GENGE v VISITING JUSTICE AT CHRISTCHURCH MEN’S PRISON [2019] NZCA 583

GENGE v VISITING JUSTICE AT CHRISTCHURCH MEN'S PRISON [2019] NZCA 583 [26 November2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA350/2018[2019] NZCA 583BETWEEN RICHARD LYALL GENGEAppellantAND VISITING JUSTICE AT CHRISTCHURCHMEN'S PRISONFirst RespondentCHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSSecond RespondentATTORNEY-GENERALThird RespondentHearing: 9 September 2019Court: Kós P, Brown and Woolford JJCounsel: Appellant in personNo appearance for First and Second RespondentsA F Todd and A P Lawson for Third RespondentJudgment: 26 November 2019 at 9.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The order restricting commencement or continuation of civil proceedings isquashed.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Genge was convicted of murder and rape in 1995. He has been deniedparole, and remains a serving prisoner. He has filed four previous judicial reviewproceedings challenging aspects of the prison disciplinary process. None of these havesucceeded.1 On the other hand, he has also filed two judicial review proceedings inrelation to his security classification, and both of these succeeded (at least in part).2[2] The present proceeding concerns a fifth discipline-related judicial reviewapplication. It concerns a decision of a Visiting Justice at Christchurch Men's Prisonfinding Mr Genge guilty of breaching a rule forbidding prisoners from sparring orfighting. An affidavit in support of the application and submissions were filed inthe High Court. A telephone case management conference was conducted beforeNation J on 28 May 2018. Because of what we understand to be technical difficulties,neither Mr Genge nor counsel for the Department of Corrections participated in thatconference. Counsel for the Visiting Justice, abiding the High Court's decision, wasthe only other attendee at the telephone conference.[3] Following the abortive conference the Judge made an extended civil restraintorder under s 166 of the Senior Courts Act 2016, restraining Mr Genge fromcommencing or continuing judicial review proceedings (including the presentproceedings) challenging the validity of any part of the prison disciplinary processwithout leave for a period of three years.3 The Judge did so of his own motion, withoutnotice to the parties and without hearing from any of them on the issue. Mr Gengeappeals the making of that order.41 Genge v Visiting Justice at Christchurch Men's Prison [2017] NZHC 35 [First judicial review];Genge v Visiting Justice Christchurch Men's Prison [2017] NZHC 2936 [Second judicial review];Genge v Visiting Justice at Christchurch Men's Prison [2017] NZHC 3168 [Third judicial review];and Genge v Chief Executive of the Department of Corrections [2018] NZHC 1827, [2018]1 NZAR 1434 [Fourth judicial review].2 Genge v Chief Executive Department of Corrections [2018] NZHC 1302; and Genge vChief Executive, Department of Corrections [2019] NZHC 172.3 Genge v Visiting Justice Christchurch Men's Prison [2018] NZHC 1457 [High Court judgment]at [32]–[33].4 Senior Courts Act 2016, s 169(8)(a).Judgment appealed[4] In reaching the conclusion that such an order should be made, the Judge reliedon three of the four previous failed judicial review applications brought by Mr Genge(one of the four had not yet been determined, although that too failed),5 together withthe Judge's assessment of the merits of the present proceeding. Although thatproceeding had not formally been heard, and the Judge did not have full submissionson the merits, he concluded that it too was without merit.6[5] The judgment continued:[24] This proceeding is the latest instance of judicial review proceedingsfiled by Mr Genge to challenge decisions made by a Visiting Justice againsthim as part of the disciplinary process available under the Corrections Act[2004]. He has unsuccessfully attempted to have reviewed decisions findinghim guilty of misconduct and behaving in a threatening and intimidatingmanner towards prison officers and doctors. Each time he has challengedvarious procedural parts of the prison disciplinary process. In one proceeding,he claimed that transferring the proceeding to a Visiting Justice pursuant tos 134 of the Corrections Act was unlawful, that adjourning the proceedingmade the decision invalid, and that the decision was unreasonable because theVisiting Justice did not accept his evidence. Mr Genge has also made claimsof perjury, collusion and bias within the disciplinary system. Gendall Jdismissed those allegations as "unsubstantiated" and "entirely unsupported inany way".[25] His judicial review arguments have never been successful. In relationto one of the proceedings, Gendall J held that Mr Genge had "failed in allrespects" and that his "conduct of the litigation can also be properly subjectedto some criticism". Gendall J also warned Mr Genge that:If he intends to continue to litigate a large array of dubiousclaims such as the present, he must also accept the jurisdiction ofthis and other courts to impose the usual discipline through costsorders where appropriate.[26] The prison disciplinary process is designed to provide an efficient andrelatively informal way of dealing with disciplinary offences. There is aninquisitorial aspect to the investigation, rather than being strictly adversarial,and the penalties tend to be significantly less severe than in criminal courts.The filing of a judicial review proceeding to challenge decisions ofa Visiting Justice that a prisoner does not like is counter to all thatthe Corrections Act and regulations were designed to achieve.(footnotes omitted)5 Fourth judicial review, above n 1.6 High Court judgment, above n 3, at [11]–[33].[6] The Judge noted correctly that s 169(3) gave him the power to make a civilrestraint order on his own initiative.7 No application had been made in this case bythe Department of Corrections; indeed, it had not managed to appear at the abortivetelephone conference preceding the making of the order. The Judge noted, alsocorrectly, that a court should be slow to make a restraint order, because it amounts toa breach of a person's right of access to justice under s 27 of the New Zealand Bill ofRights Act 1990.8 The Judge also acknowledged that the courts should be particularlyslow when making such an order against a person in custody. However, the Judgeconcluded this was a case where was is appropriate to exercise the jurisdiction unders 166 of the Senior Courts Act.9[7] The order made was confined both in scope (only judicial review proceedingschallenging the validity of the prison disciplinary processes) and as to time(three years). The Judge noted that if Mr Genge had a genuine grievance relating tothe prison disciplinary process in the future, he could apply to the High Court for leaveto bring proceedings.10 The Judge also restrained Mr Genge from continuingthe present judicial review application.11Submissions[8] Ms Todd, appearing for the Attorney-General, emphasised thatthe Attorney-General appeared on this appeal not as a contradictor, but rather to assistthe Court. The Attorney-General took no definite position as to the outcome ofMr Genge's appeal.[9] First, Ms Todd submitted that Mr Genge's appeal is likely to be a generalappeal, rather than an appeal from a discretion.12 That was consistent withthe approach taken by this Court in Siemer v Attorney-General in dealing with anappeal against an order declaring Mr Siemer a vexatious litigant under s 88B of7 High Court judgment, above n 3, at [28].8 At [30], citing Attorney-General v Siemer [2014] NZHC 859 at [50]–[52].9 At [30].10 At [31].11 At [33].12 Applying the principles outlined in Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [41]–[50].the Judicature Act 1908.13 That section was the legislative predecessor of s 166 ofthe Senior Courts Act.[10] Secondly, she submitted that a judge of the High Court was entitled to make acivil restraint order of his or her own motion under s 169(3). Section 167(2) providedthat the threshold for making an extended civil restraint order (as was made here) waswhere the Judge considered that in at least two proceedings the proceedings "are orwere totally without merit". In the present case the Judge might be entitled to reachthat view on the basis of three proceedings that had been determined against Mr Gengeby the time of the making of the order, together with a fourth which had been heardprior to that date but in which the judgment had not yet been released:(a) The first proceeding challenged the decision of the Visiting Justice inrelation to the actions of a Corrections officer (with whom Mr Gengehad had a verbal exchange in the presence of his family, who werevisiting him in prison, and a subsequent exchange in the prison stripsearch room) on the grounds of error of law, unreasonableness, bias andbreach of natural justice.14 Each cause of action was dismissed,comprehensively, by Dunningham J.(b) The second proceeding challenged both a penalty on a misconductcharge to which Mr Genge had pleaded guilty, and the Visiting Justice'sdetermination of a separate, second misconduct charge. Nation Jdismissed each cause of action advanced. The first claim was notentirely without merit, albeit it was dismissed.15 The second claim,however, was found meritless: Nation J observed, "I am quite satisfiedthat neither [a denial of natural justice nor a miscarriage of justice]occurred. Whatever difficulties he encountered during the hearing wereof his own making but they have not resulted in his being treatedunlawfully or unreasonably, either with regard to proof of the charge oras to the penalty imposed."1613 Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411.14 First judicial review, above n 1, at [32].15 Second judicial review, above n 1, at [69]–[72].16 At [115].(c) The third proceeding belatedly challenged a 2013 decision of a VisitingJustice where a disciplinary charge of behaving in an offensive,threatening and intimidating manner towards a prison doctor had beenproven. Gendall J found there was "no material evidence of any kindbefore me to bear out these allegations".17 In particular Gendall Jdismissed claims that parties at the hearing before the Visiting Justicehad lied or committed perjury. The Judge described those as "bald" and"unsubstantiated".18 The claim was held to have failed in all respects,and costs were ordered against Mr Genge.19(d) The fourth proceeding, which had not been determined at the timethe restraint order was made — although it had been heard — soughtjudicial review of the legality of a prison manager's rule preventingprisoners from entering other prisoners' cells, a prison officer'sdecision to charge him with breaching that rule, and the decision of ahearing adjudicator finding the charge proven. The challenge tothe legality of the prison rule was dismissed by Dunningham J, alongwith Mr Genge's challenge to the decision to charge him.20The challenge to the hearing adjudicator's decision was struck out onthe basis that it was an abuse of process.21[11] Thirdly, Ms Todd submitted that the number of applications, all within a shortperiod of time, in combination with their outcome, suggested a degree ofvexatiousness that could support the making of an order. Mr Genge had failed toproduce evidence to support claims, and other claims were contradicted by evidenceproduced by respondents. Unsubstantiated allegations of bias and perjury were alsomade, again indicating a need for restraint. While decisions of the Visiting Justicewere of course amenable to judicial review, the prison disciplinary system wasfrustrated by repeated, unwarranted applications for review. Ms Todd thereforesubmitted that it was open for the High Court to make the restraint order.17 Third judicial review, above n 1, at [49].18 At [91]–[94].19 Genge v Visiting Justice at Christchurch Men's Prison [2018] NZHC 70 at [27].20 Fourth judicial review, above n 1, at [40] and [69].21 At [88].[12] Fourthly, and turning to the issue of whether the making of the order itselfbreached Mr Genge's right to natural justice, Ms Todd acknowledged that the partieshad not been notified that an order was under consideration, nor given an opportunityto be heard before the order was made. In that respect it was to be contrasted withthree other decisions where a party had sought a restraint order, and orders were madefollowing submissions.22 Ms Todd acknowledged that s 88B(1) of the Judicature Acthad provided that the intended subject of a vexatious litigant order had a right first tobe heard. But that requirement had not been carried through to the Senior Courts Act.Very fairly, however, she acknowledged that that appeared to have occurred withoutspecific discussion, and that while it was possible for the requirements of naturaljustice to be ousted through express words in the statute (or through necessaryimplication) a high threshold existed before implying such an intention in the currentcircumstances. The courts in particular stood in a special position, wherethe principles of natural justice have been said to apply "automatically" where an Actis silent on procedure.23[13] Finally, Ms Todd submitted that if the Court did consider there was a breach ofMr Genge's right to be heard, the error could be cured by the de novo appeal in thisCourt (bearing in mind that it was conceded that the appeal was a general appeal ratherthan an appeal against a discretion). The appellate process would protect Mr Genge'srights: he was being heard on the appeal itself.24Discussion[14] The disquiet of the Judge in dealing with another apparently meritless judicialreview application by Mr Genge, challenging yet another prison disciplinary decision,may certainly be understood. But we are clear that an inadvertent failure of dueprocess has occurred. Mr Genge's appeal against the making of the restraint ordermust be allowed and the order itself quashed.22 Siemer v Attorney-General [2018] NZHC 3406; Singh v Boutique Body Corporates Ltd [2018]NZHC 3233; and Auckland Council v Mawhinney [2019] NZHC 299.23 Commissioner of Police v Tanos (1958) 98 CLR 383 at 395–396; and P A Joseph Constitutionaland Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [25.2.3].24 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [198], [204] and [218].[15] First, an order restraining a right so fundamental as that of seeking theprotection of the High Court in the face of adverse acts by the executive branch ofgovernment (and with the concomitant liability to pay costs if the application fails)will normally engage a second associated right: the right to be notified that such anorder is being considered, and to make submissions at a fairly conducted hearingbefore it is made. The fact that the Senior Courts Act provides a judge may issue arestraint order on his or her own motion does not oust that second right. Nor does thefact that the Senior Courts Act, unlike s 88B of the Judicature Act, makes no expressprovision for a hearing before the making of the order. It is apparent fromthe legislative history of the provision that Parliament and officials did not expresslyadvert to the point.25 But silence on the subject of natural justice is by no means assentto its ouster. Rather, the operating principle is non-ouster unless express words ornecessary implication speak otherwise — the starting point being that where a statuteis silent as to the duty of fairness, "the justice of the common law will supplythe omission of the legislature".26[16] Secondly, we have said the right to access to the courts will "normally" engagethe right to natural justice. But we acknowledge that there may be a narrow class ofcase where prior notification or hearing before the making of a civil restraint ordermay not be required. The courts have always had an inherent jurisdiction to preventegregious abuse of judicial process by, for instance, the repeated filing of claimsalready adjudicated and determined.27 In such cases it has been commonplace forthe High Court to direct that no further proceedings asserting the same claim be25 See, for example, (5 December 2013) 695 NZPD 15299–15313; (18 February 2015) 703 NZPD1725–1749; (23 August 2016) 716 NZPD 13168–13177; (11 October 2016) 717 NZPD 14121–14137; Law Commission Review of the Judicature Act 1908 — Towards a Consolidated CourtsAct (NZLC IP29, 2012) at 190–193; Law Commission Review of the Judicature Act 1908:Towards a New Courts Act (NZLC R126, 2012) at 158–168; Ministry of Justice JudicatureModernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee(April 2014) at 39–46; Supreme Court, Court of Appeal and High Court "Submission to the Justiceand Electoral Committee on the Judicature Modernisation Bill 2014" at [56]–[59]; and JudicatureModernisation Bill 2014 (178-2) (select committee report) at 2–4.26 Cooper v Wandsworth Board of Works (1863) 143 ER 414 at 420. See also Dotcom v UnitedStates of America [2014] NZSC 24, [2014] 1 NZLR 355 at [119]; Ngati Apa Ki Te WaipounamuTrust v Attorney-General [2004] 1 NZLR 462 (CA) at [36]; and Commissioner of Police v Tanos,above n 23, at 395–396.27 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1NZLR 804 at [28]; and Slavich v Judicial Conduct Commissioner [2012] NZCA 31 at [8]–[9].received for filing.28 That jurisdiction has been enlarged, legislatively, by r 5.35B ofthe High Court Rules 2016, inserted in 2017,29 which permits proceedings which area plain abuse of process to be struck out or stayed by a judge on receipt. The right toa hearing is expressly ousted, although there is (as here) a right of appeal.30Conceivably, and alternatively, a judge might instead adopt a parallel course of makingan own-motion restraint order, without notice, confined to precluding what insubstance is the refiling of a claim already adjudicated.[17] Thirdly, this case does not however fall within that narrow exceptional class.Mr Genge's claims are not an abuse of process in that form. They are simplyill-conceived and prone to failure.31 He is liable to pay costs, and costs have beenordered against him. But patently he cannot meet that obligation. Undeterred, andbeyond any real risk to his pocket, he issues another review application where heperceives his rights have been infringed. His self-judgement on such matters is notgood — as he candidly acknowledges — although (for what it is worth) he says he islearning. He is plainly at risk of an order being made under s 166 if he continues toadvance serial, misconceived judicial review applications about the prison disciplinarysystem. Rather than foist the burden of such proceedings on the state, unrelieved bythe payment of costs on failure, some supervision may be justified. In case it is not bynow obvious, a restraint order is not an absolute bar. It precludes continuation or issueof proceedings without leave of the court. In short, the court is required to markthe application before it may issue forth and bother a defendant.[18] Fourthly, all that, however, is for the future. It is not what has happened, andMr Genge was not notified that he was at risk of a restraint order being made.The merits of his application for review were assessed, and the restraint order wasmade, without his being heard on either matter. We consider this infringed his right toa fair hearing, both at common law and under s 27 of the New Zealand Bill of RightsAct.28 See, for example, Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 at [14], [16] and[19].29 High Court Rules 2016 Amendment Rules (No 2) 2017, r 8.30 High Court Rules 2016, r 5.35B(3).31 In contrast, Mr Genge has been successful in two other claims relating not to the prisondisciplinary system but his security classification: see above at [1].[19] Fifthly, we are not satisfied that that infringement can really be cured on appealnow. It is open to a court to find the exercise of its remedial discretion is renderedunnecessary because the irregularity or unfairness in a hearing process has been"cured" by a further process of appeal or review.32 However, as this Court said inNicholls v Registrar of the Court of Appeal, there is no absolute rule of curing byappeal:33The Court should first identify the error, or errors, which are said to vitiate thefirst instance decision. The second step is to examine what effect the appealhas had on the error, or errors, found at the first stage. If the appeal has insubstance removed the prejudice which would otherwise have resulted to thecomplaining party, the Court should exercise its discretion against relief,because overall no continuing prejudice from what went wrong at firstinstance can be shown.In deciding whether the later appeal has cured the earlier defect, an important criterionis therefore that there has been fresh or independent judgment. If this is not possible,the courts will be reluctant to conclude that unfairness can be cured on appeal.[20] In this case there has been a double denial of natural justice in determiningwithout notice and without hearing both the merits of the latest application for reviewand the making of the restraint order. It is not, in our view, a proper case for denial ofa remedy on the basis that these breaches may perhaps be cured by due hearing in thisCourt. The perceived want of merit of the present application for review was integralto the decision to make the restraint order. We have not had a full merits argumenteither. That remains to be determined in the High Court. But the validity of a prisonrule preventing sparring as part of a physical exercise programme, given the right tophysical exercise provided in s 70 of the Corrections Act 2004, is at least arguable.We do not understand the respondents to contend otherwise in the absence ofa strike-out application.[21] Summing matters up, the appropriate process herefrom is this:32 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [109]. See alsoAttorney-General v Chapman, above n 24, at [50], [198] and [218]; and Matthew SmithNew Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at [79.2].33 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 436–437. See alsoSingh v Attorney-General [2000] NZAR 136 (CA) at [9].(a) In the absence of an application by the respondents to strike outthe present application for review, it should be heard on its merits.(b) A party may seek a civil restraint order in the event this proceeding,too, fails. Or the Court hearing the application may put Mr Genge onnotice that such an order may be considered along with costs in theevent of failure.(c) A separate hearing to consider such order (along with costs) should thenbe convened if required.That process will meet the requirements of natural justice.Result[22] The appeal is allowed.[23] The order restricting commencement or continuation of civil proceedings isquashed.[24] There is no order for costs.Solicitors:Crown Law Office, Wellington for Third Respondent