HURITU AND OTHERS v THE ATTORNEY-GENERAL [2022] NZHC 1500

HURITU AND OTHERS v THE ATTORNEY-GENERAL [2022] NZHC 1500 [27 June 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-157 to 166CIV-2021-485-169 to 174[2022] NZHC 1500BETWEEN LEON CHARLES HURITU AND OTHERSPlaintiffsAND THE ATTORNEY-GENERALFirst DefendantCHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSSecond DefendantHearing: 23 June 2022Appearances: J Mason and N Thrupp for PlaintiffsD Jones and I McGlone for DefendantsJudgment: 27 June 2022JUDGMENT OF ISAC J[Application to adjourn trial]Introduction[1] Sixteen former and current inmates have brought proceedings against thedefendants asserting serious violations of their fundamental human rights. Theirclaims relate to a period when the plaintiffs were imprisoned at Waikeria Prison, untila riot1 and fire destroyed part of that prison, and their subsequent treatment in otherDepartment of Corrections facilities. The principal relief they seek are damages.[2] A three-week trial starting on 12 September 2022 has been allocated to dealwith some of the claims of six of the plaintiffs. The remaining ten plaintiffs, and the1 I use the term "riot" in this judgment in its colloquial rather than legal sense.balance of the claims of the six-September plaintiffs, will require a lengthy fixture ata later date.[3] All 16 plaintiffs also face a criminal trial scheduled to commence in March2023. The charges relate to their alleged involvement in the riot and, therefore, overlapto some extent with the events raised in their civil proceedings.[4] The defendants have applied to adjourn the September fixture so that it canproceed after the criminal trial has been completed. In the alternative, they seek amodification to the timetable and a delay in the commencement of the hearing of twoweeks. The September-plaintiffs oppose an adjournment. They say the issues fordetermination are urgent and the defendants are dragging their feet.Procedural history[5] Statements of claim by 16 plaintiffs were filed on 31 March 2021. Given theirclaims are closely related they have been case-managed together.[6] Initially, the plaintiffs did not pursue a discovery order and instead maderequests under the Official Information Act 1982 and the Privacy Act 2020 for materialheld by the defendants relevant to their civil claims.[7] Unhappy with the outcome of the disclosure under those enactments, theplaintiffs requested a standard discovery order as recently as 30 March 2022.[8] In a minute of 31 March 2022, Cull J directed the defendants to commence theprocess of providing unredacted confidential versions of documents which had beenpreviously provided to the plaintiffs (in redacted form) pursuant to their OfficialInformation and Privacy Act requests. Subsequently, on 1 April 2022, the plaintiffssent a tailored discovery request to the defendants.[9] By June this year, the defendants were increasingly in default of the discoveryorders made by the Court. This was exacerbated by the unexpected loss of access tothe document management programme the defendants had been using to facilitate thediscovery process. It seems clear that the discovery exercise has not been a smallundertaking, or without complications.2[10] Through an iterative process between late 2021 and June 2022, the number ofplaintiffs and the scope of their claims have been progressively narrowed as a resultof engagement with the Court. Two concerns appear to have shaped this approach tothe September hearing:(a) First, as noted, all defendants face trial on criminal chargescommencing in March 2023 in relation to their alleged involvement inthe Waikeria Prison riot. Given the plaintiffs are all likely to giveevidence in support of their civil claims, there is a material risk thatthey will be compelled to give evidence on matters which couldprejudice their defence in the criminal proceedings.(b) Second, on any view, given the number of plaintiffs and the far-reaching claims they have advanced, a trial significantly longer thanthree weeks will be required. Accordingly, six plaintiffs have beenselected on a "representative" basis. On 4 May 2022, Cull J directedthat their claims for the September hearing be narrowed further toencompass only a challenge to the lawfulness of the conditions of theirdetention before, and after, the prison riot and fire.[11] Discovery by the defendants has not been completed. The plaintiffs areconcerned that their claims will be prejudiced by their inability to have access to allrelevant documentary material held by the defendants.[12] Finally, it is necessary to mention the current state of the pleadings.[13] Only one of the six September-plaintiffs has filed a statement of claimaccurately reflecting the agreed scope of issues for consideration in September. And,significantly, the defendants have not yet filed any statements of defence.2 Some of the relevant material, according to submissions I received, consists of intelligence reportswhich may give rise to security issues given some of the plaintiffs remain in a prison setting. I wasadvised that in relation to Mr Te Hau there are in the order of 3,000 documents still under review.[14] It is against this background that I turn to consider the defendants' applicationfor adjournment.Applicable principles[15] Rule 10.2 of the High Court Rules provides that:10.2 Adjournment of trialThe court may, before or at the trial, if it is in the interests of justice, postponeor adjourn the trial for any time, to any place, and upon any terms it thinks just.[16] As I have observed previously,3 r 10.2 confers a broad discretion on the Court.Nevertheless, the following principles inform its application:(a) The interests of justice require consideration of not only the interests ofthe parties before the Court, but also of those awaiting a hearing whowill suffer delay to their own cases should an adjournment be granted.This reflects the public interest in the efficient use of court resources.4(b) As between the parties, the decision to grant or decline an adjournmentis essentially a balancing exercise. It involves a consideration of theprejudice that will accrue to the applicant as well as the harm to therespondent if an adjournment is granted or denied.5(c) A further relevant factor is whether the applicant has acted reasonablyand done everything practical to avoid the need for an adjournment.6(d) The strength of the reasons in support of the application, and theprejudice said to follow from continuing with the trial, is a material3 Poutama Kaitiaki Charitable Trust and Pascoe v Taranaki Regional Council [2022] NZHC 628at [38]–[39]. See also McGechan on Procedure (online ed, Thompson Reuters) at [HR 10.2.03].4 Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8], approvingCommissioner of Inland Revenue v Patel [2013] NZHC 477.5 O'Malley v Southern Lakes Helicopters Ltd HC Christchurch CP513/89, 4 December 1990, at 1–2.6 Shanghai Neuhof Trade Co Ltd v Zespri International Ltd [2019] NZHC 3479 at [15]. See alsoGray v Thom [1997] NZFLR 328.factor.7(e) Also relevant is the right of the parties to a fair trial and the need forresolution of the proceedings, including the likely impact of furtherdelay on the quality of the evidence and the difficulties of reorganisingwitnesses for a later trial date.8Consideration[17] As I identified at the hearing, there are three questions that need to beconsidered:(a) Is there a risk of prejudice created by the civil proceeding occurringbefore the plaintiffs' criminal trial?(b) Are the September claims "representative" of the remaining claims, oris there a risk of multiplicity of proceedings on the same subject matter?(c) Are the matters for determination in September urgent? Put anotherway, will an adjournment cause prejudice to the plaintiffs?Risk of prejudice created by the civil proceeding occurring before the plaintiffs'criminal trial[18] All 16 of the plaintiffs' claims, as originally filed, cover three time-periods:(a) The first period spans treatment and conditions of detention in 2020before the Waikeria Prison riot.(b) The second period covers events during the riot, between 29 December2020 and 3 January 2021.(c) The third period relates to treatment and conditions of detention7 So it has been recognised that the late illness of a party or their witness, or counsel, may be aproper ground for an adjournment. See Feasey v Dominion Leasing Corp Ltd [1974] 1 NZLR 593(SC) at 595–596; and Hamilton v Papakura District Council (1997) 11 PRNZ 43 (HC).8 Shanghai Neuhof Trade Co Ltd, above n 6, at [15].following the plaintiffs' removal from Waikeria and imprisonment atother Corrections' facilities.[19] Given the obvious risk the defendants will give evidence in their civilproceedings on matters directly relevant to the criminal charges they face, a staggeredapproach was proposed by the parties. This would involve an initial hearing limited tothe plaintiffs' claims concerning the first and third time-periods. That is what theSeptember hearing is intended to address.[20] The difficulty with this approach is that the defendants' case in relation to thethird phase—treatment of the plaintiffs after the riot—is likely to rely on allegationsand evidence pointing to the plaintiffs' involvement in the riot. Narrowing the scopeof the plaintiffs' pleaded claims to exclude the period of the riot will not prevent thedefendants putting those events squarely in issue when responding to the claims forthe third period.[21] Ms Mason confirmed all 16 of the plaintiffs are facing criminal charges whichare proceeding to trial in March 2023. Given the scope of relevant issues is determinednot only by the plaintiffs, but also by the defendants, there is every likelihood theplaintiffs will become compellable witnesses in the current proceeding on mattersdirectly relevant to the criminal charges they face.[22] Ms Mason argued the post-riot segregation decisions were made on a "blanketbasis" without individualised consideration of each plaintiffs' involvement in therelevant events. She submitted that, accordingly, the defendants would not be able tocross-examine her clients about their alleged involvement in the riot.[23] I am unable to accept that submission. Even if the plaintiffs seek to avoidgiving evidence-in-chief about events covered by the second time-period, it will stillbe open to the defendants' counsel to put to the plaintiffs evidence which might pointto their involvement. Such evidence could potentially go to both whether thesegregation decisions in the third period were materially affected by illegality, and thequantum of any damages. And while the defendants have not indicated any intentionto pursue a counterclaim or set-off, if their case is that the plaintiffs are responsible forthe unlawful destruction of property, it is difficult to see how the Court can preventthem making such claims if they elect to do so.[24] There remains a real risk of prejudice to the plaintiffs' fair trial interests shouldtheir civil claims proceed before the criminal charges are determined. Ms Mason'ssuggestion of preventing cross-examination on the plaintiffs' alleged conductimmediately prior to their removal from Waikeria is in turn likely to prejudice thedefendants' ability to mount their case.[25] Added to these concerns is the fact that less than three months from trial thefactual issues for determination remain ill-defined, or undefined, by the pleadings. Theoriginal statements of claim filed by the plaintiffs run to almost 60 pages, involvingno less than 12 causes of action. On 15 April 2022, amended statements of claim werefiled for five of the six "representative" plaintiffs. Those are each around 40 pages andinvolve six causes of action (seven in the case of Mr Ranapia). The only apparentlysettled statement of claim, that for Mr Taite, was filed on 22 June 2022. Despite effortsto narrow the scope of the issues, that pleading still runs to 28 pages and involves sixcauses of action. Further, Ms Mason responsibly conceded that two of the plaintiffsinvolved in the proposed September trial, Mr Te Hau and Mr Ranapia, have discretepersonal elements to their claims which they wish to pursue at the hearing.[26] In short, the pleadings are not settled and, as a result, neither is the scope of theSeptember hearing. Given the pleadings also define the scope of discovery, it is littlesurprise that discovery has not been completed. Additionally, there is disagreementbetween the parties as to the scope to which the defendants might put in issue theplaintiffs' alleged conduct during the prison riots. The trial is now less than threemonths away.[27] In light of these concerns, I have reached the clear view that the interests ofjustice do not favour a limited trial in September 2022. Too much uncertainty remains.The risk of prejudice to both sides is too great.Are the September claims "representative" of the remaining claims or is there a riskof multiplicity of proceedings on the same subject matter?[28] Ms Mason responsibly acknowledged that while the claims of the September-plaintiffs have been referred to previously as "representative", they are notrepresentative claims in terms of the High Court Rules.9[29] The other 10 plaintiffs continue to pursue their own individual claims inrelation to the first and third periods. Accordingly, the September trial can only be anopening salvo in a much longer battle between the parties. The current phased structureto the litigation will require the Court to conduct two separate hearings covering thesame events. But the evidence available to the Court at sequential hearings may wellbe different. That in turn gives rise to the risk of irreconcilable decisions on the samesubject matter.[30] Currently, there will be a further, lengthy and complex trial involving both theremaining 10 plaintiffs, and the six nominated for the September hearing, insofar asthe balance of their claims are left unaddressed. So, the September fixture will notresolve any of the proceedings for any of the plaintiffs.[31] In my view, efficiency and coherence favour determination of all matters at asingle hearing.Are the matters for determination in September urgent?[32] The plaintiffs originally claimed the proceedings required urgent determinationbecause they continued to be held under directed segregation.[33] However, the position has changed. The Court was advised that only two ofthe six September-plaintiffs are currently held on directed segregation. I alsounderstand two others have been released from prison and are on parole.9 High Court Rules 2016, r 4.24.[34] All of this drove Ms Mason to submit that:This proceeding is not hinged on whether the Plaintiffs are in SolitaryConfinement at present. Rather their concern is centred on the Department'sadministration of the Solitary Confinement provisions in the Corrections Act2004 in an arbitrary, unfair and illegal manner. This effectively means theylive in constant fear that they could be placed in Solitary Confinement at anymoment, with little to no justification.[35] While I readily accept that might be a genuinely held concern, given four ofthe plaintiffs are not currently held in directed segregation, the concern is purelyspeculative. For the two plaintiffs who have been released from prison, it is not evena theoretical risk. It is certainly not a sound basis for giving their proceedings priorityahead of others in the queue.[36] More fundamentally, the claims are not really focussed as a challenge to theplaintiffs' current conditions of detention. The prayers for relief seek damages for pasttreatment. As damages claims, they are not urgent.[37] Ms Mason raised concerns in relation to Mr Te Hau's on-going detention. Itwill be for Mr Te Hau to decide how best to address these concerns, but there are moreefficient mechanisms available if that is what is desired.Overall assessment[38] For the foregoing reasons I have reached the clear view that it is no longer inthe interests of justice to proceed with a hearing in September:(a) The pleadings have not been settled. Discovery has not been completed.And the trial is less than three months away. There is no realisticprospect that the proceedings will be ready to proceed.(b) While the Court and the parties have sought to confine the scope of theSeptember hearing to avoid prejudice to the plaintiffs in their criminalproceedings, it is not feasible or fair to the defendants to avoidexamination of events during the prison riot.(c) The September claims are not representative. They will not dispose ofany of the proceedings and a second much longer trial is inevitable.That is not an efficient use of Court resources, or of those of the parties.And there is a risk of inconsistent judgments dealing with the samesubject matter.(d) As currently pleaded, further delay in resolution of the plaintiffs' claimswill not cause them meaningful prejudice. Their claims are for damagesrelating to past conduct. They are not framed as a challenge to thelawfulness of their current conditions of detention.[39] A twelve-week trial commencing on 14 August 2023 to determine all claimsby all plaintiffs is available. If Ms Mason wishes to secure that fixture, she will needto advise the registry urgently.[40] A further case management conference in late July should be held. Counsel areto confer in relation to appropriate timetabling directions to ready the proceedings fortrial and are encouraged to file a joint memorandum.[41] Finally, as I have observed at the hearing, no-one is to blame for the currentposition. The parties, and the Court, have earnestly sought to preserve a three-weekfixture allocated late last year notwithstanding the complexities and risks that exist.Despite those endeavours, it is no longer viable to proceed with a hearing inSeptember.Isac JSolicitors:Phoenix Law Ltd, Wellington for PlaintiffsCrown Law Office, Wellington for Defendants