Gorgus v Chief Executive of the Department of Corrections
[2020] NZHC 2249
•1 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1477
[2020] NZHC 2249
UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules 2016, the
Declaratory Judgments Act 1908 and the common lawIN THE MATTER
of an application for judicial review and declarations
BETWEEN
ASHOR GORGUS
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 7 May 2020 with further memoranda on 11, 18, 20, 27 May, 5, 8
June and 10 July 2020
Appearances:
The applicant in person (by AVL) S K Shaw for the respondent
Date of judgment:
1 September 2020
JUDGMENT OF PALMER J
This judgment was delivered by me on Tuesday, 1 September 2020 at 10.00am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Party/Solicitors:
Applicant
Meredith Connell, Wellington
GORGUS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 2249 [1
September 2020]
Summary
[1] Mr Ashor Gorgus challenges prison management decisions by the Department of Corrections that affect him. He applies for interim orders for access to word processing facilities, a transfer to another prison which can provide that access and which is closer to his family and rehabilitation provider, and appointment of a counsel to assist the Court. I consider the Court’s wide discretion to order interim relief extends to being able to prohibit Corrections from using its unique ability to inhibit proceedings against itself by prisoners, even if it is not done for that purpose. The lack of access to word processing facilities is a disadvantage for a litigant. The time might not be far away when prisoners exercising their rights to conduct legal proceedings may be required to be granted access to word processing facilities.
[2] Here, the disadvantage has not been fatal to Mr Gorgus’ ability to access the Court in order to pursue his challenge to date. But his proceedings have progressed very slowly, due to his current medical condition exacerbating the disadvantage of having to handwrite his submissions. That is likely to significantly lengthen the timeframes for his litigation and may inhibit him from pursuing them at all. There is undoubtedly disadvantage to Corrections in a court interfering in its administration of a prison. But, overall, I consider the balance of convenience favours Mr Gorgus because, crucially, of the effect of his medical condition on his ability to meaningfully realise his right to pursue legal proceedings. I grant an interim order regarding access to word processing facilities. I do not make an interim order to transfer Mr Gorgus to another prison because he can apply again. I do not appoint a counsel to assist the Court in the proceedings at this stage.
What happened?
Mr Gorgus’s difficulties
[3] On 18 July 2019, Mr Gorgus applied for judicial review of decisions related to his placement by Corrections on directed segregation on 9 July 2019, under s 58 of the Corrections Act 2004 (the Act). There have been delays because of errors in the proceeding being served and at the request of Mr Gorgus. In November 2019, Mr Gorgus applied for interim orders for access to word processing and other facilities
to conduct his litigation. That was resolved in agreement with Corrections by Auckland Prison working towards providing Mr Gorgus with access to a computer with word processing facilities for two hours per day up to seven days a week, conditional on the operational capacity at the Prison.1 Then, on 19 December 2019, Mr Gorgus was transferred to Rimutaka Prison for “muster management” reasons.2
[4] On 23 December 2019, Mr Gorgus was released on bail, on conditions. He was then allegedly assaulted and suffered a broken jaw and nose. A letter from Dr Carr of 28 January 2020 attested to the effects of Mr Gorgus’s facial fractures on his physical health and cognitive impairment, in terms of short-term memory loss and difficulties with visuo-spatial processing and planning and recommended inpatient traumatic brain injury rehabilitation.3 Mr Gorgus says he has been struggling cognitively and is not physically able to prepare substantial handwritten submissions.
[5] On 28 January 2020 Mr Gorgus was again remanded in custody, at Rimutaka Prison. He is charged with aggravated burglary in Palmerston North. He has been held at Rimutaka’s management unit for health reasons.4 Because all defendants on remand are unclassified in terms of security, they are treated and managed as high risk.5 He has made several complaints about his treatment at the Health facility. While in custody Mr Gorgus has been assessed for concussion and consequently received ACC- funded rehabilitation counselling services by a brain specialist located in Wairarapa. ACC also approved a medical case review and a neuro-psychological assessment.
[6] At Rimutaka, Mr Gorgus’s concerns about access to facilities revived. The evidence of Mr Simon Hicks, Custodial Systems Manager at Rimutaka is that the issue was raised him with on 10 February 2020 and escalated to the Prison Director.6 Mr Gorgus was informed it was not possible to provide access to computer facilities at Rimutaka at the moment.7 Rimutaka has one set of computers in the Secure Online
1 Memorandum of the parties, 28 November 2019.
2 Affidavit of Simon Hicks, 5 March 2020 (Hicks, March 2020), at [3].
3 Letter from Dr Gawen Carr to the Presiding Judge, regarding Mr Gorgus’ medical information (28 January 2020).
4 Hicks, March 2020, at [4].
5 At [4].
6 At [7].
7 At [7].
Learning Suite, currently fully occupied with prisoners using it to engage in educational and training programmes.8 There is a wait list to use the suite for that purpose. Until January 2020 there had been an arrangement for low security prisoners engaged in litigation to use the Suite at specified hours but that no longer applies, for resourcing reasons.9 They now use a computer in a low security segregated unit which is physically unable to be moved.10 Mr Hicks’ evidence in March 2020 was that there was insufficient resource for Corrections to monitor and supervise a prisoner being managed as high risk in the Suite outside the educational hours.11 If the position were to change, access by Mr Gorgus would be revisited.
[7] Corrections has a system for prisoners to request access to facilities to support litigation, using (a five-page) F.07 form under the Prison Operations Manual.12 On 20 April 2020, Mr Gorgus requested a writing pad, correction tape, highlighters and A4 envelopes and access to case law and legal authorities. The stationery (though not the A4 writing pad) was provided.13 His legal research request was declined as too open-ended, given insufficient staff available to search for material.14 Mr Hicks’ evidence, and the decision noted on the F.07 form, is that if Mr Gorgus specifies the request then staff may be able to assist.15
[8] Mr Gorgus has sought several transfers to other prisons which have been declined as Corrections considered there was no operational need to make the transfers.16 In April 2020, he requested a transfer to Whanganui prison to be close to his family and where he is being charged and to facilitate his rehabilitation with the Wairarapa specialist.17 Corrections declined this transfer as non-essential under Alert Level 4.18 He was told he could apply again once Alert Levels changed.19 I do not have evidence about the computer facilities at other prisons.
8 At [8].
9 At [9].
10 At [13].
11 At [10].
12 At [14].
13 Affidavit of Simon Hicks, 24 April 2020 (Hicks, April 2020) at Exhibit SH-2 and SH-5.
14 At [5].
15 At [5].
16 Hicks, March 2020, at [17].
17 Hicks, April 2020, at Exhibit SH-1.
18 At [3].
19 At [4].
[9] In February 2020, Mr Gorgus applied to the Court for interim orders for access to facilities and for appointment of a counsel to assist the court. There were further discussions with Corrections but the application was not resolved. I deferred consideration of appointment of a counsel to assist the court.
Hearing and aftermath
[10] On 7 May 2020 I heard Mr Gorgus’ amended application of 20 April 2020, for interim orders:
(a)An order directing the respondent to transfer the applicant to a facility where reasonable access to facilities can be accorded him for the purposes of preparing and assisting in this and other litigation;
(b)An order directing the respondent to provide the applicant adequate and reasonable access to research material such as caselaw and authorities for the purposes of progressing this proceeding appropriately and efficiently;
(c)An order directing the respondent to provide the applicant adequate and reasonable access to stationery material such as A4 writing pads, A4 envelopes, Twink and highlighters etc.
(d)An order that an amicus curiae is appointed to aid assistance to the Court.
[11] He also requested a transfer to Whanganui or Palmerston North Correctional facilities which would enable him to explore other options for accessing facilities to assist his litigation and would enable him to maintain family support, given his partner and children live in Whanganui. I declined an application by Mr Gorgus to cross- examine the deponent of Corrections’ affidavit.
[12]After the hearing Mr Gorgus, sought leave to file further evidence:
(a)On 11 May 2020 he sought leave to file an affidavit demonstrating that Corrections knew about his medical condition, contradicting a submission he believed had been made by Corrections.20 He also requested a transcript of the hearing.21 Ms Shaw, for Corrections, opposes admission of the affidavit on the basis it was not relevant. It
20 Memorandum of A Gorgus, 11 May 2020.
21 Letter to Registrar by A Gorgus, 12 May 2020.
abided the Court’s decision on the transcript. I have reviewed the affidavit and consider a few aspects of it may be relevant. I have reflected those in the judgment. I do not consider a transcript of the hearing would be helpful and do not order it.
(b)On 27 May 2020 Mr Gorgus sought leave to adduce a further affidavit showing he represents himself in a criminal appeal in the Court of Appeal.22 He submits it is relevant because Corrections denies s 24(d) of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) applies to a civil, rather than a criminal, proceeding. Ms Shaw, for Corrections, opposes the application because she submits it attempts to shift the goalposts of his application for facilities from this proceeding to another proceeding. Other than in providing evidence of the fact that Mr Gorgus is engaged in criminal proceedings, I do not consider the evidence is relevant and do not admit it.
(c)On 10 July 2020, Mr Gorgus sought leave to file an affidavit attaching a minute of the Court of Appeal regarding his criminal appeal. The minute recognises that Mr Gorgus has difficulty handwriting and is seeking access to word processing facilities at Rimutaka Prison and gives him more time than usual in order to advance the appeal.23 I take that into account.
[13] On 20 August 2020, Mr Gorgus filed an amended statement of claim that seeks to add to the application for judicial review actions for damages under the Bill of Rights Act and in tort. He says he is still experiencing significant difficulties hand- writing substantial amounts of material due to this medical condition. He estimated it would have taken him two or three days after the hearing to amend the statement of claim if he had had access to word processing facilities. Without them, it took him three and a half months.
22 Memorandum of A Gorgus, 27 May 2020.
23 Minute of Courtney J, 2 June 2020, at [3].
Relevant law of interim orders
[14] Under s 15 of the Judicial Review Procedure Act 2016, the court may make interim orders “if, in its opinion, it is necessary to do so to preserve the position of the applicant”. Section 15(3) provides for interim orders against the Crown (of which Corrections is a department). When an application is made for an extraordinary remedy under r 30.4 of the High Court Rules 2016, “the court may make an interim order on whatever terms and conditions the court thinks just”.
[15] The Court has a wide discretion to consider all the circumstances of the case in deciding whether to grant interim relief.24 It is relevant to consider:
(a)whether there is a serious question to be argued;
(b)the strength of the applicant’s case;
(c)the balance of convenience between the parties; and
(d)the overall justice of the position.
[16] Interim orders are usually intended to preserve the applicant’s position as provided for in s 15. That can include restoring an applicant to a position they would have been in but for the alleged unlawfulness.25 Interim orders that require a respondent to do something, rather than restrain the respondent from doing something, are rare but the jurisdiction to grant them is available.26
24 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
25 Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 11 September 2003 at [40]; Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [22]-[26].
26 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [26]-[27].
Issue 1: Should Mr Gorgus be provided with computer facilities or transferred?
Relevant law
[17] Relevantly, and subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under s 5, the Bill of Rights Act protects:
(a)the right to freedom of expression, “including the freedom to seek, receive, and impart information and opinions of any kind in any form”, under s 14;
(b)the right of everyone charged with an offence to “have the right to adequate time and facilities to prepare a defence” under s 24(d);
(c)the right to the observance of the principles of natural justice by any public authority “which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law”, under s 27(1);
(d)the right to apply for judicial review of a determination in respect of a person’s rights, obligations, or interests, under s 27(2); and
(e)the right to bring civil proceedings against the Crown, and to have those proceedings heard, according to law, “in the same way as civil proceedings between individuals”, under s 27(3).
[18] Section 8(1)(a) of the Corrections Act requires the Chief Executive of Corrections to ensure the corrections system operates in accordance with the purposes in s 5 and the principles in s 6. Section 5 provides that the Act’s purpose is “to improve public safety and contribute to the maintenance of a just society” in several ways including by:
(a)ensuring that custodial sentences are administered “in a safe, secure humane and effective manner”; and
(b)providing for corrections facilities to be operated in accordance with the Act and regulations based, among other things, on the United Nations Standard Minimum Rules for the Treatment of Prisoners.
[19] Section 6(2) requires any person exercising a power under the Act or regulations to take into account the principles guiding the corrections system which include:
(a)“The maintenance of public safety is the paramount consideration in decisions about the management of persons under control”, under s 6(1)(a).
(b)“[T]he corrections systems must ensure the fair treatment of persons under control” including by “ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure”, under s 6(1)(f)(ii).
(c)Sentences “must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control”, under s 6(1)(g).
(d)“[C]ontact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements” under s 6(1)(i).
[20] Regulation 193 of the Corrections Regulations 2005 (the regulations) requires a prison manager “must, as far as is reasonably practicable in the circumstances” ensure a prisoner involved in specified criminal or immigration proceedings is provided with adequate facilities “to the extent that this is consistent with the maintenance of safety and security requirements”. Policy F.07 of the Prison
Operations Manual provides for certain facilities, including computer facilities, to be provided for prisoners for litigation more generally. It provides:27
Reasonable access to facilities to assist with any other litigation may be provided to any prisoner at the discretion of the prison director. Access to facilities may be available before the commencement of litigation, where the prisoner is contemplating filing proceedings in the near future.
[21] It also outlines the relevant considerations to which a Prison Manager must have regard in exercising the discretion.28
[22] In 2003 in R v Greer, the Court of Appeal held that lack of access to a computer by a prisoner had not resulted in a miscarriage of justice in a criminal case, including under s 24(d) of the Bill of Rights Act, but observed:29
[39] We comment that it may be open to doubt in the twenty first century that the provision of writing materials only to an inmate, could in all cases be regarded as adequate facilities with which to prepare that defence, particularly if the inmate plans to conduct his or her own defence. It may therefore be time for the regulations relating to computers in cells to be revisited or at least for prisons to ensure that access to computers is provided in another manner to those who may need them to prepare their defences.
[23] The Court later directed prison authorities to provide Mr Greer with access to a computer and printer.30 In Taylor v Chief Executive of the Department of Corrections (No 2), Allan J declined an application for interim orders seeking access to a computer and special workroom. That was on the basis it would improve, rather than preserve the applicant’s position, would be practically impossible to monitor given the prison environment, the need for the Prison Manager to make decisions as things change without warning would involve the Court in directing the day to day operational management decisions of the prison, and there was no reasonable prospect such relief would finally be obtained in a judicial review.31
27 Prison Operations Manual, 23 July 2018 at [F.07].
28 At [F.07.03].
29 R v Greer CA197/01, 4 June 2003.
30 R v Greer CA 179/06, 25 May 2006 at [9].
31 Taylor v Chief Executive of the Department of Corrections (No 2) HC Auckland CIV 2011-404- 3227, 5 August 2011.
[24] In 2018, in Greer v Chief Executive of the Department of Corrections, Cooke J declined to grant interim orders directing provision of a computer to Mr Greer.32 He observed that interim relief is not limited to maintaining the status quo but can place the applicant in the position it would have been in but for the alleged illegality.33 He accepted the orders could legitimately be regarded as preserving Mr Greer’s position.34 He accepted the lack of access to computer facilities was a material disadvantage to Mr Greer (and the Court) but was not fatal because he was still able to handwrite his submissions.35 He held the disadvantage to Mr Greer was not so great that the Court should intervene in the Prison Manager’s decision-making by way of interim orders, before Corrections had a full opportunity to outline the prison management issues involved.
[25] Recently, in Cheng v Chief Executive, Department of Corrections, Downs J declined an application by a sentenced prisoner facing new charges for interim orders requiring provision of a personal laptop with an email system and web browser, international audio-visual connections and telephone calls and unmonitored mail and email delivered in a timely manner.36 Mr Cheng apparently already had a computer and telephone in his cell.37 Downs J held that Mr Cheng was trying to improve his position, not preserve a previous position, in distinction to Greer.38
[26] Section 54 of the Act empowers the chief executive to transfer prisoners between prisons for specified reasons, including “to place that prisoner closer to his or her family” or to grant a prisoner’s request. Under s 54(4)(c), in considering a transfer, the chief executive must have regard to “the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family”.
[27] In Reekie v Chief Executive of the Department of Corrections Ellis J declined an application for interim orders transferring Mr Reekie from one prison to another.39
32 Greer v Chief Executive, Department of Corrections, above n 25.
33 At [22]-[25].
34 At [26].
35 At [29]-[30].
36 Cheng v Chief Executive, Department of Corrections [2020] NZHC 2158.
37 At [9] and [13].
38 At [19].
39 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412.
She considered that he had no position to “preserve” under s 8 of the Judicature Amendment Act 1972 and an applicant cannot obtain by interim orders what could not be obtained at the substantive hearing.40 She noted the Court of Appeal’s reference in Taylor v Chief Executive of the Department of Corrections that there are strong policy reasons against granting mandatory interim orders which may involve “inappropriate intervention by the court in decisions about the best use of scarce resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities”.41
Submissions
[28]Mr Gorgus submits:
(a)Corrections has unreasonably declined his request to access facilities to assist in his litigation, particularly word processing facilities but also access to case law and legal authorities. His clinical condition obstructs his physical ability to handwrite substantial amounts of material. If those facilities cannot be made available at Rimutaka, he objects to being imprisoned there, both for that reason and because it is further away from his family and his counsellor than are other prison facilities.
(b)The purpose of the Corrections system is achieved by operating according to the Act and regulations and United Nations standards. Corrections’ evidence indicated all remand prisoners at Rimutaka are denied reasonable access to facilities to assist in litigation, contrary to
F.07 and F.08 of the Prison Operation Manual (POM). Corrections has also breached ss 14 and 27(1) of the Bill of Rights Act, which includes the right to impart information for the purposes of exposing abuse of power. It also demonstrates contemptuous disregard for his dignity and humanity.
40 At [17].
41 At [20], citing Taylor v Chief Executive of the Department of Corrections, above n 26, at [26].
(c)Corrections has not taken into account the fact he has sustained life- threatening injuries which make it nearly impossible for him to hand- write substantial legal submissions. Corrections has deliberately placed him in a disadvantaged position.
[29] Ms Shaw, for Corrections, submits the application for interim orders should be dismissed because:
(a)Although there is a disadvantage in form in not having access to a computer to type up Court documents, there is no substantive disadvantage to Mr Gorgus where the timetable can be amended to provide him with the time he needs. The orders sought would improve, not preserve, Mr Gorgus’ position and would require positive action, which is rarely granted. There is no reasonable prospect that access to a computer would be obtained as relief in the substantive proceeding.
(b)Corrections is not able to provide computer access to Mr Gorgus at Rimutaka. Ordering that would override prison management’s decision on operational matters and engage the Court in day-to-day management of finite resources in prisons. It would also detrimentally affect other prisoners who use the computer suite or are wait-listed for online educational classes. There is no legal right to access computer facilities. Section 24(d) and the right to a fair trial does not extend to civil proceedings.
(c)The application to transfer to another prison was premature when restrictions were in place due to COVID-19. Relief would be an improper substitution for the Chief Executive’s discretion to make transfer decisions, particularly on an interlocutory application. There is no specific evidence at to whether the location of Mr Gorgus’s family was taken into account in considering the request.
(d)An order for access to facilities is not reasonably necessary given Mr Gorgus’ requests have been facilitated where possible, by provision
of stationery and the ability to file handwritten documents. His request for research materials will be considered if and when he specifies reasonable parameters that can be met by prison staff.
Should I grant an interim order?
[30] The Court of Appeal made clear in Taylor v Chief Executive of the Department of Corrections that the High Court has a wide jurisdiction to issue mandatory interim orders under the predecessor to s 15 of the Judicial Review Procedure Act 2016. The common law jurisdiction of the High Court under pt 30 of the High Court Rules 2016 is even wider. I consider, similar to Cooke J’s holding in Greer v Chief Executive of the Department of Corrections, that interim orders of the nature sought here could legitimately be regarded as preserving Mr Gorgus’ position. He previously had an agreement from Corrections to work towards provision of word processing facilities in prison. He seeks restoration of that, by being granted access to computer facilities in Rimutaka or by being transferred to another prison.
[31] The denial of those facilities is not an element of his substantive challenge here, which focuses on his segregation. But, even if Mr Gorgus had not previously agreed with Corrections over the provision of facilities to conduct his litigation, I consider he may be entitled to seek that by way of interim orders. Corrections has a unique ability in practice, as a respondent in a judicial review, to make more difficult the progress of those proceedings by a prisoner plaintiff. I consider the Court’s wide discretion to order interim relief extends to prohibiting a respondent from inhibiting proceedings against itself, even if it is not done for that purpose. Section 27(3) of the Bill of Rights Act reinforces that.
[32] I also agree, as accepted by Cooke J in Greer and by both parties here, that lack of access to word processing facilities is a disadvantage for a litigant. In 2003, the Court of Appeal doubted that provision of writing materials only to an inmate could, in all cases, be regarded as adequate facilities to conduct his or her own defence. As new generations rely ever more heavily on computers, and lose proficiency in handwriting, the validity of that point will only grow. The time might not be far away when prisoners exercising their rights to conduct legal proceedings may be required
to be granted access to word processing facilities. Corrections would be wise to integrate that possibility into its medium-term planning. Ms Shaw is correct that s 24(d) of the Bill of Rights Act only applies directly to defendants charged with criminal offences. But the considerations are similar in relation to plaintiffs exercising their rights to challenge official decisions by way of judicial review and to conduct civil proceedings against the Crown,, the importance of which is recognised in ss 27(2) and 27(3) of the Bill of Rights Act, as an element of the right to justice.
[33] The disadvantage has not been fatal to Mr Gorgus’ ability to access the Court in order to pursue his challenge to date. His proceedings have progressed. He has been provided with materials for handwriting his submissions and he has elegant handwriting. Ordinarily, perhaps, that might (just) suffice, even in 2020. But the proceedings have proceeded very slowly, contrary to the objective that judicial review proceedings should be prompt.
[34] I accept that Mr Gorgus’ medical condition, including short-term memory loss and difficulties with visuo-spatial processing and planning exacerbates his disadvantage from laboriously having to handwrite his submissions. It is likely to significantly lengthen the timeframes for his litigation, as the three and a half months taken to file his amended statement of claim demonstrates. Even taking into account the prison mail system, my impression is that Mr Gorgus’ ability to progress the proceeding before his injuries is significantly slower than after those injuries. And that may inhibit him from pursuing the proceedings at all. Corrections is aware of Mr Gorgus’ medical condition. This must be relevant to the decision whether to provide him with access to word processing facilities. But, as Ms Shaw agreed, there is no evidence that Corrections took into account Mr Gorgus’ medical condition in making its decision.
[35] I do not accept that Corrections has a physical inability to provide Mr Gorgus with access to word processing facilities. The evidence does not establish that. The case of Mr Cheng illustrates that some (sentenced) prisoners have access to word processing facilities. But there is undoubtedly disadvantage to Corrections in a Court interfering in its administration of a prison. The Court of Appeal has done so before, as outlined above. But it has also warned of the seriousness of doing so. I accept that
operation of the corrections system involves complex and multi-faceted balancing of security and freedoms. Mr Hicks’ evidence of the context of computer facilities at Rimutaka makes that clear. And there are important considerations of equity between prisoners that must be taken into account. If there is no material distinction between Mr Gorgus and any other remand prisoner who desires to access computer facilities, any interim order I grant could have significant precedential effects. And it would be invidious if a court order in favour of Mr Gorgus deprived other prisoners from access to computer facilities for rehabilitative purposes.
[36] Finally, as a relevant consideration, I assess the merits of Mr Gorgus’ substantive application for judicial review. As amended, the claim is complex. My impression at this stage, without the benefit of evidence or even an amended statement of defence, is that much of it is unlikely to succeed. But I cannot discount the possibility that aspects of it might succeed.
[37] Overall, I consider the balance of convenience favours Mr Gorgus, because of the effect of his medical condition on his ability to meaningfully realise his right to pursue legal proceedings. I did not hear argument from counsel or Mr Gorgus about whether issues arise concerning discrimination on the prohibited ground of disability under the Human Rights Act 1993. But, given his medical condition, I consider the fair treatment of Mr Gorgus required by s 6(1)(f)(ii) of the Act would be achieved by him having access to word processing facilities, which would be “reasonable” under the discretion in Policy F.07 of the Manual.
[38] It is important to note that the precedent of Mr Gorgus being given access to word processing facilities in this judgment depends crucially on his medical condition otherwise prolonging and therefore inhibiting his access to Court in his proceedings. For that reason, I consider he should be provided with access to computer facilities for the purpose of word processing only. That does not extend to internet access, which is no doubt a more significant security concern. And Corrections’ position about legal research is reasonable. In order to minimise interference with prison management, I do not make directions as to how access to word processing facilities is to be achieved. But I do order that it be achieved, similarly to Mr Gorgus’ previous agreement with Corrections, in a timely manner.
[39] As I understand it, Mr Gorgus seeks a transfer to another prison in order to have a better prospect of accessing computer services and in order to be closer to his family in Whanganui. There is no evidence that Corrections took into account the location of Mr Gorgus’ family in declining the latest transfer request. That may be because the decision was made under Alert Level 4. But Corrections has made clear that Mr Gorgus is able to make a further request for transfer.
[40] I do not make interim orders for a transfer of Mr Gorgus to another prison. Mr Gorgus is able to make a further request for a transfer. And Corrections is to able to transfer him on its own initiative. Section 54(4)(c) of the Act requires Corrections to have regard to the desirability of ensuring he is detained at a location as close as practicable to his family. And Corrections will be able to establish whether a transfer would better enable it to provide Mr Gorgus with access to word processing facilities.
Issue 2: Should I appoint a counsel to assist the court?
[41] The High Court has inherent jurisdiction to appoint a counsel to assist the Court, usually where an important and difficult point of law arises and including sometimes as a contradictor when a litigant is self-represented.42
[42] Mr Gorgus submits that this revised statement of claim seeks exemplary damages, though it is not clear to me it does. He submits it concerns him being unlawfully punished by being segregated without having the opportunity to go through the normal disciplinary process. Accordingly, he submits the issues in the proceeding require a counsel to assist the Court. Corrections abides the Court’s decision on the appointment of a counsel to assist the Court but does not consider there is a matter of general or public importance that warrants such an appointment here.
[43] I do not consider a counsel to assist the Court should be appointed at this stage. There is factual complexity. But it is not clear whether the legally complex claims have any evidential basis. If it appears that they do, once the proceedings have progressed further, I can consider appointment of counsel assisting again, if the issue is raised.
42 Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971 at [34]-[36], [45]-[46].
Result
[44] I make an interim order declaring that the Chief Executive of Corrections must not prevent Mr Ashor Gorgus from accessing word processing facilities for the purpose of conducting his legal proceedings against the Crown, for two hours per day up to seven days a week. The timing and precise extent of access is conditional on the operational capacity of whatever prison at which Mr Gorgus is held, but the provision of access at all is not to be conditional on that.
Palmer J
4
4
1