Hartley v Attorney-General - [2018] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-409

[2018] NZHC 2639

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review on the grounds of unreasonableness, and the breach of the New Zealand Bill of Rights Act 1990 and the Corrections Regulations 2005

BETWEEN

PETER JOHN HARTLEY

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

PRISON DIRECTOR OF RIMUTAKA PRISON

Second Respondent

Hearing: On the papers

Appearances:

Applicant in person

R S May and E M Light for the Respondent

Judgment:

10 October 2018

JUDGMENT OF CLARK J

This judgment was delivered by me on 10 October 2018 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:
The applicant
Mr R S May and Ms E M Light, Luke Cunningham & Clere, Office of the Crown Solicitor, Wellington

HARTLEY v ATTORNEY-GENERAL [2018] NZHC 2639 [10 October 2018]

[1] Mr Hartley is a sentenced prisoner at Christchurch Men’s Prison. He has filed an application for judicial review. Mr Hartley claims he has been wrongfully convicted. He intends to prepare appeals against his 1995 and 2011 convictions although at this point no notices of appeal have been filed.

[2] Mr Hartley is self-represented. He pleads in his application for judicial review that, since early 2011, the Department of Corrections has systematically denied his rights under the New Zealand Bill of Rights Act 1990 to access adequate facilities by which to prepare his appeals.

Application

[3] Mr Hartley has been denied legal aid for his civil proceeding. On 24 September 2018 Mr Fraser, counsel for Mr Hartley, filed a memorandum seeking to be appointed in an “amicus type” role to assist the Court.

[4] Mr Fraser has knowledge of Mr Hartley and the matters which are the subject of Mr Hartley’s proceeding. Mr Hartley would like Mr Fraser to represent him in his judicial review proceeding but legal aid has been twice denied. Mr Fraser considers the matter would benefit from submissions from counsel rather than from Mr Hartley.

[5] The Crown does not oppose appointment of an amicus should the Court consider it would be assisted by such an appointment. The Crown cautions that the terms of appointment should make clear the role of counsel, that is, whether Mr Fraser is to assist the Court or assist Mr Hartley.

Jurisdiction to appoint an amicus

[6] An “amicus curiae” means “a friend of the Court”. In recent years the term “counsel assisting” has become the preferred term. That is the term used in the Senior Courts Act 2016 and in other contemporary legislation, including the High Court Rules 2016.

[7] Counsel assisting the Court is not a party to the proceedings but assists the Court on matters of law and fact, particularly where there is a risk the parties will not

address important matters or opposing argument is needed.1 At the request of the Court, the Solicitor-General must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2639
Decision Date: 10 October 2018

CaseChat Overview and Summary

The High Court of New Zealand considered an application for judicial review filed by Peter John Hartley, a prisoner at Christchurch Men's Prison, who claimed wrongful conviction and denial of rights under the New Zealand Bill of Rights Act 1990 and the Corrections Regulations 2005. Hartley sought an "amicus type" role for Mr Fraser, counsel, to assist in his judicial review proceeding, but legal aid had been denied. The Crown did not oppose the appointment of an amicus if the Court deemed it beneficial, but clarified the role of counsel. The Court addressed the jurisdiction to appoint an amicus and outlined the role, noting it primarily assists the Court rather than the parties. The Court considered examples where an amicus might be appointed and the distinction between amicus and standby counsel. The Court concluded that the appointment of an amicus was not appropriate as the proceeding was a judicial review, not directly engaging Hartley's criminal responsibility, and the pleadings did not present a significant legal point requiring the Court's assistance.

The Court held that the application for the appointment of an amicus was declined due to the exceptional circumstances required for such an appointment, the denial of legal aid, Hartley's ability to articulate his grounds of review, the Crown's detailed statement of defence, and the absence of an important point of law necessitating the Court's assistance. The Court found no sufficient basis for the appointment of an amicus at that stage of the proceeding.

Orders