BACH v SERCO [2023] NZCA 160

BACH v SERCO [2023] NZCA 160 [8 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA562/2022[2023] NZCA 160BETWEEN DAVID IAN BACHAppellantAND PRISON DIRECTOR, AUCKLANDSOUTH CORRECTIONS FACILITY(SERCO)First RespondentATTORNEY-GENERALSecond RespondentCourt: Brown and Gilbert JJCounsel: D J Ryken for AppellantJ K Scragg and A A Sawant for First RespondentS M Kinsler and S L K Shaw for Second RespondentJudgment:(On the papers)8 May 2023 at 2.30 pmJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Bach applies for leave to adduce further evidence in support of his appealwhich is to be heard on 18 July 2023. Miller J made a direction on 27 February 2023that this application is to be dealt with on the papers by two judges. This judgmentresponds to that application.Background[2] Mr Bach, who was then a serving prisoner at the Auckland South CorrectionsFacility, claims that on 19 December 2020 he was sexually assaulted by a prisonofficer during the course of a routine "pat-down" prior to visiting time. He claims theprison officer poked his finger through his shorts into his anus. Mr Bach said that heasked at the time to speak to the officer in charge, but the officers present just laughedat him. Mr Bach lodged a formal complaint with Serco New Zealand Ltd (Serco) thefollowing day. Three days later, he requested the officer's name and stated that hewanted to "file charges with [p]olice for sexual assault and violation".[3] Mr Bach was eventually advised by the Acting Deputy Director of the prisonon 11 April 2021 that the staff involved with the search had been spoken to and allstated that the rub down process had been conducted correctly in accordance with setguidelines. He advised that there was no CCTV footage recording the search.He expressed regret if Mr Bach found the process uncomfortable but explained thatsuch searches are necessary to ensure safety for everyone. In conclusion, he saidthe complaint was unfounded and the matter would be closed. He advised Mr Bachthat he could raise the matter through the Inspector/Ombudsman if he wished.[4] Mr Bach was not satisfied with Serco's handling of his complaint. Amongother things, he says his complaint should have been referred to the police but was not.He filed judicial review proceedings in the High Court at Auckland claiming his rightto natural justice under s 27 of the New Zealand Bill of Rights Act 1990 was breachedin the complaint process. This claim (along with other unrelated claims Mr Bachpursued) was dismissed by the High Court.1[5] Mr Bach wishes to adduce further evidence on appeal in order to respond toone of the reasons given by the Judge for dismissing this aspect of his claim. We setout the relevant part of the judgment below, with the specific comment italicised:1 Bach v Prison Director, Auckland South Corrections Facility – SERCO [2022] NZHC 2420.[84] There is a separate question of whether there was a breach of s 27 asMr Bach alleges because, he says, his complaint should have been referred tothe Police and it was not.[85] Neither the Act nor Regulations provide the source of a duty to refera complaint to the Police. There must be an underlying framework that guidesthe process. Here, the claim under s 27 is untethered to any statutory powers.It is effectively a free-floating claim under s 27. In the absence of a breach ofa statutory power there is no standard to enable a measurement of what s 27requires. Even construing the words "rights" and "interests" broadly it isdifficult to see what rights were engaged. The complaint was investigated andthere is no suggestion that Mr Bach was unable to contact the Police himself,either in custody or on release on parole.[86] Further, there was no "determination", in terms of s 27 by [a Sercoofficer] after [they] received Mr Bach's written complaint in which he said hewanted to make a complaint to the Police.[87] In conclusion there was no breach of s 27 arising from the fact thatthe Prison Director did not refer Mr Bach's complaint to the Police.Application to adduce further evidence[6] Mr Bach's first ground of appeal is that the Judge erred in finding that he hadthe power to complain directly to the police. He claims that as a prisoner he couldonly make calls to pre-approved numbers and no prisoner is able to call the police atany time. He applies for leave to adduce a short affidavit in which he deposes:22. Although there was a phone in my cell, the phone could only be usedto dial out pre-approved numbers.3. The formal complaint that I made to the Prison was that I wanted myallegation of sexual assault dealt with by the police. At no time was Iever physically able to ring the police myself.[7] The respondents oppose the application. They contend the evidence is neitherfresh nor cogent. They argue that the question of whether Mr Bach could complaindirectly to the police was not pleaded or dealt with in any detail in the evidence andaccordingly did not form an essential part of the Court's reasoning.[8] We have decided on balance to allow the evidence in. We accept that the issueof whether Mr Bach could have contacted the police himself at the time and made acomplaint was not raised in the pleadings. In particular, the respondents did not raisethis prospect by way of defence to his complaint that they did not facilitate this.2 Court of Appeal (Civil) Rules 2005, r 45.There was therefore no need for either party to address the issue in evidence.The respondents may prove to be correct that the further evidence will not alterthe outcome of the appeal given that the issue was not addressed in the pleadings andthe Judge's comment might ultimately prove to be inconsequential, even if shown tobe incorrect.[9] However, as a matter of natural justice, litigants should not discover whenreading a judgment that their claim has been dismissed for reasons that were notaddressed in the pleadings, the evidence, or the submissions. We therefore considerthe interests of justice are best served by allowing Mr Bach to adduce his further briefaffidavit. The respondents will have an opportunity to respond to it, although theyhave not so far suggested that what Mr Bach says in his affidavit is incorrect, only thatit has not yet been tested.Result[10] The application to adduce further evidence is granted.[11] Costs are reserved.Solicitors:Ryken & Associates, Auckland for AppellantDuncan Cotterill, Wellington for First RespondentMeredith Connell, Wellington for Second Respondent