White v Attorney-General - [2020] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-123

[2020] NZHC 2499

UNDER the New Zealand Bill of Rights Act 1990

BETWEEN

DEON MICHEAL WHITE

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 28 August 2020

Appearances:

D Ewan for plaintiff

D Jones and L Dittrich for defendant

Judgment:

24 September 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1] In March 2019 the Department of Corrections charged the plaintiff, Mr Dean White, a convicted prisoner being held at Rimutaka Prison, with disobeying a lawful order contrary to s 128(1)(a) of the Corrections Act 2004. The charge followed an incident in which Mr White had been ordered by a prison officer or officers to remove his clothing for the purposes of a strip search after receiving medical treatment at the Prison’s medical unit and before being returned to his cell.

[2] The Visiting Justice, Mr Lance Pratley, presided over a hearing in June 2019. Mr Pratley later dismissed the charge. In doing so, he concluded that the prison officers had not, prior to issuing the order, had reasonable grounds to believe that the plaintiff was in possession of an unauthorised item (hereinafter, “reasonable grounds”), which

WHITE v THE ATTORNEY-GENERAL [2020] NZHC 2499 [24 September 2020]

was the claimed basis for the order being issued, and accordingly that the order was not a lawful one.

[3] In March Mr White commenced this proceeding against the Attorney-General on behalf of the Department of Corrections in which he alleges various breaches of the New Zealand Bill of Rights Act 1990 arising out of the incident and claiming compensatory and punitive damages.

[4] In June the Attorney-General entered a defence in which he asserted — in three paragraphs — that the prison officers had reasonable grounds, and therefore that the order was lawful.

[5] Mr White now applies pursuant to r 15.1 of the High Court Rules 2016 for an order striking out the relevant paragraphs of the Attorney-General’s defence.

[6] Essentially, what the plaintiff says is that, in his decision, Mr Pratley concluded that the officers did not have reasonable grounds, and that the Crown is not entitled to challenge that finding as it foreshadows doing in its pleadings. That submission is advanced on two bases:

(a)First, it is said that the Crown is estopped from challenging Mr Pratley’s conclusion in the disciplinary proceeding that the officers did not have reasonable grounds by res judicata estoppel; and

(b)Second, it is said that for the Crown to seek to challenge Mr Pratley’s conclusion would amount to an abuse of process.

The legislative context and the Visiting Justice’s decision

[7] Before addressing the parties’ contentions in more detail, I outline the key aspects of the legislation and Mr Pratley’s decision.

[8] As already mentioned, the Department of Corrections laid the charge against the plaintiff pursuant to s 128(1)(a) of the Corrections Act which provides:

128 Offences by prisoner

(1)Every prisoner (whether inside or outside a prison)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading White v Attorney-General

Details

AGLC: White v Attorney-General [2020] NZHC 2499
Case: [2020] NZHC 2499
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Deon Micheal White, a prisoner at Rimutaka Prison, sued the Attorney-General on behalf of the Department of Corrections, alleging breaches of the New Zealand Bill of Rights Act 1990 following a disciplinary charge for disobeying a lawful order. The plaintiff sought to strike out parts of the Attorney-General's defence, arguing that the Crown was estopped from challenging the Visiting Justice's conclusion that the officers lacked reasonable grounds for the strip search order. Additionally, the plaintiff claimed that allowing the Crown to challenge this conclusion would constitute an abuse of process.

The court examined whether res judicata estoppel applied, considering the identity of parties, subject matter, and the co-extensiveness of the standard of proof. While the plaintiff contended that the Visiting Justice's determination that the officers lacked reasonable grounds should bar the Crown from challenging this in civil proceedings, the court found that different standards of proof in criminal and civil proceedings meant that the issues were not identical. The court also rejected the argument that it would be an abuse of process for the Crown to raise the issue of reasonable grounds in the civil defence, noting that it was not an abuse of process for a party to rely on matters previously determined in a criminal context when defending a civil claim.

Ultimately, the court concluded that the plaintiff's application to strike out parts of the defence must fail, reserving costs pending any agreement between the parties or further submissions if necessary.

Orders