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-PartyJudgment:
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…
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- Smith v Attorney-General [2017] NZHC 2810
- Case
- [2017] NZHC 2810
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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