Taylor v Attorney-General

JurisdictionNew Zealand
JudgeAllan J
Judgment Date11 November 2011
Neutral Citation[2011] NZHC 1688
Docket NumberCIV 2010-404-6985
CourtHigh Court
Date11 November 2011
Between
Arthur William Taylor
Plaintiff
and
Attorney-General
Defendant

[2011] NZHC 1688

CIV 2010-404-6985

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

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.

Appearances:

Plaintiff in person

V Casey and G Robbins for defendant

JUDGMENT OF Allan J

1

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.

2

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.

3

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.

4

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
5

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

6

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.

7

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.

8

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
9

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.

10

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).

11

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
12

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 with limited access to cleaning materials;

  • • was permitted exercise out of the cell for only one hour per day on his own in a heavily meshed yard;

  • • on some days, by reason of staff shortages, was not unlocked at all. On such days he was unable to shower or clean his cell;

  • • was permitted no phone calls, and correspondence was delayed or not delivered at all;

  • • was permitted no rehabilitative or recreational activity;

  • • was unable to access reading material from the prison library and was denied the opportunity to attend religious services;

  • • was strip searched every time he left and returned to his cell (since he had no contact with other prisoners he alleges the only purpose of such searches was to humiliate, demean and belittle him);

  • • was permitted no personal property in his cell;

  • • was permitted only one non-contact visit of 30 minutes each week;

  • • received no daily visits by the superintendent or medical staff.

13

Mr Taylor alleges that these conditions were inferior to those suffered by inmates undergoing the punishment of cell confinement. Such inmates were held in an area of the detention block where they could communicate with each other and were subject to cell confinement conditions for a maximum duration of 15 days only. Mr Taylor alleges also that the conditions to which he was subject were inferior to those applied to all other maximum security prisoners, including those who were placed on non-voluntary segregation. He alleges that the cumulative effect of the conditions to which he was subjected devastated, disorientated, and distressed him, so resulting in on-going psychological, physical and mental damage. He further asserts that his complaints were ignored until he was able to complain to a visiting justice, who caused him to be removed from the detention block to D Block. Once in D Block he said that heavy steel chains were wrapped around the doorpost of his cell at any period when prison officers were not in the block. He was the only prisoner subjected to that measure.

14

He complains that, because his cell door could not be unlocked in the same manner as other prisoners, there was a serious risk to his safety in the event of fire. The chain and padlock were removed once a visiting justice pointed out the adverse safety and health implications.

The 1998 Segregation Claims
15

Between 1998 and 2004, the Department of Corrections operated a Behaviour Modification Regime, later renamed the Behaviour Management Regime (BMR), at Auckland Prison. Prisoners who were placed on this regime were subject to stringent conditions. The regime was the subject of extensive scrutiny by the Court of Appeal in Attorney-General v Taunoa, 4 and subsequently by the Supreme Court in Taunoa v Attorney-General. 5

16

Mr Taylor alleges that during the relevant period he was subject to “BMR-type conditions” in D and C Blocks for a total of at least 17 months.

17

During the course of oral argument, Mr Taylor explained that all prisoners in D and C Blocks at the time the BMR was operating were subjected to the regime's conditions to some degree, regardless of whether particular inmates had formally been put on the regime or not. He says that the conditions of detention to which he was subjected were far more restrictive than those applied to “ordinary” maximum security prisoners at Auckland Prison.

18

He explained, in the context of a detailed chart appearing at paragraph 6.2 of the statement of claim that a prisoner's movement through a series of phases corresponded with a progressive relaxation of what began in each case as a very

restrictive regime during phase 1. In summary, Mr Taylor alleges that there was either a complete failure...

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