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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2004-485-1902
UNDER The Convention against Torture and other
Cruel,
Inhuman or Degrading Treatment or
Punishment, the International Covenant on
Civil and Political Rights, the Declaratory
Judgments Act 1908
AND UNDER The Penal Institutions Act 1954, the
Judicature
Amendment Act 1972 and the
New Zealand Bill of Rights Act 1990
BETWEEN
WAYNE CLARK
Plaint iff
AND THE GOVERNOR-GENERAL
IN RIGHT
OF NEW ZEALAND
THE ATTORNEY-GENERAL
Second Defendants
AND THE DISTRICT COURT AT
WELLINGTON AND AUCKLAND
Third Defendant
Hearing:
14 December 2005
Appearances: T Ellis for Plaintiff
V Sim and R Schmidt for Defendants
Judgment: 2 February 2006
at 11.00am
JUDGMENT (NO.1) OF MILLER J
[1] The Associate Judge struck out the plaintiff's second cause
of action. It is
now said that he had no jurisdiction to do so, and was wrong in any event.
[2] This judgment addresses the
plaintiff's application for an extension of time to
seek a review, and the question of jurisdiction. Counsel agreed that the merits
of the
review application should be argued subsequently, either as a review application
WAYNE CLARK V THE GOVERNOR-GENERAL IN RIGHT
OF NEW ZEALAND AND ORS HC WN CIV-
2004-485-1902 2 February 2006
should I find the Associate Judge had jurisdiction or as an application
to strike-out
the second cause of action.
Factual Background
[3] In 2003 Mr Clark was serving a term of imprisonment. He was
held in D
Block at Paremoremo prison, where he was subjected to the Behaviour Modification
Regime. A description of that regime can
be found in A-G v Taunoa (CA82/04 8
December 2005).
[4] Mr Clark says that in March 2003 he had a personal conflict of some
sort
with a prison officer whom the inmates knew as "South Africa". The following day,
three prison officers, including the officer
concerned, ordered Mr Clark from his cell.
He was taken to another cell. There two officers assaulted him while the third stood
in
the door looking anxious. He was struck in the face several times and had his
head pushed against the wall. One of the officers placed
his forearm across Mr
Clark's throat, pinning him to the wall. He was kneed in the stomach and kicked in
the shin. He believes his
eardrum was ruptured. He says he did not resist but put his
hands behind his back. The assault lasted one to two minutes. He later
saw a doctor
about his ear but did not mention the incident. Nor did he lodge a complaint.
[5] Mr Clark has other grievances
against the same officer, relating to tearing up
a photograph of his mother, putting toothpaste in his milk, and on one occasion
prodding him with a broom handle through the grill on his cell door while Mr Clark
was exercising.
[6] It appears that Mr Clark's
counsel brought these complaints to the attention
of the prison authorities in April 2004. The above summary is taken from the report
of District Court Judge Doogue to Chief District Court Judge Carruthers. Under s10
of the Penal Institutions Act 1954 all District
Court Judges were Visiting Justices.
Judge Doogue, as he then was, was not able to determine the truth of the matter, but
he saw
nothing in Mr Clark's account that would enable him to dismiss it as an
invent ion. He thought the complaints too serious to be dealt with under the Visiting
Just ice procedure.
They alleged serious criminal offending and, as such, Mr Clark's
counsel should consider making a complaint to the Police.
[7]
Mr Clark was not agreeable to that. Nor did he take up an indication that the
Ombudsman was willing to investigate. He sought
what the pleading calls a formal
investigat ion into Mr Clark's complaints. The Chief District Court Judge advised by
letter of 27
August 2004 that he was not prepared to accede to the request. He
observed that there were other mechanisms available to Mr Clark,
namely the police,
the prison inspectorate, and the Ombudsman. There would be additional
mechanis ms when the Corrections
Act 2004 came into force. The District Court is
not resourced to investigate what amount to allegations of criminal offending by
prison officers, nor are there clear guidelines in the legislation prescribing how such
an investigation might be conducted. If granted,
the request might lead to many
similar requests.
The proceeding
[8] This proceeding was launched on 10 September 2004. The
first amended
statement of claim pleads two causes of action. The first alleges that the New
Zealand Government has failed to make
resources available to allow Visiting
Just ices to conduct prompt, independent and impartial reviews of complaints of
torture or
other ill-treatment. It is said that neither Judge Doogue nor the Chief
District Court Judge took into account the New Zealand Bill
of Rights Act
(NZBORA), the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Convention
against Torture), the
International Covenant on Civil and Political Rights (ICCPR), the Principles on the
Effect ive Investigation
and Documentation of Torture and other Cruel, Inhuman or
Degrading Treatment of Punishment adopted by the General Assembly of the
United
Nations on 4 December 2000 (the Principles), or the Manual on the Effective
Invest igat ion and Documentation of Torture and
Other Cruel, Inhuman or Degrading
Treatment of Punishment (Istanbul Protocol). The statement of claim seeks
declarat ions
and orders the effect of which would be to require that such an
investigat ion be carried out promptly.
[9] The second cause
of action alleges a systemic failure by the New Zealand
Government to make available resources and training to address the NZBORA,
the
Convention against Torture, the ICCPR, the Principles, or the Istanbul Protocol.
Such resources and training should be made
available to the judiciary and other
public officials involved in the custody, interrogation, or treatment of any individual
subject
to arrest or detention. Nor has the Government set up systems to properly
investigate allegations of torture and to ensure that complainants
and witnesses are
protected from ill-treatment or intimidation. The failures breach ss9 and 23(5) of the
NZBORA. They are so comprehensive
as to amount to a lack of good faith contrary
to Article 26 of the Vienna Convention on the Law of Treaties. The relief sought is
a
declarat ion that the defendants breached NZBORA, and Articles 10, 11, 12, and 13
of the Convention against Torture, Article 7
of the ICCPR, the Principles, and the
Istanbul Protocol.
[10] Neither cause of action expressly pleads the Judicature Amendment
Act
1972, although it is mentioned in the comprehensive intituling and the first cause of
action seeks an order in the nature of
mandamus, requiring that a Visiting Justice
investigat ion be carried out promptly. The second cause of action, with which the
strike-out
application was principally concerned, seeks only declarations that the
defendants breached ss 9 and 23(5) of NZBORA and the Convention
against
Torture, ICCPR, the Principles, and the Istanbul Protocol.
The application to strike out and the decision of Associate
Judge Gendall
[11] The defendants invited the Associate Judge to strike out the second cause of
action in its entirety, and paragraphs 27-29 in the first
cause of action. The latter
paragraphs also deal with an alleged systemic failing. It is said that the Government
breached Articles
10, 12 and 13 of the Convention against Torture by failing to
resource investigation of complaints and to protect witnesses.
[12]
The grounds relied on were that the first amended statement of claim
discloses no breach of ss9 or 23(5) of NZBORA, that Articles
10-13 of the
Convention against Torture can found no cause of action in New Zealand law as they
have not been implemented by New
Zealand legislation, that although Article 7 of
the ICCPR is partially implemented in New Zealand the first amended statement of
claim discloses no breach of it as implemented, and that the Principles and the
Istanbul Protocol are not binding instruments at
international law and so could not
found a cause of action in New Zealand.
[13] The application was argued before the Associate
Judge on 29 April 2005. No
object ion was taken to his jurisdiction. In a judgment dated 27 May 2005 he granted
the application.
The first defendant was struck out entirely, effectively by consent.
He referred to Rule 186 and the usual authorities governing
the Court's approach to
strike-out applications. He observed that the pleading did allege a breach of the
plain terms of sections
9 and 23(5) of the NZBORA, which respectively provide
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel,
degrading, or disproportionately severe
treatment or punishment.
23 Rights of persons arrested or detained
(5) Everyone deprived of liberty shall
be treated with humanity and
with respect for the inherent dignity of the person.
[14] In a very thorough and carefully
reasoned judgment, the Associate Judge held
that the rights contained in sections 9 and 23(5) of the NZBORA do not by
implicat ion
oblige the Government to educate the judiciary and officials, to review
rules relating to investigation and custody, and to protect
complainants and
witnesses. He referred to the Convention against Torture and the ICCPR, which
New Zealand has duly ratified, so
assuming an obligation at international law to
observe those treaties in good faith. Although New Zealand legislation will be
interpreted
in a manner consistent with treaty obligations where the legislation
concerned admits of such interpretation, treaties are strictly
enforceable in New
Zealand Courts only to the extent incorporated into domestic law. He noted that the
plaint iff could also invoke
customary international law, under which torture is an
internat ional crime. It was common ground that the Principles and the Istanbul
Protocol are not treaties. He recorded that the plaintiff relied on them only as
interpretive aids.
[15] The Associate Judge
further held that the obligations pleaded had not been
incorporated into domestic law, either by necessary implication following
enactment
of the NZBORA or under customary international law. He also noted the inherently
political and hence non-justiciable
nature of the obligations to fund training and to
systemat ically review procedures. He found arguably justiciable the obligations
to
set in place a system to investigate claims of torture or ill-treatment, and to protect
complainants and witnesses. However,
he concluded that New Zealand had
complied with the latter obligations, referring to the fact that acts of torture are likely
to
constitute crimes against the person, the office of the Ombudsman, and the powers
of the prison inspectorate under s29 of the Corrections
Act 2004. The Court's role is
that of verifying that international obligations incorporated into domestic law are
observed. For these
reasons, the second cause of action was so clearly untenable that
it could not succeed. It was struck out. Although the Associate Judge's reasoning
strongly suggests that paragraphs
27-29 of the first cause of action are untenable, he
did not strike those paragraphs out.
The application for review
[16] The
application for review was filed 14 days after the judgment was issued.
The explanation for failure to file within the prescribed
7 days is oversight of
counsel. It then occurred to Mr Ellis that the Associate Judge might lack jurisdiction
because the proceeding
amounted to an application for judicial review under the
Judicature Amendment Act or proceedings for a declaration within the meaning
of
s26J(4)(b)-(c) of the Judicature Act 1908. It has been held that an Associate Judge
lacks jurisdiction to hear a strike-out application
in relation to an application for
judicial review: Reid v NZ Fire Service (1995) 8 PRNZ 550. Counsel for the Crown
did not accept that the Associate Judge was without jurisdiction, taking the position
that the second cause
of action was concerned not with judicial review, but rather
with the NZBORA and various international instruments. The Crown contended
that
there are numerous cases in which Associate Judges have dealt with strike-out
applicat ions involving the Court's declaratory
jurisdiction or the NZBORA.
Jurisdiction of the Associate Judge
[17] Section 26J of the Judicature Act provides, so far as
relevant:
26J Power to make rules conferring specified jurisdiction and powers of Judge
in Chambers on Associate Judges
(1)
Notwithstanding anything contained in any other provision of this Act or of
any other Act but subject to the provisions of
this section, rules made under
section 51C of this Act or rules made under any other Act in the manner
provided in
that section may confer on Associate Judges, subject to such
limitations and restrictions as may be specified in the rules,
such of the
jurisdiction and powers of a Judge sitting in Chambers, conferred by this
Act or any other Act, as may
be specified in the rules.
(2) Any such rules may contain such other provisions as may be necessary--
(a) to enable
the proper exercise by Associate Judges of the jurisdiction
and powers so conferred; and
(b) to regulate the
practice and procedure of the Court on any application
to the Court under section 26P(1) of this Act to review the exercise
by
an Associate Judge of the jurisdiction and powers so conferred.
(3) Nothing in subsection (1) or subsection (2)
of this section authorises the
making of any rule which confers on Associate Judges any jurisdiction or
power in
respect of any of the following matters:
(a) any criminal proceeding, other than an uncontested application for bail
or an application for the setting aside of a witness summons:
(b) any application for a writ of habeas corpus:
(c) any proceedings for the issue or renewal of a writ of sequestration:
(d) any proceedings under or by virtue
of the Care of Children Act 2004:
(e) any action in rem under or by virtue of the Admiralty Act 1973:
(f) any application
to review, or any appeal against, the exercise, or the
refusal to exercise, by any Registrar or Deputy Registrar, of
any
jurisdiction or power conferred on any Registrar or Deputy Registrar
by or under this Act or any other
Act.
(4) Nothing in subsection (1) or subsection (2) of this section authorises the
making of any rule which confers
on Associate Judges any jurisdiction or
power--
(a) to grant an Anton Piller order, or an injunction (whether interlocutory
or otherwise):
(b) (b) to grant any relief on an application for review under section 4(1)
of the
Judicature Amendment Act 1972:
(c) to grant any relief in any proceedings for a writ or order of or in the
nature
of mandamus, prohibition, or certiorari, or for a declaration or
injunction:
(d) to grant any application to
remove any person from public office:
(e) to try the right of any person to hold any public office.
[18] Rule 61A of
the High Court Rules provides that Associate Judges have the
jurisdict ion of a Judge sitting in Chambers, but adds that nothing
in the Rule confers
jurisdict ion in respect of the matters specified in ss26J(3) and (4). Interlocutory
applicat ions, including
those to strike out proceedings, are heard in Chambers unless
the Court directs otherwise: R251.
[19] The question is whether
the Associate Judge assumed jurisdiction to grant
relief on an application under s4(1) of the Judicature Amendment Act or to grant
relief in any proceedings in the nature of mandamus, prohibition, for certiorari, or for
a declaration or injunction. Mr Ellis pointed out that the parties could not confer
jurisdict
ion on the Associate Judge by mutual oversight. He urged a literal
construction of s26J(4) upon me, maintaining that there
was no jurisdiction because
the proceeding is for judicial review and declarations. He recognised, however, that
declarat ions are
routinely sought in civil proceedings having nothing to do with
public law. Accordingly, he refined his submission in argument, contending
that
Associate Judges lack jurisdiction to make declarations in public law proceedings,
and that proceedings invoking NZBORA are
public law proceedings.
[20] With respect to the Judicature Amendment Act, I accept Ms Schmidt's
submissio n that the Associate
Judge did not purport to grant relief on an application
under s4(1). The second cause of action nowhere invokes the Act. The only
relief
sought is declarations that the defendants have breached NZBORA and the
internat ional instruments above.
[21] However,
s 26J(4)(c) refers to relief in the form of a declaration. Ms Schmidt
argued that in context, `declaration' refers to a declaration
granted in administrative
law proceedings, including proceedings in which prerogative remedies are sought. It
was said that the jurisdiction
to make declarations under the Declaratory Judgments
Act 1908 is distinct from the exercise of the Court's supervisory jurisdiction.
Associate Judges have dealt with applications under the Declaratory Judgments Act;
see for example Commerce Commission v Sweetline
Distributors (2000) 6 NZBLC
103,130. However, counsel could not identify any case in which the jurisdiction
issue has been confronted.
[22] The language of
s26J(4)(c) appears to have been taken from s4(1) of the
Judicature Amendment Act. That Act was designed to simplify judicial review
by
creating a single procedure encompassing all such applications. It confers
jurisdict ion to review the exercise
of statutory powers and it establishes a single
procedure that also applies to review of non-statutory or prerogative powers. For
that reason it was not sufficient for the drafter to refer in s26J(4) only to applications
under s4(1). In order to exclude judicial
review from the Associate Judges'
jurisdict ion, it was also necessary to refer, as s4(1) of the Judicature Amendment Act
does, to
relief that the Court might grant in an application for judicial review. I
conclude that the drafter intended only to exclude judicial
review, and not to prohibit
the making of declarations in other proceedings. If that were not so, s26J(4)(a),
which excludes injunctions,
would be redundant; the word `injunction' also appears
in subsection (4)(d).
[23] A proceeding under the NZBORA is not an application
for judicial review:
see for example Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667,
675. Accordingly, s26J(4) does not preclude Associate Judges from exercising their
jurisdict ion to strike out proceedings under
the NZBORA. I conclude that the
Associate Judge had jurisdiction to strike out the second cause of action.
Extension
of time for application for review
[24] The respondent did not seriously oppose the application for extension of
time, which
is granted.
Result
[25] As noted at the outset, the merits of the application are to be addressed in a
separate judgment.
The effect of this decision is that the balance of Mr Clark's
applicat ion will be heard as an application for review of the Associate
Judge's
decisio n.
[26] Costs are reserved.
F Miller
J
Solicitors:
N B Dunning of Wellington for Plaintiff
Crown Law Office of Wellington for Defendants
In accordance with r540(4)
I direct the Registrar to endorse this judgment with the delivery time
of...11.00am...on the ...2nd.......day of .........February........2006.
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