Taylor v Attorney-General

JurisdictionNew Zealand
CourtHigh Court
JudgeAllan J
Judgment Date11 Nov 2011
Neutral Citation[2011] NZHC 1688
Docket NumberCIV 2010-404-6985

[2011] NZHC 1688



CIV 2010-404-6985

Arthur William Taylor

Plaintiff in person

V Casey and G Robbins for defendant

Application under r15.1 High Court Rules (dismissing proceeding) for strike out of the plaintiff's claim for damages for alleged mistreatment as a serving prisoner — plaintiff was maximum security prisoner — claimed breach of New Zealand Bill of Rights Act 1990, negligence, breach of statutory duty and fiduciary duty while segregated in 1990s and inadequate conditions in his current treatment — whether segregation claims time barred under s4 Limitation Act 1950 (limitations of action in tort) — whether Limitation Act applied to claims brought under the New Zealand Bill of Rights Act — whether defendant owed plaintiff duty of care in ordinary administration and daily management of prison — whether defendant owed plaintiff a fiduciary duty.

Held: The applicability of the provisions of the LA to claims under the NZBORA were discussed in PF Sugrue Ltd v Attorney-General which held that s4(1)(d) LA did not apply to a claim for damages for breach of s21 NZBORA (unreasonable search and seizure). Public law or Baigent damages were not recoverable by virtue of an enactment because there was no provision in the NZBORA for the payment of such damages. However, that was not to say a claim for Baigent damages could be brought no matter how belatedly the claimant chose to put it forward. A claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint was the violation of a constitutional right ( Marsh v AG). Further it was important to consider the effect that delay would have on the defendant's ability to defend the claim in circumstances where evidence might have become unreliable or incomplete.

The period between the alleged events in the segregation claim and the filing of the proceeding in October 2010 was too long. T had brought claims for damages for alleged breaches of the NZBORA as early as 1996, so he was aware of his ability to make a claim. Given the time elapsed, there would be insurmountable difficulties in obtaining useful evidence and the A-G would be seriously prejudiced in his ability to defend the claim.

T had alleged his later segregation period was similar to the conditions imposed under the BMR programme. In Taunoa, the Supreme Court found that the BMR was a punitive regime for which there was no legislative support. T's indications that the conditions to which he was subjected were widespread and applied routinely raised fundamental questions about prison administration and the extent to which the alleged conditions, if established, were distinguishable from the BMR. His claims required significant re-pleading and the AG was seeking further particulars. It was premature to address the question of whether T could maintain the argument under s9 NZBORA.

With regard to the current conditions claim and breach of statutory conditions, T had not referred to any legislative provisions he claimed were breached. The A-G was entitled to have such particulars. Accordingly T had to re-plead by specifying the duty claimed to have been breached.

A common law duty of care sat unhappily alongside a legislative framework as detailed as the Corrections Act 2004 (“CA”). T relied on s5 CA (purpose) and s6 CA (principles guiding corrections system), but they set out in general form the statutory purposes and objectives of the CA. The duty was owed to the legislature and the general public. It was not possible to spell out a duty of care owed to individual prisoners from those sections. However, there were limited circumstances in which the superintendent or manager of a prison could owe a duty of care to a prisoner at common law. It was not safe to strike out the pleaded cause of action in negligence because it could not be said that such a cause of action would fail.

While a prisoner was vulnerable with respect to the Department of Corrections for the duration of his incarceration, a prisoner did not repose trust and confidence in the Department. The Department was not obliged to prioritise the prisoner's interests above all others; it had to take into account a number of competing considerations. These factors negated a finding that the A-G owed a fiduciary duty to T.

The 1993 segregation claims were struck out in their entirety on limitation grounds. T had to re-plead the 1998 segregation claims and amend his statement of claim deleting any reference to s9 NZBORA for the current conditions claim. T's claim for breach of fiduciary duty was struck out.



Mr Taylor is a maximum security prisoner at Auckland Prison, (Paremoremo). He has commenced a series of civil proceedings against the authorities responsible for the administration of prisons. Some of those cases have reached the appellate courts.


In this present proceeding, Mr Taylor sues the Attorney-General in right of the Crown, as being liable for breaches of the New Zealand Bill of Rights Act 1990 (NZBORA), and certain international instruments. It is further claimed that the Attorney-General is vicariously liable for the acts and omissions, joint and several, of the Department of Corrections, including individual employees, servants or agents, together with the public prisons service and its predecessor, the Penal Division of the Department of Justice.


Mr Taylor makes a number of claims with respect to his treatment as a prisoner. He alleges breaches of several provisions of the NZBORA, and in relation to the later periods of his alleged mistreatment he pleads negligence, breach of statutory duty and breach of fiduciary duty.


The defendant now applies to strike out portions of the statement of claim. Ms Casey argues that some of the plaintiff's claims are simply untenable, while others require significant repleading.

Strike out principles

The principles governing the determination of strike out applications are well established.


The court may strike out all or part of a pleading, under r 15.1, High Court Rules, if it —

  • (a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

  • (b) is likely to cause prejudice or delay; or

  • (c) is frivolous or vexatious; or

  • (d) is otherwise an abuse of the process of the court.


The principles attaching to an application to strike out pleadings under r 15.1 were set out by the Court of Appeal in Attorney-General v Prince, 1 and affirmed by the Supreme Court in Couch v Attorney-General. 2 In summary:

(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b) The cause of action or defence must be clearly untenable so that it cannot possibly succeed.

(c) The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court's reluctance to terminate a claim or defence short of trial.

(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(e) The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.


Further, in Couch, Elias CJ said: 3

It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.

The statement of claim

Mr Taylor's allegations are wide ranging, both in respect of the scope of the impugned conduct and the period of time over which it is alleged to have occurred. The statement of claim, which runs to 27 pages, is in places couched in a somewhat discursive style. Elsewhere the pleading is drafted with some skill, as might be expected of a litigant who is now very experienced in litigation of this type.


His allegations are concerned with three separate periods during which he alleges he was the subject of actionable mistreatment. The periods concerned are:

  • (a) between November 1993 and March 1994, when he was held in Auckland Prison's detention block (the 1993 Segregation Claims);

  • (b) periods totalling about 17 months from June 1998 to May 1999, and again from June 1999 to about October 1999, when he was allegedly subject to “BMR-type conditions” (the 1998 Segregation Claims);

  • (c) the period from 15 March 2010 to the present time, during which he continued to be detained in D Block at Paremoremo under conditions which he asserts to be in breach of various duties owed to him by the Department of Corrections (the Current Conditions Claims).


I will endeavour to summarise as briefly as I can the key allegations made by Mr Taylor in respect of each of these three periods.

The 1993 Segregation Claims

Mr Taylor alleges that between 10 November 1993 and March 1994 he:

  • • was confined to a dimly lit cell with inadequate ventilation and no fresh air for at least 23 hours a day;

  • • was required to eat all meals in that cell with no access to any food or liquid between about 4 pm and the next morning;

  • • had all meals served on paper plates, which he was obliged to eat with flimsy plastic cutlery;

  • • was excluded from any association or contact with other prisoners;

  • • was in darkness or semi-darkness for at least half of every day, the cell light being turned off at about 8.30 pm and not turned on again until after 8 am;

  • • had no access to water between 4 pm and 8 am each night;

  • • had an uncovered toilet in his cell...

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