Greer v Chief Executive of the Department of Corrections

[2019] NZHC 2854

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-873

[2019] NZHC 2854

BETWEEN

ALAN IVO GREER

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

THE VISITING JUSTICE AT RIMUTAKA PRISON

Second Respondent

Hearing (via AVL):

4 November 2019

Counsel:

Applicant in person

D L Harris for First Respondent

Judgment:

4 November 2019

ORAL JUDGMENT OF CHURCHMAN J

(Adjournment application)

[1]                 These proceedings relate to an application for judicial review. They have now been before the Court for over two years.

[2]                 The decision sought to be reviewed was made in 2017. There were in that year some three random searches of Mr Greer pursuant to the prison’s misuse of drugs policy. Those searches were said to be authorised by s 124(2)(b) of the Corrections Act. The searches have been challenged by Mr Greer by way of judicial review.

[3]                 The matter has had a lengthy history of interlocutory calls dealing with a number of the issues. Interim relief was granted by Simon France J on 26 April last year, effectively suspending the disciplinary sanctions that had been imposed as a

GREER v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2854

[4 November 2019]

result of Mr Greer’s failure to participate in a random drug test. Those sanctions included the imposition of what is known as “IDU status”. The consequence of the suspension of the sanctions is that Mr Greer has not been subject to the various sanctions that would otherwise have been imposed upon him for a period of 12 months.

[4]                 In his decision of 26 April last year, Simon France J alluded to the incentive to Mr Greer of delaying proceedings if the interim relief was granted, and indicated that if there was any untoward delay, the question of interim relief could be visited.

[5]                 The matter again came before Justice Mallon on 6 August last year. Mr Greer had challenged the AVL hearing and wished to appear in person. There is a cost when prison inmates wish to participate in civil proceedings in person, and in the case of the plaintiff, I understand that to be $273.

[6]                 The matter came again before Cull J in August of this year and she made a timetable order. Mr Greer was to file his submissions by the end of August 2019. He was also to confirm whether he wanted to proceed by way of AVL link or to attend Court in person, and the minute made it clear that if he wished to attend in person, he had to pay the $273 fee. Neither has the fee been paid, nor any submissions been filed.

[7]                 The matter has been called today and Mr Greer seeks an adjournment. The grounds specified by him for seeking an adjournment were firstly, that he has had no access to a computer to prepare written submissions. Secondly, he submits that there have been threats made against him by the respondent, including threats conveyed through fellow prisoners. He was unable to provide any detail of these threats when requested. Thirdly, he said that, what he described as three boxes of documents, had not arrived at Rimutaka Prison where he currently is from the last prison that he was at.

[8]                 By way of response to the application, Ms Harris, for the Department of Corrections, opposed any adjournment. She cites the lengthy delay that has occurred already in these proceedings. It is now over two years since the events, the subject to the application for judicial review, occurred. She also stated that she had arranged for service on Mr Greer, a complete set of the documents relevant to these proceedings

and indicated that she had a signed written acknowledgement confirming receipt of those. She confirmed that the computer facilities at Rimutaka Prison were being used for a training programme and  that  the  facilities  were  not  presently available  to Mr Greer. She indicated that it was open to him to provide his submissions in writing.

[9]I have considered the application and response.

[10]              The overriding consideration is that of justice. It is important for a fair process to be followed by this Court. However, it is also important that this matter be resolved. Mr Greer has clearly been put on notice by the Court as to what was required of him prior to this hearing. He has not complied with the requirements to file a synopsis, neither has he indicated to the Court, as directed, whether he wished to participate by way of AVL link or in person, and he has not paid the fee specified for an in personam appearance.

[11]              I am satisfied that Mr Greer has all the relevant documents given that Ms Harris has confirmed they were served on him. I accept that Mr Greer has not had access to wordprocessing facilities, but it will not always be the case that they are available, and inmates do not have an absolute right if there are reasons why such facilities are not immediately available.

[12]              I note that prior documents, including the statement of claim in this matter, have been handwritten and it seems to me that there is no reason why the submissions to be made by Mr Greer could also not have been filed in handwriting.

[13]Accordingly, the application for adjournment is declined.

Churchman J

Solicitors:

Crown Law Office, Wellington for Respondent cc:       A I Greer