Ferguson v Chief Executive of the Department of Corrections
[2022] NZHC 1430
•17 June 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-211 [2022] NZHC 1430
IN THE MATTER OF a Judicial Review BETWEEN
JASON MARK FERGUSON
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
AND
NEW ZEALAND PAROLE BOARD
Second Respondent
Hearing: 14 June 2022 Appearances:
C J Tennet for Applicant
J B Watson for First Respondent
No appearance by or for Second Respondent
Judgment:
17 June 2022
ORAL JUDGMENT OF GENDALL J
This judgment was delivered by me on 17 June 2022 at Pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date
FERGUSON v CHIEF EXECUTIVE OF THE DEPT OF CORRECTIONS [2022] NZHC 1430 [17 June 2022]
Introduction
[1] The applicant here seeks judicial review of decisions made by the first respondent, Chief Executive of the Department of Corrections, (the Department) to advance an application to recall him as a sentenced prisoner from parole, and of the second respondent, New Zealand Parole Board (the Parole Board) to grant that application.
[2] The applicant, Mr Ferguson, is serving a sentence of life imprisonment. He was released on parole in May 2016 to live in a residential care facility.
[3] In September 2017 a staff member of the Department, Ms Louise Wood, (Ms Wood) made an application for his recall to prison. The Parole Board made interim and final recall orders shortly thereafter.
[4] This judicial review application is brought in the present proceeding CIV-2021-485-211. The applicant however has brought two proceedings both arising out of the events I describe above.
CIV-2021-485-211 — a judicial review claim
[5] In his present judicial review claim proceeding the applicant as I note seeks judicial review of the decisions of the Department and the Parole Board, outlined above.
[6] The judicial review application in the applicant’s 30 April 2021 specifically pleads:
(a)the actions of Ms Wood and a probation officer Byron Huzziff (Mr Huzziff), in the course of advancing the application for interim recall of the applicant were procedurally irregular;
(b)the Department’s interim recall application did not consider mandatory relevancies and took into account irrelevant considerations; and
(c)the Parole Board’s decision to recall the applicant was vitiated by errors of fact and was unreasonable.
CIV-2021-485-208 — a tortious claim
[7] This tort claim, in which Mr Huzziff as a former staff member of the Department of Corrections is named as the first defendant, and Ms Wood who is presently employed by the Department is named as the second defendant, alleges that the named defendants committed misfeasance in public office and/or a breach of statutory duty in making the application to recall the applicant.
[8] As I understand the position Ms Wood, the second defendant in this tort claim intends to seek leave to apply for summary judgment against the plaintiff in terms of r 12.4(3) of the High Court Rules. There has been some delay it seems in bringing this application. But nevertheless, it is intended that it be made.
[9] A statement of defence in this proceeding CIV-2021-485-208 has been filed by Crown Law on behalf of Ms Wood, who I understand has recently moved overseas. I am told that counsel have only recently been able to contact Mr Huzziff and it seems his position on this tortious claim at this point is not known.
The present proceeding CIV-2021-485-211
[10] A statement of defence has also been filed in proceeding CIV-2021-485-211 on behalf of the Department. So far as this proceeding is concerned, initial disclosure has also been provided to the applicant. Mr Watson, counsel for the first respondent, indicates that this included the application for interim recall of Mr Ferguson, advanced by Ms Wood in September 2017 and the affidavits filed in support of that application.
[11] In addition, the Parole Board has filed and served its record of decisions relating to the applicant. This record it seems runs to three volumes and includes:
(a)the Parole Board’s decisions relating to the applicant;
(b)reports the Parole Board has received from the Department;
(c)specialist reports provided to the Parole Board; and
(d)submissions made to the Parole Board.
[12] The Parole Board has indicated that it does not wish to appear with respect to the present discovery application, and that it will abide the Court’s decision with regard to this and the judicial review application.1
The applicant’s present interlocutory application seeking further and better discovery
[13] On 1 November 2021 the applicant filed this present interlocutory application for further and better discovery in the CIV-2021-485-211 judicial review proceedings. In support of the application, he has filed a memorandum of counsel, a synopsis of submissions and an affidavit dated 22 April 2022 of Peter Rangihuatau Hikaka.
[14] In this discovery application he seeks orders that the Department is to provide him with several categories of documents which are noted as follows:
(a)documents relating to the employment history and qualifications of Ms Wood and Mr Huzziff;
(b)documents relating to Mr Ferguson’s placement in Community Living, and Ms Wood’s decision to advance the interim recall application; and
(c)unredacted versions of the Department’s IOMS notes for the applicant, Mr Ferguson.
[15] At the hearing of this application, Mr Tennet, counsel for Mr Ferguson, confirmed that the application concerning documents relating to the employment
1 Memorandum of counsel and appearance for the New Zealand Parole Board both dated 19 May 2021.
history and qualifications of Ms Wood and Mr Huzziff was no longer pursued and was now withdrawn. These documents it seems are no longer sought. Further, I understood from Mr Tennet that the discovery application relating to the second category documents concerning the applicant’s placement in Community Living and the decision by Ms Wood to advance the interim recall application, was also not being pursued in real way. Instead Mr Tennet confirmed before me that what he described as the “one sticking point” in this application related now to the third category of documents being unredacted versions of the IOMS notes for the applicant, Mr Ferguson having already been provided with redacted versions of those IOMS department file notes relating to him. Mr Watson for the Department confirmed that by way of informal discovery the Department had already provided the applicant with those redacted IOMS notes which run to some 262 pages. Mr Watson contends that a limited amount of material had been redacted from those IOMS notes and then only where that material was irrelevant and where it also gave rise to operational or privacy concerns.2
[16] So far as those limited redactions relating to some of the 262 pages of IOMS notes (which have to date been provided informally by the Department) are concerned, Mr Watson as an officer of this Court confirmed that those redactions are limited and relate simply to staff telephone, email or contact numbers, or in a few other cases, are redacted because of operational concerns for the Department.
[17] The extent of redaction or covering up content by the Department in these IOMS notes, does seem to be the principal matter under dispute by Mr Ferguson here.
Discovery principles
[18] Where discovery is sought in judicial review, the application falls to be dealt with under s 14(2)(h) of the Judicial Review Procedure Act 2016 (the Act).
2 The IOMS notes it seems do not fall within the terms of any existing discovery order made by this Court, but nevertheless they had been provided by the Department. It is also well settled that irrelevant material can be redacted from documents exchanged in the course of discovery — McGechan on Procedure (online ed) at HR 8.7.03 citing Peguero v Jess [2019] NZHC 3188 at [27]; and Wei v Wang [2020] NZHC 938 at [37].
[19] As McGechan on Procedure, Thompson Brookers online ed at para JR 14.08 notes:
“Discovery is available in applications for [judicial] review but the power to order it is discretionary and therefore in marked contrast from the position that applies in ordinary proceedings.3
[20] Notwithstanding this, the accepted historical position for some time has been that discovery is not generally available as of right in judicial review proceedings.4 Irrelevance and a proportionate approach are important in assessing any application for discovery in judicial review matters. As McGechan on Procedure at para 14.08 also notes:
“The requirement for relevance and proportionality in discovery are particularly important in judicial reviews. Judges are responsible for narrowing the issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum …”.
(citations omitted)
[21] It is clear however that in judicial review proceedings public authorities are under a duty to explain in their evidence the decision-making process, the relevant factual and other circumstances, and the reasons for the decision under challenge.5 Given this, it has been said that discovery orders are generally unnecessary in review proceedings and also that such orders will not generally tend to promote the purpose of judicial review as a prompt and untechnical mechanism to ensure public power is exercised lawfully.6
[22] Ultimately, the Court’s task in ensuring that material sought by way of discovery is relevant to the proceedings and necessary in the circumstances requires it to:
“… make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time ensuring that the materials
3 Chatfield & Co Limited v Commissioner of Inland Revenue [2016] NZCA 614; Keenan v Attorney- General [2014] NZHC 1649; Air New Zealand Limited v Auckland International Airport Limited (2011) 16 PRNZ 783 (HC).
4 Chatfield & Co Limited v Commissioner of Inland Reveue ,above n 3 at [20].
5 Ririnui v Landcorp Farming Limited [2016] NZSC 62 at [105].
6 Ririnui v Landcorp Farming Limited (No 1) [2014] NZHC 732 at [5]; and Minister of Energy v Petrocorp Exploration Limited [1989] 1 NZLR 348 (CA) at [353].
remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure”.7
Discussion
[23] The Department’s 1 February 2022 Notice of Opposition sets out a number of reasons for its opposition to the present discovery application. These grounds are expressed as follows:
“(a) Discovery is not available as of right in judicial review proceedings. In lieu of discovery as of right, the Court is entitled to expect the defendants will file candid affidavits and disclose relevant background documents.
(b)The category of documents sought by way of discovery is overly broad: the plaintiff requests information which is not relevant to his claim, and his belief that certain information is relevant to his claim is based on premises which are incorrect (including that Ms Louise Wood was subject to a disciplinary process connected with the subject matter of the applicant’s claim, and that Mr Byron Huzziff was dismissed from the Department of Corrections).
(c)The application is premature. An application for tailored discovery that is proportionate to the proceeding, is best considered after the first respondent has filed its evidence.
(d)The first respondent has provided the applicant with initial disclosure and has responded to information requests made by the applicant or on his behalf in connection with the subject matter of these proceedings. The second respondent has provided the applicant with three volumes of material comprising its record of decision in connection with the applicant’s interim and final recall from parole. In these circumstances the applicant’s assertions that his ability to file evidence in support of
7 Gama Foundation v Chief Executive of the Ministry of Social Development and Attorney-General [2021] NZHC 3146 at ]10]. On this, see also Te Runanga O Ngati Awa v Attorney-General, High Court Wellington, CIV-2006-485-1025, 28 March 2007 at [6].
his claim is hindered by lack of disclosure is not accepted by the first respondent.
(e)That the Department is entitled to redact irrelevant information (such as the phone numbers and email addresses of employees) or confidential information (including information which, if disclosed, may inhibit the ability of the Department to operate its facilities safely and securely) on documents it provides to the applicant in the course of informal discovery”.
[24] In the present case the focus of Mr Ferguson’s judicial review claim is an allegation that the Department erred in public law terms in advancing the 2017 interim recall application. To make out his case, it would seem the applicant requires the Parole Board decisions relating to the interim and final recall application in 2017, and the material the Parole Board had before it at the time it made those decisions, in particular material filed by the Department. Mr Watson for the Department confirms that the applicant, Mr Ferguson, has all that material.
[25] As to the additional material it seems Mr Ferguson is seeking here, in my view he has been unable to establish the relevance of that material or any clear connection between that material with the causes of action he has advanced in his judicial review proceeding claim.
[26] By way of an initial comment and for completeness here, I note that it is entirely unclear why the applicant requires the second category of documents noted at [14(b)]. These relate to his placement in Community Living and Ms Woods’ decision to advance the interim recall application in the current circumstances. It is clear here the applicant already has the Parole Board’s record of proceedings, which include the affidavits filed by the Department in support of the interim recall application and certain other material. In the context of a judicial review proceeding such as this which centres on the making of the recall decision by the Parole Board, as I see it, all these materials are sufficient to enable the appellant to fairly argue his pleaded case here.
[27] I turn now to the principal issue before me, relating to the third category of documents being unredacted versions of the IOMS notes for the applicant. This constituted the main and really only issue argued before me. On this, as I have noted, the Department has provided Mr Ferguson with those IOMS notes which were extensive and ran to some 262 pages. Mr Watson for the Department contended that, if at all, at most only part of these IOMS documents in any event might be considered as properly discoverable here.
[28] As to partial disclosure issues, McGechan on Procedure at para HR 8.7.03 impart:
“HR 8.7.03 Partial Disclosure
Where only part of a document is discoverable, and the party concerned does not wish to disclose the whole document, it is permissible to cover up the irrelevant parts of the document … If the extent of covering up content is disputed, the Court may inspect the whole documents to determine discoverability. The same practice may be adopted in respect of privileged or confidential material … However, more than mere suspicion will be needed to establish that redactions have been improperly made.8
(citations omitted)
[29] On these matters Mr Watson in his written submissions before me confirmed that:
“Consistent with principle, irrelevant material has been redacted from the IOMS notes, where that material also gives rise to operational or privacy concerns. In any event, these file notes are not material to the applicant’s pleaded claim, and he does not require them to fairly argue his case”.
[30] Mr Tennet for the applicant disputed this. In response he contended that this is a situation where the Court might inspect the whole unredacted IOMS notes to determine discoverability of the redacted sections. As I see the position however, the authorities make clear that something more than mere suspicion is required to be established to show that redactions have been improperly made before this inspection process is required, particularly in a case such as the present where substantial documentation (running to 262 pages) is at issue. Nothing has been put before the
8 Minister of Education v IT Architects Limited [2004] NZHC 1541 at [29]–[32], citing Shar v HSPC Private Bank (UK) Limited [2011] EWCA CIV 1154.
Court in this case on behalf of the appellant to suggest the redactions made by the Department have been anything other than properly made.
[31] I am satisfied therefore given the explanations advanced to the Court by Mr Watson (in his capacity as an officer of the Court) as to reasons for the redactions made here that matters have not even reached a mere suspicion that these redactions were anything other than properly made.
[32] I find too that the applicant has not been able to demonstrate here that the additional material he seeks by way of discovery is relevant to his pleaded judicial review claim. As I note above, there is also a strong argument that, with the material provided to him by the Department and the Parole Board, he is in possession of all relevant material he needs to enable him to fairly argue his case.
[33] It is noted too in any event that the duty of candour which the Department has requires it to disclose by affidavit all material relevant to the decisions being impugned here by the applicant. If Mr Ferguson is taken by surprise by any evidence the Department files, then it is open to him to seek leave to file further evidence in reply. If such leave is sought, according to Mr Watson, it is unlikely to be opposed by the Department.
Result
[34] For all the reasons I have outlined above, the applicant’s interlocutory application for further and better discovery in the present judicial review proceeding CIV-2021-485-211 fails. It is dismissed.
[35] So far as costs are concerned, before me Mr Watson for the Department indicated that it seeks costs on the present application. No further submissions were made to me on the issue of costs however.
[36]Costs therefore are reserved.
[37] In the event that counsel are unable to settle the issue of costs between them, then they may file (sequentially) submissions on costs (five pages maximum) which
are to be referred to me and I will decide the issue of costs based upon those submissions and the material then before the Court.
Gendall J
Solicitors:
Crown Law Office, Wellington
Barrister:
Chris Tennet Barrister, Lower Hutt
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