Ferguson v Chief Executive of the Department of Corrections
[2024] NZHC 1457
•6 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000211
[2024] NZHC 1457
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
a Judicial Review
BETWEEN
JASON MARK FERGUSON
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
NEW ZEALAND PAROLE BOARD
Second Respondent
CIV-2021-485-000208 UNDER
the Law of Torts and the Corrections Act 2004
IN THE MATTER OF
Misfeasance in Public Office and Breach of Statutory Duty
BETWEEN
JASON MARK FERGUSON
Plaintiff
AND
BYRON CRAIG HUZZIFF
First Defendant
LOUISE ANN WOOD
Second Defendant
Hearing: 11 March 2024; (further submissions received 4 April 2024) Counsel:
G E Minchin for Applicant in Judicial Review proceeding and Plaintiff in proceeding CIV-2021-485-000208
J B Watson for First Respondent in Judicial Review proceeding and for First and Second Defendants in proceeding CIV-2021- 485-000208
Second Respondent abides the decision of the Court
FERGUSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 1457 [6
June 2024]
Judgment: 6 June 2024
JUDGMENT OF LA HOOD J
Table of Contents
Introduction [1]
Factual background [4]
Summary of decision [11]
APPLICATION FOR JUDICIAL REVIEW [13]
Mr Ferguson’s grounds for review [13]
Preliminary evidential matters [15]
Admissibility of Peter Hikaka's affidavit [16]
Evidence of Margot Malthus [17]
The statutory scheme [17]
Approach to review of the Department’s recall application [21]
Has there been a withholding, or inaccurate representation, of important information that would have made a material difference to the undue risk
assessment required of the convenor of the Parole Board in deciding whether to grant interim recall? [32]
First ground of review – procedural irregularity through delegation [52]
Second ground of review – right to reasons [55]
Third ground of review – right to be heard [61] Fourth ground of review – mandatory relevant considerations [63] Mr Ferguson’s explanation in discussions [64]
The New Zealand Bill of Rights Act 1990 [66] Fifth ground of review – irrelevant considerations: media notoriety [71] Sixth ground of review – irrelevant considerations: bad faith [73] Approach to review of the Board’s interim recall decision [74]
Seventh ground of review – lack of jurisdiction to make an order under
s 62(1)(a) [76]
Eighth ground of review – mandatory relevant consideration [77]
Ninth ground of review – mistake of fact [79]
Tenth ground of review – unreasonableness [82]
Conclusion on judicial review [83]THE APPLICATION FOR STRIKE OUT OR SUMMARY JUDGMENT OF THE TORT PROCEEDINGS [85]
Legal principles applicable to strike out and summary judgment [85]
Strike out [85]
Summary judgment [87]
Misfeasance in public office claim against Mr Huzziff [88] Is there an arguable case of misfeasance in public office? [92] Breach of statutory duty – claims against both Mr Huzziff and Ms Wood [107] Statutory immunity - s 86 of the State Sector Act 1988 [110]
Conclusion [118]
Introduction
[1] This judgment deals with two sets of proceedings. The first is Mr Ferguson’s application for judicial review of the actions of the Department of Corrections | Ara Poutama Aotearoa (the Department) and the Parole Board (the Board) in respect of the Board’s decision to make an interim order recalling him to prison in September 2017.
[2] In the second set of proceedings, Mr Ferguson alleges that two employees of the Department are liable in tort for misfeasance in public office (first defendant, Byron Huzziff, only) and/or breach of statutory duty (first defendant and second defendant, Louise Wood).
[3] This judgment determines the application for judicial review and an application for strike out or summary judgment of the tort proceedings. As both proceedings arise out of the same factual matrix, the applications were heard together.
Factual background
[4] Mr Ferguson was sentenced to life imprisonment, having been convicted of murder, in 2003.1 He became eligible for parole in mid-2012, and in 2016 the Board released him to a National Intellectual Disability Care Agency (NIDCA) managed residential care facility, Community Living Ltd, based in Hamilton. The Board imposed special conditions on his release, including that he was to reside at a full time supervised residential care facility provided by NIDCA in Hamilton, and at an address to be confirmed to the Board prior to the date of release, and not to move from that address without the prior written approval of a probation officer.
[5] Mr Ferguson denied having an intellectual disability which appears to have generated difficulties with his living situation at Community Living. On 20 September 2017, a staff member from Community Living emailed Mr Huzziff, Mr Ferguson’s probation officer, and others alerting them to an incident report about Mr Ferguson’s behaviour. On 19 September 2017, Mr Ferguson had made what was perceived to be a threatening comment to a fellow resident, to the effect that “the last person who said /
1 R v Fergusson HC Rotorua T02/2759, 5 February 2003.
did that ended up in the boot”, and “you had better watch out because I can snap just like that”. Mr Ferguson had in fact put the body of the victim of his 2002 offending in the boot of a car.2
[6] In the days following the email, Mr Huzziff held meetings with colleagues from the Department, as well as Mr Ferguson’s former probation officer, and staff from Community Living and other relevant bodies, to discuss the incident in the context of Mr Ferguson’s behaviour at Community Living. Ms Wood (the Department’s Operations Director, Central Region) was informed that there was support for a recall application to be made in the circumstances.
[7] On 27 September 2017, Mr Huzziff and Ms Wood each affirmed affidavits in support of a recall application. The affidavits were provided to the Board in support of a recall application signed by Ms Wood (on delegated authority from the Department’s Chief Executive). On the same day, the Board’s panel convenor made the interim recall order. Mr Huzziff then arranged for Mr Ferguson to come to the Hamilton Community Corrections Service Centre, where he was arrested by police.
[8] Ms Wood’s application for recall, and the Board’s decision to order interim recall are the decisions subject to challenge in the judicial review application.
[9] On 25 October 2017 following a hearing at which Mr Ferguson was represented by counsel, the Board made a final recall order.3 The Board’s decision noted Mr Huzziff’s statement that Community Corrections “deem NIDCA and Community Living staff and other residents at the property to be at risk of violence from Mr Ferguson”. However, the Board noted that Community Living originally indicated a willingness to continue to support and accommodate Mr Ferguson, but that option was no longer available due to prohibited items being found in the room he had occupied.4 The Board noted its reservations in respect of alternative accommodation proposed by Mr Ferguson’s counsel, as compared with the services available with NIDCA and Community Living.5 The Board resolved to “allow some time for
2 Ferguson v R [2012] NZCA 581 at [12].
3 Final recall decision of Parole Board, 25 October 2017 at [9].
4 At [10].
5 At [19].
reconsideration of a complete release package for Mr Ferguson involving, according to our preference, NIDCA and Community Living”.6 The Board requested reports from those agencies (a reintegrative meeting and report and an updated psychological report) for the next hearing as it was not, at that stage, satisfied there was appropriate accommodation available, and “that in itself creates risk we consider to be undue”.7 It made a final recall order, “with the apparent agreement of counsel from both sides”.8
[10] In the course of a number of subsequent Board hearings, Mr Ferguson was released on parole in October 2018, recalled again in late 2020 having been charged with assault on a woman unknown to him, and subsequently released on parole again in December 2021.
Summary of decision
[11] For reasons that follow, I dismiss Mr Ferguson’s application for judicial review. I conclude that the interim recall process did not miscarry. Ms Wood, upon proper delegation from the Chief Executive of the Department, applied for recall on the basis of the information before her, including Mr Huzziff’s affidavit. Mr Huzziff did not withhold, or inaccurately represent, information that would have been material to the Board’s interim recall decision. Ms Wood’s decision to apply for recall, and the Board’s decision to order interim recall, were reasonable on the basis of the information available. I am not satisfied that the application for recall or the interim recall order were either procedurally or substantively flawed. The grounds of judicial review fail in their entirety.
[12] I also dismiss Mr Ferguson’s tort proceedings as they disclose no reasonably arguable cause of action and/or they cannot succeed because:
(a)Mr Ferguson’s claim in misfeasance in public office is untenable. Mr Huzziff did not act unlawfully in carrying out his duties as a probation officer, and his alleged conduct is incapable of amounting to bad faith or malice.
6 At [20].
7 At [23].
8 At [23].
(b)Mr Ferguson’s claims for breach of statutory duty are untenable because the schemes of the Parole Act and Corrections Act are inconsistent with private law liability in tort for breach of statutory duties; and in any case, the claim should be struck out because the defendants’ statutory immunity under s 86 of the State Sector Act 1998 applies in the absence of a pleading capable of supporting an inference of bad faith or malice.
APPLICATION FOR JUDICIAL REVIEW
Mr Ferguson’s grounds for review
[13] Mr Ferguson seeks to judicially review the Department’s decision to make an interim recall application on the grounds that:
(a)Ms Wood advancing the application for interim recall on the delegation of the Chief Executive of the Department was procedurally irregular;
(b)Ms Wood erred in relying on Mr Huzziff’s affidavit by failing to verify its contents, and by referring to s 61(a) as a ground for recall when s 61(d)(i) applied;
(c)Ms Wood was exercising quasi-judicial powers, and was required to have direct evidence of the matters founding the recall application, and was required to hear from Mr Ferguson;
(d)Ms Wood failed to take into account mandatory relevant considerations in making the recall application, namely Mr Ferguson’s explanation of the incident after the interim recall order had been made; and that Mr Ferguson was not read his rights pursuant to the New Zealand Bill of Rights Act 1990 upon arrest on the basis of the interim recall application;
(e)the recall application is tainted by reliance on an irrelevant consideration –– Mr Ferguson’s “media notoriety”; and
(f)the recall application is tainted by an irrelevant consideration –– that Mr Huzziff personally wanted to recall Mr Ferguson to no longer be “bested by Mr Ferguson”.
[14] Mr Ferguson seeks to judicially review the decision of the Board to make an interim recall order on the grounds that:
(a)the Board lacked jurisdiction to order interim recall under s 62(1)(a);
(b)the Board failed to consider mandatory relevant considerations by placing undue reliance on Mr Huzziff’s deficient affidavit;
(c)the Board acted on a mistake of fact as further inquiries may have placed alternative information before it; and
(d)it was “unreasonable” to recall Mr Ferguson on the basis of a substantively flawed application for interim recall.
Preliminary evidential matters
Admissibility of Peter Hikaka’s affidavit
[15] Mr Ferguson filed an affidavit from a private investigator, Peter Hikaka, dated 22 April 2022. I accept the first respondent’s submission that the affidavit is a mixture of irrelevant material, inadmissible opinion and hearsay. It contains Mr Hikaka’s opinion on the accuracy of affidavits provided by Mr Huzziff and Ms Wood in support of the recall application filed in September 2017, and transcripts of interviews between Mr Hikaka and Mr Ferguson. The only relevant content appears to be the Integrated Offender Management System (IOMS) notes (the Department’s system for recording relevant information) that form part of an exhibit. As I have had to review the affidavit to consider its admissibility, a formal admissibility ruling is somewhat academic. I put to one side the clearly irrelevant material contained in the affidavit and make no further reference to it.
Evidence of Margot Malthus
[16] On 1 January 2024, the applicant sought leave to file an affidavit from Margo Malthus sworn on 15 December 2023. Ms Malthus was one of the employees of the community-based facility, Community Living, where Mr Ferguson was living at the time of his recall. Ms Malthus deposes that she witnessed the event that led to the application to recall Mr Ferguson. The first respondent objects to the receipt of the evidence on the basis that it is not relevant to any issue to be determined, is unreliable and there is no excuse for filing the evidence five months out of time. Again, I have had to review the evidence to consider these arguments, which means a formal admissibility ruling is somewhat academic. In the interests of justice, I have considered the evidence but have concluded it carries little weight for reasons that will become apparent.
The statutory scheme
[17] The Board is a specialist body charged with making decisions about the parole of sentenced prisoners.9
[18]It is convenient at this point to adopt the following articulation of the scheme
and purpose of the Parole Act from Simon France J’s decision in Harriman v Attorney-
General:10
[23] The guiding principle of the Parole Act is that the safety of the community is to be pre-eminent in all decisions relating to the release of an offender.11 Beneath that, s 7(2) provides that prisoners are to be kept well informed, and are not to be detained any longer the necessary or released on conditions that are more onerous than necessary. In this context necessary means what is needed “consistent with the safety of the community”.
[24] It is apparent from this that the Parole Act is designed to provide for the orderly and safe release back into the community of persons who are subject to sentences of imprisonment. Its emphasis is on the protection of the community, and such benefits as are conferred on prisoners are to be assessed and provided within that context.
9 The New Zealand Parole Board is established under the Parole Act 2002 (s 108) and includes a panel of the Board, a panel convenor, and the chairperson acting within their respective jurisdictions (s 4(1)). The Board’s functions are set out in s 109 of the Act.
10 Harriman v Attorney-General [2015] NZHC 3197.
11 Parole Act 2002, s 7(1).
[25] The Parole Board is established under s 108 of the Parole Act. Its Chair must be a current or former Judge. It sits in panels of three and its functions are to consider whether offenders should be released on parole, set conditions on the release and monitor compliance. These functions are part of the overall criminal justice process and address management of the final stages of that process, namely the conclusion of the sentence and the safe reintegration of an offender into the community.12
[26] Parole Board members have immunity unless their impugned conduct was done or omitted in bad faith (s 123).
[27] The focus of the present proceedings and the alleged breaches are primarily the procedural requirements placed on the Parole Board and the [Department of Corrections] by the Parole Act. Those requirements are mundane in the sense that they mirror the ordinary components of efficient process. There is nothing about them that suggests special rights were to be accorded to prisoners, the deprivation of which might be a basis for personal monetary compensation.
[28] It is also important to observe that the Parole Board is not the source of a prisoner’s detention. That detention stems instead from a sentence of a court, and it is that decision which makes the detention lawful. The Parole Board’s function is to assess whether a prisoner may be released earlier than the last day of that sentence.
[19] It is also convenient to set out Simon France J’s conclusions on whether breach of the Parole Act’s provisions can found a private law cause of action, a matter I will return to below when dealing with the tort proceedings:
[29] There are several options for review of decisions, and there is no suggestion a right to sue is needed in order to meet a gap in the legislation. The following processes can be noted:
(a)section 25 which allows for referral prior to the parole eligibility date;
(b)section 26 which allows for consideration at any time after the parole eligibility date is reached;
(c)section 46 which allows review of a convenor’s decision to hold an unattended hearing;
(d)section 56 which allows an offender at any time to seek review of the conditions of parole;
(e)section 67 which confers a general right to seek review by the Parole Board of most decisions made by it (a second look provision). The grounds of review include non compliance with procedure or policy, and a challenge to the accuracy of the information which informed a decision;
12 In Miller v New Zealand Parole Board [2010] NZCA 600 at [53] it was noted that there is much that reflects the “trappings of a court”.
(f)section 68 which confers appeal rights to the High Court against certain decisions; and finally, Mr Harriman’s cases demonstrates;
(g)access to the courts m accordance with normal judicial review principles.
The existence of such a wide array of review options tells strongly against the proposition that a private law cause of action was intended to attach to any of the Parole Act’s provisions.
[30] In summary, there are no indications in the statute itself that point to the proposition that Parliament intended to create a private law cause of action. When one then factors in the broader context that decisions are an assessment by a quasi judicial body as to whether it is safe to release a prisoner before he or she has served his or her full sentence, it is simply untenable to suggest Parliament intended to confer the right on prisoners to sue for non compliance with the statutory scheme. Legislation such as the Prisoners’ and Victims’ Claims Act 2005 only reinforces that conclusion.
[31] Accordingly, I conclude that the tort of breach of statutory duty is not available in relation to the alleged breaches of the Parole Act. It is not necessary to consider individually each of the provisions of the Parole Act mentioned by Mr Harriman.
[20] In respect of the Corrections Act 2004, Simon France J noted that the policy factors identified in relation to the Parole Act applied and that the Corrections Act has a public safety focus and specific methods of redress provided for in the Act.13
Approach to review of the Department’s recall application
[21] The “supervisory jurisdiction over the Board does not extend to general judicial scrutiny of the Department’s myriad decisions falling short of exercises of reviewable power”, as this Court has recently stated.14 And as the Court of Appeal has held:15
[33] Judicial review relates to the exercise of a statutory power of decision and the claim against the Department needs to be assessed in light of the reality that parole decisions are made by the Board, not the Department ... The focus of the judicial review proceeding must be the exercise by the Board of its statutory power of decision ... So the issue in relation to the Department is whether any act or omission by it or its officers led the Board to make a reviewable error in its parole decision.
13 Harriman v Attorney-General, above n 10, at [25]–[39]. Simon France J’s approach was adopted in Tomar v Attorney-General [2019] NZHC 3485 from [79].
14 Wilson v New Zealand Parole Board [2023] NZHC 1003 at [18]-[21].
15 Harriman v Attorney-General [2014] NZCA 544; leave to appeal declined; Harriman v Attorney- General [2015] NZSC 37.
[22] That is especially so in a case such as this, where over six years has passed since the recall application was made. As Mackenzie J commented in Miller v New Zealand Parole Board, discussing a background with some broad similarities to the present case:16
[134] I do not consider it appropriate to examine in detail the circumstances of the making of the interim recall application. A decision to apply for recall is, in my view, not generally susceptible to judicial review. It is akin to the making of a decision to prosecute, and such a decision is generally not capable of being challenged by way of judicial review. A broad measure of latitude must be given to Corrections in deciding whether to apply for recall, in that public safety considerations must be paramount in any such decision. As far as the other matters raised are concerned, the making of the application in this case is now over five years old, and has been substantially overtaken by events, in that, whether or not an interim recall order had been made, the application for a final recall order has been determined, shortly after the interim recall.
[135] Counsel for the second respondent submits that Mr Carroll was represented by counsel at the subsequent hearing of the recall application and that no issue was raised as to the lawfulness of the notice, and, the recall application having long since been heard and determined, any relief on this ground serves no purpose and is of theoretical interest only. I consider that there is merit in that submission, to the extent that a detailed discussion of the 30th and 31st causes of action is unnecessary.
[23]That analysis was upheld by the Court of Appeal.17
[24] The Court of Appeal in Miller also noted that a failure to invoke the appeal or challenge processes provided in the Parole Act “can be a weighty consideration in relation to the determination of judicial review … all the more so when the right of appeal is subject to time limits (as the s 68 right is) and where the hearing of the judicial review proceedings occurs many years after the impugned decision.”18 The Court of Appeal considered that the “exercise of deciding whether the Board’s decision was erroneous in law” would be “pointless”, because if the appellant “had appealed in a timely way and succeeded, the inevitable result would have been a reconsideration by the Parole Board and the Parole Board has subsequently, on many occasions, reconsidered the critical issue of public safety”.19
16 Miller v New Zealand Parole Board (2008) 24 CRNZ 104 (HC).
17 Miller v New Zealand Parole Board [2010] NZCA 600.
18 At [133].
19 At [135].
[25] For completeness, although “[a] broad measure of latitude must be given to Corrections in deciding whether to apply for recall”,20 being the subject of a recall order can have significant consequences for an offender, and important interests are at stake, particularly for life parolees. Given the potential for without notice interim recall orders to be made by the Board, in principle the Department should place before the Board all relevant information it has or that it is reasonable for it to obtain when advancing a recall application.
[26] The decision of Packer v New Zealand Parole Board is an example of a case where the withholding of relevant information in an interim recall application resulted in a declaration that the recall decision was in breach of natural justice.21 In that case, Ms Packer was granted home detention by the Parole Board, subject to the condition she travel directly to Foxton upon release. During Ms Packer’s trip to Foxton, her youngest daughter had a stomach upset and had twice defecated in the only nappy she had, requiring her to wrap a towel around the child. Her mother and friend, accompanying the travel, encouraged her to stop at a supermarket on the way home to purchase disposable nappies. She said she initially resisted, concerned about breaching her release condition, but relented. While in the supermarket, Ms Packer said that she purchased nappies and a few other things. The police alleged that Ms Packer and her friend in fact both took a number of items without paying. Both were arrested and charged with shoplifting, to which Ms Packer pleaded not guilty.
[27] Ronald Young J held that the probation officer’s failure to provide the reasons why Ms Packer had entered the supermarket, namely to deal with her child’s nappy emergency, was an important failure that was highly relevant to the undue risk assessment required of the Board in deciding whether to grant interim recall.22 The Judge said:23
… After all, if the convenor was left in a position that Ms Packer was in the supermarket for legitimate reasons and there was a denial of any shoplifting without evidence clearly either way it may have been difficult to conclude that there was an undue risk even given the context.
20 Miller v New Zealand Parole Board, above n 16, at [134].
21 Packer v The New Zealand Parole Board HC Wellington, 6 May 2004.
22 At [35].
23 At [35].
[28] The first respondent submits that Packer is an example of a probation officer failing to provide “game-changing information”, which would have “made all the difference” to the Board’s decision and approach. For this proposition the first respondent relies by way of analogy on cases where a prosecuting authority fails to disclose information demonstrating a defendant has a complete answer to a charge within a reasonable time. In such a situation the defendant’s detention may be arbitrary and damages may be available “where it could be shown that the charges would have been dismissed or withdrawn at an earlier stage of the proceedings had proper disclosure been made”.24
[29] I note that the Court of Appeal, when considering the judicial review of a Parole Board decision in Harriman, asked itself whether the alleged procedural defects caused the Board’s decision to “miscarry”.25
[30] In framing the issues in this case, I also need to factor in the principles that have emerged from the authorities since Packer, referred to above, emphasising that restraint is required when judicially reviewing the actions of Corrections’ employees in the recall process.26
[31] Drawing these threads together, I consider the essential issue in this case is whether there has been a withholding of, or inaccurate representation of, important information that would have made a material difference to the undue risk assessment
24 King v Attorney-General [2022] NZHC 695 at [164], quoting Henry v British Columbia (Attorney General) [2015] 2 SCR 214 at [5]. In Morrison v Financial Markets Authority [2023] NZHC 1654 the High Court recently preferred the minority approach in Henry. The Judge considered that the difference between the minority and majority judgments in Henry is largely that the minority would not require any intention from prosecutors to withhold information. Further, although the majority required the information withheld to be ‘game-changing’ “the minority adopted the position that the effect of disclosure failures on a defendant’s right is a matter that can be factored into the analysis when considering breach, causation, and loss” (at [158]). For completeness, I note that the threshold of “game-changing information” that “would have made all of the difference” is derived from English authority that does not appear to have been considered in Morrison (see AAA v Chief Constable of Kent [2017] EWHC 3600 (QB)).
25 Harriman v Attorney-General, above n 15, at [2(a)], [4(a)], [30], [41]. The test for a miscarriage in the criminal trial context is whether an error, irregularity or occurrence has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial: Criminal Procedure Act 2011, s 232(4).
26 Harriman v Attorney-General, above n 10 and n 15; Miller v New Zealand Parole Board, above n 16 and n 17.
required of the Board in deciding whether to grant interim recall. I will start by considering that issue.
Has there been a withholding, or inaccurate representation, of important information that would have made a material difference to the undue risk assessment required of the convenor of the Parole Board in deciding whether to grant interim recall?
[32] To address this issue, an analysis of Mr Huzziff’s affidavit in support of the recall application is required, including the process of gathering the material for completion of the affidavit.
[33] In terms of Mr Huzziff’s obligation to obtain information, I agree with Ronald Young J’s comment in Packer, that the requirement to provide the Board with all relevant information does not require probation officers to “become investigators”.27 The obligation is to obtain relevant information where it is easily ascertainable.28
[34]It is convenient to set out the substance of Mr Huzziff’s affidavit:29
Index Offending
10.Mr Fergusson [sic] was uplifted by the victim whilst hitchhiking from Putaruru to Matamata. Over the remainder of the weekend Mr Fergusson accompanied the victim whilst he visited friends in the Rotorua and Mamaku area and subsequently stayed at the victim’s home. On the night of the offence, neighbours heard four consecutive loud bangs, now known to have been the start of an ensuing and violent assault on the 54-year old victim. A post mortem examination revealed that the victim was struck at least 15 times on the head with heavy objects and was stabbed five times in the back. The Police Summary of Facts then described how Mr Fergusson made crude attempts to clean the scene and placed the victim’s body into the boot of the victim’s car. He then drove toward Putaruru during which he attempted to dispose of evidence and later buried the victim’s body in a shallow grave in Pinedale.
11.A psychological assessment report completed in 2012 for Mr Fergusson states that, he had a limited criminal and traffic conviction history when he committed his index offending, receiving the first of his convictions as a 17 year old. His index offence represents a marked escalation in the seriousness of his violent offending and resulted in his first term of imprisonment.
27 Packer, above n 21, at [27].
28 At [27], where the Judge gives example of a phone call as being a means by which relevant information could be easily ascertainable.
29 Affidavit of Byron Craig Huzziff, 27 September 2017.
12.The same psychological assessment report completed in 2012 states that prior to Mr Fergusson’s index offending he had been sexually abused and had a history of volatile behaviour and explosive outbursts of anger as well as a history of mental health problems.
13.The report indicates that further offending could take place in the context of deteriorating behaviours, in response to a significant life stressor, and that intellectually disabled individuals such as Mr Fergusson can deteriorate rapidly in such circumstances.
14.Thus Mr Fergusson was released with the recommendation of the psychological report completed in 2015 that he require significant community support, with regard to his mental health needs, in the long term and that he would need to display prosocial behaviour and engage with staff in a positive manner.
Current Situation
15.I have been the Probation Officer managing Mr Fergusson's parole since August 2017.
16.Community Living is a contracted agency with NIDCA [the national intellectual disability care agency] who provides support for people with intellectual disabilities and families, to lead ordinary quality lives in the community. Mr Fergusson was released to reside with Community Living in Hamilton due to his identified needs and significant cognitive difficulties.
17.On 22 September 2017, Community Corrections became aware of threats made by Mr Fergusson to another resident at the Community Living residence. It was reported that Mr Fergusson stated to another resident “I will put you in the boot of my car” and also stated “I can snap just like that”.
18.These threats were taken very seriously as he has previously disclosed his index offending and the circumstances of the offending to others at the residence.
19.Community Corrections immediately scheduled a meeting with NIDCA and Community Living management staff to address Mr Fergusson’s behaviour. Even though Community Living has indicated their willingness to continue to support and accommodate Mr Fergusson until such time when he finds independent accommodation, Community Corrections deem NIDCA and Community Living staff and other residents at the property to be at risk of violence from Mr Fergusson.
20.Based on Mr Fergusson’s ongoing threatening behaviour, Community Corrections deem his current accommodation provided through NIDCA no longer viable on the basis that Mr Fergusson posses [sic] an undue risk to the safety of other residents and staff should he chose to follow through on threats he has made.
21.Due to Mr Fergusson’s identified cognitive disability and complex needs, it was agreed with NIDCA that Mr Fergusson will not be
attending psychological sessions with a departmental psychologist due to his engagement with specialist treatment providers through NIDCA.
Summary
22.In considering the available information I have concluded that Mr Fergusson has met the grounds for recall in that he poses an undue risk to the safety of the community.
23.Mr Fergusson’s index offending of Murder involved volatile behaviour and an explosive anger as well as a history of mental health problems.
24.His current conduct at Community Living support and violent outbursts towards staff and other residents reflects similar behaviour that preceded his index offending. It is assessed that his current behaviour places others at serious risk of harm.
25.There is a very strong link between Mr Fergusson’s index offending and his current behaviour as highlighted above.
26.I am satisfied that the grounds set out apply in this case and this application for recall is appropriate.
[35] The email containing the report of the incident that was the catalyst for the recall application read:
From: Sue Willmore
Sent: Wednesday, 20 September 2017 at 8.06 a.m.
To: HUZZIFF, Byron (HAMCCS); Marie Carr; Lizette Huitema [CCDHB]; Denise Gemmell
Subject: Jason Ferguson Hi Bryon,
Jason is working today at the coal place, Sam is supporting him in the workplace, however all come and go from there throughout the day. He is working in a factory setting with other people, which has done on 3 previous occasions with no issues.
I just wanted to alert you to an incident report which came through last night and is quite concerning. Jason and one of his housemates were working on separate projects outside and were being supervised by a staff member, they were chatting together and the housemate made a joking comment that Jason did not like. He turned to him and using a [“]menacing[”] tone told him that [“]the last person who said / did that ended up in the boot[”] the housemate was a bit shaken and replied that he was only joking, however Jason repeated the comment and then warned him [“]You had better watch out because I can snap just like that[”]. His tone throughout was considered threatening both by the staff member present and the housemate, who was very upset by the
comments. Jason appeared to have no concerns about the fact that the staff member also heard and witnessed this exchange.
On discussion about this with the staff there have been a few other actions by Jason that have been manipulative and unfair to his housemates, however not to the degree of this particular incident.
I am quite concerned about this and feel that Jason[‘]s attempts at manipulation of the staff and his housemates is becoming more frequent.
I wonder if you feel it may be of some benefit to meet and discuss how or if we can continue to manage this.
Regards,
Sue
[36] Turning to the background that led to this incident. Concerns had been raised about Mr Ferguson’s suitability to reside at Community Living from an early stage. Mr Ferguson was focused on wanting to have his IQ re-assessed to establish that he was not intellectually disabled and therefore not suitably accommodated at Community Living. He felt that Community Living were not doing enough to provide him with an opportunity to be re-assessed.
[37] The IOMS notes record Community Living’s concerns that Mr Ferguson was manipulative, held grudges for long periods if he felt wronged, and was controlling of other residents. It is recorded that staff believed he intimidated other residents to the point where they were “watchful and fearful” of him. A note records that despite a lengthy discussion with him about his behaviour “he continues to be rude and somewhat aggressive to staff and made a remark which may be perceived as a threat”. An email describes another incident where he had been “very belligerent” and “quite angry” when spoken to about his attitude. Another email records that Mr Ferguson had been “extremely rude” and “extremely arrogant” to a care manager about Community Living not doing enough to provide him with an opportunity to be re- assessed and that the staff member “was quite disturbed by his behaviour”. There is a further email recording that Mr Ferguson displayed an “extreme” reaction to an incident (where a staff member had called him a “dumb-ass” for breaching safety rules by fishing in a nearby river without a lifejacket) to the point where the “staff member felt threatened by [Mr Ferguson’s] behaviour and had to be removed from the shift”. The notes record concerns about aggressive behaviour towards (and suspicion of
physical abuse of) stray cats that would come to the house. There is also an email from the NIDCA care co-ordinator stating that staff have been encouraged to report their concerns and incidents to Ms Wilmore, as “in the past [staff concerns] may have been minimised”.
[38] In relation to the incident recorded in Ms Wilmore’s 20 September 2017 email, I do not accept Mr Ferguson’s submission that Mr Huzziff should have obtained, or only acted on, a separate written incident report that contained a specific date rather than the email from Ms Wilmore. The email itself refers to an incident report and while the email contains no express date, given the ongoing contact between the Department and Community Living, and the plain words of the email, it is clear that it was a recent event. The email otherwise records the type of information you would expect to see in an incident report.
[39] Following receipt of the email, Mr Huzziff held meetings with staff from Community Living and NIDCA, and colleagues from the Department, including Mr Ferguson’s former probation officer, to discuss the incident and what it might mean for Mr Ferguson’s continued placement at Community Living. In respect of a meeting held on 26 September 2023, Mr Huzziff recorded in an IOMS note:
... It was clear from the meeting that Jason’s behaviour has become unacceptable, this is not the first incident where he has been threatening.
Staff are clearly afraid of the potential risk Jason poses. There is a pattern developing - a previous meeting held earlier this year provided clear direction to Jason that should behaviour be repeated then there will be consequences and potential recall. See case notes beginning of May 2017
As a result of discussion the following was agreed;
Jason clearly poses an undue risk to both staff and residents at Supported Living
Supported Living has advised they wish to withdraw their accommodation - therefore Jason will not be able to comply with his special conditions regarding his accommodation.
[40]Following those discussions there was support for a recall application.
[41] Community Living and NIDCA’s position after these discussions was that Mr Ferguson was not suitably accommodated with them. As Mr Huzziff’s affidavit in
support of the recall application states, the position was that they were prepared to continue to accommodate and support him only until such time as he found independent accommodation. It is important to note that it was a special condition of Mr Ferguson’s release on parole that he reside at a full-time supervised residential care facility provided by NIDCA and not to move from that facility without the approval of his probation officer. In those circumstances, Community Living’s position meant Mr Ferguson could no longer comply with this important special condition of his release. Independent accommodation with his mother or elsewhere would not have met this condition.
[42] Against that background, I now consider the criticisms that can be made of the information contained in Mr Huzziff’s affidavit:
(a)Paragraph [17] refers to “threats made by Mr Ferguson to another resident”, which indicates more than one threat, although the sentence that follows (accurately) suggests that there was only one incident containing more than one threat.
(b)Paragraph [20] refers to Mr Ferguson’s “ongoing threatening behaviour”. I accept that the use of the word “ongoing” suggests a history of threatening behaviour at Community Living, but it could also have been intended to link back to paragraph [12], where there was reference to Mr Ferguson’s history of volatile behaviour and explosive outbursts of anger prior to his index offending. In any event, the IOMS records of his previous behaviour at Community Living indicates that staff and other residents perceived it at times as intimidating or threatening.
(c)I accept that paragraph [24] is unhappily worded. It refers to Mr Ferguson’s “violent outbursts towards staff and other residents”. I accept that the wording suggests that there was more than one outburst threatening violence to staff and residents. The threat during the incident was to a resident and not to staff. The fact staff were present and concerned may be the source of the wording. On the other hand,
the source of the wording may also be Mr Ferguson’s previous behaviour at Community Living combined with the incident.
[43] It is clear that the essential ground for recall was the threat by Mr Ferguson to do to a fellow resident what he had done to the person he murdered. Clearly this was considered sufficiently serious by Community Living to require reporting to Mr Huzziff. This was in the context of ongoing concerns about Mr Ferguson’s behaviour and his suitability to be accommodated at Community Living. Despite some unhappy wording, I consider the essence of this incident and the risks it posed due to Mr Ferguson’s offending history are properly set out in the affidavit. I consider this threat was more than sufficient justification for a recall application in circumstances where Community Living were only prepared to accommodate him until he could find independent accommodation, which meant he could not comply with an important special condition of his release.
[44] In terms of the requirement to obtain easily ascertainable information, Mr Huzziff was aware of the views of Mr Ferguson’s lawyer, which were provided by email on 24 September 2017. They included that the lawyer understood that a remark had been made and “was (naturally) taken seriously by a staff member”, followed by a request for consideration of a restorative justice process. Mr Huzziff also received an email from Ms Wilmore at 9:37am on 27 September 2017, the day on which the application for recall was made, advising Mr Huzziff that she had received a phone call from Mr Ferguson the previous afternoon “suggesting that there had [been] a mistake in the interpretation of the conversation and that the incident should be regarded as a learning opportunity for [the other resident], around asking people questions”.
[45] Ms Malthus’s affidavit, prepared six years after the event, sets out what she understood Mr Ferguson to have said during the incident, but she accepts that she does “not have a complete recollection of what occurred” and “can’t recall the words” Mr Ferguson said to his fellow resident. I do not place any weight on her impression of the seriousness of the incident in these circumstances. The record of the incident contained in the email of Ms Wilmore of 20 September 2017 and the discussions that
followed, recorded in the IOMS notes, are contemporaneous evidence of the seriousness of the incident.
[46] In these circumstances, I do not accept that the unhappy wording of some aspects of Mr Huzziff’s affidavit caused the interim recall process to miscarry.30 I do not accept there has been the withholding, or an inaccurate representation, of information that would have made a material difference to the interim recall decision.
[47] I consider it is unhelpful, as Mr Minchin does, to focus on the Parole Board’s comments at the final recall application regarding whether a threat actually occurred, or the extent to which such threats may reflect day-to-day events at Community Living.31 In the end, the final recall application was made despite these concerns.
[48] Moreover, I do not have a concern that the words recorded in Ms Wilmore’s email amounted to anything other than a serious threat. Nor does the content and tone of Ms Wilmore’s email suggest such threats reflect day-to-day events at community intellectual disability facilities. I consider it was serious for Mr Ferguson to have reacted to a comment by a young, intellectually disabled housemate, by telling him, in a menacing tone, that the last person who treated him that way ended up in the boot of a car (when he had previously told the residents about the circumstances of his offending, which involved murdering someone and placing them in the boot of a car). It was made more serious by Mr Ferguson repeating the threat and then saying to the housemate that he better watch out as he can “snap just like that”; delivered in a tone considered threatening by the staff member present and causing the housemate to become “very upset”.
[49] Although Mr Ferguson said that the comments had been misinterpreted, his lawyer had also acknowledged they had naturally been taken seriously. It was not Mr Huzziff’s role to conduct an investigation or make findings about the incident beyond obtaining easily ascertainable information and placing the relevant information before the Board for consideration.
30 Of most concern is the reference to “violent outbursts” at [24] of Mr Huzziff’s affidavit.
31 Final recall decision of Parole Board, 25 October 2017 at [12].
[50] In my view, Mr Huzziff, Ms Wood and the Board Chair were right to consider the incident meant Mr Ferguson posed an undue risk to the safety of the community, in the context of Mr Ferguson’s offending history and Community Living’s decision that he could no longer reside with them.
[51] Given these findings, the individual grounds for review can be dealt with reasonably briefly. Grounds one to six challenge the decisions of the Department, whereas grounds seven to 10 challenge those of the Board.
First ground of review – procedural irregularity through delegation
[52] Mr Minchin submits Ms Wood’s decision to make the recall application in 2017 was procedurally irregular, because only the Department’s Chief Executive can advance such an application.32 He relies on the words of s 60(1) of the Act which states, “[t]he chief executive may make a recall application to the Board in respect of any offender who—(a) is subject to an indeterminate sentence …”.
[53] I accept the first respondent’s submission that the Court of Appeal’s decision in Ericson v Chief Executive of the Department of Corrections answers the point.33 The applicant’s submission overlooks s 41 of the State Sector Act 1988, which applied in 2017, and conferred on the Chief Executive a “a broad power of delegation to a Public Service employee”.34 The only applicable restriction is contained in s 10(a) of the Corrections Act 2004,35 and that restriction does not apply, because Ms Wood was not a “staff member of a prison”, but rather she occupied a senior position within the Department (that of Operations Director, Central Region).
32 The statement of claim did not plead that Ms Wood lacked the requisite delegated authority. Evidence that Ms Wood held the requisite delegation is accordingly not before the Court.
33 Ericson v Chief Executive of the Department of Corrections [2019] NZCA 633.
34 At [11]. The equivalent to s 41 of the State Sector Act 1988 is now contained in cls 2–4 of sch 6 to the Public Service Act 2020.
35 Which currently provides: “Despite anything in clauses 2–4 of Schedule 6 of the Public Service Act 2020 in any other provision of this Act or of any other enactment, the chief executive must not delegate to any staff member of a prison–(a) the power to make an application under s 60 of the Parole Act 2002 (which relates to the recall of offenders)”. At the times material to this case s 10(a) read: “Despite anything in sections 41 and 42 of the State Sector Act 1988 or in any other provision of this Act or of any other enactment, the chief executive must not delegate to any staff member of a prison—(a) the power to make an application under section 60(1) of the Parole Act 2002 (which relates to the recall of offenders)”.
[54] Thus, the Chief Executive of the Department was empowered by s 41 of the State Sector Act to delegate the power to make a recall application to Ms Wood, which was not “procedurally irregular” as Mr Minchin suggests. This ground of review fails.
Second ground of review – right to reasons
[55] Mr Ferguson’s second ground of review is that Ms Wood erred by relying on Mr Huzziff’s affidavit in support of the recall application because:
(a)Ms Wood was required to independently verify each fact contained in that affidavit, it contained hearsay, and the affidavit was deficient on its face; and
(b)it was not open to Ms Wood to refer to the ground contained in s 61(a) of the Act (“undue risk to the safety of the community or any person or class of persons”) when she should have referred to the ground in s 61(d)(i) (an offender subject to residential conditions “jeopardising the safety of any person” at their residence).
[56]As to the first issue:
(a)Section 60 of the Act, read together with s 10 of the Corrections Act, anticipates that the Chief Executive’s delegate will be a senior Corrections staff member. Recall applications will very likely be based on information outside of the direct knowledge of the delegate. In those circumstances, reliance by the delegate on information provided by other Department staff is unobjectionable. A requirement that the delegate “personally check” each matter in an affidavit affirmed by another staff member in support of a recall application would be unworkable. This does not mean Ms Wood “rubber stamped” Mr Huzziff’s recommendation. Her affidavit in support of the recall application records that she had read Mr Huzziff’s affidavit and also reviewed the information before her about Mr Ferguson. And on the basis of that information she was satisfied he posed an undue risk to the safety of the community.
(b)The Board enjoys a wide power to receive information, including hearsay.36 Moreover, s 18 of the Evidence Act, cited by Mr Minchin, applies “in any proceeding” and the Board’s processes do not fall within that Act’s definition of “proceeding”.37
(c)For the reasons already mentioned, I do not accept the submission that Mr Huzziff’s affidavit was “deficient on its face” because it did not contain information the Department ought to have obtained, nor refer to investigations the Department should have undertaken. Mr Huzziff’s affidavit contained the essential rationale for the recall application and any inaccuracies were immaterial.
[57] The second issue is whether the application for recall was unlawful because it was advanced under the wrong ground in s 61. Section 61 of the Parole Act sets out the grounds for recall:
61 Grounds for recall
The grounds for recall are that––
(a)the offender poses an undue risk to the safety of the community or any person or class of persons; or
(b)the offender has breached his or her release conditions; or
(c)the offender has committed an offence punishable by imprisonment, whether or not this has resulted in a conviction; or
(d)in the case of an offender who is subject to residential restrictions,—
(i)the offender is jeopardising the safety of any person at his or her residence; or
(ii)a suitable residence in an area in which a residential restriction scheme is operated by the chief executive is no longer available; or
...
36 Section 117(1) provides: “In any hearing before the Board, the Board may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law”. See also s 69(5) and (6). As this Court has previously noted, the Board “… may rely on the applicant’s material in whatever form it comes, sworn or unsworn and first hand or hearsay.” The ultimate issue is “whether the Board’s decision can be defended as reasonable”: see King v Parole Board [2007] NZAR 289 (HC) at [27].
37 Evidence Act 2006, s 4: “proceeding means—(a) a proceeding conducted by a court, and (b) any interlocutory or other application to a court connected with that proceeding”.
[58] I accept the first respondent’s submission that it is immaterial if the recall application referred to one ground contained in s 61, when another ground may also have applied.38 What matters is whether the decision made by the Board on the recall application is lawful. Section 62 of the Act requires the Chairperson or any Panel Convenor to make an interim recall order, on receiving a recall application, if they are satisfied on reasonable grounds that the matters listed in s 62 are made out. Section 62(1)(a) repeats the ground in s 61(a). The section does not limit the Chairperson or any Panel Convenor’s assessment to the grounds set out in the recall application,39 and to impose any such limit would be inconsistent with the safety imperatives of the Parole Act.40
[59] It makes sense at this point to address the related ground of review against the Board (the seventh ground of review). Under that ground, Mr Ferguson submits that as the recall application was required to be advanced under s 61(d)(i) of the Act, there was no jurisdiction for the Panel Convenor to order interim recall because the ground in 61(d)(i) is not a ground for interim recall under s 62. This ground of review must also fail because there was no requirement to make the application under s 61(d)(i), and in any event the Board was not limited in its assessment to the grounds set out in the application.
[60] Mr Minchin also made the related argument that the Board could not have been satisfied that Mr Ferguson was an undue risk to the safety of the community (as required by s 62(1)(a)) because the only risk he posed was to the safety of a person in his residence (engaging only s 61(d)(i)). However, Mr Minchin did not strongly advance this submission when it was pointed out that Mr Ferguson’s housemates would also fall into the category of “a person or class of persons” provided for in s 61(a) and 62(1)(a).
38 See Isherwood v New Zealand Parole Board [2022] NZHC 2031 from [43]. I also accept the first respondent’s submission that although s 61(d) addresses concerns specific to offenders subject to residential restrictions, this does not mean the other grounds listed in the section are inapplicable to those offenders. The grounds in s 61 are disjunctive, and the grounds listed may overlap in practice (s 60(3) refers to the “ground or grounds” on which an applicant relies).
39 At [44].
40 Wong v New Zealand Parole Board [2017] NZHC 2098; Harriman v Attorney-General, above n 10.
Third ground of review – right to be heard
[61] Mr Ferguson submits that Ms Wood was exercising quasi-judicial powers, and was required to have direct evidence of the matters that founded the recall application, and was required to hear from Mr Ferguson.
[62] I do not accept these propositions. Ms Wood was not exercising a judicial power that required her to be satisfied to a particular standard following a particular process that a ground in s 61 applied. Natural justice rights are recognised by the requirement that a hearing be held on the recall application before a final recall order is made, and the procedures for hearings set out in the Act.41 However, and in accordance with Packer, given the potential for the Board to make without notice interim recall orders, natural justice principles require the material provided to the Board in support of a recall application to set out the essential rationale for the recall application, and must not omit, or inaccurately represent, matters material to the Board’s assessment. As I have already determined, the recall application met that standard.
Fourth ground of review – mandatory relevant considerations
[63] Under the fourth ground of review, Mr Minchin submits that Ms Wood failed to take into account two mandatory relevant considerations: Mr Ferguson’s explanation for the incident after the interim recall decision had been made; and that he was not read his rights under the New Zealand Bill of Rights Act 1990 upon arrest.
Mr Ferguson’s explanation in discussions
[64] Mr Minchin submits that a discussion between Mr Ferguson, Mr Huzziff and another member of the Department, after the interim recall order had been made, was a mandatory relevant factor Ms Wood should have considered in making the recall application. In that conversation Mr Ferguson denied he had been threatening and said another staff member could confirm that.
41 See ss 66(1) and 42 to 50B.
[65] I accept the first respondent’s submission that if the conversation with Mr Ferguson had yielded information that undermined the basis for the recall application, the Department would have been under an obligation to report that information to the Board. However, I consider the information provided by Mr Ferguson was not of that nature.42 In any case, the discussion in question occurred after the interim recall order had been made, so it cannot have constituted a mandatory relevant consideration for Ms Wood to have taken into account in making the application for recall.
The New Zealand Bill of Rights Act 1990
[66] The statement of claim pleads that when arrested on the basis of the interim recall application, Mr Ferguson was “not read his rights pursuant to s 24 of the New Zealand Bill of Rights Act 1990”, that the Department knew or ought to have known that, and that the failure to address this issue was a failure to address a mandatory relevancy.43 The first respondent’s pleadings in response noted that s 24 was not engaged because Mr Ferguson was not “charged with an offence”.
[67] Mr Minchin’s written submissions said that the pleading should have referred to s 23 of the New Zealand Bill of Rights Act.44 He further submits that because Ms Wood had “carriage of his detention prior to the recall warrant being effected” she “was required to ensure that Mr Ferguson be read his rights, and that Ms Wood knew or ought to have known that the applicant was not read his rights” and her failure to take that into account is a failure to consider a mandatory relevancy.
[68] I accept the first respondent’s submission that this argument is illogical. The alleged failure occurred after the recall application and the interim recall order had been made. It could not therefore have been a mandatory relevant consideration applying to the decision to make the recall application.
42 As noted above, the Department had held discussions with Community Living and NIDCA before making the recall application. And as a result of representations made by Mr Ferguson and his counsel, the Department was already aware that Mr Ferguson considered the remark had been misinterpreted.
43 Statement of claim for judicial review, 30 April 2021, at [33]–[36].
44 For the application of s 23 in this context, see Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 from [62].
[69] I also note that because of the way this matter was pleaded, issues around what Mr Ferguson was told when he was detained were not addressed in the first respondent’s evidence.
[70]Therefore, this ground of review is not established.
Fifth ground of review – irrelevant considerations: media notoriety
[71] Under this ground, Mr Minchin submits the recall application is tainted because it placed weight on an irrelevant consideration, namely “that Community Living wanted to be rid of Mr Ferguson because he had some media notoriety and may have used this media interest to object to his placement at Community Living”.
[72] I accept the first respondent’s submission that, as there is no reference to Mr Ferguson’s media notoriety in the recall application and supporting evidence, there is no factual basis for Mr Ferguson’s contention. In any event, the IOMS notes indicate Mr Huzziff recorded Mr Ferguson’s threats to go to the media in the context of concerns raised by Community Living about what media involvement might mean for other residents.
Sixth ground of review – irrelevant considerations: bad faith
[73] Under this head of review, Mr Ferguson submits the recall application was tainted by “the irrelevant consideration that Mr Huzziff personally wanted to recall Mr Ferguson” because Mr Huzziff “did not want to be bested by Mr Ferguson”. I accept the first respondent’s submission that there is no evidential foundation for this submission, which is essentially an allegation that Mr Huzziff acted in bad faith. It is speculative and unsustainable for reasons I explain when dealing with the application for strike out/summary judgment regarding the tort proceedings.
Approach to review of the Board’s interim recall decision
[74] The remaining grounds of review challenge the Board’s decision making. The courts have consistently recognised that judicial review of the Board is limited in scope. As Gendall J explained in Ericson v New Zealand Parole Board:45
… It is well known that the scope for judicial review of decisions of the Parole Board is narrow. The Court can only make an assessment of whether a Board’s decision was lawful, that a decision was open to it. Challenge may only be on the usual judicial review principles, namely that the Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, that it arrived at its decision in breach of the principles of natural justice, or that its decision was so unreasonable as to be reviewable.
The Courts do not and cannot sit as appellate bodies from decisions lawfully made by the Board and the Court cannot exercise a jurisdiction which by law is vested in the Parole Board … The assessment whether the decision was lawful or not cannot be taken as an opportunity to revisit the application for parole …
[75]As Katz J has further noted, this narrow scope of review is reflective of:46
the highly prescriptive nature of the Act, which includes detailed procedural provisions relating to parole decision-making. … parole legislation has a strong public protection focus. It vests decision-making in a board with specialist experience and expertise.
Seventh ground of review – lack of jurisdiction to make an order under s 62(1)(a)
[76]I have addressed this ground at [59]–[60] above.
Eighth ground of review – mandatory relevant consideration
[77] The argument under this ground is essentially that the interim recall order was unlawful because Ms Wood’s affidavit was so cursory the recall application was in effect made by Mr Huzziff. Mr Minchin submits that the Board placed undue reliance
45 Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at [13]–
[14] (footnotes omitted).
46 Wong v New Zealand Parole Board, above n 40, at [17]. At [33] Katz J notes “… parole decision- making is not a simplistic or linear exercise. It is difficult, precisely because the factors involved in making the decision will be complex and interrelated. It cannot be the case that the Board is required to disregard a matter that is relevant to the level of risk an offender poses to the community simply because that matter was not identified or addressed (possibly entirely inadvertently) by a previous Board. Such an approach would undermine the overarching statutory purpose, which requires that offenders not be released if they still pose an undue risk to community safety.”.
on Mr Huzziff’s affidavit, which consisted of hearsay, opinion evidence, and failed to provide direct or documentary evidence or a factual basis for its claims. These matters were “mandatory considerations” for the Board in making its decision.
[78] The substance of this argument has already been addressed in my above findings. In any event, the question is whether it was reasonably open to the Panel Convenor to be satisfied that one of the grounds in s 62(1) applied. Errors in the process of making the recall application are only relevant if they demonstrate that the Board reached a decision that was not reasonably open to it. For the reasons already explained, there were no such errors in this case.
Ninth ground of review – mistake of fact
[79] Under this ground, Mr Ferguson essentially submits that if further inquiries had been made into the report of the incident, further information may have been discovered that contradicted the information placed before the Board in the recall application.
[80] A mistake of fact gives rise to a reviewable error of law “where the evidence does not support the conclusion reached, is contradictory of it, or can only lead to the opposite conclusion. The relevant mistake must be as to a fact which is established, uncontentious, and objectively verifiable. There is a very high hurdle; it is not a mistake of fact to adopt one of two different points of view of the facts, each of which can reasonably be held”.47 The limits of the judicial review process are also relevant to the application of this ground.48
[81] For the reasons already discussed, Mr Ferguson cannot point to established, uncontentious, and objectively verifiable facts contradictory of the material information placed before the Board. The allegation that further inquiries may have changed the position is speculative and cannot establish an error of fact ground of
47 Winton Property Investments Ltd v Minister of Finance [2023] NZCA 368 at [103] citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (SC) (footnotes omitted).
48 As recently observed by Cooke J in New Health New Zealand Ltd v Minister for COVID-19 Response [2023] NZHC 2647 at [29(a)]: “… Judicial review is not an appropriate procedure for addressing factual contests, and the mistake of fact ground of review does not arise simply because the decision-maker could have reached a different conclusion on the facts”.
review. To the extent it can found grounds of review based on procedural error, I have already determined no such grounds are established.
Tenth ground of review – unreasonableness
[82] Under this ground of review, Mr Minchin repeated arguments I have already dealt with and submitted that the application to recall Mr Ferguson was “substantively flawed” and that it was “unreasonable” to recall Mr Ferguson on the basis of a substantively flawed application. For the reasons already explained, this ground cannot succeed.
Conclusion on judicial review
[83] As none of the grounds of review have been established, I dismiss the application for judicial review.
[84] Even if Mr Ferguson had established one or more grounds of review, I consider there is force in the first respondent’s submission that no discretionary relief ought to follow on the basis of the lack of utility in the relief sought, the time that has passed since the events, and Mr Ferguson’s failure to utilise the review and appeal processes provided for in the Parole Act.49
THE APPLICATION FOR STRIKE OUT OR SUMMARY JUDGMENT OF THE TORT PROCEEDINGS
Legal principles applicable to strike out and summary judgment
Strike out
[85] Under r 15.1(a) of the High Court Rules 2016 (HCR), the Court may strike out all or part of a claim if it discloses no reasonably arguable cause of action. The general approach to strike out is well-established:50
49 The interim recall order was overtaken within a month by the final recall order, made in October 2017, with the consent of Mr Ferguson’s counsel. The interim and final recall orders were not challenged by Mr Ferguson until this proceeding, filed in April 2021. In the interim, Mr Ferguson has been before the Board several times.
50 Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR15.1.02] citing Attorney-General v Prince & Gardner (1998) 1 NZLR 262 (CA).
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable …
(c)The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation …
[86] The Court may also strike out the proceeding that is an abuse of the Court’s processes, under one of the grounds in r 15.1(1)(b)-(d). A range of improprieties or misuses of the court’s processes can amount to an abuse of process under r 15.1.51
Summary judgment
[87] Under r 12.2 of the HCR, the court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the statement of claim can succeed. Summary judgment will only be granted when the substantive merits of the case are clear and capable of summary disposal.52 The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it does not need to accept evidence that is inherently lacking in credibility. The Court may take a robust and realistic approach to the evidence where the facts warrant it.53
Misfeasance in public office claim against Mr Huzziff
[88] The misfeasance pleaded by Mr Ferguson is that Mr Huzziff failed to carry out a proper investigation into the circumstances set out in his affidavit, demonstrating a
51 This ground was summarised by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89], to include such abuses as prolix or unintelligible pleadings, collateral challenge to concluded proceedings, and proceedings commenced for improper purposes.
52 Westpac Banking Corporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [63]– [64].
53 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
“hostile animus” towards Mr Ferguson and resulting in him being wrongfully recalled to prison for 14 months.
[89]It was common ground that the elements of misfeasance in public office are:54
(1) Standing: The plaintiff must have standing to sue.
(2) Public office: The defendant must be a public officer.
(3) Unlawful conduct: The defendant must have acted or omitted to act in purported exercise of her public office unlawfully either:
(a)intentionally, that is actually knowing her actions or omission to act were beyond the limits of her public office; or
(b)with reckless indifference as to whether she was acting or omitting to act outside those limits.
(4)Intention: The defendant must have so acted or omitted to act either:
(a)with malice towards the plaintiff, that is, with intention to harm the plaintiff; or
(b)knowing her conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or
(c)with reckless indifference as to whether the plaintiff would be harmed. Subjective recklessness, not objective recklessness, is required.
(Note: (a) is what is often called “targeted malice”; (b) and (c) are often called “non-targeted malice”).
(5)Resulting loss: The plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff’s claimed loss.
[90] It is well-established that misfeasance in public office is an intentional tort and that negligent, even grossly negligent, performance of a public power is insufficient to establish liability.55
[91] As the Court of Appeal noted in Stockman v Health and Disability Commissioner, bare allegations of deliberate, dishonest, or reckless disregard are not facts but conclusory inferences. Whether an inference can be properly drawn from
54 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40] (footnotes omitted).
55 Hobson v Attorney-General [2007] 1 NZLR 374 at [131]–[132] citing Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2000] 2 AC 1 (HL) at 290, per Lord Millet, and Garrett v Attorney-General [1997] 2 NZLR 332.
particular facts is a question of law.56 The requirements for a pleading alleging misfeasance in public office are exacting. The Court of Appeal explained the requirements:57
A pleading of misfeasance in a public office, or an allegation that the s 121 defence does not apply, attracts the same requirements as pleadings for fraud, dishonesty and other reprehensible conduct. Specifically, there must be a proper basis for alleging the conduct and it must be pleaded clearly with adequate particulars. In Schmidt v Pepper New Zealand (Custodians) Limited this Court said:
Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs Precedents of Pleadings emphasise, counsel must not draft any originating process or pleading containing an allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.
(Footnotes omitted).
Is there an arguable case of misfeasance in public office?
[92] In Harriman, Simon France J relied on the factual findings of the Court of Appeal in the judicial review proceeding when striking out the tort and New Zealand Bill of Rights Act claims.58 I consider that approach is applicable here given the facts relied on to found all of Mr Ferguson’s claims are the same.
[93] I accept the first defendant’s submission that the claim must be struck out because the third element of the tort of misfeasance in public office cannot be established, namely that Mr Huzziff’s acts were unlawful. The findings I have made in dismissing the judicial review application conclusively determine this issue. However, in case I am wrong about this, I will go on to consider the other elements of misfeasance in public office.
56 Stockman v Health and Disability Commissioner [2020] NZCA 588 at [81].
57 At [79].
58 Harriman v Attorney-General, above n 10, at [7].
[94] The essential issue on the strike out application is whether Mr Huzziff’s alleged conduct is capable of amounting to bad faith or malice. The high point of the allegations of both targeted and non-targeted malice is, as refined during oral argument, the allegedly misleading statement that Mr Ferguson displayed “violent outbursts towards staff and other residents”. I have already noted that some of the wording of Mr Huzziff’s affidavit was unfortunate.59 However, the specific statement relied on, and the affidavit as a whole, must be considered in their full context, including the incident that was the catalyst for the recall application, Mr Ferguson’s offending history and his history of behaviour at Community Living. This includes Mr Ferguson’s concerning behaviour recorded in the IOMS notes,60 which at times staff and residents perceived as intimidating or threatening.
[95] Mr Ferguson’s draft amended statement of claim pleads that Mr Huzziff’s “bad faith” towards him “manifested in various ways”, particularised as:
(a)in summarising the situation to the Department’s High Risk Lead Adviser (the Adviser), referring to concerns about Mr Ferguson threatening to go to the media;
(b)stating to the Adviser that if Mr Ferguson is allowed to move out of Community Living without consequences “he gets what he wants and thinks he can do as he likes”;
(c)failing to tell the Adviser that Mr Ferguson’s mother’s address had previously been deemed suitable by Corrections as an alternative address;
(d)failing to give Mr Ferguson a chance to tell his side of the story until the interim recall application had been made;
59 Above at [42].
60 Set out at [36]–[37].
(f)61 misleading Mr Ferguson by telling him the reason he wanted him to come to his office was so he could contact his lawyer rather than to be taken into custody by police on the interim recall order;
(g)failing to arrange for Mr Ferguson to be taken directly to prison, which meant he was held in police cells overnight and court cells the next day; and
(h)the fact Mr Ferguson allegedly had an intellectual disability aggravated Mr Huzziff’s conduct.
[96] Again, in the circumstances of this case, the facts asserted in these pleadings must be considered in the context of the evidence and findings in the judicial review proceedings,62 as well as the evidence filed in respect of the application for strike out/summary judgment.
[97] In relation to (a), as already noted, Mr Huzziff, did not rely on Mr Ferguson’s threats to go to the media in support of the recall application, and the IOMS notes indicate Mr Huzziff recorded the threats in the context of concerns expressed by Community Living about what media involvement might mean for other residents.
[98] In relation to (b), this comment is the eleventh and final point made in an email from Mr Huzziff to the Adviser summarising the matters that had led to consideration of recall. It is not inconsistent with concern for the overall risk posed by Mr Ferguson to note the effect of there being no consequences for his conduct.
[99] In relation to (c), Mr Huzziff told the Adviser that Mr Ferguson would likely propose his mother’s address, but “a confidential memo due to concerns for her safety would need to be completed and we would not approve her address”. Mr Huzziff deposes in his affidavit in support of the strike out/summary judgment application that he cannot now recall the thinking underlying this statement, but notes there were some
61 There is no (e).
62 Harriman v Attorney-General, above n 10, at [7].
references in the Parole Assessment Reports to concerns about Mr Ferguson’s mother’s address.63
[100] In relation to (d), there was no right to be heard prior to the interim recall decision and Mr Ferguson’s lawyer had acknowledged a remark had been made that “was (naturally) taken seriously by a staff member” and requested consideration of a restorative justice process.
[101] In relation to (f), Mr Huzziff deposes that he considered it would be safer for Mr Ferguson to be taken into custody at the office than the police attending Community Living where vulnerable people could be present, but cannot recall if he used a pretext to ensure he attended the office.
[102] In relation to (g), there is no basis to consider Mr Huzziff had control over, or an interest in, where Mr Ferguson would be held once taken into custody, nor any explanation of how this matter supports an inference of bad faith.
[103] In relation to (h), Mr Ferguson’s alleged intellectual disability (which he was adamantly denying at the time) is incapable on its own of converting otherwise good faith conduct into bad faith conduct.
[104] I consider that none of these matters, either individually or cumulatively, are inconsistent with Mr Huzziff properly fulfilling his functions as a probation officer. They are incapable of leading to an inference that he acted in bad faith (whether as targeted or non-targeted malice). Further, Mr Huzziff’s conduct in consulting senior colleagues, Mr Ferguson’s former probation officer, Community Living and NIDCA before deciding to make the recall application is entirely consistent with a probation officer endeavouring to discharge his duties in a prudent and good-faith manner.
[105] Moreover, even if there were an arguable case that the language used in parts of Mr Huzziff’s affidavit in support of the recall application (or indeed any of his other
63 The IOMS notes also contain a record of a discussion between Mr Ferguson’s mother and his probation officer where she “said she loves him” but didn’t “think it will be good for him to return home merely due to there not being much to do in Tokoroa and he would find it boring. The reason she provides does not seem plausible as there may be more I am not informed of.”
acts or omissions) are capable of amounting to negligence, or even gross negligence (about which I need make no finding), that is insufficient to found a claim for misfeasance in public office.
[106] I am therefore satisfied that the conduct alleged is incapable of supporting an inference of bad faith or malice as a matter of law. The claim must therefore be struck out. However, even if I am wrong about that, I am satisfied that there is no realistic prospect of establishing bad faith or malice at trial, which means summary judgment is appropriate.
Breach of statutory duty – claims against both Mr Huzziff and Ms Wood
[107] The claims against Mr Huzziff and Ms Wood for breach of statutory duty can be dealt with briefly.
[108] Mr Ferguson pleads that the first defendant breached his statutory duty because he did not “adequately conduct an investigation where recall to prison [was] in issue”, and the second defendant committed the tort because she did not adequately review the information before she made the recall application in September 2017. It is alleged these actions are inconsistent with the Parole Act (particularly ss 60 to 62) and the Corrections Regulations 2005 (particularly reg 12).
[109] I am in complete agreement with Simon France J’s decision in Harriman that the statutory schemes of the Parole Act and Corrections Act are inconsistent with private law liability in tort for breach of the duties imposed on the Department’s employees.64 I do not consider there is any material difference between the duties pleaded in Harriman and the duties held by the Department’s employees under ss 60 to 62 of the Parole Act, or reg 12 of the Corrections Regulations, to justify a different approach. In any event, given my conclusion that there is no arguable basis for findings of bad faith against Mr Huzziff, and no such allegations are made against Ms Wood, for reasons I will now explain, strike out is required due to statutory immunity.
64 Harriman v Attorney-General, above n 10, at [23]–[39]
Statutory immunity - s 86 of the State Sector Act 1988
[110] The defendants have pleaded as an affirmative defence the immunity contained in s 86 of the State Sector Act 1988 (now found in s 104 of the Public Service Act 2020).
[111]Section 86 provides:
(1)Public Service chief executives and employees are immune from liability in civil proceedings for good-faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers.
(2)See also section 6 of the Crown Proceedings Act 1950.
[112] In Peters v Attorney-General, the Court of Appeal discussed the purpose of s 86, observing:65
[147] The central purpose of the new version of s 86 (and now, of s 104 of the Public Service Act) is to ensure that public servants are not exposed to civil proceedings against them personally provided they act in good faith in the (intended) pursuance of their duties. This important provision protects the ability of public servants to carry out their functions impartially and fearlessly, without being deflected from doing so by the threat of proceedings which — even if ultimately unsuccessful — may be protracted, stressful and costly. The purpose of the provision is undermined if proceedings are brought against public servants without a proper basis for alleging bad faith.
…
[149] Mr Henry’s written submissions in this Court did not address the implications of s 86 of the State Sector Act for the claims against the Chief Executives. Nor did Mr Henry identify, in oral argument, any principled basis on which s 86 would not apply to these claims. He did suggest, rather faintly, that s 86 might not preclude claims seeking a declaration rather than damages. However s 86 is not framed in terms of immunity from certain forms of relief. Rather, it provides that public servants who act in good faith are “immune from liability in civil proceedings”. We do not consider that this leaves any scope for claims for declaratory relief in respect of a claim in tort. There are contexts in which a declaration is available without a finding of liability — for example, in relation to maters of status. But it could not sensibly be suggested that a declaration that a person had committed the tort of invasion of privacy could be made without a finding of liability for commission of that tort.
[150] We therefore agree with the Judge that s 86 applied to the claims against the Chief Executives. We agree with the Judge that in the absence of any evidence to support allegations of bad faith, such allegations should not have been made. And absent such allegations, the claims should not have been
65 Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 (emphasis added, footnotes omitted). See also New Zealand Police v Williams [2022] NZCA 419, [2023] 2 NZLR 189.
brought against the Chief Executives personally. For that reason alone, the appeal must be dismissed so far as the claims against them personally are concerned.
[113] The first defendant submits that the Court of Appeal’s decision in Stockman confirms that if the facts pleaded in a claim for misfeasance in public office do not credibly support an inference of malice, the statutory immunity will apply and the claim must be struck out or summary judgment entered.66 As a matter of logic, this submission is sound. However, if proof of malice means the office holder has not acted in “good faith”, s 86 will never provide immunity to a claim of misfeasance in public office.
[114] I asked for further submissions on the applicability of s 86 immunity to a claim of misfeasance in public office based on “non-targeted” malice. It is uncontroversial that the immunity cannot apply to “targeted” malice because proof of targeted malice necessarily means an office holder has not acted in “good faith”. The issue is whether proof of “non-targeted” malice also amounts to an absence of “good faith” and thus deprives the office holder of the s 86 immunity.
[115] In Stockman the Court of Appeal dismissed an appeal against strike out of a claim for misfeasance in public office where the statutory officers enjoyed an equivalent immunity under s 121(2) of the Crown Entities Act 2004. That provision states that an office holder or employee of the statutory entity is not liable in respect of an “excluded act or omission” which is defined in s 126 as “an act or omission by the … office holder … in good faith and in performance or intended performance of the entity’s functions”.67 It appears the Court of Appeal treated non-targeted malice
66 Stockman v Health and Disability Commissioner, above n 56, from [71], where the Court of Appeal upheld the High Court’s decision to strike out a non-targeted misfeasance claim.
67 Stockman v Health and Disability Commissioner, above n 56, at [75].
as an absence of good faith that would deprive the office holder of the benefit of the immunity.68 I consider that to be the correct position.69
[116] It follows that if there is an arguable case of misfeasance in public office, the s 86 immunity will not assist the office holder.
[117] On the other hand, the s 86 immunity is a complete answer to the claim for breach of statutory duty in the absence of a pleading, in respect of that cause of action, supporting a tenable inference of bad faith or malice. In other words, even if I am wrong that the law does not recognise a private law action for breach of statutory duty, the absence of a tenable pleading of bad faith or malice against Mr Huzziff, and the absence of such a pleading altogether against Ms Wood, means that claim must nevertheless be struck out.
Conclusion
[118]I therefore make the following orders:
(a)I dismiss Mr Ferguson’s application for judicial review.
(b)Mr Ferguson’s tort proceedings are dismissed on the basis they disclose no reasonably arguable case of action and must therefore be struck out and/or summary judgment is appropriate because they cannot succeed.
68 At [71]–[75].
69 In Stockman, above n 56, at [71] the Court of Appeal noted that the “tort of misfeasance in a public office requires proof of an absence of good faith, or proof of bad faith, on the part of a public officer acting in the exercise of the public office, that has caused damage to the plaintiff” (emphasis added) citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 51, at [38]–[44]. Further, in Three Rivers District Council v Bank of England [2001] 2 All ER 513 at [54], it was noted that a statutory immunity that applied unless bad faith could be established “went a long way to explain” why misfeasance in public office was pleaded. In addition, the passages from Three Rivers and Garrett cited in Hobson v Attorney-General, above n 55, at [131]–
[132] support the conclusion that an absence of good faith is an essential component to both forms of the tort (targeted and non-targeted malice).
[119]As Mr Ferguson is legally aided, there will be no order for costs.
La Hood J
Solicitors:
Exeo Legal, Wellington for Applicant in Judicial Review proceedings and Plaintiff in proceeding CIV- 2021-485-000208
Crown Law Office, Wellington for First Respondent in Judicial Review proceedings and for First and Second Defendants in proceeding CIV-2021-485-000208
Vicki J Owen, Wellington for Second Respondent
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