IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2022-485-173
[2023] NZHC 863	

UNDER	the New Zealand Bill of Rights Act 1990	
BETWEEN	BRENDAN DOUGLAS FORREST
Plaintiff	
AND	THE ATTORNEY-GENERAL OF
NEW ZEALAND (on behalf of the New Zealand Police)
Defendant	

Hearing:	24 March 2023	
Appearances:	No appearance (written submissions only) by or for Plaintiff S B McCusker for Defendant
M McMenamin for Department of Corrections	
Judgment:	20 April 2023	

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]	The plaintiff, Brendan Forrest, is suing the Attorney-General on behalf of the New Zealand Police, alleging breaches of the New Zealand Bill of Rights Act 1990. Mr Forrest commenced this proceeding in March 2022. His statement of claim asserts that between 2000 and 2009 he was strip searched on about 12 occasions at the Nelson Police Station. He says that these strip searches breached his rights under to ss 21 and 23(5) of the Act.

[2]	Mr Forrest originally sought a declaration that his rights have been breached and damages of approximately $12,000. More recently he has indicated that he is only

FORREST v THE ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZHC 863 [20 April 2023]

seeking declaratory relief. Particularly, in his notice of opposition to the defendant’s application which is the subject of this judgment, Mr Forrest gave formal notice that he is no longer seeking damages.

[3]	There are two extant interlocutory applications before the Court:

(a)	an application by Mr Forrest for an order for non-party discovery against the Department of Corrections; and

(b)	an application by the defendant for an order pursuant to r 15.1 of the High Court Rules 2016 striking out Mr Forrest’s statement of claim or, alternatively, an order pursuant to r 5.45 for security for costs.

[4]	Both of those applications were set down for hearing on 24 March 2023, and pre-hearing directions made by consent.

Procedural History

[5]	The plaintiff and the defendant have complied with those directions. The Department of Corrections has been unable to do so. It provided certain material to the plaintiff late on 21 March 2023, three days before the hearing.

[6]	The plaintiff raised this issue with the Court by memorandum dated 22 March 2023 and sought a telephone conference. A conference was convened for 3.00 pm on 23 March 2023. Mr Forrest and counsel for both the defendant and the Department of Corrections participated. The net outcome was a determination that the plaintiff’s application could not go ahead but that the defendant’s application could proceed.

[7]	During the course of the conference, Mr Forrest informed the Court that he relied on his written submissions and did not propose to appear at the hearing. I told Mr Forrest that I had already read his submissions, and asked whether he wished to file any further submissions prior to the hearing. He said that he did not wish to do so.

[8]	Later the same day Mr Forrest emailed the Registry saying that he had omitted to address the question of costs, and, although he would not be attending the hearing, he wished to be heard on costs.

Strike-out application

[9]	The defendant’s application, for an order striking out the proceeding went ahead on 24 March 2023 as scheduled. As earlier foreshadowed, Mr Forrest did not appear. Mr McCusker appeared for the defendant. He took the Court through the affidavit evidence and the applicable legal principles, in more detail, perhaps, than might have been necessary had Mr Forrest been present.

[10]	Mr McCusker argued the case very much on the basis that the first limb of the application under r 15.1 of the High Court Rules for an order striking out the claim was the principal contention. In this judgment, I will deal with that application first, and only address security for costs to the extent necessary.

[11]	Rule 15.1 provides:

15.1	Dismissing or staying all or part of proceeding

(1)	The court may strike out all or part of a pleading if it—

(a)	discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)	is likely to cause prejudice or delay; or

(c)	is frivolous or vexatious; or

(d)	is otherwise an abuse of the process of the court.

(2)	If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)	Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)	This rule does not affect the court’s inherent jurisdiction.

[12]	The principles are well settled. The leading cases are Attorney-General v Prince & Gardner1 and Couch v Attorney-General.2 In summary:

(a)	the Court approaches applications on the basis that pleaded facts are assumed to be correct unless they are obviously without foundation or merely speculative;

(b)	in order to conclude that a claim discloses no reasonably arguable cause of action, the Court must be satisfied it is clearly untenable and could not succeed at trial;

(c)	this is a summary jurisdiction and is exercised sparingly, and only in the clearest of cases; and

(d)	it is open to the Court to decide questions — even difficult questions
— of law in an application under r 15.1. However, the Court is slow to strike out claims or defences in developing areas of law which might benefit from more detailed consideration and appellate consideration.

[13]	Mr McCusker’s argument began with the proposition that the plaintiff is inviting the Court to adjudicate upon events that occurred between 14 and 22 years ago. He accepted that neither the Limitation Act 1950 (repealed) nor the Limitation Act 2010 had any application, directly or by analogy, given that the plaintiff is now claiming only declaratory relief.

[14]	As earlier signalled by the filing and service of an amended application, the defendant sought leave to rely on the additional ground that the proceeding was likely to cause prejudice or was otherwise an abuse of the Court’s processes. That followed from the plaintiff’s change of direction, and the application proceeded on that basis.

[15]	As Mr McCusker submitted, r 15.1 confers on the Court’s jurisdiction to strike out all or part of a claim if, inter alia, it is an abuse of process. He submitted that the

1	Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA).
2	Couch v Attorney-General [2008] NZSC 45, 3 NZLR 725 at [33].

circumstances that constitute an abuse are not fixed and include situations where it would be “manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. That submission reflects the judgment of the Court of Appeal in Reid v New Zealand Trotting Conference3 citing the House of Lords in Hunter v Chief Constable of the West Midlands Police.4

[16]	In Reid the plaintiff’s defamation claim concerned events that had occurred in 1966 and 1967. He commenced the proceeding in 1980. In relation to the issue of the 13-14 year delay, and the effect that that might have on the fairness of a trial, the Court said:5
If the matter were proceed to trial witnesses as to fact would have serious difficulty in remembering with any clarity and reliability the events of 1966 onwards to October 1974 which the plaintiff may seek to traverse. Until the issue of the writ in October 1980 no claim at all had been made against the second or third respondents. Their opportunity to collect evidence or make enquiries at an early stage after the event has been lost.

[17]	In those circumstances, the Court of Appeal concluded that justice could not be done at trial and the plaintiff’s claim was struck out.

[18]	Mr McCusker also referred the Court to GB v WLS.6 In that case, the plaintiff commenced a claim for damages in 2014 for sexual abuse that was alleged to have occurred between 1983 and 1991. Notwithstanding that the proceeding was not necessarily time-barred in terms of the 1950 or 2010 legislation, the Court exercised its jurisdiction to strike out the proceeding, once again on the basis that a delay of between 23 and 31 years had resulted in a situation in which it was not possible to be confident that a trial could proceed fairly.

[19]	While it is well established that neither the former nor the current limitation legislation had or has any application  to  claims  for  damages  pursuant  to  the  New Zealand Bill of Rights Act, the Court nevertheless retains an inherent jurisdiction

3	Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.
4	Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536.
5	Reid v New Zealand Trotting Conference, above n 3, at 14.
6	GB v WLS [2015] NZHC 3176.

to strike out for delay which might result in prejudice. The reasoning is that even though the statutory time-bar has no application:7

It does not, however, follow that a claim of this nature, for monetary compensation, should be able to be brought no matter how belatedly the claimant chooses to put it forward. Baigent damages are a form of compensation which the Court awards, as we have noted, in the exercise of a discretion. In that respect they bear a resemblance to compensation awards in equity. And, as with equitable awards, the Court should be able to refuse monetary relief if the plaintiff delays too long in bringing a Baigent claim. The Court must have a degree of flexibility in determining how long a delay is too much. All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff’s rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim, should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the Court will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act, just as it is when there has a been a delay in commencing a claim in equity…

[20]	Later in the judgment the Court of Appeal indicated that there may be a more lenient approach where, as is now the case here, a plaintiff’s claim is for non-monetary relief, but that even such relief — usually declaratory relief — will be refused where the delay or potential prejudice is too great:8
Nor do we accept the argument that by dismissing a Baigent claim for delay the Court would be denying the plaintiff an appropriate and effective remedy and in so doing placing New Zealand in breach of its obligations under the International Covenant on Civil and Political Rights, itself affirmed in the Bill of Rights. It would not follow from the exercise of the discretion to dismiss a monetary claim for undue delay, that the Court would on the same basis dismiss a claim for non-monetary relief, such as a declaration of breach of a guaranteed right. It might well remain appropriate, despite the delay, to vindicate the plaintiff’s right in that way, and thereby admonish the Crown and warn against any repetition of the conduct in question.

[21]	Apart from the Court of Appeal’s observations in PF Sugrue, Mr McCusker referred me to two recent cases, that is to say Taylor v Attorney-General9 and Taylor v Attorney-General,10 both of which proceeded on the basis that the Court had jurisdiction to strike out a non-monetary claim.

7	PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) at [70].
8	At [73].
9	Taylor v Attorney-General HC Auckland CIV-2010-404-006985, 11 November 2011.
10	Taylor v Attorney-General [2019] NZHC 2767 at [24].

[22]	I accept that the Court retains an inherent jurisdiction to strike out a claim pursuant to the New Zealand Bill of Rights Act, even where it does not include a claim for monetary relief.

[23]	Thus, the question is whether this claim is one where it would not be possible to be confident that, because of the delay associated with its commencement, the matter could proceed to trial fairly.

[24]	It is clear from the plaintiff’s statement of claim that he is able to say only that between the dates already referred to he was strip searched approximately 12 times and that these strip searches were unlawful. He cannot identify the dates on which these searches are said to have taken place. He cannot be precise as to the number of strip searches. He cannot say who conducted these strip searches. He cannot say why they were conducted. He is unable, therefore, to identify the basis or bases upon which he asserts that they were conducted unlawfully.

[25]	The irresistible inference is that all Mr Forrest has is a general recollection of strip searches having been conducted which he now asserts, all these years after the event, were conducted unlawfully.

[26]	None of that is a criticism of Mr Forrest — no one questions his sincerity in bringing this claim.

[27]	However, it is very difficult to see how the defendant can respond to allegations made at that level of generality.

[28]	The question that naturally arises is what prospect there is of fleshing all this out so that Mr Forrest’s claim can be understood and the defendant has something to respond to.

[29]	As mentioned at the outset Mr Forrest has applied for non-party discovery against the Department of Corrections. Essentially, what he is hoping to illicit are records of when he was transferred from one institution to another over the relevant period of time. He says that it was on the occasions of his transfer between institutions

that the strip searches occurred. It seems clear enough that Mr Forrest’s expectation is that if he can identify the dates of transfer, and these can be supplied to the defendant, it is possible that the defendant will be able to consult its records, identify the police officers who were on duty on the relevant dates and obtain information from them as to the events in question.

[30]	For the purposes of disposing of this application, I am prepared to assume that the Department of Corrections will be able to locate records of one sort or another showing the dates of the transfers (even though there would appear to be very real doubt on this score).

[31]	Even on that basis there is compelling affidavit evidence before the Court indicating that that will not assist Mr Forrest to particularise his case.

[32]	The defendant has gone to some lengths to ascertain whether that will be a fruitful line of inquiry. In particular, Senior Sergeant Tunley of the Nelson Police has sworn an affidavit. He explains that he has carried out detailed enquiries. To summarise the Senior Sergeant’s evidence:

(a)	The only records that would provide any information as to what occurred when Mr Forrest was at the Police station are the charge sheets which would have been prepared on each occasion (even if all that was happening was a transfer);

(b)	Pursuant to the Police Retention and Disposal Schedule, the Police are required to retain the category of documentation that includes charge sheets for ten years;

(c)	Although the Police are obliged to destroy charge sheets after that period of time, it is not uncommon for records to linger around for longer;

(d)	The Senior Sergeant conducted a search for records from the Nelson Police Station for the relevant period of time (between 2000 and 2009).

Although he has been able to find some archived records from that period from other stations, there are none from the Nelson Police Station;

(e)	The Senior Sergeant had gone further and identified by other means, officers who were stationed at the Nelson Police Station at the relevant time. One officer has some recollection of Mr Forrest, and also of searches of one description or another being carried out, but can take matters no further than that.

[33]	On the basis of those enquiries, Senior Sergeant Tunley concludes:

34.	I understand that Mr Forrest intends to make an application for non-party discovery against the Department of Corrections (the Department) in respect of all documentation it holds between 2000 and 2010 concerning transfers  form  Christchurch  Prison  to  Nelson Police Station.

35.	While any information provided by the Department in accordance with this order may assist in shedding light on the dates Mr Forrest was transferred to Nelson Police Station, which are currently unclear, I do not believe this material will contain information as to any alleged searches undertaken by Nelson Police (such as whether a search took place, the nature of that search, and by whom). As I indicated earlier in my affidavit, the only documentary record of any alleged undertaken by Nelson Police Staff would be contained on the relevant Charge Sheet. These have all likely been destroyed in accordance with the Disposal Schedule.

36.	Any documents obtained from the Department under a non-party discovery order will therefore unlikely be of any assistance in responding to Mr Forrest’s allegations.

[34]	In those circumstances, Mr McCusker submits that this case reaches the high threshold for a strike out application because the passage of time between the relevant events and the commencement of the proceeding (between 14 and 22 years) means that a trial could not proceed in a way that was fair to the defendant. In short, if the matter were to go to trial, all the plaintiff would be able to do is raise the broad allegation already described and the defendant would be able to call no evidence in response (other, perhaps, than generic evidence as to Police processes).

[35]	The plaintiff’s written submissions were commendably concise, and, given that he elected not to appear, it seems appropriate to set these out in full:

May it Please the Court

1.	The discovery application the applicant says that if Corrections were ordered to provide discovery that would only be information as to the dates the applicant were transferred into Police Custody from Prison between 2000 and 2009.

2.	The applicant also says that the information that Corrections holds could establish the dates that the applicant entered Police Custody and this would establish of whom the staff were on at the Police station.

3.	The applicant says that the Police have prejudiced its self for not keeping original records that would be relevant to this proceeding.

4.	This proceeding should not be struck out because the Plaintiff says yes there was a significant delay but during that time the Plaintiff has been committed to a mental health facility for up to 7–9 years all up and has been mentally unwell.

5.	The amendment application by the Police is not opposed of the filing of it in the Court but what is opposed is the orders sought in it.

6.	The plaintiff no longer seeks damages under the NZBORA of this claim and only seeks declarations under the NZBORA and the Plaintiff concedes that his claim for damages is barred under the provisions of the Limitation Act 2010 and/or 1950.

7.	The Plaintiff accepts the relevant principles in play to strike out all of a pleading or part of it.

8.	This proceeding can succeed but if the information from Corrections can give the actual dates of being transferred in to Police Custody then the Police may be able to establish and make enquiries as to the Police officers/staff on duty and could confirm whom the Plaintiff was stripped searched by.

9.	In terms of paragraph 15 of the Crowns [sic] Synopsis it is submitted by the plaintiff that Police have a blanket policy to Strip Search Prisoners from Prison upon arrival to Police Custody that a declaration under the NZBORA in this case would serve a useful purpose to put police on notice to stop this practice of Strip Searching Prisoners.

10.	The Plaintiff submits to the Court that a claim for a declaration is not barred under the Limitation Act/1950 or 2010 acts and that the Court has broad discretion to award a declaration in respect if there is a delay in bringing the proceeding and to weigh it up on its own accord.

11.	The plaintiff accepts the majority of the Police’s submissions as to case law and legal principles in play and the plaintiff will leave this matter to the Court for determination and if the Court has any questions of the

Plaintiff at the hearing the Plaintiff is more than willing to answer them accordingly.

12.	If orders are made against the Plaintiff the Plaintiff seeks leave to file a memorandum on the question/issue of costs if the Police seeks costs.

Date 16 March 2023

Brendon Douglas Forrest Authorities relevant
1. Taylor v Attorney General (2022) NZHC 3170 30 November 2022.

[36]	As I understand Mr Forrest’s argument it comes down to the following points:

(a)	As the plaintiff no longer pursues a claim for damages, neither the Limitation Act 1950 (repealed) nor the Limitation Act 2010 applies so as to bar proceedings.

(b)	The plaintiff accepts the defendant’s analysis of the circumstances in which r 15.1 applies and the circumstances in which the Court will strike out a proceeding as an abuse of process.

(c)	However, the Court retains a residual discretion.

(d)	That discretion should be exercised in this case to allow the proceeding to go ahead because:

(i)	the plaintiff’s delay is explicable by reference to his mental health condition and the fact that he has been in a mental health facility for many years; and

(ii)	if the plaintiff’s application for non-party discovery by Corrections were to be successful, there is a realistic prospect of leading to a train of inquiry which might alleviate any concern as to whether the defendant will be in a position to

defend the claim and whether adequate evidence can be placed before the Court so as to ensure a fair trial.

(e)	The plaintiff wishes to be heard in relation to costs.

[37]	The parties seem to be on common ground in relation to the first three points. Only the penultimate point is controversial. The final point can be accommodated.

[38]	The plaintiff is entitled to ask the Court to take into account his mental health condition (even although there is no evidence as to this), and the period of time which he has been in a mental health facility, in exercising its discretion and making a determination under r 15.1.

[39]	However, the plaintiff faces a major hurdle in this regard. As already recorded, the events in relation to which he complains concluded in 2009. The plaintiff does not assert that he was in a mental health facility until 2014. There is therefore no reason for the Court to conclude that Mr Forrest was under any disability between 2009 and 2014.

[40]	On the contrary, in June 2011 Mr Forrest commenced a proceeding against the Department of Corrections pursuant to the NZBORA seeking declaratory relief in relation to an (unrelated) alleged unlawful strip search.

[41]	In due course, the Department applied to strike the proceeding out. That application was unsuccessful, although the Department’s alternative application for an order for security for costs was successful.

[42]	In those circumstances, it is not credible for Mr Forrest to contend that his mental health condition and residence in a mental health facility is an explanation for the extraordinary delay in commencing this proceeding.

[43]	The second point concerning the prospects of sufficient evidence being available to enable Mr Forrest’s claim to be tried fairly has already been covered. Having regard to that evidence, I am unable to accept that there is any realistic prospect of the matter being tried fairly. In the end, the overwhelming likelihood would appear

to be that Mr Forrest will maintain his accusation that over the nine year period he recollects being strip searched a dozen times while transitioning  through  the  Nelson Police station. He will, as he does in his pleading, assert that those strip searches were unlawful. In response, the Attorney-General will not be able to call any witnesses who can provide a narrative description of the events in question, and is likely to be reduced to calling evidence as to processes and procedures which evidence will no doubt indicate that the Police only carry out strip searches where lawful and justified in the circumstances.

[44]	It appears to be near to inconceivable that the plaintiff will be able to establish on the balance of probability (bearing in mind the seriousness of the allegations involved) that the Police breached his rights in carrying out the alleged strip searches.

[45]	In those circumstances, the proper course is to make an order pursuant to r 15.1 striking out this claim on the basis that it is an abuse of process.

[46]	It is important to emphasise that that is not a finding that the plaintiff has consciously set out to abuse the Court’s processes. No such conclusion would be justified. The point is simply that because of the particular circumstances faced by both parties, proceeding to trial would involve potential unfairness.

[47]	Two primary considerations that have influenced me in reaching that conclusion. The first is the simple passage of time. The most recent events which the Court would be expected to consider happened 14 years ago. Human memory is notoriously poor in relation even to recent events. It is simply asking too much, in my view, for either the plaintiff or any police officers who may or may not have been involved in strip searches 14–22 years ago to have a recollection of the details of those events. The second consideration is the apparent inevitability that, with the best will in the world, neither of the parties will be able to identify any contemporaneous records which might shed light on the events in question.

[48]	In summary then, this proceeding cannot proceed in a way that is fair to both parties. That means to proceed further would constitute an abuse of process. The matter must be brought to an end now.

[49]	On that basis I make an order pursuant to r 15.1 of the High Court Rules striking out this claim.

[50]	Costs are reserved. It would not be difficult to contend that the defendant as the successful party is entitled to scale costs. There may however be good and proper reasons why an order for costs in this case is inappropriate. For a start, it is only recently become clear (from the defendant’s evidence filed and served in support of its application) that there are no contemporaneous records of events, and no obvious prospect of their being witnesses who can give evidence as to the plaintiff’s allegations. Quite aside from that point, it may be that any costs award would be an exercise in futility. In any event, if the parties are unable to agree on costs, they may file memoranda in the usual way.

Associate Judge Johnston
Solicitors:
Luke Cunningham Clere, Wellington for defendant Crown Law Office for Department of Corrections