MARONG v THE ATTORNEY-GENERAL [2022] NZHC 1489

MARONG v THE ATTORNEY-GENERAL [2022] NZHC 1489 [22 June 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-000008[2022] NZHC 1489UNDER the New Zealand Bill of Rights Act 1990,Human Rights Act 1993, Mental Health(CAT) Act 1992, Correction Act 2004,Declaratory Judgment Act 1908BETWEEN SAINEY MARONGApplicantAND THE ATTORNEY-GENERAL sued inrespect of the DEPARTMENT OFCORRECTIONSRespondentHearing: 22 June 2022Counsel: Applicant Mr Marong, self-representedW S Taffs for RespondentJudgment: 22 June 2022Reasons: 23 June 2022JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 23 June 2022 at 4.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The plaintiff, Sainey Marong (Mr Marong) makes allegations against theDepartment of Corrections that he was subjected to abuse, in-humane treatment andunlawful discrimination during a period in 2016 and 2017 when he was detained inthe At Risk Unit (ARU) at Christchurch Men's Prison. He seeks declarations that hisrights under the New Zealand Bill of Rights Act 1990 were breached andcompensation.[2] This judgment deals with Mr Marong's application under r 12.4(2) of the HighCourt Rules 2016 for leave to apply for summary judgment. During the hearing,Mr Marong accepted that the application could not succeed. I advised him that I wasgoing to dismiss the application and would record this in writing with reasons. Theseare those reasons.Procedural background[3] Mr Marong commenced this proceeding on 11 January 2022. He isrepresenting himself. His statement of claim is voluminous. It runs to 161 handwrittenA4 pages. It makes numerous allegations grouped under five causes of action. Thereare extensive references to case law as well as file notes and other records of theDepartment of Corrections.[4] On 27 January 2022, Mr Marong filed an application for summary judgment.The application was accompanied by two affidavits. The first affidavit explainsdifficulties Mr Marong was having preparing his claim and refers to bundles ofdocuments, filed at the same time, that Mr Marong relies upon. The second affidavitpurported to be made pursuant to r 12.4(5)(b) of the High Court Rules but it does notcomply with the requirements of that rule. It contains no narrative of events but simplycross-references the statement of claim to documents in Mr Marong's bundles.[5] As his application for summary judgment was not made at the time thestatement of claim was served on the defendant,1 Mr Marong requires leave to applyfor summary judgment.2 He filed an application for leave on 9 February 2022 (the1 The defendant was served with the statement of claim on 18 January 2022.2 High Court Rules 2016, r 12.4(2).leave application). The leave application was accompanied by an affidavit of servicebut no other affidavit.[6] Given the length and scope of Mr Marong's statement of claim the defendantwas given an extension of time to file a statement of defence. It did so on 14 April2022.[7] On 28 April 2022, I made directions for the filing of the defendant's oppositionto Mr Marong's leave application and directed the Registrar to set the application downfor hearing.[8] On 16 May 2022, the defendant filed a notice of opposition, and on 26 May2022 an affidavit of Craig McLintock. Mr McLintock is a Principal CorrectionsOfficer with the defendant who was working at the ARU during the period Mr Marongwas held there.[9] Mr Marong has responded to the defendant's opposition with two memoranda.The first is dated 18 May 2022, in which he asserts his entitlement to summaryjudgment. The second is dated 26 May 2022 (filed 3 June 2022) and is a lengthydocument (54 handwritten pages) containing submissions responding toMr McLintock's affidavit.The High Court Rules[10] A plaintiff's application for summary judgment is brought pursuant to r 12.2(1)of the High Court Rules 2016. It provides:The court may give judgment against a defendant if the plaintiff satisfies thecourt that the defendant has no defence to a cause of action in the statement ofclaim or to a particular part of any such cause of action.[11] An oft cited summation of the correct approach to summary judgmentapplications is contained in Krukziener v Hanover Finance Ltd as follows:3[26] The principles are well settled. The question on a summary judgmentapplication is whether the defendant has no defence to the claim; that is, that3 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1(CA) at 3. The Court must be left without any real doubt or uncertainty. Theonus is on the plaintiff, but where its evidence is sufficient to show there is nodefence, the defendant will have to respond if the application is to be defeated:MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normallyresolve material conflicts of evidence or assess the credibility of deponents.But it need not accept uncritically evidence that is inherently lacking incredibility, as for example where the evidence is inconsistent with undisputedcontemporary documents or other statements by the same deponent, or isinherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at341. In the end the Court's assessment of the evidence is a matter of judgment.The Court may take a robust and realistic approach where the facts warrant it:Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).[12] The High Court Rules contemplate a plaintiff's application for summaryjudgment will be made at the time a proceeding is commenced and served on thedefendant. Under r 12.4(2) an application may be made at a later time with leave ofthe Court. There is not any guidance in the Rules as to when leave of the Court willbe granted.[13] The commentary in McGechan on Procedure states:4 The question is clearly a discretionary one, and it will be up to the partyapplying for leave to show why it should be granted. If the absence of adefence has only become apparent after discovery or the exchange of briefs,this may well be an adequate reason for granting leave. In many cases, as withappeals, the leave question will be bound up with the merits, and it may bedifficult to determine the leave question without some consideration of themerits.[14] Case law has identified some factors that are relevant in determining whetherto grant leave. In Tip Top Ice Cream Co Ltd v Polarland Ltd, Master Faire consideredthree factors assume importance, namely:5(a) Has the delay been satisfactorily explained?(b) Are the merits of the applicant's case for the relief sought particularlystrong and therefore deserving of determination by the Court at a latertime than is prescribed by the Rules?(c) Is there any risk of a miscarriage of justice by determining theapplication at the later point in time?4 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR12.4.01A.5 Tip Top Ice Cream Co Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 (HC) at [28].[15] These are not the only factors to be considered. The overriding considerationmust be the interests of justice having regard to the stated objectives of the High CourtRules to secure the just, speedy and inexpensive determination of proceedings. Itwould not, for instance, be appropriate to grant leave to a plaintiff to apply forsummary judgment where that will not save the parties time or expense or would onlyprolong the proceeding. 6Mr Marong's application[16] Mr Marong's leave application was filed before the defendant filed a statementof defence and just four weeks after he commenced the proceeding. Despite theabsence of any explanation from him as to why he did not apply for summary judgmentimmediately, no prejudice arises from his failure to do so. Accordingly, I would notdismiss his application on that basis. There are, however, other reasons why I mustdo so.[17] The first matter is that Mr Marong has not filed a substantive affidavit insupport of his applications for summary judgment or for leave. The affidavit uponwhich he relies is dated 24 January 2022 and contains no narrative.[18] Furthermore, Mr Marong's affidavit does not comply with the mandatoryrequirement of rule 12.4(5). He has not verified by affidavit the allegations in thestatement of claim or deposed to a belief that the defendant has no defence to hisallegations.[19] The next matter is that it would be futile to grant Mr Marong leave to apply forsummary judgment in circumstances where his application has no prospect of success.That would be contrary to his interests and would prolong the proceedingunnecessarily. It would also put the defendant to unnecessary costs.[20] I am satisfied Mr Marong's claim is unsuitable for summary judgment. Thefirst reason relates to Mr Marong's statement of claim. While clearly the product ofmuch industry it requires a great deal of work to isolate the allegations being made6 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592.and to remove evidence as well as legal and factual submissions. The defendantsubmits, and I accept, that it is not practical to require it to respond to such a pleadingin the summary judgment context. As it is, Mr Marong is critical of the attempt thedefendant has made to plead to the statement of claim.[21] More importantly, there are very clearly factual disputes in relation to each ofthe claims made by Mr Marong that cannot be resolved on a summary judgmentapplication. While Mr Marong has produced many documents to support his claims,they are open to different interpretations. Whether the defendant breachedMr Marong's rights in any of the respects alleged can only be appropriatelydetermined following discovery and at a hearing involving the examination ofwitnesses.Future conduct of the case[22] Mr Marong's case is complex. The allegations he makes are serious and aretreated by the Court as such. I am concerned that Mr Marong will not be able toadequately represent himself. I have spoken to Mr Marong about the possibility ofapplying for civil legal aid, which I consider is the first step that should be taken beforethe case is progressed. He agrees that he will make an application. Mr Taffs hashelpfully offered to provide Mr Marong with contact details for counsel who may beable to assist him in this regard.Result[23] At the conclusion of the hearing I made the following orders, which were notopposed:(a) Mr Marong's application for leave to apply for summary judgment isdismissed; and(b) The Registrar is to arrange for a further telephone conference in6 weeks to allow Mr Marong to make application for civil legal aid.[24] Costs are reserved._______________________O G PaulsenAssociate JudgeSolicitors:Crown Solicitor's Office, Raymond Donnelly & Co, ChristchurchCopy to: Mr S Marong