Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

ALAN IVO GREER V THE PRISON MANAGER AT RIMUTAKA PRISON AND ORS HC WN CIV 2008-485-1603 [2008] NZHC 1651 (23 October 2008)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                             CIV 2008-485-1603

             UNDER                    the Judicature Act 1908, Section 69 Trial at
                                      Bar



            BETWEEN                  ALAN IVO GREER
                                      Plaintiff

             AND           
          THE PRISON MANAGER AT
                                      RIMUTAKA PRISON
                                      First
Respondent

             AND                      RIMUTAKA PRISON OFFICER, MSC
                                      SKIP WOLEDGE
                                      Second Respondent

             AND                      THE CHIEF EXECUTIVE,
            
                         DEPARTMENT OF CORRECTIONS
                                      Third Respondent

             AND     
                THE ATTORNEY-GENERAL
                                      Fourth Respondent

             AND                  
   RIMUTAKA PRISON OFFICER,
                                      TERENCE GROVES
                                      Fifth Respondent

             AND                      RIMUTAKA PRISON OFFICER, DEAN
                                      BROSNAHAN
           
                          Sixth Respondent

             AND                      INSPECTOR OF CORRECTIONS, RUTH
               
                      REESE
                                      Seventh Respondent


Hearing:     13 October 2008

Counsel:   
 A I Greer in Person
             C Griffin & H McLachlan for the Crown

Judgment:    23 October 2008



ALAN IVO GREER V THE PRISON
MANAGER AT RIMUTAKA PRISON AND ORS HC WN CIV 2008-
485-1603 23 October 2008

                       JUDGMENT OF RONALD YOUNG J



[1]     Mr Greer seeks trial by jury for these proceedings pursuant to section 19A
and section 19B of the Judicature Act 1908.


[2]      After Mr Greer's application was filed submissions in support and in
opposition by the respondents were timetabled and
filed. A hearing by telephone
conference was arranged and held on 13 October. Both parties made submissions. It
turned out that Mr
Greer had not received the respondent's bundle of authorities,
which contained relevant provisions of the Judicature Act, the McGechan
commentary and relevant case law.            I arranged for these documents to be
immediately served on Mr Greer.          I allowed
him until 20 October 2008 as an
extension to file any further submissions he wished in support of his application for
trial by jury
given his late receipt of this further information.


[3]    No further submissions have been received by Mr Greer by 5.00 p.m.,
20 October 2008 relevant to this application.


[4]    In these proceedings Mr Greer, who is a prisoner, complains about lack of
access to a computer and electronic library, and lack of facilities to enable him to
undertake proceedings in the New Zealand Courts,
both civil and criminal.


[5]    In addition he complains about the unlawful taking and interference with
personal items by prison
staff. Finally, he alleges the prison authorities have failed
to provide a competent independent complaint process for him as a prisoner.


[6]    The causes of action in his statement of claim in particular allege:


       [i]      failure by the Department of Corrections
to comply with a Court of
       Appeal direction concerning the provision of facilities by the Department to
       facilitate Mr
Greer's conduct on a criminal appeal;

      [ii]    a wrongful denial by the Department of Corrections of access to
      library
facilities;


      [iii]   unlawful withholding of his computer by the Department;


      [iv]    unlawfully denying access to
the prison computer by the Department;


      [v]     unlawfully dealing, by members of the Department of Corrections,
      with
his private property;


      [vi]    a Department of Corrections failure to provide an independent
      complaint process to deal with complaints by Mr Greer about the Department
      and its
officers.


[7]   The remedies sought by Mr Greer include:


      [i]     declarations;


      [ii]    injunctions, stay of prosecutions,
mandamus and prohibition;


      [iii]   directions to Department of Corrections members;


      [iv]    orders to investigate
alleged unlawful activity;


      [v]     public law compensation, general damages, exemplary damages and
      punitive damages.


[8]   Section 19A and section 19B of the Judicature Act 1908, provide as follows:

      19A     Certain civil proceedings may
be tried by jury

      (1)     This section applies to [[civil proceedings]] in which the only relief
              claimed is payment
of a debt or pecuniary damages or the recovery
              of chattels.

      (2)     If the debt or damages or the value of the
chattels claimed in any
              [[civil proceedings]] to which this section applies exceeds
              [[$3,000]], either
party may have the [[civil proceedings]] tried
              before a Judge and a jury on giving notice to the Court and to the


      other party, within the time and in the manner prescribed by the
      [[High Court Rules]], that he requires the [[civil
proceedings]] to be
      tried before a jury.

(3)   Notwithstanding anything in subsection (2) of this section, in any
      case
where, after notice has been given pursuant to that subsection
      but before the trial has commenced, the debt or damages or the
value
      of the chattels claimed is reduced to [[$3,000]] or less, the [[civil
      proceedings]] shall be tried before a Judge
without a jury.

(4)   If, in any [[civil proceedings]] to which this section applies, the
      defendant sets up a counterclaim,
then, unless pursuant to this
      section the [[civil proceedings]] and the counterclaim are both to be
      tried before a Judge
without a jury, the following provisions shall
      apply:

      (a)     On the application of either party made with the consent
in
              writing of the other party, both the [[civil proceedings]] and
              counterclaim shall be tried before
a Judge without a jury, or
              before a Judge with a jury, whichever is specified in the
              application:

 
    (b)     If no such application is made, the [[civil proceedings]] and
              the counterclaim shall, subject to any direction
of the Court
              or a Judge under section 19B of this Act, be tried in
              accordance with the foregoing provisions
of this section:

      Provided that if the Court or a Judge orders that the [[civil
      proceedings]] and the counterclaim be
tried together, they shall be
      tried before a Judge with a jury.

(5)   Notwithstanding anything to the contrary in the foregoing
provisions
      of this section, in any case where notice is given as aforesaid
      requiring any [[civil proceedings]] to be
tried before a jury, if it
      appears to a Judge before the trial--

      (a)     That the trial of the [[civil proceedings]]
or any issue therein
              will involve mainly the consideration of difficult questions
              of law; or

      (b)
    That the trial of the [[civil proceedings]] or any issue therein
              will require any prolonged examination of documents
or
              accounts, or any investigation in which difficult questions in
              relation to scientific, technical,
business, or professional
              matters are likely to arise, being an examination or
              investigation which cannot
conveniently be made with a
              jury,--

      the Judge may, on the application of either party, order that the
     
[[civil proceedings]] or issue be tried before a Judge without a jury.

(6)   Nothing in this section shall apply in respect of any
[[civil
      proceedings]] to be heard by the Court in its admiralty jurisdiction.

       19B    All other civil proceedings to be tried before Judge alone, unless
  
    Court otherwise orders

       (1)     Except as provided in section 19A of this Act, [[civil proceedings]]
               shall
be tried before a Judge alone.

       (2)     Notwithstanding subsection (1) of this section, if it appears to the
            
  Court at the trial, or to a Judge before the trial, that the [[civil
               proceedings]] or any issue therein can be tried
more conveniently
               before a Judge with a jury the Court or Judge may order that the
               [[civil proceedings]]
or issue be so tried.

[9]    Section 19A can have no application to Mr Greer's application for trial by
Judge and jury. Section
19A applies only if the sole relief claimed is "payment of a
debt or pecuniary damages or recovery of a chattel". Clearly that is
not the case in
these proceedings. These proceedings include a prayer for declarations, injunctions
and other orders of the Court
outside of those nominated in section 19A(1) ([7]).


[10]   Without finally deciding the matter there are other impediments to
Mr
Greer's application being considered under section 19A. It is not at all clear that
judicial review proceedings, as these in part
are, come within the definition of civil
proceedings for the purpose of section 19A. In judicial review proceedings the
evidence
is typically presented by affidavit, especially unsuitable for a jury, and the
remedies sought are typically at the discretion of
a Judge. Section 10(2)(e) of the
Judicature Act describes the "Judge" as finally determining a review application.
Finally, in any
event, on the face of it the damages sought may not be "pecuniary
damages".


[11]   Given section 19A does not apply then section
19B provides that any civil
proceedings will be determined by Judge alone (ss(1)) unless a Judge considers the
issues in the case
can be tried more conveniently by Judge and jury (ss(2)).
Mr Greer submitted that it is more convenient for this matter to be tried
before Judge
and jury.


[12]   In Simpson v Attorney-General (Baigent's Case)  [1994] 3 NZLR 667, (CA)
Cooke P considered whether a direction of trial by jury was more convenient in a
Bill of Rights case. He said (at 678):


      One would not expect jury trial to be commonly ordered in Bill of Rights
       cases. Generally speaking and in accordance
with international tendencies
       these cases will be more appropriately dealt with by Judges.

[13]   And Blanchard J in Upton
& Green  (1995) 2 HRNZ 305 said:

       ... the matters mentioned in section 19A(5) must be given proper weight. In
       particular, it is necessary to consider
whether the issues of the trial will
       involve mainly considerations of difficult questions of law or investigations
      
of difficult questions in relation to professional matters (ie the handling of a
       criminal case by a Judge).

[14]   The section
19A(5) matters, Blanchard J said, were relevant to an assessment
of those matters identified in section 19B(2).


[15]   These proceedings
will involve difficult questions of law.                   Mr Greer
complains in part that his rights under section 24(d) New Zealand
Bill of Rights
Act 1990 (regarding adequate time and facilities to prepare a defence) should be
extended to civil litigation. This
is a novel proposition.


[16]   The proceedings issued by Mr Greer will involve an analysis of the
Corrections Regulations and whether
the plaintiff's treatment in prison has been in
accordance with those regulations.


[17]   The plaintiff's statement of claim runs
to 27 pages with over 100 paragraphs.
Some of the pleadings are difficult to follow.


[18]   As I have previously observed some
of the relief seeks declarations,
injunctions and includes orders that the Court order a "prosecution team" to
investigate allegations
by Mr Greer of criminal offending within the Department of
Corrections. He also seeks orders that particular prison managers and
officers be
dismissed from their jobs.


[19]   As can be seen this litigation is an entirely unsuitable case to be tried before
a
jury given the complexity of law, the confused mix of facts and law, the complexity
of the remedies sought, the inappropriateness
of a jury deciding the application of the
New Zealand Bill of Rights Act 1990 to prisoners and the inappropriateness of a jury

being asked to make orders for injunctions, or declarations or dealing with the
employment of Department of Corrections employees.


[20]    I am satisfied the proceedings should be before a Judge alone. I am satisfied
it would not be more convenient to try these
proceedings before a Judge with a jury.


[21]    The application is, therefore, refused.




                                  
                   _____________________________
                                                                      Ronald Young
J

Solicitors:
Crown Law Office, PO Box 2858, Wellington, email: charlotte.griffin@crownlaw.govt.nz
Rimutaka Prison, Private Bag
47901, Trentham, Upper Hutt