DAVID SIMON BARTON AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Continued overleaf
[2020] NZHC 2953
•9 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1337
[2020] NZHC 2953
UNDER the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, the
Corrections Act 2004, the Corrections
Regulations 2005, the Crimes Act 1961, the Crown Proceedings Act 1950BETWEEN
DAVID SIMON BARTON
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Defendant
Continued overleaf
Hearing: 8 and 13 October 2020 Appearances:
The plaintiff in person
H T Reid for the defendant
Judgment:
9 November 2020
JUDGMENT OF PALMER J
This judgment was delivered by me on Monday, 9 November 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………………
Registrar/Deputy Registrar
Solicitors/Party:
Applicant in person
Meredith Connell, Wellington
BARTON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 2953 [9
November 2020]
AND ADRIAN WARREN
Second defendant
AND LEA LAWRENCE
Third defendant
AND SARAH MILSTEED
Fourth defendant
AND LYNETTE CAVE
Fifth defendant
AND ANDY FITZHARRIS
Sixth defendant
AND LYDIA POMARE
Seventh defendant
AND ANDREW THORNE
Eighth defendant
AND DAVID TELRI
Ninth defendant
AND ANGUS MCCREADIE
Tenth defendant
AND SEAN HUGHES
Eleventh defendant
AND LES BULL
Twelfth defendant
ANDMARCELLA CARTER and JENNY JURISICH
Thirteen defendants
Context
[1] Mr David Barton applies for judicial review of decisions by the Department of Corrections. He applies for urgent interim relief on a number of grounds. 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.1 Making interim orders involves considering the seriousness of the question to be argued, the strength of the applicant’s case, the balance of convenience between the parties and the overall justice of the case. Interim orders are usually intended to preserve the applicant’s position as provided for in s 15. That can include restoring an applicant to a position they would have been in but for the alleged unlawfulness.2 Although there is jurisdiction to grant interim orders that require a respondent to do something, rather than restrain the respondent from doing something, such orders are rarely granted.3
General submissions
[2] One aspect of the relief sought is not opposed. Mr Barton applies for access to typing, computer and printing facilities for a minimum of five hours per week to facilitate the proceeding. Ms Reid, for Corrections, advises that Corrections has put in place arrangements for Mr Barton to access a computer suite. Mr Stephen Hammerton, Acting Custodial Systems Manager at the Northland Region Corrections Facility, confirmed that Mr Barton will be able to access the computer suite, including word processing and limited printing facilities, on Tuesday mornings and on Thursday and Friday during the day.4 At the hearing on 8 October 2020 Mr Barton accepted that aspect of the application was moot. On 14 October 2020, Mr Barton complained that he had not yet been provided with these facilities. But I have since received a typed document from him so I assume this has now occurred.
1 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
2 Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 11 September 2003 at [40]; Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [22]-[26].
3 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [26]-[27].
4 Affidavit of Stephen Hammerton 7 October 2020 (Hammerton), at [5].
[3] I dealt with another aspect of the application on 20 October 2020: Mr Barton’s application to stay the process of considering two allegations of misconduct by corrections against him. I declined the application, saying:
[6] On the information available to me, it is not clear to me that Mr Barton has a good substantive case against the process of misconduct charges proceeding. But that is not to say the charges will succeed. Mr Barton is able to put his case in response to the charges. If there is legal error in the result, he will be able to challenge that. The Court should not lightly interfere with prison disciplinary processes. The balance of convenience and the overall justice of the case do not require the interim relief sought. I do not consider there are sufficient grounds to stay the operation of Corrections' disciplinary system. I dismiss this application.
[4] Corrections opposes the remainder of Mr Barton’s application. Ms Reid, for Corrections, and Mr Barton make the following general submissions:
(a)Ms Reid submits the orders sought would override prison management’s decisions on operational matters affecting the security and good order of the prison. Mr Barton submits the relief sought has nothing to do with operational matters and would not affect good order in the prison.
(b)Ms Reid submits the orders would involve the Court in ongoing supervision of day to day management decisions of the prison regarding allocation of resources. Mr Barton submits the orders involve the Court in nothing other than the administration of justice, protection against gross injustice and do not involve the allocation of resources.
(c)Ms Reid submits the orders would improve Mr Barton’s position rather than preserve it. Mr Barton rejects that.
Specific relief sought
Issue 1: Use by Corrections of its own records
[5] Mr Barton applies to restrain Corrections from using documents, including offender file notes, case manager notes, pending misconducts and other notes of his behaviour for the purposes of reporting to the Parole Board or assessing his security
classification. He seeks to restrain the Parole Board from having regard to offender notes and misconducts until further order of the Court. He submits the filed notes recorded about him are malicious falsehoods and slanderous, emotive and vindictive. He disputes the factual basis of the notes and says they stem from a disagreement at a cell door. He submits it cannot be just or consistent with his right to freedom of expression that his imparting of opinion can result in behavioural notes and submits the orders are required to prevent a miscarriage of justice.
[6] Ms Reid submits the relief sought in relation to parole would cut directly across the statutory scheme governing the Parole Board which imposes on the Board a paramount duty to make decisions in the interests of the safety of the community. She submits it would be an inappropriate use of interim relief because there is no urgent or immediate need for the use of notes to be restrained or reviewed and there is no basis upon which the Court should restrict how Corrections may use its own internal notes which it keeps for statutory purposes.
[7] Ms Reid is correct. As the Court of Appeal stated in Gilmour v Chief Executive of the Department of Corrections the Parole Act 2002 is deliberately silent on the information to be included in reports by Corrections to the Board.5 Corrections has a discretion as to what information to include. Its exercise of that discretion must be consistent with the relevant statutory purposes and is potentially subject to judicial review if exercised unlawfully. The same is true of Corrections’ use of the information it gathers about prisoners. But the Court will not grant interim orders to preserve a person’s position from the lawful exercise of statutory discretion without good reason. I can see no reason to constrain that discretion here. I am not satisfied the material complained of by Mr Barton is necessarily irrelevant to the Parole Board’s functions or Corrections’ functions. Mr Barton will no doubt have the opportunity to dispute information offered by Corrections to the Parole Board and in relation to his security classification and to put forward the information on which he relies instead. He has the right to seek to correct records held about him under the Privacy Act 1993 if they are inaccurate. I dismiss the application in this respect.
5 Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250 at [37].
Issue 2: Access to Corrections’ records
[8] Mr Barton applies for access to unredacted versions of all offender notes and case management reports from 17 August 2018 to 13 October 2020 within five days. Offender notes can record positive or negative behaviours by prisoners for information sharing purposes between Corrections staff.6 Mr Barton also applies for the Prison Director to make Mr Barton’s hard copy file available to him within two days of receipt of the Court’s judgment. He submits he needs that to ensure the Prison Operations Manual has been complied with. And, in his submissions, he applies for copies of all emails he wrote to the Prison Director and a manager at Mt Eden prison and for responses from prison inmate trust clerks between 29 September 2018 and 2 October 2018. He submits he has made a request under the Privacy Act 1993, has been waiting months for a reply and nothing has happened.
[9] Ms Reid submits that Mr Barton may obtain these notes under the Privacy Act 1993 or, in discovery later in this proceeding, and these applications are not a proper use of interim relief.
[10] Mr Barton is entitled to a copy of his prison record under the Privacy Act 1993. If he is dissatisfied with Corrections’ response he may have remedies with the Privacy Commissioner. Other documents will be provided as initial disclosure in due course in these proceedings, where relevant to the issues in the proceedings. I dismiss the application for interim relief in this respect.
Issue 3: Mail
[11] Mr Barton applies for every document he files to be emailed by Corrections to the Court registry on the same day he submits it. Ms Reid submits there is nothing to indicate the order is necessary and that Corrections is doing what is reasonably practicable in good faith. She submits the application is an inappropriate use of the interim relief jurisdiction.
6 Hammerton at [8].
[12] Regulation 194 of the Corrections Regulations 2005 provides for service of documents on prisoners as soon as reasonably practicable. The regulations do not explicitly provide a timeframe for documents filed by prisoners to be sent to the Court Registry. It can reasonably be inferred from the purposes of the Corrections Act 2004 and the functions of the Department of Corrections within the New Zealand justice system that a similar duty applies to Corrections in forwarding those documents to the courts.
[13] However, forwarding documents as soon as reasonably practicable is not necessarily always the same as forwarding them on the same day. What is reasonably practicable will depend on the circumstances. I can see no basis on which to make the blanket order sought as interim relief. No doubt Corrections will be conscious of its obligations at law in forwarding Mr Barton’s documents to the Court.
Issue 4: Personnel changes
[14] Mr Barton applies for an order that Corrections immediately replace the unit officer it has allocated to him and indicates an alternative who would be acceptable to him. He submits he has complained about the current officer and it is conflictual and not practical that she remain while the proceedings are on foot. In his submissions he also sought an order that he was not to be transferred to another prison.
[15] Ms Reid submits staffing matters are quintessentially matters for prison management to decide in accordance with the Corrections Act and the orders are not an appropriate use of the Court’s interim relief jurisdiction. Ms Reid is correct. The orders sought are not necessary to preserve Mr Barton’s position. They would be an unwarranted judicial intrusion into prison management.
Issue 5: Answer of notice to admit facts
[16] Mr Barton applies for Corrections to answer his notice to admit facts without delay. He submits there is nothing in the Rules to prevent the Court ordering that, which bears directly on his proposed amendments to the statement of claim.
[17] Ms Reid submits this is misconceived because the pleadings have not yet been finalised and it can be reviewed after they are. Again, she is correct. Answering a notice to admit facts is not properly part of an application for interim relief, as Walker J previously observed in a call of the proceedings in the Judicial Review List on 2 October 2020. I deal with it below in the context of case management directions.
Case management directions
[18] Ms Reid submits a standard case management timetable should be put in place. On 3 November 2020, Mr Barton filed by email a further partial statement of claim which states he will file a further amended statement of claim only after discovery is ordered. That is not the appropriate sequence of events. I direct:
(a)By 5 pm Monday 30 November 2020, Mr Barton will file and serve a complete amended statement of claim, integrating all his previous partial statements of claim (including the fifth cause of action filed by on 3 November 2020).
(b)By 4 pm Friday 18 December 2020, Corrections will file and serve a statement of defence.
(c)By 4 pm Friday 29 January 2021, any interlocutory applications by either party will be filed and served (including any notice to admit facts, application for discovery or any application to substitute Corrections for individual named staff) together with memoranda concerning further timetabling to a substantive hearing.
(d)The proceeding will be called in the Judicial Review List at 9 am Thursday 11 February 2021.
(e)The parties have leave to apply to vary the timetable if necessary.
Palmer J
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