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Hudson v Attorney-General

Hudson v Attorney-General

Case [2021] NZHC 323 1 March 2021

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-000203

[2021] NZHC 323

UNDER the Judicial Review Procedure Act 2016, the Corrections Act 2004, the Corrections Regulations 2005 and the Prison Operation Manual

IN THE MATTER OF

an application for judicial review

BETWEEN

STEPHEN THOMAS HUDSON

Applicant

AND

ATTORNEY-GENERAL

First Respondent

THE OFFICE OF THE INSPECTORATE

Second Respondent

On the Papers

Judgment:

1 March 2021

JUDGMENT OF GWYN J

(Costs)

Introduction

[1] In my judgment dated 8 December 2020, I dismissed Mr Hudson’s application for judicial review against the Attorney-General on behalf of the Department of Corrections (the Department), and the Office of the Inspectorate (the Prison Inspectorate).1

1 Hudson v Attorney-General [2020] NZHC 3231.

HUDSON v ATTORNEY-GENERAL [2021] NZHC 323 [1 March 2021]

[2] The Department now applies for costs on a 1A basis. Mr Hudson argues costs should lie where they fall.

Background

[3] Mr Hudson, a serving prisoner, sought to review decisions of the Department and the Prison Inspectorate relating to the unlock times of common areas within the prison (in particular, the gym), and the handling of his subsequent complaint. His complaint about the unlock times stemmed from a change made on 4 September 2019. Prior to that date, the unlock times were 10.00 am - 11.20 am and 1.10 pm - 4.30 pm. On 4 September 2019, the unlock times were changed for one day, to 1.10 pm -
4.30 pm. From 5 September 2019, the unlock times reverted to 10.00 am - 11.20 am and 1.10 pm - 4.30 pm.

[4] In terms of the unlock times, I found Mr Hudson’s claim related to the day-to-day management of the prison, and was therefore not amenable to judicial review unless there was a breach of prisoners’ minimum entitlements or another provision under the Corrections Act 2004 (the Act).2 I found no such breach occurred. I also found the issue of the change in unlock times was moot, as the change in hours was in effect for only one day, and was no longer an active issue; even if Mr Hudson had been successful in establishing his case, I would have refused to grant him the relief he sought.3

[5] In terms of the complaints process, I again found Mr Hudson’s claim could not be sustained, and I noted that judicial review is a remedy of “last resort” and complaints should first be processed through the Prison Inspectorate system and the Ombudsman.4

[6] I also noted Mr Hudson had sought to introduce new arguments in an amended statement of claim filed without leave, his most recent affidavit, and his written submissions. These included an argument relating to working prisoners accessing the

2 At [42]-[43].
3 At [62].
4 At [76]; Mitchell v Attorney-General [2013] NZHC 2836.

gym. I was not able to consider these issues, as they were raised too late, and the respondents did not have adequate opportunity to respond.5

The law

[7] Rule…

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.

Continue reading Hudson v Attorney-General

Details

AGLC: Hudson v Attorney-General [2021] NZHC 323
Case: [2021] NZHC 323
Decision Date: 1 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Stephen Thomas Hudson brought a judicial review application against the Attorney-General on behalf of the Department of Corrections, and the Office of the Inspectorate, concerning the unlock times of common areas within the prison and the handling of his subsequent complaint. The primary issues were whether the Department and the Prison Inspectorate breached prisoners' minimum entitlements under the Corrections Act 2004 and if the handling of Hudson's complaint was appropriate. The court found that Hudson's claims regarding the unlock times were moot and not amenable to judicial review, and his complaint about the complaints process was premature. The court also noted that Hudson introduced new arguments too late for consideration.

The legal issues revolved around the discretion of the court in awarding costs under the High Court Rules 2016. The court considered whether the proceeding involved a matter of public interest or if there were other reasons justifying the refusal or reduction of costs. The Department sought costs on a 1A basis, arguing that costs should follow the event unless exceptional circumstances applied. Hudson argued that the proceeding was brought in good faith, involved untested points of law, and he would be unable to pay costs.

The court declined to make a costs order. It found that while the proceeding did not involve a matter of public interest, Hudson's concerns were genuine, particularly about the Prison Inspectorate’s complaints process. The court considered Hudson's status as a serving prisoner and his financial hardship, noting that an award of costs against him would be inappropriate. The court exercised its discretion to refuse the costs order, stating that costs should lie where they fall.

Orders