IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2020-404-001337
[2021] NZHC 152	

UNDER	the Judicial Review Procedure Act 2016	
BETWEEN	DAVID SIMON BARTON
Plaintiff	
AND	CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS & ORS
Defendants	

Hearing:	10 February 2021	
Appearances:	Plaintiff in Person (by telephone) E M Watt for Defendants	
Judgment:	12 February 2021	

JUDGMENT OF VENNING J
Interim relief/stay

This judgment was delivered by me on 12 February 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:	Meredith Connell, Auckland Copy to:	Plaintiff

BARTON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS & ORS [2021] NZHC 152 [12
February 2021]

Introduction

[1]	Mr Barton’s judicial review proceedings were before the Court on 11 February 2021 for review. In advance of the hearing Mr Barton had filed a document entitled “Interlocutory application for urgent injunctive relief”.1 In that document Mr Barton seeks orders:

(a)	restraining the Chief Executive of Corrections from referring to a misconduct conviction entered on 22 January 2021 in any security classification review or reports to the New Zealand Parole Board;

(b)	restraining the Chief Executive from referring to withdrawn or dismissed misconducts in any future Parole Board assessment reports;

(c)	directing the Registrar of the Kaikohe District Court to immediately transcribe the taped misconduct hearing on 22 January before visiting Justice Trish Fawkes and to make copies available to the parties;

(d)	to preserve the applicant’s position to issue an interim order in relation to orders (a) and (b) pending further order of the Court.

Background

[2]	There is a history to the applications and the misconduct hearing. Mr Barton was subject to two misconduct reports on 9 September 2020 and 13 September 2020. On 9 September it was alleged that a radio/cassette/CD player, which did not belong to him, was found in his cell. On 13 September it was alleged an envelope containing wires, crushed tea leaves and a cigarette rolled up piece of paper was found in his possession. Mr Barton was charged with two minor matters of misconduct. They were to be referred to a visiting Justice on 21 or 23 October 2020.

[3]	Mr Barton sought an injunction and applied to stay “all internal processes and hearings” in relation to the misconduct charges pending further order of the Court.

1	The document was dated 31 January 2021 but was received by the Court by email on 3 February 2021.

[4]	In a minute issued on 20 October Palmer J said he was not satisfied Mr Barton had a good substantive case to prevent the process of misconduct charges proceeding. He dismissed the application.

[5]	In the event the misconduct hearing did not proceed on 21 or 23 October. It was rescheduled.

[6]	Mr Barton then renewed his application for interim injunctive relief, including an application to stay the process of considering the two misconduct allegations against him. In a judgment delivered on 9 November 2020 Palmer J reiterated that he had declined that aspect of the application on 20 October. He did not grant the interim relief sought.2

[7]	The hearing by the visiting Justice took place on 20 November and 18 December 2020. It was apparently adjourned to be completed on 22 January 2021. Mr Hammerton, the Custodial Systems Manager at the Northland Region Corrections Facility, has sworn an affidavit in which he confirmed his understanding that the multiple hearings had taken place due to the lack of availability of witnesses on the hearing dates.

[8]	Undeterred by the two decisions of Palmer J, Mr Barton sought to pursue yet a further application for interim injunctive relief to prevent the hearing scheduled for 22 January proceeding. The matter was referred to Palmer J. On 22 January 2021 the Registrar confirmed to Mr Barton that the documents filed by Mr Barton at that time had been referred to Palmer J who had reviewed them. The Registrar advised:

[Palmer J] has advised that his decisions in his minute of 20 October 2020 and/or his judgment of 9 November 2020 still stands and can see no legal basis to recall them.

If Mr Barton wishes to challenge a decision he would have to seek leave to appeal to the Court of Appeal. Alternatively, if he wants to apply for different interim orders he must make a fresh application.

2	Barton v The Chief Executive of the Department of Corrections [2020] NZHC 2953.

[9]	The misconduct hearing then proceeded to completion on 22 January. I understand that one charge was withdrawn or dismissed and Mr Barton was convicted in relation to the other minor misconduct charge.

[10]	Mr Barton now seeks the relief referred to above in relation to that hearing and its outcome.

Decision – application for urgent relief

[11]	Under s 15 of the Judicial Review Procedure Act 2016 the Court may make interim orders: “if, in its opinion, it is necessary to do so to preserve the position of the applicant”. The Court has a wide discretion to consider all the circumstances of the case in deciding whether to grant interim relief. The Court should consider the seriousness of the question to be argued, the strength of the applicant’s case, the balance of convenience, and the overall justice. Interim orders are usually intended to preserve the applicant’s position.3

[12]	Although the application for interim orders has been made in the context of the current application for judicial review, there is no relevant draft cause of action and nor is the application accompanied by any evidence. When filed it was accompanied by a handwritten note advising that draft unsworn affidavits were to follow shortly. The Registrar has advised none have been received.

[13]	The Court is left to deal with the application on the basis of the application itself and Mr Barton’s submissions. The grounds on which the interim orders are sought, at least as I apprehend them to be from the application, are:

(a)	the prosecutor “ambushed the Hearing by advising the Visiting Justice and the Applicant his witnesses would not be appearing”;

(b)	“requested disclosure was refused by Corrections”;

3	Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423.

(c)	“the Visiting Justice refused to conduct the hearing taking account of the prison operations manual” (no details provided);

(d)	Mr Barton was “prevented from prosecuting his defence to the fullest extent” including that an adjournment he sought was refused;

(e)	the prosecutor misled the visiting Justice and coerced the plaintiff’s witnesses not to attend (no particulars provided);

(f)	the prosecutor approached a key inmate witness in a holding cell in an attempt to dissuade him from giving evidence.

[14]	During the course of the hearing before the Court Mr Barton submitted that if the interim relief sought was not granted he would be prejudiced. He said he would receive six demerit points which may impact on his security classification review, which in turn could impact on his parole eligibility. He submitted that, having regard to the decision of Greer v Chief Executive,4 if interim relief was not granted and his application was ultimately successful he would have been invalidly subject to the consequences of the finding against him.

[15]	The current application falls to be considered against the background to the history of the proceedings referred to above. This is effectively the fourth attempt by Mr Barton to either avoid the hearing of the misconduct charges against him or to avoid the consequences of the outcome of such a hearing.

[16]	Mr Barton’s allegations that he was caught by surprise or ambushed cannot stand in the context of a hearing that was convened over three separate hearing days. The decision to refuse an adjournment is extremely unlikely to be the subject to successful judicial review.

[17]	As noted above, the charges are relatively minor. It is difficult to accept Mr Barton’s submission based on his untested allegation they would have a significant impact on his parole eligibility. In Greer the evidence of prejudice was clear. That is

4	Greer v Chief Executive [2018] NZHC 813.

not the case for Mr Barton. If there are related consequences to Mr Barton’s security classification as a result of the findings (and there is no evidence of that) it will also be because of his previous history.

[18]	The allegations in relation to the conduct of the hearing and the actions of the prosecutor are general and unsupported by evidence. In that regard, the Court of Appeal has confirmed such hearings are not expected to be conducted with the same procedural requirements as a criminal trial. The overall focus is whether they were fair.5

[19]	There must be good reason to grant the interim orders. The information before the Court and Mr Barton’s submissions do not take me to the point of being satisfied that it is necessary to make the interim orders sought. The charges are minor. The hearing in relation to them was heard over three separate occasions to accommodate the unavailability of witnesses.

[20]	There are strong public interest grounds in ensuring that hearings concerning alleged misconduct, even minor misconduct, by prisoners are heard in a timely and orderly fashion, and that Corrections have the ability to refer the outcome of such hearings to the Parole Board. It is well established that in terms of parole eligibility the Parole Act 2002 is deliberately silent on the information to be included in reports by Corrections to the Parole Board.6 What the Corrections Department includes in its report to the Board is for it to determine. Mr Barton has the opportunity to address the Parole Board on the issue if he wishes to.

[21]	This Court is not minded to direct the Registrar of the District Court to transcribe the hearing, quite apart from the fact there is no urgency in that request.

[22]	I am not satisfied that there is a serious question to be tried raised on the material before the Court but in any event the balance of convenience and the interests of justice do not support the issue of the interim orders sought.

5	Department of Corrections v Taylor [2009] NZCA 129 at [50].
6	Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250 at [37].

[23]	The application for interim orders is dismissed with costs reserved in the respondents’ favour.

Case management

[24]	That leaves the case management of the current proceedings. In the current proceedings Mr Barton purports to sue the Chief Executive of the Department of Corrections together with another 20 parties, including the Commissioner of Police and the New Zealand Parole Board.

[25]	Apart from the heads of Department and the Parole Board the named parties appear to be employees of the Department of Corrections. Section 104 of the Public Service Act 2020 confirms immunity for such employees from liability in civil proceedings for good faith actions or omissions. The existing pleadings fall well short of establishing the bad faith necessary to enable a claim to responsibly be pursued against the named employees. It is improper and irresponsible to pursue individually named employees in the way Mr Barton has purported to do so.

[26]	Quite apart from that, the claims Mr Barton seeks to raise are flawed in a number of respects.

[27]	In short, the allegations Mr Barton seeks to pursue are, first, because he was placed in lockdown for 23 hours a day he pleads he was wrongfully held in solitary confinement. That is a claim which should be directed against the Chief Executive. However, the damages claimed of $175,000 are unsustainable. Further, he claims
$100,000 exemplary damages against each of the first and the named sixteenth defendant (apparently a Corrections Department employee).

[28]	In the second cause of action Mr Barton challenges the notes and risk assessments made concerning him by the third defendant which led to a security review by the second defendant. The allegations are general. Damages of $250,000 and $500,000 are claimed from the third defendant, $100,000 and $250,000 from the second defendant and $750,000 from the first defendant.

[29]	In the third cause of action he alleges he was prevented from progressing a sentence appeal by the sixteenth defendant. Damages of $175,000 and $250,000 are claimed from the sixteenth and first defendant.

[30]	In the fourth cause of action he alleges he was denied an application for self- employment. He alleges losses of $1,485,000 and seeks damages in that sum from the first defendant and $215,000 from the sixteenth defendant.

[31]	In the fifth cause of action he challenges the content of reports to the Parole Board authorised by the fourteenth defendants. He seeks damages of $250,000 from the first defendant and $500,000 from each of the fourteenth defendants and, in the alternative, $2,400,000 from the first defendant.

[32]	In the sixth cause of action he challenges communications from the Department of Corrections (by the 15th defendant) to the Police. He seeks $750,000 from the first defendant and $2,000,000 from the fifteenth defendant. In addition he seeks $1,750,000 from the nineteenth defendant, the Commissioner of Police.

[33]	In the seventh cause of action Mr Barton challenges the review of his security classification carried out by the fourth defendant. He claims $325,000 (apparently from the fourth defendant) and $550,000 from the first defendant.

[34]	Next, in the eighth cause of action, Mr Barton challenges the seizure of certain personal items by the seventh defendant. He claims special damages of $275,000 and
$250,000 for punitive damages and, in addition, $375,000 from the sixteenth defendant as “Employer of the Seventh Defendant”. He also claims $625,000 from the first defendant, or alternatively $1,525,000 from the first defendant.

[35]	Next, in the ninth cause of action, he challenges the file notes made by the eighth, ninth, tenth, eleventh and eighteenth defendants.

[36]	In the tenth cause of action he alleges the first defendant delayed in releasing him on bail. He claims $45,000 and $175,000.

[37]	In the eleventh cause of action Mr Barton challenges a parole assessment report authorised by one of the thirteenth defendants. He claims $375,000, $225,000 from the thirteenth defendants and $500,000 from the first defendant “to atone for the serious conduct of the thirteenth defendants”. In the alternative he claims $600,000 from the first defendant.

[38]	In the twelfth cause of action Mr Barton challenges various other reports by the thirteenth defendants as being “emotive false and misleading”. From the thirteenth defendants he claims $375,000 or $750,000 from the first defendant.

[39]	Next, in the thirteenth cause of action he claims the fifteenth defendant made a false report to the Police. He seeks $750,000 from the fifteenth defendant and
$500,000 from the Commissioner of Police.

[40]	In the fourteenth cause of action he claims the twenty-first defendant gave him an illegal order and otherwise misled the visiting justice. He seeks $375,000 from the twenty-first defendant and $250,000 from the fifteenth defendant.

[41]	Finally, in the fifteenth cause of action he alleges the Parole Board made an error of law in responding to an order of the Court. He seeks to be released from custody.

[42]	In addition to the substantial amounts of damages sought, Mr Barton purports to seek orders requiring apologies and the termination of employment of named defendants.

[43]	While the Crown solicitors at Auckland (who presently represent the Chief Executive) have sought certain further particulars, I consider more discipline is required in this proceeding. It should be apparent to any reasonable reader of the allegations made by Mr Barton in this purported proceeding that the allegations are unsustainable at law and that they and the damages and other relief claimed are irresponsibly made and pursued. The damages in particular are oppressive.

[44]	In terms of the wording of the High Court Rules 2016, as currently pleaded the pleadings are likely to cause prejudice or delay and are frivolous and vexatious. High Court Rule 15.1 is engaged.

[45]	If Mr Barton wishes to seriously pursue allegations that individual employees of Corrections have acted in bad faith then he should be required to provide proper particulars of that. The present pleadings are completely inadequate in that respect. To the extent that any of the claims can be reframed as having any basis at law, it would seem they are more properly brought against the Chief Executive.

[46]	Further, the unsustainable amounts of damages and other relief claimed by Mr Barton are vexatious and frivolous. They cannot be sustained and should not have been pursued.

[47]	The proceedings are stayed. The stay will only be lifted when an amended pleading is filed that is approved by a High Court Judge. Unless such approval is granted to an amended pleading by 31 May 2021, the proceedings will be struck out.

[48]	I reserve the issue of costs in the defendants’ favour.

Venning J