CHENG v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2021] NZHC 2725

CHENG v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2021] NZHC 2725 [13 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000064[2021] NZHC 2725BETWEEN THOMAS CHENGApplicantAND CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONSRespondentCIV-2020-404-000160BETWEEN THOMAS CHENGApplicantAND CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONSRespondent .../intituling cont overHearing: 31 August 2021Appearances via VMR:Applicant in person HT Reid for Department of Corrections and Commissioner of Police JK Scragg and NL Jagusch for SercoJudgment: 13 October 2021JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 13 October 2021 at 10 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Auckland.Duncan Cotterill, Auckland.Copy to: Applicant.CIV-2020-404-001759BETWEEN THOMAS CHENGApplicantAND PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY (SERCO)RespondentCIV-2020-404-002191BETWEEN THOMAS CHENGApplicantAND COMMISSIONER, NEW ZEALAND POLICERespondentINDEPENDENT POLICE CONDUCT AUTHORITYInterested PartyA sequel[1] This brief judgment is a sequel.[2] On 11 December 2020, I stayed 25 claims brought by Thomas Cheng, a sentenced prisoner facing fresh criminal charges. 1 I gave Mr Cheng an opportunity to re-plead. Mr Cheng has done so. He applies for the stay to be lifted in relation to four claims. The defendants, the Chief Executive of the Department of Corrections2 and the Prison Director for Auckland South Corrections Facility,3 oppose the applicationin relation to three claims.4 They also seek security for costs should any of the three proceed.Background[3] Much of the background is in my earlier judgment, knowledge of which is assumed. In short, Mr Cheng's litigation began January 2020. By November 2020, he had brought 25 claims, 23 of which I stayed. Since then, Mr Cheng has filed several new claims, including some with the same or similar subject matter to those stayed. Most remain ongoing.5 Mr Cheng has also helped several other prisoners bring claims against Corrections. These too remain ongoing. 6The three claims in relation to which the defendants contest permissionCIV-2020-404-64: dinner times and Friday lockdowns[4] Mr Cheng alleges while he was at Auckland Prison, dinner was served between2 and 3.30 pm. Mr Cheng seeks judicial review of this practice, and damages under the New Zealand Bill of Rights Act 1990.71 Cheng v Chief Executive, Department of Corrections and Prison Director, Auckland South Corrections Facility (Serco) [2020] NZHC 3273.2 Corrections.3 Serco.4 No opposition is offered to CIV-2020-404-2191.5 CIV-2021-404-164; CIV-2021-404-360; CIV-2020-404-1704; CIV-2020-404-2252; and CIV-2020-404-2268. Lang J stayed CIV-202-404-2191. At the hearing, Mr Cheng confirmed he withdrew CIV-2020-404-1703.6 CIV-2020-404-1992; CIV-2020-404-2192; CIV-2020-404-2273; and CIV-2020-404-2274.7 Bill of Rights Act.[5] Mr Cheng also alleges Auckland Prison was locked down every Fridayafternoon, and on one occasion, he was wrongly denied exercise. Mr Cheng seeks judicial review and damages under the Bill of Rights Act.CIV-2020-404-160: prisoner complaints system[6] Mr Cheng lists 22 complaint forms. He alleges Corrections "failed to comply with statutory standards and obligations required under the prisoner complaints policies for timely processes of complaints". Mr Cheng also alleges his complaints against Auckland Prison staff in 2019 and 2020 were "closed without proper reviewof the facts". Mr Cheng seeks damages under the Bill of Rights Act. He also alleges the prisoner complaints system is "ultra vires", and contrary to the principles of natural justice.CIV-2020-404-1759: property[7] This claim concerns what Mr Cheng describes as "WIRI PROPERTY ISSUES 2020". Mr Cheng was a prisoner at Wiri at that time. He alleges Serco wrongly declined his requests for CDs, a fan, tracksuits, cushions, extension cords, a jacket and cap. Mr Cheng complained. Months later, the fan was released to him. Mr Cheng also alleges several parcels, including a hair dryer and another containing legal papers, were not properly recorded on the prisoner property register. Mr Cheng again seeks judicial review and damages under the Bill of Rights Act.A précis of Mr Cheng's submission[8] Mr Cheng contends the three claims should be allowed to proceed. He has revised his pleadings, and they no longer contain the problems that caused his claims to be stayed. Mr Cheng has attempted to resolve his complaints without coming to court, including by referring them to the Ombudsman. Mr Cheng emphasises the vulnerability of prisoners; the importance of human rights in a penal context; and theneed to hold jailers to account when they breach the law. Mr Cheng also submits there is a significant public interest in his claims.Analysis[9] Claims 64 and 160 continue to suffer significant flaws.[10] Both rely heavily on ss 21 and 27 of the Bill of Rights Act. Section 21 protects against unreasonable search and seizure. Section 27 affirms the right to justice, especially natural justice. The pleaded facts disclose no search, let alone one that is unreasonable. Pleaded facts in relation to claim 64 do not engage the right to justice.[11] Both claims remain poorly pleaded. The most serious failing is a lack of particularity, in turn risking needless expense and delay. For example, claim 160 lists 22 complaint forms and alleges Corrections "failed to comply with statutory standards and obligations". These are not elucidated.[12] Both claims inadequately distinguish between breaches of rights (or other infractions of law) and penal practices or policies Mr Cheng wants ceased.8 The former is actionable; the latter is not.9[13] Claim 64 is in part directed to Mr Cheng's inability to exercise on a single occasion on 28 February 2020. My earlier judgment made clear this lay beyond the Court's concern. 10 Mr Cheng's response is that this aspect "lends colour" to the claim, constitutes admissible "propensity evidence", or both.[14] These problems could probably be cured by amendment, leaving open at least the possibility of justiciable human rights concerns.11 However, this would require the intervention of counsel and Mr Cheng does not have a lawyer. Appointment would circumvent the legal aid regime.8 A penal policy could, of course, be based on an unlawful decision. The point, however, remains: the pleadings do not disentangle the general from the particular.9 For example, Mr Cheng asks the Court to declare the entire prisoner complaints regime contravenes the Bill of Rights Act.10 Cheng v Chief Executive, Department of Corrections and Prison Director, Auckland South Corrections Facility (Serco), above n 1, at [50].11 The Ombudsman has commented unfavourably on Friday lockdowns and mealtimes at Auckland Prison; Final Report on Unannounced Inspection of Auckland Prison under the Crimes of Torture Act 1989—14 December 2020 at 16, 30, 35, 36, 54 and 69.[15] In this type of situation, it is tempting to conceive of the litigation in terms of David and Goliath and thus, by allegory, overlook the (significant) pleading problems. However, this risks needless expense and delay. Public resources are finite, including those of the Courts. Covid-19 related delays and adjournments have made this stark.12Moreover, Mr Cheng has now had two opportunities to frame intelligible claims. Rather than focusing exclusively on the repleading exercise (in consequence of my earlier judgment), Mr Cheng instead chose to bring a suite of fresh claims, including, as observed, some with the same or similar subject matter to those stayed. Vexatious litigation compromises the ability of other litigants to access justice. For these reasons, I am not persuaded to lift the stay on these claims. Expressed another way, the claims as pleaded remain an abuse of process.[16] Claim 1759 is at the very cusp of what this Court hears. It discloses no significant human rights concerns. While the claim refers to legal papers, Mr Cheng does not allege Corrections withheld these; rather, that it failed to properly document them. The claim also risks micro-management of a prison, something Courts have said is not their role.13[17] Among other things, the claim alleges breaches of ss 14 and 27 of the Bill of Rights Act. Section 14 affirms the right to freedom of expression and asobserved, s 27, the right to justice. Pleaded fact does not engage either.[18] The claim overlaps another active claim brought by Mr Cheng. 14 The claim is better pleaded than 64 and 160, but still risks time and money on elucidation. And as with those claims, Mr Cheng is no longer at the institution about which he complains.[19] For these reasons, I am not persuaded to lift the stay in relation to this claim either. It too is an abuse.[20] No opposition is offered to Mr Cheng's fourth claim: CIV-2020-404-2191. It may proceed.12 The Auckland Registry may yet end the year with 16 adjourned criminal trials.13 McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [58].14 CIV-2020-404-2252 remains ongoing. It concerns a search of Mr Cheng's cell 18 October 2020, and related seizure of Sellotape, a shaver and a pack of razors.[21] These conclusions make it unnecessary to address the defendants' application for security for costs.Result[22] The application in relation to CIV-2020-404-64, CIV-2020-404-160 and CIV-2020-404-1759 is declined. The application in relation to CIV-2020-404-2191 is granted.Costs[23] I am minded to let costs lie where they fall, while signalling this does not represent a precedent for Mr Cheng's other claims. If the parties are not content with this, they may file and serve memoranda of not more than five pages each:(a) Corrections on or before 27 October 2021.(b) Serco on or before 3 November 2021.(c) Mr Cheng on or before 10 November 2021...Downs J