White v Attorney-General of New Zealand

[2021] NZHC 245

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-123

[2021] NZHC 245

BETWEEN

DEON MICHEAL WHITE

Plaintiff/Applicant

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Defendant/Respondent

Hearing:

10 February 2021

Appearances:

D Ewen for plaintiff/applicant

D Jones and M Reidy for defendant/respondent

Judgment:

23 February 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    In my judgment of 24 September 2020 I dismissed an interlocutory application by the plaintiff, Mr Deon White, for an order striking out an affirmative defence pleaded by the Crown.

[2]    The factual background to the proceeding is described in my judgment. Briefly, Mr White, who is a serving prisoner, sues the Crown in respect of an incident in which he was ordered by prison officers to remove his clothing for the purposes of a strip search. He alleges that the order was unlawful because the officers did not have reasonable grounds for believing that he was carrying contraband. Following the incident, prison authorities charged Mr White with disobeying a lawful order. The Visiting Justice, Mr Lance Pratley, concluded that the prosecutorial authority had not established that the officers had reasonable grounds, and therefore that the order was not lawful. He dismissed the charge.

WHITE v THE ATTORNEY-GENERAL OF NEW ZEALAND [2021] NZHC 245 [23 February 2021]

[3]    In this proceeding Mr White alleges breaches of the New Zealand Bill of Rights Act 1990 and claims damages. The Crown has entered a defence in which it pleads that the order given by the officers was lawful. Mr White applied for an order striking out that defence on the combined — and closely related — bases of res judicata and abuse of process.

[4]    I declined to make the order sought by Mr White because I concluded that on a proper interpretation of the legislation Mr Pratley had correctly determined the issue of whether or not the officers had reasonable grounds to the criminal standard, that in this proceeding the Crown would have to establish reasonable grounds and lawfulness to the civil standard, and therefore that the issues in the two proceedings were different and no res judicata could arise.

[5]    In the case of all interlocutory judgments of this Court, a party wishing to appeal requires the leave of this Court or the Court of Appeal.

[6]Leave is governed by s 56(3) of the Senior Courts Act 2016.

[7]    The principles that apply to granting of leave by this Court were described in Finewood Upholstery Ltd v Vaughan,1 which judgment was approved by the Court of Appeal in Greendrake v District Court of New Zealand:2

(a)The applicant must overcome a high threshold;

(b)There must be an arguable error of fact or law;

(c)The alleged error must be of general or public importance, or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)The circumstances must warrant incurring further delay; and

1      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14].

2      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

(e)The ultimate question is whether the interests of justice are served by granting leave.

[8]    The requirement for leave to appeal should also serve as a “filtering mechanism” to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.3

[9]    Mr White wishes to argue on appeal that my conclusion that the issue of reasonable grounds is an element of the disciplinary offence that has to be established to the criminal standard was wrong and that it is a pre-condition which need only be established to the civil standard. If that is correct then Mr Pratley’s determination might be said to have involved precisely the same issue as is raised in this civil proceeding.

[10]   The question then is whether my judgment contains an arguable error, and if so whether the possible error involves a matter of general or public importance, or is otherwise of sufficient importance to Mr White to outweigh the lack of such general or public importance.

[11]   Whilst I am not persuaded that the conclusion I reached in my judgment was erroneous, I can certainly see that the point is an arguable one. Moreover, it appears to me that the issue is one of some general or public importance. It is important that prison disciplinary proceedings are conducted in accordance with natural justice, and that visiting justices responsible for presiding over such proceedings have clear guidance as to the rules that apply. Counsel inform me that my decision is the only High Court judgment on the point, and that there are no appellate judgments. If that is correct, then it seems to me that it would be beneficial if there were some definitive determination on the point at appellate level.

[12]   Mr Jones for the Crown makes the point that the issue that Mr White wishes to raise on appeal need not be determined at this stage as it can be argued at trial.

3      Finewood Upholstery Ltd v Vaughan, above n 1, at [13].

Mr Ewen accepts that but contends that the disposal of this point may well dispose of the proceeding in its entirety and at very least will reduce the length of the trial.

[13]   In the end, the issue is one of the interests of justice. The conclusion I have reached is that Mr White should have the opportunity to argue the point on appeal. I grant him leave accordingly.

[14]   Costs are reserved. If counsel cannot resolve these, they may file memoranda in the usual way.

Associate Judge Johnston

Solicitors:

Ord Legal, Wellington for plaintiff/applicant

Crown Law Office, Wellington for defendant/respondent