Reid v Attorney-General - [2023] NZHC 2271

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2022-485-000369

[2023] NZHC 2271

IN THE MATTER of the New Zealand Bill of Rights Act 1990 and the Judicial Review Procedure Act 2016

BETWEEN

ALISTER REID

Applicant

AND

THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) Respondent

Hearing: 26 June 2023

Appearances:

G E Minchin for the Applicant

F F Nizam and A W M Britton for the Respondent Applicant in person (via VMR)

Judgment:

22 August 2023

JUDGMENT OF TAHANA J

This judgment was delivered by me on 22 August 2023 at 9.30am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Exco Legal, Wellington
Luke Cunningham Clere, Wellington

REID v THE ATTORNEY-GENERAL (on behalf of The Department of Corrections) [2023] NZHC 2271 [22 August 2023]

INTRODUCTION

[1] Mr Alister Reid applies to judicially review the actions of the Department of Corrections (Corrections) regarding his transfer from Hawkes Bay Regional Prison (Hawkes Bay) to Rimutaka Prison (Rimutaka) on 9 March 2022. For part of the trip (from Hastings Police Station to Palmerston North Police Station), Mr Reid was transported in the same van as a female prisoner (the female prisoner) who tested positive for COVID-19. Mr Reid was subsequently placed into quarantine in Rimutaka because he was considered a close contact of the female prisoner.

[2]Mr Reid relies on four grounds of review:

(a)First, that Corrections acted unlawfully by placing the female prisoner in the van when she was positive with COVID-19 or alternatively, failing to confirm that the female prisoner had not tested positive for COVID-19 prior to being placed in the van in breach of s 75(2) of the Corrections Act 2004 (the Act).

(b)Second, that Corrections acted unlawfully by placing Mr Reid in solitary confinement but not requiring other prisoners who had travelled with Mr Reid to be placed in solitary confinement in breach of s 6(1)(f)(ii) of the Act.

(c)Third, that Corrections failed to comply with its COVID-19 procedures by failing to test the female prisoner for COVID-19 prior to her being transported with Mr Reid.

(d)Fourth, that Corrections acted unlawfully, in breach of s 29 of the Act by the Prison Inspector failing to inquire into:

(i)why Mr Reid was transported with the female prisoner when she was positive with COVID-19 or without her having been tested for COVID-19; and

(ii)why Mr Reid had not been provided with a mask while being transported.

[3] Mr Reid seeks declarations that Corrections has acted unlawfully and/or failed to comply with its COVID-19 procedures. He also seeks costs.

[4]Corrections denies each of the grounds of review and says that it acted lawfully.

BACKGROUND

COVID-19 settings

[5] In March 2022, New Zealand was operating under the COVID-19 Protection Framework (the Protection Framework), which was in place from 3 December 2021 to 13 September 2022 (and which replaced the alert level system that was in place from 21 March 2020 to 2 December 2021).1 The…

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: [2023] NZHC 2271
Decision Date: 22 August 2023

CaseChat Overview and Summary

In Reid v Attorney-General, the applicant, Mr Alister Reid, sought judicial review of the actions of the Department of Corrections (Corrections) concerning his transfer from Hawkes Bay Regional Prison to Rimutaka Prison, where he was placed into quarantine as a close contact of a COVID-19 positive female prisoner. The primary issues were whether Corrections acted unlawfully by placing the female prisoner in the van, not testing her for COVID-19, and not requiring other prisoners to be quarantined. Additionally, Mr Reid argued that Corrections failed to comply with its COVID-19 procedures and that the Prison Inspector did not properly address his complaint.

The court found that Corrections did not breach the Corrections Act 2004 or the Corrections Regulations 2005 in placing Mr Reid in quarantine or requiring him to wear a mask. However, Corrections did breach its own COVID-19 procedures by accepting the female prisoner for transfer without ensuring she was tested for COVID-19 and by not adhering to its policy of requiring 10 days of quarantine, instead holding Mr Reid for 11 days. The court held that Corrections' failure to provide a reasonable explanation for the delay in releasing Mr Reid from quarantine constituted a breach of its own policy.

Regarding the complaint, the court found that the Prison Inspector's response to Mr Reid's complaint was prompt and addressed the main issues raised, despite not mentioning the mask or the 10-day quarantine policy. Therefore, the Inspector did not breach the Act in handling Mr Reid's complaint.

The court declared that Corrections had failed to comply with its COVID-19 procedures and ordered that Mr Reid be awarded costs on a 2B basis. The parties were directed to file costs memoranda within specified timeframes to determine the final costs order.

Orders