WHITE v THE ATTORNEY-GENERAL OF NEW ZEALAND [2021] NZCA 479

WHITE v THE ATTORNEY-GENERAL OF NEW ZEALAND [2021] NZCA 479 [22 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA124/2021[2021] NZCA 479BETWEEN DEON MICHEAL WHITEAppellantAND THE ATTORNEY-GENERAL OFNEW ZEALANDRespondentHearing: 28 July 2021Court: Brown, Clifford and Collins JJCounsel: D A Ewen and J J Middleton for AppellantD Jones and T Witten-Sage for RespondentJudgment: 22 September 2021 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed in part.B The words "in order to secure the plaintiff's compliance with a lawfuldirection" in para 2.7.2 of the statement of defence are struck out.C Paragraphs 2.4.2 and 4.1.4 of the statement of defence are struck out.D The respondent must pay the appellant costs for a standard appeal ona band A basis, plus usual disbursements. We do not certify for secondcounsel.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr White is claiming damages from the Attorney-General for actions ofCorrections officers which, he says, breached three of the rights affirmed by theNew Zealand Bill of Rights Act 1990 (the NZBORA). In this appeal he challengesa judgment of the High Court, in which Associate Judge Johnston dismissedMr White's application to strike out three paragraphs of the Attorney-General'sstatement of defence.1 The strike-out application was based on the contention theAttorney-General could not lawfully challenge, in the High Court proceeding, certainfindings made by a Visiting Justice in a prison disciplinary hearing.Four interconnected events form the background to this appeal.First — The attempt to strip search Mr White[2] On 12 March 2019 Mr White, who at the time was a prisoner inRimutaka Prison, was ordered by three Corrections officers to submit to a strip search.Mr White partially complied. He removed his upper clothing and pants. He thenlowered his underpants to his ankles. One of the Corrections officers subsequentlyexplained that when Mr White was told to take off his underpants, he becameaggressive and refused to completely remove his underpants. At that point Mr Whitewas "taken to the ground" by Corrections officers. Mr White was charged under thedisciplinary regime set out in s 128 of the Corrections Act 2004 (the Act). We explainthe relevant portions of that section at [19]. Specifically, Mr White was charged withdisobeying a lawful order of a Corrections officer pursuant to s 128(1)(a) of the Act.Second — The findings of the Visiting Justice[3] Mr White pleaded not guilty to the charge, which was then referred toMr Pratley, a barrister and Visiting Justice. After conducting a defended hearing, theVisiting Justice dismissed the charge on 2 September 2019.2 The Visiting Justice1 White v Attorney-General [2020] NZHC 2499 [High Court judgment].2 Department of Corrections v White Charge 305/19/410781, 2 September 2019 [Visiting Justicedecision] at [55].concluded the order to strip search Mr White was not lawful.3 He reached thatconclusion after hearing evidence from one of the Corrections officers involved in theattempt to search Mr White and the Residential Manager of the prison who had, on theday before the attempted search, authorised a strip search of Mr White and three otherprisoners.[4] The Corrections officer told the Visiting Justice that the order to strip searchMr White and other prisoners had been made because "intelligence" had been receivedfrom other prisoners and nurses that prisoners who were attending the medical unit inthe prison were taking their medications back to their cells, contrary to the directionsthat had been given to prisoners. The Corrections officer also told the Visiting Justicethat before Mr White and the other prisoners went to the medical unit they weresubjected to a "rubdown" search, which did not involve removal of any of theirclothing. No unauthorised items were found on any of the prisoners on12 March 2019.[5] As we have noted, only one of the Corrections officers involved in the attemptto strip search Mr White gave evidence, and the Residential Manager's evidence castvery little light on why it was thought necessary to strip search Mr White.[6] The Visiting Justice held the order to strip search Mr White was not lawfulbecause there was "no evidence as to why it was necessary for Mr White to removehis underpants in order that the prison staff could detect an unauthorised item".4[7] The Visiting Justice also went on to say:(a) the order to strip search Mr White was also not lawful because the"intelligence" information relied upon by the Corrections officers didnot identify any individual who may have been unlawfully concealingmedication;5 and3 At [54].4 At [50].5 At [59]–[60].(b) there was no reasonable ground for the Corrections officers to believeMr White had possession of an unauthorised item because the evidencewas "vague in regard to the types of items that were alleged to be'brought back' from the prison medical facility, the method ofconcealment, and the source of the [intelligence]".6Third — The NZBORA proceedings[8] On 3 March 2020, Mr White issued proceedings in the High Court against theAttorney-General seeking up to $35,000 in damages under the NZBORA.7 We willrefer to those proceedings as the NZBORA proceedings. Three causes of action arepleaded:(a) a breach of the right not to be subjected to an unreasonable search(s 21 of the NZBORA);(b) a breach of the right not to be subjected to cruel and degradingtreatment (s 9 of the NZBORA); and(c) a breach of the right to be treated with dignity and respect (s 23(5) ofthe NZBORA).[9] The statement of claim alleges:2.4 Prior to conducting the strip search no officer present had formedreasonable grounds to believe [Mr White] was in possession of anunauthorised item.[10] The statement of defence denies this allegation and contends:2.4.1 Prior to conducting the search, the officers involved in the conduct ofthe search were aware of information that had been provided thatprisoners returning in the mornings from medical appointments werebringing medication back to the unit when not authorised to do so; and2.4.2 The officers therefore had reasonable grounds to believe that the fourprisoners who were searched were in possession of unauthoriseditems.6 At [67].7 These are the proceedings in CIV-2020-485-123.[11] An almost identical denial to para 2.4.2 is contained in para 4.1.4 of thestatement of defence in response to the second cause of action.[12] The statement of claim also alleges Mr White had been subjected to an assaultwhen he was tackled to the ground and restrained. The Attorney-General's responseincludes the following paragraph:2.7.2 He denies that this use of force involved an assault. The use of forcewas reasonable and necessary in order to secure the [Mr White]'scompliance with a lawful direction and in light of [Mr White's]aggressive behaviour.Fourth — The High Court judgment[13] Mr White applied under r 15.1 of the High Court Rules 2016 to strike outparas 2.4.2, 2.7.2 and 4.1.4 of the statement of defence, which we have set out at [10]–[12]. He contended that the Attorney-General was prevented by res judicata, issueestoppel and the principles governing abuse of the court's process from challengingthe Visiting Justice's finding that the order to search Mr White was unlawful and thatthe Corrections officers lacked reasonable grounds for believing Mr White hadpossession of an unauthorised item. We explain the relevant legal principles at [20] to[43].[14] The Attorney-General opposed the strike-out application, arguing thata different standard of proof applied in the NZBORA proceedings to that which hadgoverned the proceedings before the Visiting Justice. The Attorney-General also saidthat further evidence was available relating to whether the Corrections officers hadreasonable grounds for believing Mr White had possession of an unauthorised item.[15] The Associate Judge dismissed Mr White's strike-out application.8He reasoned that the Visiting Justice applied the criminal standard of proof whendetermining the Corrections officers lacked reasonable grounds for believingMr White had possession of an unauthorised item. From that positionthe Associate Judge concluded the Attorney-General was not prevented by res judicataor issue estoppel from defending the NZBORA proceedings by arguing to the civil8 High Court judgment, above n 1, at [43].standard of proof that the officers had reasonable grounds for believing a strip searchwas necessary.9 The Associate Judge did not consider whether the relevant paragraphsin the statement of defence should be struck out for abuse of process.[16] On 23 February 2021, the Associate Judge granted Mr White leave to appealto this Court pursuant to s 56(3) of the Senior Courts Act 2016.10 Before analysingthe issues raised by the appeal, we shall set out the legislative framework and thegoverning legal principles.Legislation[17] Section 98 of the Act deals with "searches". The material part of s 98 states:98 Search of prisoners and cells(1) An officer may, at any time, for the purpose of detecting anyunauthorised item, conduct—(a) a scanner search of any prisoner:(b) a rub-down search of any prisoner:(c) a search of any cell in a prison.(3) An officer may conduct a strip search of a prisoner—(a) if the officer—(i) has reasonable grounds for believing that the prisonerhas in his or her possession an unauthorised item; and(ii) has obtained the manager's approval to the conduct ofa strip search; (5) The power to conduct a strip search of a prisoner under subsection (3)may only be exercised—(a) for the purpose of detecting any unauthorised item; and(b) if a strip search is necessary in the circumstances for thepurpose of detecting an unauthorised item.9 At [38] and [42].10 White v Attorney-General [2021] NZHC 245 [Leave judgment].[18] "Strip search" is defined in the following way in s 90 of the Act:90 Definition of strip search(1) For the purposes of this Act, a strip search means a search where theperson conducting the search may require the person being searchedto remove, raise, lower, or open all or any of that latter person'sclothing.(3) Authority to conduct a strip search—(a) includes the authority to conduct a visual examination ofthe mouth, nose, ears, and anal and genital areas; [19] As we have noted at [2], the offence provision is contained in s 128 of the Act.The relevant part of that section states:128 Offences by prisoner(1) Every prisoner (whether inside or outside a prison) commits anoffence against discipline who—(a) disobeys any lawful order of an officer or a staff member, ordisobeys or fails to comply with any regulation made underthis Act or any rule of the prison made under section 33:Res judicata and abuse of process[20] Res judicata and the principles designed to prevent an abuse of the Court'sprocesses have much in common. There are, however, important distinctions betweenthe concepts.Res judicata[21] Res judicata prevents a party from relitigating the same action. As theSupreme Court noted in Lai v Chamberlains, a judgment on the merits is conclusiveas between the parties to the litigation and can generally only be challenged onappeal.11 The author of Spencer Bower and Handley: Res Judicata, explains that forres judicata to be invoked, the first decision must:12(a) be "judicial in the relevant sense";(b) have been delivered;(c) be from a tribunal that has jurisdiction over the parties and the subjectmatter;(d) be final;(e) have been decided on the merits;(f) have determined a question raised in the later litigation; and(g) be one that involved the same parties (or their privies) as in the laterlitigation.[22] The rationale for res judicata was explained in the following way byLord Blackburn in Lockyer v Ferryman:13The object of the rule of res judicata is always put on two grounds — the onepublic policy, that it is in the interest of the State that there should be an endof litigation, and the other, the hardship on the individual, that he should bevexed twice for the same cause.[23] Maxwell v Commissioner of Inland Revenue,14 and Gregoriadisv Commissioner of Inland Revenue,15 illustrate how res judicata may apply.For present purposes, we will focus upon Gregoriadis, which considered and appliedMaxwell. As we shall explain, Mr White's case and Gregoriadis have an importantpoint in common. Mr Gregoriadis was acquitted, following an appeal, on charges of11 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [58].12 K R Handley Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis, London, 2019) at[1.02].13 Lockyer v Ferryman (1877) 2 App Cas 519 (HL) at 530.14 Maxwell v Commissioner of Inland Revenue [1962] NZLR 683 (CA).15 Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA).wilfully making false income tax returns. His appeal succeeded because evidence hadbeen wrongly admitted at his trial. Prior to the conclusion of the criminal proceedings,the Commissioner of Inland Revenue assessed Mr Gregoriadis for penal tax for thesame period covered by the criminal charges. This Court held that res judicata appliedbecause the latter civil proceeding commenced by the Commissioner was groundedon fraud and the standard of proof in the civil proceeding closely approximated thestandard in the earlier criminal proceedings. Richardson J, writing for himself andRichmond J, also reasoned the acquittal of Mr Gregoriadis "did not turn on thestandard of proof but on the absence of admissible evidence. Had the standard [in thecriminal trial] been a simple preponderance of probabilities the Commissioner wouldstill have failed."16[24] As this Court explained in Shiels v Blakeley,17 and reaffirmed inBeattie v Premier Events Group Ltd,18 res judicata may arise through cause of actionestoppel, or issue estoppel.19Cause of action estoppel[25] The elements of cause of action estoppel were summarised in the judgment ofLord Clarke in R (Coke-Wallis) v Institute of Chartered Accountants in England andWales as comprising the same elements of res judicata we have set out at [21].20[26] For present purposes it is unnecessary to engage further with cause of actionestoppel because none of the causes of action in the NZBORA proceedings werebefore the Visiting Justice.16 At 116.17 Shiels v Blakeley [1986] 2 NZLR 262 (CA) at 266.18 Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [42].19 Handley, above n 12, at [1.05].20 R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1,[2011] 2 AC 146 at [34].Issue estoppel[27] A decision will create an issue estoppel if it determined an issue in a cause ofaction as an essential step in its reasoning. Issue estoppel applies to fundamental issuesdetermined in an earlier proceeding which formed the basis of the judgment.21[28] Lord Diplock explained in Thoday v Thoday:22 neither party can, in subsequent litigation between one another upon anycause of action which depends upon the fulfilment of the identical condition,assert that the condition was fulfilled if the court has in the first litigationdetermined that it was not, or deny that it was fulfilled if the court in the firstlitigation determined that it was.[29] The judgments of this Court in Talyancich v Index Developments Ltd, andvan Heeren v Kidd, are examples of the application of issue estoppel in this country:23[1] An issue estoppel arises where a judgment has determined an issue asan essential and fundamental step in the logic of the judgment and withoutwhich it could not stand. The issue so determined may not be contested insubsequent litigation between the same parties.Abuse of process[30] The third concept with which we are concerned may cover a wide range ofcircumstances beyond the limits of res judicata.Failure to put relevant matters before the first Court[31] Lord Bingham explained an example of abuse of process in Johnson v GoreWood & Co (A Firm):24The bringing of a claim or the raising of a defence in later proceedings may,without more, amount to abuse if the court is satisfied (the onus being on theparty alleging abuse) that the claim or defence should have been raised in theearlier proceedings if it was to be raised at all.21 Handley, above n 12, at [8.01].22 Thoday v Thoday [1964] P 181 (CA) at 385.23 van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141, citing Talyancich v IndexDevelopments Ltd [1992] 3 NZLR 28 (CA) at 37 (footnote omitted).24 Johnson v Gore Wood & Co (A Firm) [2002] 2 AC 1 (HL) at 31.[32] Lord Bingham also made clear, however, that it would be wrong to concludethat because the matter could have been raised in earlier proceedings it should havebeen. Such approach, he said, would be "too dogmatic".25 Instead, what is requiredis:26 a broad, merits-based judgment which takes account of the public andprivate interests involved and also takes account of all the facts of the case,focusing attention on the crucial question whether, in all the circumstances,a party is misusing or abusing the process of the court by seeking to raisebefore it the issue which could have been raised before.[33] These observations of Lord Bingham were quoted with approval by this Courtin Commissioner of Inland Revenue v Bhanabhai,27 and in Beattie v Premier EventsGroup Ltd.28Challenging a finding of a court of competent jurisdiction[34] A second way in which abuse of process may be invoked arises where civilproceedings seek to collaterally impugn the result of a criminal trial. The judgment ofLord Diplock in Hunter v Chief Constable of the West Midlands Police illustrates thebreadth of circumstances in which this type of abuse of process may arise.29 That caseconcerned defendants in a criminal prosecution, who were alleged to have murdered21 people and injured 161 others when bombs exploded in Birmingham.The defendants challenged the admissibility of their confessions that they hadparticipated in the bombings, saying their admissions were extracted after they wereassaulted by police officers. It was ruled during the course of the criminal trial thatthe Crown had proven beyond reasonable doubt that the police had not assaulted thedefendants and that the confessions were admissible. Following their convictions andthe exhaustion of their appeal rights, the defendants commenced civil proceedingsseeking damages from the police for the same assaults that they had alleged in theircriminal trial. In upholding the decision of the Court of Appeal to strike out the civilproceedings, Lord Diplock, writing on behalf of the House of Lords, said that wherea final decision had been made by a criminal court of competent jurisdiction, the use25 At 31.26 At 31.27 Commissioner of Inland Revenue v Bhanabhai [2007] 2 NZLR 478 (CA) at [60].28 Beattie v Premier Events Group Ltd, above n 18, at [44].29 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL).of civil proceedings to initiate a collateral challenge to that decision constituted anabuse of the process of the court.30[35] A similar issue arose in this Court in Daniels v Thompson.31 W, who was oneof the appellants in that case, alleged she had been the victim of sexual assaults bya health professional. The health professional was acquitted of criminal charges laidagainst him following W's complaints to the police. Her civil claim for exemplarydamages based on the same allegations in the criminal trial was held by four Judgesof this Court to be a collateral attack upon the verdict in the criminal trial and thereforean abuse of process.32 In reaching that decision, this Court recognised that res judicatawas not apposite as the parties in the civil proceedings were not the same as in thecriminal trial, and the standard of proof in the civil proceedings was also not the sameas that which had governed the criminal trial.33 W's appeal was dismissed by thePrivy Council.34 In the meantime, however, Parliament enacted s 396 of theAccident Insurance Act 1998 so as to allow civil claims for exemplary damages tocontinue in cases such as those commenced by W.35[36] Different considerations have applied where professional disciplinaryproceedings are commenced alleging the same misconduct that had been previouslydetermined in a criminal charge. In Z v Dental Complaints Assessment Committee,a dental practitioner faced a criminal charge of indecently assaulting a patient.36He was acquitted of those charges. Disciplinary proceedings were neverthelesscommenced against him based upon the same allegations that had been found not tobe proven to the criminal standard in the criminal trial. A question that came beforethe Supreme Court was whether the professional disciplinary proceedings constitutedan abuse of process because they sought to relitigate the matter that had been resolvedin the criminal proceedings. A majority of the Supreme Court concluded that thedisciplinary proceedings did not constitute an abuse of process primarily because of30 At 541–542.31 Daniels v Thompson [1998] 3 NZLR 22 (CA).32 At 51–52.33 At 51.34 W v W [1999] 2 NZLR 1 (PC).35 Now s 319 of the Accident Compensation Act 2001.36 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.the different standards of proof involved in the criminal proceedings and thedisciplinary proceedings:37[95] In the criminal proceedings the Crown had the onus of proving factsthat amounted to indecent assaults as charged to the criminal standard of proof,that is, beyond reasonable doubt. The first step in considering the appellant'sargument that he faces reconsideration of the same issues in relation to thedisciplinary process is to ascertain whether the same standard of proof wouldapply, if the disciplinary process proceeds, as at the trial. If a different, lowerstandard of proof is appropriate, the argument against allowing the second setof proceedings is weaker [37] Parliament's decision to reverse the effect of Daniels v Thompson and W v W,when it enacted s 396 of the Accident Insurance Act, provides a basis fordistinguishing those cases from the approach taken by the majority of theSupreme Court in Z v Dental Complaints Assessment Committee. It is also possible todistinguish disciplinary proceedings from private actions such as those inDaniels v Thompson and W v W. As has been noted on numerous occasions,professional disciplinary proceedings have a broad range of non-punitive socialobjectives, including the protection of the public.38 Actions for exemplary damageshowever seek to punish the defendant and vindicate personal rights.39Is abuse of process a shield or a sword?[38] Mr Jones, senior counsel for the Attorney-General, submitted that abuse ofprocess was not an appropriate concept where the Crown wishes to defend a claimbrought against it. The gravamen of this submission was that a finding of a court ofcompetent criminal jurisdiction can give rise to an abuse of process if the defendantinitiates civil proceedings in relation to the same facts. Abuse of process is then usedas a shield, not as a sword by the Crown. Mr Jones argued abuse of process cannot,however, be used as a sword by the plaintiff in a civil proceeding to prevent the Crownmounting a legitimate defence.37 See also [125]–[126], [132] and [140].38 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 3211,[2019] 2 NZLR 731 at [61]. See also Z v Dental Complaints Assessment Commitee, above n 36,at [128] and [132].39 Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [238].[39] Some support for Mr Jones' argument can be found in Nawrot v ChiefConstable of Hampshire Police, an unreported judgment of the Court of Appeal ofEngland and Wales.40 The genesis of that proceeding was a failed prosecution ofMr Nawrot, who subsequently initiated a civil claim for exemplary damages againsta police officer who had arrested him. Lord Woolf said the principles articulated byLord Diplock in Hunter were not apposite where:41(a) there was considerable uncertainty about the factual findings that hadbeen made in favour of Mr Nawrot by the Magistrate in the criminalproceeding;(b) the constable who was a defendant in the subsequent civil claim forexemplary damages was merely a witness and not a party to thecriminal proceeding; and(c) different standards of proof governed the criminal and civilproceedings.Lord Woolf made the point that the circumstances in Hunter were the reverse of thosein Nawrot (in Hunter, abuse of process was used as a shield, whereas in Nawrot, it wasused as a sword) and that in Nawrot's case "[n]ot only would it not be in the interestsof justice to strike out the allegedly offending passages of the defendant's pleadings,it would be grossly unfair to do so".[40] In Tamworth Industries Ltd v Attorney-General, this Court observed that it wasfar from settled whether an acquittal in criminal proceedings can give rise to an abuseof process where in subsequent civil proceedings the Crown seeks to contradict theoutcome of the criminal proceeding.42[41] In the absence of clear authority to guide us, we consider that, in principle,abuse of process is an available remedy to Mr White because here the Department ofCorrections (the Department), through the Attorney-General, seeks to re-litigate40 Nawrot v Chief Constable of Hampshire Police [1991] Lexis Citation 2173, 9 December 1991.41 Nawrot, above n 40, referring to Hunter, above n 29.42 Tamworth Industries Ltd v Attorney-General [1988] 1 NZLR 296 (CA) at 305.matters that the Department had every opportunity to address during the hearing beforethe Visiting Justice but failed to do so. Subject to what we say at [60]–[61], thepleadings with which we are concerned seek to challenge the legitimacy of theVisiting Justice's findings. In this case the findings of the Visiting Justice are clearand the Department had every opportunity to produce all evidence in the disciplinaryhearing. That is particularly material as the Visiting Justice's decision turned on thelack of evidence produced by the Department. These considerations differentiate thiscase from Nawrot and lead us to conclude at a conceptual level that it would be neitherunfair nor contrary to the interests of justice to allow abuse of process to be used asa sword by Mr White. We are primarily driven to this conclusion after considering thebroader public interests engaged by this case, and Mr White's personal interests.We return to those matters at [65]–[66].43Strike-out principles[42] The application by Mr White to strike out the three paragraphs in the statementof defence that we have set out at [10]–[12] was based on r 15.1(1)(d) of theHigh Court Rules, which 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—(d) is otherwise an abuse of the process of the court.[43] The onus was on Mr White to show that the pleading in issue constitutes anabuse of process. It is a "heavy" onus and a jurisdiction that should be exercised onlyin exceptional circumstances.4443 See also Handley, above n 12, at [1.03]; and Johnson v Gore Wood & Co (A Firm), above n 24, at22.44 Williams v Spautz (1992) 174 CLR 509 (HCA) at 529; and Goldsmith v Sperrings Ltd [1977] 1WLR 478 (CA) at 498. See also Andrew Beck and others McGechan on Procedure (online ed,Thomson Reuters) at [HR15.1.05(4)(c)].Issues[44] Before explaining the issues, we record that the parties agree the decision ofthe Visiting Justice was a final decision based upon the merits. There is no issue thatin reality the same parties are engaged in both proceedings; the Department prosecutedMr White before the Visiting Justice and the Attorney-General is sued on behalf ofthat Department in the NZBORA proceedings by Mr White. It is also agreed theVisiting Justice had jurisdiction over the parties and the issues with which he dealt.Obviously, there is also no dispute that the decision of the Visiting Justice has beendelivered.[45] Having provided an overview of the relevant legal principles, we shall nowaddress the issues raised by Mr White's appeal. Those issues are encapsulated in thefollowing questions:(a) Was the decision of the Visiting Justice a judicial decision for thepurposes of res judicata and/or abuse of process? If so, —(b) Do the NZBORA proceedings raise a question that had beendetermined in the decision of the Visiting Justice so as to give rise toissue estoppel? Or alternatively, —(c) Do the denials in the statement of defence that are in issue amount toan abuse of process, either because:(i) they attempt to rely on matters that should properly have beenplaced before the Visiting Justice; or(ii) they constitute an impermissible collateral attack on thedecision of the Visiting Justice.Status of the decision of the Visiting Justice[46] Complaints which allege a prisoner has committed an offence againstdiscipline are, in the first instance, referred to a hearing adjudicator who may "referthe case to a Visiting Justice for hearing and determination".45 The Visiting Justicemay hear and determine the complaint or refer the case to an appropriate authority toprosecute the prisoner before the regular criminal courts.46[47] Although the Visiting Justice is not a court, a hearing conducted beforea Visiting Justice has the following characteristics of a criminal proceeding:(a) Visiting Justices must be either:47(i) a District Court Judge; or(ii) a Justice of the Peace or barrister or solicitor appointed by theGovernor-General to be a Visiting Justice.(b) The powers of a Visiting Justice include hearing and determiningdisciplinary charges laid under the Act.48(c) In hearing and determining a disciplinary charge a Visiting Justice maytake "evidence on oath or otherwise".49(d) Proceedings conducted by a Visiting Justice must comply with therequirements of natural justice.50(e) Hearings conducted by a Visiting Justice "must be in the presence andhearing of the prisoner charged with the offence, who is entitled to beheard and to cross-examine any witness".5145 Corrections Act 2004, s 134(1).46 Section 137(6).47 Section 19(1) and (2).48 Section 19(4)(g).49 Section 19(4)(e).50 New Zealand Bill of Rights Act 1990, s 27(1); and Goldberg v Attorney-General [2004] NZAR159 (HC) at [30], referring to Poi v District Court HC Christchurch CP36-02, 11 March 2003 at[87].51 Corrections Act, s 137(2).(f) A prisoner charged before a Visiting Justice may be entitled to legalrepresentation.52(g) Before imposing a penalty on a prisoner found guilty of a disciplinarycharge, the person holding the hearing "must give the prisoner theopportunity to make an explanation or plea in mitigation; and mayinvite any support person to speak".53(h) The penalties that may be imposed by a Visiting Justice on a prisonerfound to have committed a disciplinary offence include forfeiture of theprisoner's privileges, forfeiture of the prisoner's earnings and"confinement in a cell for any period not exceeding 15 days".54[48] The criminal nature of proceedings before a Visiting Justice is reaffirmed bythe Corrections Regulations 2005, which provides:5533 If the prisoner pleads not guilty and, after hearing all the evidence, theperson holding the hearing finds that the case against the prisoner hasbeen proved beyond reasonable doubt, the person holding the hearingmust find the prisoner guilty of the offence.[49] Thus, although the disciplinary regime provided for in the Act is "separate fromthe criminal justice system",56 proceedings conducted by a Visiting Justice have all thehallmarks of a judicial proceeding for the purposes of res judicata and abuse ofprocess. This conclusion is reinforced when regard is had to the leading textbook onres judicata:572.02 It is immaterial for present purposes whether the tribunal is a court ofrecord or not or whether it is or is known as a court It does not matterwhether the tribunal has permanent jurisdiction or only jurisdiction overa particular dispute or disputes 2.03 Tribunals established by statute may be 'judicial' for present purposes.They include: a court martial a medical tribunal and tribunals appointedto determine applications for exemption from military service 52 Section 135.53 Corrections Regulations 2005, sch 7, cl 35.54 Corrections Act, s 137(3).55 Corrections Regulations, sch 7.56 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85] and [89] per McGrath J.57 Handley, above n 12 (footnotes omitted).[50] There are many cases from the United Kingdom in which the decisions ofstatutory tribunals have been found to give rise to res judicata.58[51] The role of the Visiting Justice in this case, combined with the authorities thathave held a wide range of statutory tribunals are, in this context, "judicial" leads us tothe conclusion that the decision of the Visiting Justice was a judicial decision for thepurposes of res judicata and abuse of process.The Visiting Justice's decision[52] As we have noted at [6] and [7], there were two parts to the Visiting Justice'sdecision.A strip search was not necessary — s 98(5)(b) of the Act[53] First, relying upon this Court's judgment in Forrest v Attorney-General, theVisiting Justice made clear that a decision as to whether or not a strip search isnecessary must involve "consideration of whether [a less invasive search such as]a scanner search or rub-down search would suffice".59[54] The Visiting Justice explained in his decision there was no evidence thatCorrections officers considered conducting a rubdown search, and if such a search wasconsidered, why it was ruled out. He said "[t]here was no evidence as to why it wasnecessary for Mr White to remove his underpants".60[55] Thus, because the prosecuting officer failed to demonstrate the requirementsof s 98(5)(b) of the Act had been satisfied, namely that it was necessary to strip searchMr White, the order given was unlawful. It therefore followed Mr White had notdisobeyed a lawful order.61 The Visiting Justice then said:58 See for example, R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales,above n 20, at [29], applied in R (Gray) v Chief Constable of Nottinghamshire Police [2018]EWCA Civ 34, [2018] 1 WLR 1609 at [42].59 Visiting Justice decision, above n 2, at [51], quoting Forrest v Attorney-General [2012] NZCA125, [2012] NZAR 798 at [15].60 At [50].61 At [53]–[54].[55] This is in itself sufficient ground to find Mr White not guilty of thecharge and I do so accordingly.[56] Although the finding that the order to strip search Mr White was not a lawfulorder was made in accordance with the criminal standard of proof, it is significant thatthis conclusion was reached after the Visiting Justice said there was no evidence thata strip search was necessary.Lack of reasonable ground — s 98(3) of the Act[57] Second, in case he was wrong when he reached the primary conclusion, theVisiting Justice proceeded to decide:(a) The order was unlawful because the evidence about prisoners havingunauthorised items in their possession did not specifically identifyMr White. This part of the decision was based on the wording ofs 98(3) of the Act, which refers to a "strip search of a prisoner".The Visiting Justice held that the use of the singular "prisoner" requiredinformation about possession of unauthorised items to specificallyinclude Mr White.62(b) The Corrections officers did not have reasonable grounds for believingthat Mr White had an unauthorised item in his possession. This part ofthe decision engaged s 98(3)(a)(i) of the Act. The Visiting Justice heldthis subsection had not been complied with because the "intelligence"concerning prisoners possessing unauthorised items was too "vague".63[58] We interpolate at this point to observe that the Visiting Justice's conclusionabout the need for Mr White to have been identified as a prisoner who had possessionof an unauthorised item appears to have overlooked that when interpreting legislation"[w]ords in the singular include the plural and words in the plural include thesingular".64 Even if the Visiting Justice erred in law, "[r]es judicata gives effect tothe policy of the law that the parties to a judicial decision should not afterwards be62 At [58]–[60].63 At [67]–[68].64 Interpretation Act 1999, s 33.allowed to re-litigate the same question, even though the decision may be wrong".65It is, however, not necessary to consider this point further as the NZBORA proceedingsengage the Visiting Justice's finding under s 98(3)(a)(i) of the Act (which we explainedat [57(b)], and not the finding we have explained at [57(a)].Analysis[59] In addressing the questions we have set out at [45(b) and (c)], it is convenientto follow the bifurcated approach taken by the Visiting Justice in his decision. That isto say, we shall first consider the conclusion that the order to strip search Mr Whitewas not lawful because of the absence of evidence that such an order was necessary.A strip search was not necessary — para 2.7.2[60] As we have explained at [12], in response to the allegation that theCorrections officer assaulted Mr White, the Attorney-General said at para 2.7.2 of hisstatement of defence:(a) there was no assault;(b) the force used was justified in light of Mr White's aggressivebehaviour; and(c) the force used was justified to secure compliance with a lawfuldirection.[61] Although Mr White attempted to strike out all three elements of theAttorney-General's pleading in para 2.7.2 of the statement of defence, in reality, onlythe third element was engaged by Mr White's application. That is because theVisiting Justice did not determine whether or not Mr White was assaulted, or whetherthe force used was a justified response to his aggressive behaviour.65 Crown Estate Commissioners v Dorset County Council [1990] Ch 297 at 305; and Handley,above n 12, at [1.14].[62] The finding by the Visiting Justice that the order to strip search Mr White wasunlawful was reached by applying the criminal standard of proof. That decision wasbased, however, on the total absence of evidence that it was necessary to strip searchMr White.66 The absence of any evidence on this issue means that the same conclusionwould have been reached by the Visiting Justice if he had decided on the civil standardof proof that the order was unlawful.[63] In this respect, it is very difficult to distinguish the circumstances of this casefrom those that were addressed by this Court in Gregoriadis. Regardless of whatstandard of proof is applied, the finding of the Visiting Justice was based on a failureby the prosecuting authorities to show that it was necessary to strip search Mr White.Res judicata applies to this part of Mr White's appeal.[64] Even if the different standards of proof might justify the Attorney-General'sattempt to circumvent Gregoriadis, we are satisfied, applying the test articulated byLord Bingham in Johnson v Gore Wood & Co (A Firm), that Mr White hasdemonstrated it would be an abuse of process to now allow the Attorney-General totry and adduce evidence to establish what should have been proven before theVisiting Justice.67 In reaching this conclusion, we have conducted a broadmerits-based assessment that takes account of all of the evidence and the public andprivate interests that are engaged.[65] If the Department has evidence that shows that it was necessary to strip searchMr White, then it should have adduced that evidence in the proceedings before theVisiting Justice or, at the very least, have disclosed that evidence consistent withcl 16.7 of the Solicitor-General's Prosecution Guidelines 2013. The Department choseto charge Mr White with a disciplinary offence that carried significant consequences,including the possibility of Mr White being confined in his cell for up to 15 days.When the Department chose to charge Mr White, it needed to marshall all relevantevidence and place it before the Visiting Justice or otherwise have disclosed thatevidence. It is contrary to the public interest for the Department, through theAttorney-General, to now say there is possibly further (unexplained) evidence that66 Visiting Justice decision, above n 2, at [53]–[54].67 Johnson v Gore Wood & Co (A Firm), above n 24, at 31.might have been considered by the Visiting Justice. We say this because the approachadvocated by the Attorney-General undermines the role of the Visiting Justice and hasthe effect of impugning the validity of his decision.[66] Our conclusion in relation to this part of the case is reinforced by having regardto Mr White's personal interests. A strip search of a prisoner is a serious and invasiveprocedure. It has been described by the Supreme Court of Canada as "inherentlyhumiliating and degrading".68 As a strip search of a prisoner is amongst the mostintrusive measures that the State can inflict upon a citizen, those who seek to justifysuch measures must do so with clear and convincing evidence.[67] The transcript of the evidence taken before the Visiting Justice shows theprosecuting authorities had the opportunity to adduce any evidence that addressed therequirements of s 98(5)(b) of the Act. They failed to do so by an appreciable margin.[68] We conclude that the reasoning in Gregoriadis applies to Mr White's case andthat the Associate Judge erred when he declined Mr White's application to strike outthe following words in para 2.7.2 of the statement of defence "in order to secure theplaintiff's compliance with a lawful direction". For the reasons we have explained at[61], the balance of para 2.7.2 of the statement of defence remains. We are alsosatisfied that even if the relevant part of para 2.7.2 of the statement of defence couldsurvive the application of res judicata, it does not withstand a proper assessment of theprinciples that govern abuse of process.Lack of reasonable ground — paras 2.4.2 and 4.1.4[69] Different considerations apply, however, to the application by Mr White tostrike out paras 2.4.2 and 4.1.4 of the statement of defence in which theAttorney-General pleads the Corrections officers had reasonable grounds to believethe prisoners who were the subject of the strip search order were in possession ofunauthorised items.68 R v Golden 2001 SCC 83, [2001] 3 SCR 679 at [90]. See also Minogue v Thompson [2021] VSC56 at [139]; and Wainwright v United Kingdom App 12350/04 ECHR at [44] which concerns thestrip searching of visitors to a prison.[70] The key point of distinction between this aspect of Mr White's application andthe challenge to para 2.7.2 of the statement of defence is that the Visiting Justice didnot need to decide whether the Corrections officers had reasonable grounds to believethe prisoners were in possession of unauthorised items. The Visiting Justice hadalready concluded that the lack of evidence that the strip search was necessary meantthe order was not lawful, and this was sufficient in and of itself to find Mr White notguilty.69[71] This is not a case therefore in which issue estoppel may be invoked becausethe finding that the Corrections officers lacked reasonable grounds for believingMr White was in possession of unauthorised items was not "an essential andfundamental step in the logic of the [Visiting Justice's] judgment without which itcould not stand".70[72] On the contrary, all of the findings and reasoning of the Visiting Justiceconcerning the Corrections officers' lack of reasonable grounds to believe Mr Whitehad possession of an unauthorised item could have been excised from theVisiting Justice's decision without altering the decision.[73] Thus, as Mr White cannot rely on issue estoppel, res judicata cannot assist thisaspect of Mr White's case, regardless of what standard of proof was applied by theVisiting Justice when he decided the Corrections officers lacked a reasonable groundto believe Mr White had possession of an unauthorised item.[74] We therefore turn again to the principles that govern abuse of process todetermine whether or not paras 2.4.2 and 4.1.4 of the statement of defence should bestruck out.[75] For the reasons we have explained at [64] to [66], we conclude that it wouldbe an abuse of process to allow the Attorney-General to collaterally challenge thefindings of the Visiting Justice when he found the Corrections officers lackedreasonable grounds for believing Mr White had possession of an unauthorised item.69 Visiting Justice decision, above n 2, at [54]–[55].70 van Heeren v Kidd, above n 23, at [1]. See also Handley, above n 12, at [8.23]–[8.24].The evidence put before the Visiting Justice on this issue was vague,71 and it would becontrary to the public interest and Mr White's private interest for the Attorney-Generalto now try and establish this issue.Result[76] The appeal is allowed in part.[77] The words "in order to secure the plaintiff's compliance with a lawfuldirection" in para 2.7.2 of the statement of the defence are struck out on the groundsthey offend res judicata and are also an abuse of process.[78] Paragraphs 2.4.2 and 4.1.4 of the statement of defence are struck out on thebasis they constitute an abuse of the court's process.[79] Mr White is entitled to costs for a standard appeal on a band A basis, plus usualdisbursements. We do not certify for a second counsel.Solicitors:Ord Legal, Wellington for AppellantCrown Law Office, Wellington for Respondent71 Visiting Justice decision, above n 2, at [67].