Shone v Attorney-General

[2015] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2015-463-112 [2015] NZHC 2134

BETWEEN

STEPHEN MICHAEL SHONE

Plaintiff

AND

THE ATTORNEY-GENERAL (CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS)

Defendant

Hearing:	4 September 2015 (by telephone)
Counsel:	A M Simperingham for Plaintiff R F Niven for Defendant
Judgment:	4 September 2015

JUDGMENT OF BREWER J

Solicitors:           Woodward Chrisp (Gisborne) for Plaintiff

Department of Corrections (Wellington) for Defendant

SHONE v THE ATTORNEY-GENERAL [2015] NZHC 2134 [4 September 2015]

[1]      On 2 September 2015, the plaintiff commenced a proceeding against the defendant by way of notice of proceeding and statement of claim.  That was not the correct procedure, as I will come to, but it has been remedied by consent.

[2]      The plaintiff is a prison inmate.  The point of the proceeding is to challenge a decision by a Visiting Justice to dismiss his appeal against a decision to penalise the plaintiff on a charge of refusing to comply with a requirement given under s 124 of the Corrections Act 2004.  The plaintiff had failed to provide a urine specimen for a compulsory drug test.  The penalty was five days’ confinement in a cell and 20 days’ forfeiture of privileges.

[3]      Coupled with the proceeding filed by the plaintiff was an urgent application for an interim order mandating the release of the plaintiff from confinement to a cell and resumption of his access to normal privileges.  The period of confinement had commenced, and would expire this coming Sunday, 6 September 2015, if an interim order was not made. As to the merits, the basis of the cause of action is breach of the plaintiff’s rights under the New Zealand Bill of Rights Act 1990.  The right breached (as pleaded) was the right to counsel.

[4]      I convened a telephone conference this morning to see how the proceeding could be regularised and to find out from counsel for the defendant whether the denial of counsel was accepted as a breach given the pleading that there was a statutory entitlement to counsel which the Visiting Justice could not dispense with. Mr Niven  for the defendant  does  not  accept  that  there  was  a right  to  counsel. However, he and Mr Simperingham for the plaintiff have reached an agreement in these terms:

(a)      I can treat the notice of proceeding and statement of claim as being an application for judicial review of the decision of the Visiting Justice to refuse the plaintiff access to counsel and to disallow his appeal;

(b)I can, by consent, grant the application for judicial review and set aside the decision of the Visiting Justice to disallow the plaintiff’s appeal;

(c)       Costs can lie where they fall.

[5]      Against the background explained to me by Mr Niven, I am prepared to accede to this process. Accordingly, I rule as follows:

(a)       The proceeding now filed will be treated as an application for judicial review of the decision of the Visiting Justice;

(b)      The application for judicial review is granted; (c)       The decision of the Visiting Justice is quashed;

(d)      There will be no order for costs, which will lie where they fall.

Brewer J

Addendum

[6]      On 2 September 2015, the plaintiff also filed an application for waiver of the filing fee.  Mr Niven advises that the Department of Corrections has no opposition. The plaintiff is a sentenced prisoner.   I make an order waiving the filing fee accordingly.