefore Mr Tomar could not enrol in six of the courses he had inquired about. The representative did then arrange for him to undertake one of those six courses offline. In the course of these exchanges, a Special Cohort team member, Ms Orams, made a
reference to a Department policy that prisoners could only do two papers a semester. Mr Tomar replied to tell her this was a preference rather than policy and he should be able to more due to his good grades.
[48] In the end, the University sent an offer of enrolment to Mr Tomar for three of the courses he had selected for semester one and two in semester two. Mr Tomar accepted this offer of enrolment.
[49] In October 2018 Mr Tomar wrote to Massey University to enrol in two courses in the summer school. Ms Auvaa had also sent letters of support for the two courses. Massey University then sent him offer for enrolment for those two courses. Mr Tomar completed those courses.
The University library service
[50] The library offers a service where a book that is required for a course may be ordered from the University and it is then posted to the student. Deliveries and returns of books for incarcerated students are often delayed due to the screening of parcels and letters by the prison service and the internal system for distribution to the prisoner. The turnaround in book delivery and return is therefore longer than would be the case with a general student.
[51] At the end of January 2019 Mr Tomar complained to the Department about Ms Auvaa not withdrawing a book from Massey University library that he needed for his studies. She responded that as Mr Tomar had an overdue library book Massey University would not provide the book ordered. Ms Auvaa arranged for the overdue book to be returned so Mr Tomar could access the library facilities again.
[52] The library sends the book in a package which includes a receipt on the outside setting out the details of the book and specifying the date the book is due back. This would be seen by the student when it was delivered to him.
[53] Mr Tomar made a number of other complaints about the library. These are not issues pleaded are not required to be determined here.1
[54] On the issue of the library service, I will simply note Ms Auvaa was not at fault for the failure to return the book, it was Mr Tomar that failed to return it. Therefore, she was not the cause of Mr Tomar failing one of his courses.
Communications
[55] Mr Tomar says he has had difficulty getting through to staff at Massey University. He says the 0800 number is not readily accessible because if call centre staff are busy and do not answer personally, a number must be pressed to select the action the caller wishes to take. No key is available to be pressed on the Department’s prisoner phones. If a key is not pressed the call is cut off.
[56] A further frustration for Mr Tomar has been that when he uses other numbers to contact Massey University a message plays to the recipient of the call. This occurs on all outgoing calls from Corrections. The message indicates that it is a prisoner who is calling. Mr Tomar says the recipient of the call must then press a key to accept the call and in his view, the recipients at Massey University did not accept his calls because of that message.
[57] Mr Tomar says it was the responsibility of the Department and Massey University to ensure he had proper telephone access to University staff. In particular he considered the 0800 number should have operated so he was able to speak to someone at the call centre when he needed to.
[58] Massey University pointed out that Mr Tomar had successfully made contact and discussed matters with University staff using the 0800 line on a number of occasions. Dr Sandbrook produced a log showing that Mr Tomar had spoken to various people, including the library and enrolment staff as well as making inquiries
1 Mr Tomar complained that the library would not provide him with books for his own personal study, including for the purposes of these proceedings. These were unrelated to the courses he was enrolled in. The University responds that the library is not a general purpose library. It does not lend books for non-course related study.
about study materials in each of the years he took courses: 2017, 2018 and 2019. The log produced recorded calls from Mr Tomar when he had spoken to staff in the period from 15 September 2017 through to 24 June 2019. A total of 13 such calls were recorded using the 0800 number in that time.
[59] Beyond this, Mr Tomar takes issue with the preference by Massey University and the Department that communications to the University come through the prisoner’s education tutor. He says this is too difficult as the tutor is not always immediately available to meet the prisoner’s time frame requirements for communicating Massey University. Mr Tomar said he should not be required to part of a three-way communication – involving the tutor and University staff. He said this was frustrating and slow. He wanted the problems with the 0800 line resolved so he would be able to get through whenever he calls.
[60] The evidence indicates Mr Tomar’s education tutors were regularly communicating with Massey University staff on his behalf. In addition, other Department staff assisted him when necessary. This included a 45 minute telephone conversation recorded in the Department notes by an officer in April 2018. This was in response to an internal Department complaint by Mr Tomar that he had been unable to make contact Massey University by phone.
[61] Mr Tomar also considers he should be entitled to contact lecturers directly by telephone. Dr Sandbrook responded that once a student was enrolled, the level and nature of communication had to be agreed between the education tutor and the lecturer. On occasions a lecturer would allow an incarcerated student to contact them directly. In that case the lecturer’s direct phone number could be approved by the Department so the incarcerated student could use it to contact the lecturer direct.
[62] Dr Sandbrook noted that direct contact depended on the indvidiual lecturer’s agreement. However, Mr Tomar took the view that once the lecturer had agreed to do the course it was incumbent on the lecturer to agree to such direct calls.
Mr Tomar’s suggestions for better communication
[63] In the course of the hearing Mr Tomar made some suggestions which he said might solve his communication problems.
[64] Mr Tomar submitted that as the prison phones are monitored at all times he should be able to freely speak to any lecturers he wished to call. He says if there were any infringement of rules in the course of his conversation with a lecturer they could be dealt through the usual internal disciplinary processes.
[65] Mr Tomar suggests that Massey University internet-based student management system should available for use by prisoners as it is secure. As I have outlined above the site has settings which enable the individual student to go into their personal information but the system is linked and accesses the main portal site. As Dr Sandbrook pointed out Massey University could not limit access to that. There could be no effective restrictions.
[66] Both of Mr Tomar’s suggestions would require Massey’s systems to change and would directly affect the operational requirements of the Department. The Department must have ensuring public safety as its priority. To that end the Department needs to ensure prisoners cannot circumvent the restrictions on contacting third parties and using non secure websites. Mr Tomar’s views on the efficacy and effectiveness of prison policies and rules insofar as they interfere with his access to Massey University staff is at odds with those of the prison authorities.
[67] Mr Tomar’s suggestions are outside the ambit of these proceedings so I will not deal with time further. In any event they affect prison operational matters and the court would be unlikely to interfere with those in the circumstances.
The statutory framework
[68] The statutory frameworks under the Corrections Act 2004 (the Act) and Corrections Regulations 2005 are relevant to the consideration of a number of the claims in these proceedings.
[69] The operation of the corrections system is guided by a number of principles that are set out in the legislation. The principles relevant to this case are that:
(a)maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision;2
(b)the fair treatment of detained persons is attained by ensuring that decisions are taken in a fair and reasonable way and with recourse to an effective complaints procedure;3
(c)sentences are not to be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and public safety;4 and
(d)offenders are to be given access to activities that may contribute to their rehabilitation and reintegration into the community, so far as is reasonable and practicable in the circumstances and within the resources available.5
[70] Each corrections facility has a prison manager. The prison manager is responsible for the operations of the prison following purposes and principles of the corrections system. The prison manager’s functions may be delegated to other Department employees.
[71] The Department must ensure that each prisoner is provided with an opportunity to make constructive use of their time in prison, as far as is reasonably practicable. The time may be used for rehabilitative programmes, employment, and education. The guidelines for the Department contemplate that prisoners will be engaged in constructive use of their time for 40 hours per week.
2 Corrections Act, s 6(1)(a).
3 Section 6(1)(f)(ii).
4 Section 6(1)(g).
5 Section 6(1)(h).
[72] Prisoners do not have an absolute right to complete whatever education programme they want. Section 78(1)(c) and (2) of the Act provides:
78 Information and education needs of prisoners
(1)A prisoner is entitled–
(c) to access to further education that, in the opinion of the prison manager, will assist in-
(i)his or her rehabilitation; or
(ii)a reduction in his or her reoffending; or
(iii)his or her reintegration into the community.
(2)The Crown is not required to provide a prisoner with any of the education referred to in subsection (l)(c) free of charge unless–
(a) there is an entitlement to receive that education free of charge (whether under the Education Act 1989 or under another enactment); or
(b) the education is–
(i)provided to a prisoner with poor literacy skills; and
(ii)designed to improve those skills.
[73] A range of factors are taken into account by corrections officers when considering the appropriate education programmes that a prisoner may engage in with external providers, such as Massey University. These factors include the prisoner’s academic ability, motivation, sentence plan, other commitments, and resource implications.
[74] Prisoners have an entitlement to send and receive mail (subject to some conditions) and to use a telephone in limited circumstances. Every prisoner is entitled to make at least one outgoing telephone call of up to five minutes' duration per week, as well as telephone calls to official agencies (such as the corrections inspectorate and the Ombudsmen) and legal advisers.6 The Department can impose conditions on the use of telephone facilities. The prison operations manual note that call recipients must consent to receiving calls from the prisoner and they may refuse to receive any or all calls from the prisoner.
6 Section 77.
[75] In my view these are all proportionate restrictions for the maintenance of public safety.
[76]I now turn to Mr Tomar’s claims in these proceedings.
Analysis
[77] Mr Tomar’s claims are for breaches of statutory obligations, contract, tort and the New Zealand Bill of Rights Act 1990 (NZBORA). Both the Department and Massey University deny the allegations.
[78] The grounds raised in this case overlap and a number of issues were raised by Mr Tomar in the course of the hearing. For that reason I will summarise Mr Tomar’s causes of action from his statement of claim and deal with them under that heading.
Breach of statutory duty
[79] Mr Tomar alleges that the Department breached the statutory duty imposed on it by provisions of the Act by:
(a)failing to allow Mr Tomar tailored internet access for the purpose of allowing him to complete a Bachelor of Business programme and other educational courses at Massey University;
(b)failing to provide Mr Tomar with an alternative to internet access; and
(c)disapproving his enrolment in courses from mid-2017 to early 2019 even though they could be completed from prison under the current criterion of the Department.
[80] The relevant statutory provisions of the Act which Mr Tomar relies on are as follows:
5Purpose 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—
…
(c)assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions;
…
6Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
…
(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
(h)offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:
…
(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.
…
8 Powers and functions of chief executive
(1)The chief executive has the following powers and functions:
(a)ensuring that the corrections system operates in accordance with the purposes set out in section 5 and the principles set out in section 6:
…
(f) inquiring into the treatment and conduct of persons under control or supervision:
…
50 Prisoners’ use of time
The chief executive must ensure that, as far as is practicable, every prisoner is provided with an opportunity to make constructive use of his or her time in prison.
...
78 Information and education needs of prisoners
(1) A prisoner is entitled—
…
(c)to access to further education that, in the opinion of the prison manager, will assist in—
(i)his or her rehabilitation; or
(ii)a reduction in his or her reoffending; or
(iii)his or her reintegration into the community.
[81] In Harriman v Attorney-General Simon France J outlined the requirements to establish that a statutory duty was enforceable by a private law action.7 He said:
[20] Many of the claims made by Mr Harriman rely on a breach by the defendants of statutory duties under the Corrections Act and Parole Act. In order to succeed, the plaintiff must establish that these duties are enforceable by a private law action. Whether that is so depends upon a construction of the relevant statute. In X (Minors) v Bedfordshire County Council. Lord Brownei Wilkinson observed:8
… a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.
[21] The construction of the statute takes place against a background that a court will not lightly imply such a right:9
… the reviewing Judge must be driven to the view that something is necessary to achieve the purpose of the statute and, therefore, objectively within the intention of the legislative, yet was not provided for.
[82] His Honour went on to note that the Act’s systems had a public interest component. He concluded that the provisions of the Act could not be the source of privately enforceable rights. He said:
7 Harriman v Attorney-General [2015] NZHC 3197.
8 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 731.
9 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [188].
[35] … there is no basis to suggest that the Corrections Act was intended to create duties concerning which an affected person might sue over and above any existing remedies available in law.
…
[38] Again it can be noted the Corrections Act contains specific methods of redress – the creation of inspectors of Corrections, the rights of inspection accorded to various people and the appointment of visiting Justices. There are also provisions for contacting legal advisers and receiving visits from them, and the entitlement to outgoing calls is in addition to the right to call official agencies (which include bodies such as the Ombudsman). Further, existing rights of access to courts are not curtailed.
[83] His Honour concluded that the provision of the Corrections Act in that case did not allow a claim for breach of a statutory duty.
[84] The provisions on which Mr Tomar relies to establish his private law claim are broad level statements of legislative intent and general descriptions of the functions of the Department. It would be untenable that an aggrieved prisoner could sue at private law for a breach of an operational process, such as not allowing tailored internet access to complete a university course. The Department must weigh up the competing statutory priorities, as well as how best to expend its resources. I do not consider the imposition of private law obligations on the Department of the nature contended by Mr Tomar was intended by the legislation. Such obligations are not necessary to achieve the statutory purpose. The weighing up of the competing factors in considering how restrictions should be managed and security maintained is for the Department. Of course, the Departments actions are subject to the Court’s oversight in the public law sense.
[85] In addition, an internal complaints system, inspectors, access to legal advice and the right to call on the Ombudsman provide appropriate avenues for a redress for individual grievances.
[86] The Department’s internal complaints system is intended to resolve complaints by prisoners in a fair, timely and effective manner at the lowest, most informal level possible. Every prison must have access to an internal complaint system and prisoners may refer complaints to an inspector of corrections. The visiting Judges visit and
inspects prisons and make interview prisoners and take up any alleged business.10 The inspectors of corrections have powers to investigate complaints, conduct interviews, and make recommendations.11 Prisoners may also take complaints to the Ombudsman.12
[87] In this case Mr Tomar did use the internal complaints system to resolve his reported difficulties in communicating with Massey University. It was effective. The Department, in its submissions, suggested that the claims brought to this Court were at the level which might have more appropriately been dealt with by the internal complaints systems or, if necessary, by escalation to an inspector or the Ombudsman. Mr Tomar had not done this as he was of the view that the inspectors and ombudsman were not as effective as court proceedings. I agree.
[88] I find that the Act was not intended to create duties upon which a prisoner might be able bring a private law claim in the circumstances of this case.
[89] The claim based on breach of statutory obligation fails for the reasons set out above.
Massey University’s failure to perform contractual obligations
[90] Mr Tomar alleges Massey University failed to perform its contractual obligations owed to him as a student as contained in a contract dated 30 June 2017 by:
(a)providing Mr Tomar with limited course options;
(b)incorrectly assuming there was a directive from the Department that all inquiries from incarcerated students were to come through their education tutor; and
(c)failing to allow Mr Tomar to contact it directly.
10 Corrections Act, s 19.
11 Section 29.
12 Section 160.
[91] Mr Tomar said these actions meant he achieved lower grades than he could have done which will affect his future prospects including for employment and earnings.
[92] A contract is formed with Massey University when it accepts and confirms the student enrolment. In the process leading up to the acceptance of the enrolment, a letter of acceptance is issued by the University which states the name of the programme (for example, Certificate of Arts) and the specific papers or courses which have been accepted for enrolment. The papers are referred to by name and number include the start date for each course. The acceptance must be signed and then once the University accepts the enrolment a Student Contract sets out the obligations of the University.
[93]This contractual documentation includes:
(a)the offer of place, which specifically refers to the qualification title and lists the courses by title, paper name, paper number, start date and credits;
(b)the “Student Contract” consisting of 12 clauses;
(c)The terms and conditions of enrolment at Massey University consisting of clauses (a) to (m).
[94] Clause 10 of the Student Contract incorporates the relevant admission application, enrolment application, offer of place, confirmation of enrolment, regulations, rules of the University and material published in the calendar into the contractual relationship between the student and the University.
[95]Mr Tomar initially argued that the Study Guide also formed part of the contract.
[96] The Study Guide provides general information about courses, that are available to prisoners, issues which arise in relation to prisoners studying at Massey University and enrolment requirements. It incorporates a specific disclaimer stating that the
information in the Guide is indicative only and the University reserves the right to vary the courses without notice.
[97] There is no indication that this guide is intended to be a contractual document. In fact, it is quite clear that it is only a guide and not to be relied upon as other than indicative. It is not part of the Student Contract.
[98] Mr Tomar also argued that the first time the student enrolled a contract was established between him and Massey University which remained in force until he had completed his relevant qualification.
[99]The Student Contract states the University will:
1.Use best endeavours to provide the Student with tuition and supervision of a professional standard in the course(s) in which the Student is enrolled.
2.Act reasonably and fairly in exercising its powers under the regulatory framework and this Contract.
[100] Mr Tomar said this meant that the University was bound by the “best endeavours” clause not to limit the course options available to him. He said the “best endeavours” clause meant by the University must provide the maximum range of courses for prisoners and not just the limited selection actually made available.
[101] I do not agree with Mr Tomar’s interpretation as to the effect of the “best endeavours” clause. First, because that is not what the clause says. It specifically refers to the University using its best endeavours in relation to provision (tuition and supervision) of the courses in which the student is enrolled. Those courses or papers are specified in the offer of enrolment. The clause does not extend to create a requirement concerning other courses or their availability which may be selected in the future.
[102] Secondly, the contract formed by the offer and acceptance of the course enrolment applies only to the courses stipulated. Once they have been completed the contract is at an end unless otherwise stated. For instance, the dispute resolution clause which provides for an exclusive manner to deal with disputes relating to performance
by the University of its responsibilities, continues to apply beyond the end of the contract for the enrolled courses. That reservation is specifically set out in the Student Contract.13
[103] My interpretation is reinforced by cl 7 of the “Student Contract” which says that the contract is formed when the student accepts “the offer of place” and Massey University confirms enrolment. The place accepted is a place into a specified course starting on a specified date. In addition, cl 9 then provides that the University and the student may enter into further contracts in subsequent periods by repeating the enrolment process set out at cl 7.
[104] While the wording of the contract might have been clearer, in my view the terms and conditions in the contract between the University and the student generally apply, unless otherwise stated, to the specific courses listed in the offer of place for the relevant semester.
[105] The contract does not impose any obligation on the University to make available any or all of its courses to Mr Tomar.
[106] Mr Tomar also argues Massey University breached its contact with him by incorrectly advising him there was a directive from the Department that inquiries from incarcerated students should come through the assigned education tutor and by failing to allow him direct contact with Massey University.
[107] Massey University clearly preferred that communications came through the education tutor by email so there was a communications trail. The University however did not prevent Mr Tomar contacting its staff direct. This is supported by the University call centre records. Mr Tomar also regularly contacted Massey University staff through his education tutors as well as phoning University staff with the assistance of prison officers on at least one occasion. There is nothing in the student contract which requires it to allow Mr Tomar to contact staff directly, nor was there anything preventing the University from expressing a preference for contact via the education tutor and by email.
13 Student Contract, cl 8.
[108] I find that the breaches alleged against the University of contract alleged under this head have not been made out.
[109] However, even if a breach had occurred, Mr Tomar has not established that any damages flowed from that breach. Mr Tomar seeks because he says he got lower grades than he would otherwise have received because of the communication problems. The grades that Mr Tomar received throughout his studies were consistent (as is apparent from paragraph [25] above) apart from the D grade (fail). He blames his D on the lack of a library book which I have already dealt with.
[110] Apart from his assertion he was capable of more there is no reliable evidence that he would have got higher grades in the particular courses if better supported in the way he claims. Nor is there any evidence to establish that higher grades would have equated to better future prospects for employment and higher earnings for Mr Tomar.
The Department’s failure to perform contractual obligations
[111] Mr Tomar alleges there is was a contract between Massey University and the Department, the terms of which were recorded in a written Memorandum of Understanding dated December 2018 between them. He says both parties have failed to perform their contractual obligations to him by disapproving his enrolment in courses from mid-2017 to early 2019.
[112] Mr Tomar claims that as a result of the breach he was deprived of making significant process toward his education, rehabilitation and integration into the community as well as disadvantaging his future employment earnings, family status, social status and social life.
[113] Mr Tomar bases this cause of action on two contracts entered into between the Department and Massey University. The first is the Memorandum of Understanding and the second, which was not suggested by Mr Tomar until during the hearing, is the letter of support written by the Department each semester to Massey University.
[114] I first deal with the letter of support. It is on its face clearly not a contract. The Department merely advises tells the University it supports Mr Tomar’s enrolment in listed courses. It does not intend to, nor does it create, legal obligation on either party.
[115] Turning to the Memorandum of Understanding, in my view it is not an enforceable contract. The Memorandum is not intended to be a legally binding contract but rather a statement of principles and shared understandings between the University and the Department. It says under “Purpose”:
The purpose of this Memorandum of Understanding is to clarify the relationship and responsibilities of the parties in regards to enrolment process, available courses and ongoing support that may be made available to prisoners (referred to as learners) within the prison environment.
[116] The Memorandum does not create specific obligations relevant to the claim which could be enforced. For instance, it does not require the Department to provide prisoners with direct telephone access to Massey University, nor does it deal with the management of courses for how many courses prisoner students may enrol in.
[117] In any event, Mr Tomar is not a party to the Memorandum of Understanding. It does not purport to confer a benefit enforceable by him pursuant to s 12 of the Contract and Commercial Law Act 2017. Therefore, the requirements of s 17 of that Act are not met.
[118]This cause of action fails for the reasons set out above.
[119] I note that the claim for damages based on causing disadvantage by affecting Mr Tomar’s educational opportunities suffers from the same defects as noted in relation to the previous claim.14
Misfeasance in a public office
[120] Mr Tomar alleges the Department staff15 acted deliberately and unlawfully in the exercise or purported exercise of their office by:
14 See above at [109].
15 In particular Ms Matsis (Senior Education Advisor), Ms Auvaa (Mr Tomar’s Education Tutor), Ms Cunningham and Ms O’Neil (Mr Tomar’s previous education tutors). The staff were not named in the pleading but Mr Tomar named them in the course of his submissions.
(a)making an unlawful policy to restrict the enrolment of incarcerated students;
(b)disallowing Mr Tomar’s enrolment in courses at Massey University;
(c)By allowing Massey University’s unlawful approach to prevent incarcerated students from contacting it by phone.
[121] Mr Tomar alleges the Department acted with malice towards him or with “knowledge or reckless indifference, that its conduct was unlawful and was likely to injure the plaintiff”. As a result he says he was deprived of the opportunity to make progress toward his education, rehabilitation and reintegration into the community and would be disadvantaged in future employment earnings, family status, social status and social life.
[122] The requirements of tort of misfeasance in a public office requires the plaintiff to show:16
(a)The defendant is a public officer;
(b)The defendant has acted17 unlawfully in a purported exercise of their public office, knowing that their conduct was beyond the limits of their public office, or recklessly indifferent as to whether that was the case.
(c)The defendant has done so with either intention to harm the plaintiff or knowledge their conduct was likely to injure the plaintiff or reckless indifference as to whether the plaintiff would be harmed; and
(d)The plaintiff has suffered loss caused by the defendant’s actions.
[123] The statement of claim did not name or describe the public officers who had carried out the relevant acts or omitted to act. Mr Tomar named them in the course of the proceedings. They are not named as defendants, nor have they had the opportunity
16 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].
17 By act or omission.
to defend themselves. The claim was not formulated made them individually. The claim would fail on that basis.
[124] Beyond that, no evidence was called to show that those Corrections officers or staff acted deliberately in a manner intended to cause harm to Mr Tomar.
[125] For example, one of those named, Ms Matsis was an education tutor who instigated the guidance that prisoners should only undertake two papers, (later reduced to one paper), as the default position. She gave this guidance due to concerns about the time needed by prisoners to complete courses and the need to consider against other required prison activities. She was concerned about the prisoner failure rate for courses. Ms Matsis made it clear that she had issued the guidance but there remained a discretion to allow a prisoner to enrol in more courses. There is nothing to suggest the issue of the guidance was a deliberate act undertaken the requisite intent, or recklessness, to cause harm to Mr Tomar.
[126] Ms Auvaa is also named as a perpetrator. The evidence shows she went to lengths to help and support Mr Tomar in his studies. She stepped in to get his course materials when they were not properly supplied to him and sorted out his library book problem. Mr Tomar said she was not always available to help. However, that might be expected when she had other duties. She said she found Mr Tomar demanding but there is nothing to suggest the required intent was held by her.
[127] Mr Tomar also complains Ms Auvaa misled him about a Department policy when she told him that prisoners could only enrol in two courses at a time. However, this was not an action intended to harm him, nor did Mr Tomar rely on that advice in any event.
[128] In my view, Ms Auvaa responded appropriately to Mr Tomar’s requests. I accept her evidence that she assisted him in his studies. That evidence is supported by the steps she did take which I have described above.
[129] There is also no evidence to support the claims against the other named staff, Ms Cunningham and Ms O’Neil. Both were education tutors who had supported Mr Tomar earlier.
[130] It appears from the evidence that the Department, and in particular the education tutors, have attempted to support Mr Tomar in his studies as far as possible within the constraints of time and resources available to them to support prisoners doing university courses.
[131] Allegations of misfeasance in public office are serious allegations. They require a concomitant level of proof. The evidence in this case fails by a substantial margin to establish the claims. No intent has been proved against any of the named individuals.
Breach of s 19(1) of NZBORA
[132] Mr Tomar alleges that Massey University discriminated against him on the prohibited grounds of colour and race by not allowing him to communicate directly with it.
[133] Mr Tomar also alleges that the Department discriminated against him on the prohibited grounds of colour and race by making a policy which disallowed him from completing courses he would have liked to have taken.
[134] Mr Tomar says he has been unlawfully discriminated against because he is of Indian descent and so if “brown complexion”. His argument is that because the majority of prisoner students are of brown complexion the restrictions that prevent prisoner students from engaging in as many University courses as they wish to is discriminatory.
[135] To establish a claim of discrimination in breach of s 19 of NZBORA Mr Tomar must first satisfy the Court that there has been differential treatment between groups or persons in analogous or comparable situations on the basis of a prohibited ground of discrimination. The second aspect he must establish is that the treatment had a
discriminatory impact in terms of imposing a material disadvantage on the persons discriminated against.18
[136] Mr Tomar is of Indian descent. In this case the appropriate comparison treatment would be between Indian prisoners and non-Indian prisoners.19 There is no evidence that non-Indian prisoners are being or have been treated in any different way to Indian prisoners in relation to either contact with Massey University or the uptake of University courses.
[137] The Court of Appeal dealt with a similar issue in Ngaronoa v Attorney- General.20 That case dealt with whether a legislative prisoner voting ban was unlawful discrimination against Māori. The argument was that the prisoner voting ban was discriminatory against Māori because there was a disproportionate representation of Māori in prisons and therefore they would be disproportionately disadvantaged by the voting ban. The Court said if that were the case, the same argument would apply to all prison policies that have a negative effect on prisoners’ lives.21 The same principle applies to the present case.
[138] Mr Tomar’s complaints stem from the fact that he is incarcerated rather than any other basis of discrimination. Status as a prisoner is not a prohibited ground of discrimination.22 The prison system must necessarily treat prisoners differently to the general population in relation to matters such access to University courses due to the restrictions on prisoners generally.
[139] There is no unlawful discrimination on the basis alleged. The fifth cause of action is not made out.
18 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55].
19 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 at [132] contains analogous reasoning.
20 Ngaronoa v Attorney-General, above n 19.
21 At [138].
22 At [133].
Breach of s 23(5) of NZBORA
[140] Mr Tomar alleges the Department breached his right to be treated with humanity and with respect for his inherent dignity by unlawfully preventing him from achieving his educational goals and unlawfully discriminating against him by imposing unlawful policy on him.
[141]Section 23(5) of NZBORA provides:
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[142]This provision requires prisoners to be treated humanely.23
[143] Not every breach of the Act will amount to a breach of s 23(5).24 Examples of breaches of s 23(5) include lengthy unlawful segregation from other prisoners, poor cell hygiene, the provision of substandard bedding and clothing and inadequate exercise conditions.25
[144] The Court of Appeal in Ngaronoa v Attorney-General noted that legislative prohibition on prisoners being able to vote did not go anywhere near approaching the level required to breach s 23(5) of NZBORA.26 Given that was the case in relation to voting rights, which are important individual rights, the type of restrictions and rights claimed to have been breached here must be at an even lower level. The restrictions complained do not breach s 23(5) of NZBORA.
[145] Mr Tomar responded to the defendant’s submissions by commenting that Ngaronoa v Attorney-General was a case about a declaration of inconsistency under NZBORA in relation to the statutory prohibition on prisoners’ voting. However, that does not detract from the Court of Appeal’s findings on whether or not the prohibition on voting would breach s 23(5).
[146]The sixth cause of action fails.
23 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [80] per Elias CJ.
24 At [181] per Blanchard J.
25 At [84]–[94] per Elias CJ and summarised in Ngaronoa v Attorney-General, above n 19, at [162].
26 Ngaronoa v Attorney-General, above n 19, at [162].
Damages and loss
[147] In general terms, Mr Tomar has pointed to his losses as being the loss of opportunity to gain better grades or complete more courses and the future effect those failures might have on his prospects of employment and advancement. He also claims losses based on other lost intangible intellectual and social benefits.
[148] I have found the substantive claims are not made out on the facts. Even if the substantive claims had been established the damages have not. There has been no evidence on loss of opportunity, nor evidence about the other intangible losses.
Other applications
[149] Mr Tomar sought to amend his second amended statement of claim shortly before the hearing. That application was dismissed.27 Mr Tomar also sought to amend the statement of claim at the closing of his case in order to include a claim based on representations by the defendants. That application was also dismissed. It was too late to introduce a completely new cause of action.
[150] Mr Tomar had also filed an application shortly before the hearing for leave to make an application requiring the first defendant to answer interrogatories. That application was dealt with at the beginning of this hearing. It was dismissed as being too late in view of the fact the hearing was due to start. It was futile to consider any application for particulars at that stage.
[151]In addition, both applications were made well after the close of pleadings.
Conclusion
[152] For the reasons set out above I have found that none of Mr Tomar’s claims have been made out.
[153]The claims are dismissed.
27 Tomar v Attorney-General HC Wellington CIV-2018-485-703, 1 October 2019 (Minute of Simon France J).
Costs
[154] The usual position is that costs are awarded to the successful parties. If either of the defendants seeks costs on this matter and no agreement can be reached, an application and supporting memorandum should be filed within seven days of the date of delivery of this judgment. Mr Tomar has a further 15 days to respond to the application and file and serve written submissions.28 Any reply should be made within a further three days.
Grice J
Solicitors:
Crown Law Office, Wellington
28 A longer than usual time for response is allowed given Mr Tomar’s circumstances.
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