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Smith v Attorney-General

Smith v Attorney-General

Case [2017] NZHC 2810 16 November 2017

Judicial Review

Natural Justice & Procedural Fairness

Discovery & Disclosure

Administrative Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002269 [2017] NZHC 2810

UNDER
the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF

application for judicial review

BETWEEN

PHILLIP JOHN SMITH Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing: 18 September 2017

Appearances:

P J Smith (Self-represented Plaintiff) in Person
A M Powell for the Defendant
C G Tuck for the Non-Party

Judgment:

16 November 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 16 November 2017 at 1.15 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Crown Law, Wellington
Lawaid International Domain Chambers, Tauranga

Copy To: P J Smith, Auckland

SMITH v THE ATTORNEY-GENERAL [2017] NZHC 2810 [16 November 2017]

Introduction

[1] Following Mr Smith’s escape from custody in November 2014, the Department of Corrections put in place an interim temporary release regime for serving prisoners. Mr Smith seeks judicial review of the decisions suspending the
existing regime and establishing the new one.

[2]

proc

This eeding:

(a)

judgment addresses two interlocutory applications made in the

First, an application by Mr Smith for discovery of the Department of

Corrections’ internal emails; and

(b)

Second, an application by Mr Ray, a non-party, for joinder as second plaintiff to the proceeding. Mr Ray is a serving prisoner who claims

to have been affected by the changes to the temporary release regime.

In the event that he is joined, he also seeks an order for discovery.

[3] The respondent sues on behalf of the Department of Corrections, and for ease of reference I will simply refer to the respondent as the Department. The Department says that the discovery sought by Mr Smith is neither relevant nor necessary to determine the judicial review application. It also says that the cost of providing the discovery is disproportionate to the likely relevance any documents will have to the subject matter of the proceeding.

[4] The Department also opposes Mr Ray’s application on the basis that the proceeding is different in kind, and Mr Ray’s presence before the Court is not required to determine the judicial review application.

The temporary release regime

[5] Sections 62 and 63 of the Corrections Act 2004, and regulations 26 and 27 of the Corrections Regulations 2005 provide for a temporary release regime for certain

prisoners.1

[6] Section 62(1) provides for the class of eligible prisoners to be specified in regulations. Regulation 26 sets out that class which is defined by reference to the term of imprisonment, eligibility for parole, the prisoner’s security classification, and the nature of the offence committed.

[7] Under s 62(2), the Chief Executive of the Department “may” give authority for the temporary release from custody for any purpose specified in regulations which the Chief Executive considers will facilitate the achievement of objectives set out in that subsection. At the relevant time, reg…

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 Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2017] NZHC 2810
Case: [2017] NZHC 2810
Decision Date: 16 November 2017

CaseChat Overview and Summary

Phillip John Smith applied for judicial review of the Department of Corrections’ decision to suspend the existing temporary release regime for prisoners and to establish a new interim regime in response to his escape from custody in November 2014. The first interlocutory application was for discovery of internal emails from the Department of Corrections relating to the interim regime. The second interlocutory application was by a non-party, Mr Ray, a serving prisoner who claims to have been affected by the changes to the temporary release regime. Mr Ray sought joinder as second plaintiff to the proceeding and an order for discovery. The Department opposed both applications. In relation to the discovery application, the Department argued that the emails were neither relevant nor necessary to determine the judicial review application, and the cost of providing the discovery was disproportionate to the likely relevance any documents would have to the subject matter of the proceeding. The Department also opposed Mr Ray’s application on the basis that the proceeding was different in kind, and Mr Ray’s presence before the Court was not required to determine the judicial review application.

The Court ruled that the discovery application was granted because the emails sought may be relevant to the allegation that there was an unlawful fetter of the discretion to grant a temporary release and that prison officers acted under dictation from the Department. The Court also ruled that the discovery was proportionate to the subject matter of the proceeding because the interim regime was alleged to have been contrary to law and a large number of prisoners were affected by the changes to the regime. The Court ruled that Mr Ray’s application for joinder was declined because Mr Ray’s claim was fundamentally different in nature to the existing application for judicial review, and it would be inconsistent with the principle that judicial review is a simple and expeditious procedure to allow it to be expanded by way of joinder.

Orders