FORREST v THE ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZHC 863

FORREST v THE ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZHC 863 [20 April 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-173[2023] NZHC 863UNDER the New Zealand Bill of Rights Act 1990BETWEEN BRENDAN DOUGLAS FORRESTPlaintiffAND THE ATTORNEY-GENERAL OFNEW ZEALAND (on behalf of theNew Zealand Police)DefendantHearing: 24 March 2023Appearances: No appearance (written submissions only) by or for PlaintiffS B McCusker for DefendantM McMenamin for Department of CorrectionsJudgment: 20 April 2023JUDGMENT OF ASSOCIATE JUDGE JOHNSTONIntroduction[1] The plaintiff, Brendan Forrest, is suing the Attorney-General on behalf of theNew Zealand Police, alleging breaches of the New Zealand Bill of Rights Act 1990.Mr Forrest commenced this proceeding in March 2022. His statement of claim assertsthat between 2000 and 2009 he was strip searched on about 12 occasions at the NelsonPolice Station. He says that these strip searches breached his rights under to ss 21 and23(5) of the Act.[2] Mr Forrest originally sought a declaration that his rights have been breachedand damages of approximately $12,000. More recently he has indicated that he is onlyseeking declaratory relief. Particularly, in his notice of opposition to the defendant'sapplication which is the subject of this judgment, Mr Forrest gave formal notice thathe is no longer seeking damages.[3] There are two extant interlocutory applications before the Court:(a) an application by Mr Forrest for an order for non-party discoveryagainst the Department of Corrections; and(b) an application by the defendant for an order pursuant to r 15.1 of theHigh Court Rules 2016 striking out Mr Forrest's statement of claim or,alternatively, an order pursuant to r 5.45 for security for costs.[4] Both of those applications were set down for hearing on 24 March 2023, andpre-hearing directions made by consent.Procedural History[5] The plaintiff and the defendant have complied with those directions. TheDepartment of Corrections has been unable to do so. It provided certain material tothe plaintiff late on 21 March 2023, three days before the hearing.[6] The plaintiff raised this issue with the Court by memorandum dated 22 March2023 and sought a telephone conference. A conference was convened for 3.00 pm on23 March 2023. Mr Forrest and counsel for both the defendant and the Department ofCorrections participated. The net outcome was a determination that the plaintiff'sapplication could not go ahead but that the defendant's application could proceed.[7] During the course of the conference, Mr Forrest informed the Court that herelied on his written submissions and did not propose to appear at the hearing. I toldMr Forrest that I had already read his submissions, and asked whether he wished tofile any further submissions prior to the hearing. He said that he did not wish to doso.[8] Later the same day Mr Forrest emailed the Registry saying that he had omittedto address the question of costs, and, although he would not be attending the hearing,he wished to be heard on costs.Strike-out application[9] The defendant's application, for an order striking out the proceeding wentahead on 24 March 2023 as scheduled. As earlier foreshadowed, Mr Forrest did notappear. Mr McCusker appeared for the defendant. He took the Court through theaffidavit evidence and the applicable legal principles, in more detail, perhaps, thanmight have been necessary had Mr Forrest been present.[10] Mr McCusker argued the case very much on the basis that the first limb of theapplication under r 15.1 of the High Court Rules for an order striking out the claimwas the principal contention. In this judgment, I will deal with that application first,and only address security for costs to the extent necessary.[11] Rule 15.1 provides:15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase 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.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.[12] The principles are well settled. The leading cases are Attorney-General vPrince & Gardner1 and Couch v Attorney-General.2 In summary:(a) the Court approaches applications on the basis that pleaded facts areassumed to be correct unless they are obviously without foundation ormerely speculative;(b) in order to conclude that a claim discloses no reasonably arguable causeof action, the Court must be satisfied it is clearly untenable and couldnot succeed at trial;(c) this is a summary jurisdiction and is exercised sparingly, and only inthe clearest of cases; and(d) it is open to the Court to decide questions — even difficult questions— of law in an application under r 15.1. However, the Court is slow tostrike out claims or defences in developing areas of law which mightbenefit from more detailed consideration and appellate consideration.[13] Mr McCusker's argument began with the proposition that the plaintiff isinviting the Court to adjudicate upon events that occurred between 14 and 22 yearsago. He accepted that neither the Limitation Act 1950 (repealed) nor the LimitationAct 2010 had any application, directly or by analogy, given that the plaintiff is nowclaiming only declaratory relief.[14] As earlier signalled by the filing and service of an amended application, thedefendant sought leave to rely on the additional ground that the proceeding was likelyto cause prejudice or was otherwise an abuse of the Court's processes. That followedfrom the plaintiff's change of direction, and the application proceeded on that basis.[15] As Mr McCusker submitted, r 15.1 confers on the Court's jurisdiction to strikeout all or part of a claim if, inter alia, it is an abuse of process. He submitted that the1 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA).2 Couch v Attorney-General [2008] NZSC 45, 3 NZLR 725 at [33].circumstances that constitute an abuse are not fixed and include situations where itwould be "manifestly unfair to a party to litigation before it, or would otherwise bringthe administration of justice into disrepute among right-thinking people". Thatsubmission reflects the judgment of the Court of Appeal in Reid v New ZealandTrotting Conference3 citing the House of Lords in Hunter v Chief Constable of theWest Midlands Police.4[16] In Reid the plaintiff's defamation claim concerned events that had occurred in1966 and 1967. He commenced the proceeding in 1980. In relation to the issue of the13-14 year delay, and the effect that that might have on the fairness of a trial, the Courtsaid:5If the matter were proceed to trial witnesses as to fact would have seriousdifficulty in remembering with any clarity and reliability the events of 1966onwards to October 1974 which the plaintiff may seek to traverse. Until theissue of the writ in October 1980 no claim at all had been made against thesecond or third respondents. Their opportunity to collect evidence or makeenquiries at an early stage after the event has been lost.[17] In those circumstances, the Court of Appeal concluded that justice could notbe done at trial and the plaintiff's claim was struck out.[18] Mr McCusker also referred the Court to GB v WLS.6 In that case, the plaintiffcommenced a claim for damages in 2014 for sexual abuse that was alleged to haveoccurred between 1983 and 1991. Notwithstanding that the proceeding was notnecessarily time-barred in terms of the 1950 or 2010 legislation, the Court exercisedits jurisdiction to strike out the proceeding, once again on the basis that a delay ofbetween 23 and 31 years had resulted in a situation in which it was not possible to beconfident that a trial could proceed fairly.[19] While it is well established that neither the former nor the current limitationlegislation had or has any application to claims for damages pursuant to theNew Zealand Bill of Rights Act, the Court nevertheless retains an inherent jurisdiction3 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.4 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536.5 Reid v New Zealand Trotting Conference, above n 3, at 14.6 GB v WLS [2015] NZHC 3176.to strike out for delay which might result in prejudice. The reasoning is that eventhough the statutory time-bar has no application:7It does not, however, follow that a claim of this nature, for monetarycompensation, should be able to be brought no matter how belatedly theclaimant chooses to put it forward. Baigent damages are a form ofcompensation which the Court awards, as we have noted, in the exercise of adiscretion. In that respect they bear a resemblance to compensation awards inequity. And, as with equitable awards, the Court should be able to refusemonetary relief if the plaintiff delays too long in bringing a Baigent claim.The Court must have a degree of flexibility in determining how long a delayis too much. All the circumstances, including those in which the cause ofaction arose, whether the alleged breach of the plaintiff's rights may have hadan effect which excuses the delay and whether the delay has prejudiced thedefence of the claim, should be considered. Appropriate and significantweight should obviously be given to the fact that the claim is one for breachof a fundamental human right guaranteed by the Bill of Rights. But it can beexpected that the Court will still be guided to an extent by the periods set forthe bringing of common law and statutory claims by the Limitation Act, justas it is when there has a been a delay in commencing a claim in equity[20] Later in the judgment the Court of Appeal indicated that there may be a morelenient approach where, as is now the case here, a plaintiff's claim is for non-monetaryrelief, but that even such relief — usually declaratory relief — will be refused wherethe delay or potential prejudice is too great:8Nor do we accept the argument that by dismissing a Baigent claim for delaythe Court would be denying the plaintiff an appropriate and effective remedyand in so doing placing New Zealand in breach of its obligations under theInternational Covenant on Civil and Political Rights, itself affirmed in the Billof Rights. It would not follow from the exercise of the discretion to dismiss amonetary claim for undue delay, that the Court would on the same basisdismiss a claim for non-monetary relief, such as a declaration of breach of aguaranteed right. It might well remain appropriate, despite the delay, tovindicate the plaintiff's right in that way, and thereby admonish the Crownand warn against any repetition of the conduct in question.[21] Apart from the Court of Appeal's observations in PF Sugrue, Mr McCuskerreferred me to two recent cases, that is to say Taylor v Attorney-General9 and Taylor vAttorney-General,10 both of which proceeded on the basis that the Court hadjurisdiction to strike out a non-monetary claim.7 PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) at [70].8 At [73].9 Taylor v Attorney-General HC Auckland CIV-2010-404-006985, 11 November 2011.10 Taylor v Attorney-General [2019] NZHC 2767 at [24].[22] I accept that the Court retains an inherent jurisdiction to strike out a claimpursuant to the New Zealand Bill of Rights Act, even where it does not include a claimfor monetary relief.[23] Thus, the question is whether this claim is one where it would not be possibleto be confident that, because of the delay associated with its commencement, thematter could proceed to trial fairly.[24] It is clear from the plaintiff's statement of claim that he is able to say only thatbetween the dates already referred to he was strip searched approximately 12 timesand that these strip searches were unlawful. He cannot identify the dates on whichthese searches are said to have taken place. He cannot be precise as to the number ofstrip searches. He cannot say who conducted these strip searches. He cannot say whythey were conducted. He is unable, therefore, to identify the basis or bases upon whichhe asserts that they were conducted unlawfully.[25] The irresistible inference is that all Mr Forrest has is a general recollection ofstrip searches having been conducted which he now asserts, all these years after theevent, were conducted unlawfully.[26] None of that is a criticism of Mr Forrest — no one questions his sincerity inbringing this claim.[27] However, it is very difficult to see how the defendant can respond to allegationsmade at that level of generality.[28] The question that naturally arises is what prospect there is of fleshing all thisout so that Mr Forrest's claim can be understood and the defendant has something torespond to.[29] As mentioned at the outset Mr Forrest has applied for non-party discoveryagainst the Department of Corrections. Essentially, what he is hoping to illicit arerecords of when he was transferred from one institution to another over the relevantperiod of time. He says that it was on the occasions of his transfer between institutionsthat the strip searches occurred. It seems clear enough that Mr Forrest's expectationis that if he can identify the dates of transfer, and these can be supplied to thedefendant, it is possible that the defendant will be able to consult its records, identifythe police officers who were on duty on the relevant dates and obtain information fromthem as to the events in question.[30] For the purposes of disposing of this application, I am prepared to assume thatthe Department of Corrections will be able to locate records of one sort or anothershowing the dates of the transfers (even though there would appear to be very realdoubt on this score).[31] Even on that basis there is compelling affidavit evidence before the Courtindicating that that will not assist Mr Forrest to particularise his case.[32] The defendant has gone to some lengths to ascertain whether that will be afruitful line of inquiry. In particular, Senior Sergeant Tunley of the Nelson Police hassworn an affidavit. He explains that he has carried out detailed enquiries. Tosummarise the Senior Sergeant's evidence:(a) The only records that would provide any information as to whatoccurred when Mr Forrest was at the Police station are the charge sheetswhich would have been prepared on each occasion (even if all that washappening was a transfer);(b) Pursuant to the Police Retention and Disposal Schedule, the Police arerequired to retain the category of documentation that includes chargesheets for ten years;(c) Although the Police are obliged to destroy charge sheets after thatperiod of time, it is not uncommon for records to linger around forlonger;(d) The Senior Sergeant conducted a search for records from the NelsonPolice Station for the relevant period of time (between 2000 and 2009).Although he has been able to find some archived records from thatperiod from other stations, there are none from the Nelson PoliceStation;(e) The Senior Sergeant had gone further and identified by other means,officers who were stationed at the Nelson Police Station at the relevanttime. One officer has some recollection of Mr Forrest, and also ofsearches of one description or another being carried out, but can takematters no further than that.[33] On the basis of those enquiries, Senior Sergeant Tunley concludes:34. I understand that Mr Forrest intends to make an application fornon-party discovery against the Department of Corrections (theDepartment) in respect of all documentation it holds between 2000and 2010 concerning transfers form Christchurch Prison toNelson Police Station.35. While any information provided by the Department in accordancewith this order may assist in shedding light on the dates Mr Forrestwas transferred to Nelson Police Station, which are currently unclear,I do not believe this material will contain information as to any allegedsearches undertaken by Nelson Police (such as whether a search tookplace, the nature of that search, and by whom). As I indicated earlierin my affidavit, the only documentary record of any allegedundertaken by Nelson Police Staff would be contained on the relevantCharge Sheet. These have all likely been destroyed in accordancewith the Disposal Schedule.36. Any documents obtained from the Department under a non-partydiscovery order will therefore unlikely be of any assistance inresponding to Mr Forrest's allegations.[34] In those circumstances, Mr McCusker submits that this case reaches the highthreshold for a strike out application because the passage of time between the relevantevents and the commencement of the proceeding (between 14 and 22 years) meansthat a trial could not proceed in a way that was fair to the defendant. In short, if thematter were to go to trial, all the plaintiff would be able to do is raise the broadallegation already described and the defendant would be able to call no evidence inresponse (other, perhaps, than generic evidence as to Police processes).[35] The plaintiff's written submissions were commendably concise, and, given thathe elected not to appear, it seems appropriate to set these out in full:May it Please the Court1. The discovery application the applicant says that if Corrections wereordered to provide discovery that would only be information as to thedates the applicant were transferred into Police Custody from Prisonbetween 2000 and 2009.2. The applicant also says that the information that Corrections holdscould establish the dates that the applicant entered Police Custody andthis would establish of whom the staff were on at the Police station.3. The applicant says that the Police have prejudiced its self for notkeeping original records that would be relevant to this proceeding.4. This proceeding should not be struck out because the Plaintiff says yesthere was a significant delay but during that time the Plaintiff has beencommitted to a mental health facility for up to 7–9 years all up and hasbeen mentally unwell.5. The amendment application by the Police is not opposed of the filing ofit in the Court but what is opposed is the orders sought in it.6. The plaintiff no longer seeks damages under the NZBORA of this claimand only seeks declarations under the NZBORA and the Plaintiffconcedes that his claim for damages is barred under the provisions ofthe Limitation Act 2010 and/or 1950.7. The Plaintiff accepts the relevant principles in play to strike out all of apleading or part of it.8. This proceeding can succeed but if the information from Corrections cangive the actual dates of being transferred in to Police Custody then thePolice may be able to establish and make enquiries as to the Policeofficers/staff on duty and could confirm whom the Plaintiff was strippedsearched by.9. In terms of paragraph 15 of the Crowns [sic] Synopsis it is submitted bythe plaintiff that Police have a blanket policy to Strip Search Prisonersfrom Prison upon arrival to Police Custody that a declaration under theNZBORA in this case would serve a useful purpose to put police on noticeto stop this practice of Strip Searching Prisoners.10. The Plaintiff submits to the Court that a claim for a declaration is notbarred under the Limitation Act/1950 or 2010 acts and that the Court hasbroad discretion to award a declaration in respect if there is a delay inbringing the proceeding and to weigh it up on its own accord.11. The plaintiff accepts the majority of the Police's submissions as to caselaw and legal principles in play and the plaintiff will leave this matter tothe Court for determination and if the Court has any questions of thePlaintiff at the hearing the Plaintiff is more than willing to answer themaccordingly.12. If orders are made against the Plaintiff the Plaintiff seeks leave to file amemorandum on the question/issue of costs if the Police seeks costs.Date 16 March 2023Brendon Douglas ForrestAuthorities relevant1. Taylor v Attorney General (2022) NZHC 3170 30 November 2022.[36] As I understand Mr Forrest's argument it comes down to the following points:(a) As the plaintiff no longer pursues a claim for damages, neither theLimitation Act 1950 (repealed) nor the Limitation Act 2010 applies soas to bar proceedings.(b) The plaintiff accepts the defendant's analysis of the circumstances inwhich r 15.1 applies and the circumstances in which the Court willstrike out a proceeding as an abuse of process.(c) However, the Court retains a residual discretion.(d) That discretion should be exercised in this case to allow the proceedingto go ahead because:(i) the plaintiff's delay is explicable by reference to his mentalhealth condition and the fact that he has been in a mental healthfacility for many years; and(ii) if the plaintiff's application for non-party discovery byCorrections were to be successful, there is a realistic prospectof leading to a train of inquiry which might alleviate anyconcern as to whether the defendant will be in a position todefend the claim and whether adequate evidence can be placedbefore the Court so as to ensure a fair trial.(e) The plaintiff wishes to be heard in relation to costs.[37] The parties seem to be on common ground in relation to the first three points.Only the penultimate point is controversial. The final point can be accommodated.[38] The plaintiff is entitled to ask the Court to take into account his mental healthcondition (even although there is no evidence as to this), and the period of time whichhe has been in a mental health facility, in exercising its discretion and making adetermination under r 15.1.[39] However, the plaintiff faces a major hurdle in this regard. As already recorded,the events in relation to which he complains concluded in 2009. The plaintiff does notassert that he was in a mental health facility until 2014. There is therefore no reasonfor the Court to conclude that Mr Forrest was under any disability between 2009 and2014.[40] On the contrary, in June 2011 Mr Forrest commenced a proceeding against theDepartment of Corrections pursuant to the NZBORA seeking declaratory relief inrelation to an (unrelated) alleged unlawful strip search.[41] In due course, the Department applied to strike the proceeding out. Thatapplication was unsuccessful, although the Department's alternative application for anorder for security for costs was successful.[42] In those circumstances, it is not credible for Mr Forrest to contend that hismental health condition and residence in a mental health facility is an explanation forthe extraordinary delay in commencing this proceeding.[43] The second point concerning the prospects of sufficient evidence beingavailable to enable Mr Forrest's claim to be tried fairly has already been covered.Having regard to that evidence, I am unable to accept that there is any realistic prospectof the matter being tried fairly. In the end, the overwhelming likelihood would appearto be that Mr Forrest will maintain his accusation that over the nine year period herecollects being strip searched a dozen times while transitioning through theNelson Police station. He will, as he does in his pleading, assert that those stripsearches were unlawful. In response, the Attorney-General will not be able to call anywitnesses who can provide a narrative description of the events in question, and islikely to be reduced to calling evidence as to processes and procedures which evidencewill no doubt indicate that the Police only carry out strip searches where lawful andjustified in the circumstances.[44] It appears to be near to inconceivable that the plaintiff will be able to establishon the balance of probability (bearing in mind the seriousness of the allegationsinvolved) that the Police breached his rights in carrying out the alleged strip searches.[45] In those circumstances, the proper course is to make an order pursuant to r 15.1striking out this claim on the basis that it is an abuse of process.[46] It is important to emphasise that that is not a finding that the plaintiff hasconsciously set out to abuse the Court's processes. No such conclusion would bejustified. The point is simply that because of the particular circumstances faced byboth parties, proceeding to trial would involve potential unfairness.[47] Two primary considerations that have influenced me in reaching thatconclusion. The first is the simple passage of time. The most recent events which theCourt would be expected to consider happened 14 years ago. Human memory isnotoriously poor in relation even to recent events. It is simply asking too much, in myview, for either the plaintiff or any police officers who may or may not have beeninvolved in strip searches 14–22 years ago to have a recollection of the details of thoseevents. The second consideration is the apparent inevitability that, with the best willin the world, neither of the parties will be able to identify any contemporaneousrecords which might shed light on the events in question.[48] In summary then, this proceeding cannot proceed in a way that is fair to bothparties. That means to proceed further would constitute an abuse of process. Thematter must be brought to an end now.[49] On that basis I make an order pursuant to r 15.1 of the High Court Rulesstriking out this claim.[50] Costs are reserved. It would not be difficult to contend that the defendant asthe successful party is entitled to scale costs. There may however be good and properreasons why an order for costs in this case is inappropriate. For a start, it is onlyrecently become clear (from the defendant's evidence filed and served in support ofits application) that there are no contemporaneous records of events, and no obviousprospect of their being witnesses who can give evidence as to the plaintiff'sallegations. Quite aside from that point, it may be that any costs award would be anexercise in futility. In any event, if the parties are unable to agree on costs, they mayfile memoranda in the usual way.Associate Judge JohnstonSolicitors:Luke Cunningham Clere, Wellington for defendantCrown Law Office for Department of Corrections