Zepackic v Prison Director, Auckland South Corrections Facility (Serco)

[2021] NZHC 1996

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2020-404-002273

[2021] NZHC 1996

UNDER

Judicial Review Procedure Act 2016 and New Zealand Bill of Rights Act 1990

IN THE MATTER

of an application for Judicial Review

BETWEEN

THOMAS ZEPACKIC

Applicant

AND

PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)

First Respondent

AND

THE ATTORNEY-GENERAL

Second Respondent

Hearing:

On the papers

Counsel:

Applicant, Self-Represented

J K Scragg and S K Brennan for the First Respondent S L K Shaw for the Second Respondent

Judgment:

4 August 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 4 August 2021 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Duncan Cotterill, Wellington Meredith Connell, Wellington Copy to:

Applicant

ZEPACKIC v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO) [2021] NZHC 1996 [4 August 2021]

Introduction

[1]        Thomas Zepackic seeks leave to set aside the discontinuance of a proceeding that he discontinued in June 2021.

Background

[2]        In November 2020, Mr Zepackic, a prisoner then housed at the Auckland South Corrections Facility (ASCF) operated by Serco NZ Ltd (Serco), brought an application for judicial review against decisions of the Prison Director of the ASCF. Mr Zepackic alleged breaches of the New Zealand Bill of Rights Act 1990 and the Privacy Act 2020, and negligence in the discharge of Serco’s responsibilities under the Corrections Act 2004.

[3]        Mr Zepackic’s proceeding was one of a number of proceedings brought by prisoners at facilities operated by Serco or the Department of Corrections with the assistance of Thomas Cheng, who was also a prisoner then housed at the ASCF.1

[4]        By hand-written letter dated 31 May 2021 to the High Court, Mr Zepackic informed the Court that he wished “to retract” his proceeding. This letter was considered by Walker J when the proceeding was called on 10 June 2021. Mr Zepackic did not appear at the call.

[5]        Walker J said that she took Mr Zepackic’s letter to mean that Mr Zepackic wished to discontinue his proceeding but, because of some ambiguity in the letter, Walker J asked that the proceeding be called again  on  17 June  2021  and  invited Mr Zepackic to appear to confirm directly that he wished to discontinue. In her minute of 11 June 2021, Walker J recorded that she would be concerned if Mr Zepackic’s reason for discontinuing stemmed from any practical impediment that he perceived in accessing justice.2

1      Zepackic v Prison Director Auckland South Corrections Facility – Serco HC Auckland CIV-2020- 404-002273, 19 March 2021.

2      Zepackic v Prison Director Auckland South Corrections Facility – Serco HC Auckland CIV-2020- 404-002273, 11 June 2021.

[6]        At the call on 17 June 2021, Mr Zepackic told Lang J that, prior to sending the Court his letter of 31 May 2021, he had had an in-depth discussion with the Operations Manager of Serco and had decided to discontinue the proceeding. Lang J recorded that Mr Zepackic told him that it remained Mr Zepackic’s wish to discontinue the proceeding.3 Accordingly, Lang J gave Mr Zepackic leave to discontinue his proceeding, with no issue as to costs.

Mr Zepackic’s application

[7]Mr Zepackic now seeks to set aside his discontinuance.

[8]        In his application dated 18 July 2021, Mr Zepackic says that, from April 2021, Serco staff curtailed his access to lawyers and the Registrar, declined his requests to print and photocopy legal documents and arbitrarily moved him between blocks and units. He says this behaviour exacerbated his existing medical health issues of anxiety and attention deficit disorder, and that he had felt bullied and disincentivised to continue his proceeding.

[9]        In an accompanying affidavit, Mr Zepackic says he is now located at Tongariro Prison, having been transferred there on 29 June 2021. He says that he had been assisted by Mr Cheng with his proceeding until Mr Cheng was transferred to Tongariro Prison on 15 April 2021. Mr Zepackic says that once Mr Cheng had been transferred away from ASCF, prisoners who had made complaints about Serco had experienced difficulties in conducting their proceedings. He alleges that he and other prisoners had been transferred to different units and blocks and that it was made clear to them by Serco staff that they were being watched by prison management. Mr Zepackic says he felt pressured into discontinuing his claims and that he would not otherwise have discontinued the proceeding.

[10]      Mr Cheng has subsequently filed an affidavit in support of Mr Zepackic’s application. In his affidavit, Mr Cheng describes his discussions with Mr Zepackic once they were both in Tongariro Prison and the assistance he provided Mr Zepackic

3      Zepackic v Prison Director Auckland South Corrections Facility – Serco HC Auckland CIV-2020- 404-002273, 17 June 2021.

in preparing his application to set aside the discontinuance. Mr Cheng states his belief that Mr Zepackic was subjected to pressure from prison management to discontinue the proceeding. Mr Cheng also describes difficulties that he says he and others have encountered when trying to conduct other proceedings. Mr Cheng annexes documents which he says illustrate these difficulties.

Discussion

[11]      The affidavits of Mr Zepackic and Mr Cheng contain serious allegations about the behaviour of staff at the ASCF towards prisoners who make complaints about their treatment and about the practical ability of prisoners to access justice. While those allegations have not been tested and many fall outside the scope of Mr Zepackic’s application, I expect that Serco, the Department of Corrections and the Solicitor- General will want to consider them carefully.

[12]      However, as far as the Court is concerned, r 15.21(b) of the High Court Rules 2016 provides that a proceeding ends against a defendant upon the giving of oral advice of the discontinuance at a hearing.

[13]      Mr Zepackic’s statements to Lang J on 17 June 2021 were oral advice at the telephone  conference  that  the  proceeding  was  discontinued.   It  follows  that    Mr Zepackic’s proceeding against the Prison Director of the ASCF and the Attorney- General ended at that point.

[14]The only qualification to r 15.21 is r 15.22 which provides:

(1)The Court may, on the application of a defendant against whom a proceeding is discontinued, make an order setting the discontinuance aside if it is satisfied that the discontinuance is an abuse of the process of the Court.

[15]      On its own terms, r 15.22 is available only to defendants in the circumstances provided for in the rule. It is not available to a plaintiff.

[16]      While it has been held that, in certain circumstances, a discontinuance purportedly on behalf of a plaintiff can be set aside in the exercise of the Court’s

inherent jurisdiction,4 those circumstances do not exist here where the sole plaintiff has personally discontinued the proceedings.

[17]      If Mr Zepackic wishes to pursue his claims against Serco, it is open to him to commence a new proceeding in accordance with r 15.24 of the High Court Rules.

Result

[18]Mr Zepackic’s application is dismissed.

G J van Bohemen J

4      Sharrock v Wedd [2016] NZHC 1477 at [89], where the Court held that its inherent jurisdiction extended to setting aside a discontinuance on behalf of a plaintiff in a proceeding where the notice of discontinuance had been filed by a person who had no authority to do so.