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Smith v Attorney-General

Smith v Attorney-General

Case [2016] NZHC 1145 30 May 2016

Judicial Review

Administrative Discretion

Mandatory Relief

Prison Conditions

Reinstatement of Employment

Administrative Law

Prisoner Rights

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000099 [2016] NZHC 1145

UNDER
the Judicature Amendment Act 1972, the

New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908

IN THE MATTER OF

a judicial review

BETWEEN

PHILLIP JOHN SMITH First Plaintiff

NIKKI DAVID ROPER Second Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing: 18 May 2016

Appearances:

P J Smith in Person
V McCall for the Defendant

Judgment:

30 May 2016

JUDGMENT OF EDWARDS J
[re Application for Interim Injunction]

This judgment was delivered by Justice Edwards on 30 May 2016 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Crown Law Office, Wellington

Copies To: P J Smith, Auckland
N D Roper, Auckland

SMITH v ATTORNEY-GENERAL [2016] NZHC 1145 [30 May 2016]

[1] On 18 March 2016 Mr Philip Smith lost his job as a landing messman in the maximum security block of Paremoremo Prison. He has filed a judicial review application in relation to the decision to terminate that employment which is scheduled for hearing on 15 July 2016.

[2] Mr Smith seeks a mandatory interim injunction reinstating him to his employment pending the determination of his judicial review application.

Background

[3] Mr Smith is a maximum security prisoner held in the East Division of Paremoremo prison. Prisoners in the East Division are subject to the highest level of control and restriction in the prison system.

[4] Mr Smith is serving a life sentence for murder, and sentences for child sex offending, extortion and kidnapping. He is currently facing charges in the District Court relating to an alleged escape to Brazil in November 2014.

[5] In September 2015, Mr Smith was appointed a landing messman. His duties included serving breakfast and dinner, hot water, and cups of tea to other maximum security prisoners through hatches in their cell doors, and laundry duties performed on Sunday and Wednesday afternoons.

[6] Mr Smith received $14.00 per week for these duties of which $2.00 was deducted for rental of a television. Of more importance to Mr Smith was the fact that his employment allowed him respite from the hours spent confined to his cell. As a maximum security prisoner Mr Smith is locked in his cell for 22 and a half hours a day without employment, and approximately 20 and a half hours with employment.

[7] Mr Smith’s employment was terminated on 18 March 2016. He was told by the unit principal corrections officer (PCO) that the decision to terminate had been made so as to give him more time for his civil proceedings. The written record of the decision confirms those reasons.

[8] The decision to terminate Mr Smith’s employment was made by Mr Sherlock, the Prison Director for the Auckland prison at Paremoremo. Mr Sherlock has worked at Auckland prison for over 34 years and has been directly involved in the management of Mr Smith since…

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 [2016] NZHC 1145
Case: [2016] NZHC 1145
Decision Date: 30 May 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Phillip John Smith, a maximum security prisoner at Paremoremo Prison, for an interim injunction to reinstate him to his employment as a landing messman pending the determination of his judicial review application. Smith's employment was terminated by the Department of Corrections on the basis that he should be given more time for his civil proceedings. Smith claimed that the termination was retaliatory and sought an interim injunction to reinstate him to his employment pending the substantive hearing. The court considered the application under both Part 30 of the High Court Rules and section 8 of the Judicature Amendment Act 1972. Under Part 30, the court considered the American Cyanamid approach, which required the court to assess whether there was a serious question to be tried, the balance of convenience, and the overall justice of the case. The court found that the prospects of Smith securing a mandatory order reinstating him to his employment were slim, and the balance of convenience weighed against the grant of interim relief. The court found that the overall justice of the case weighed heavily against the grant of interim relief. The court also found that the relief sought was not available under section 8 of the Judicature Amendment Act 1972. The application was dismissed, and the court did not consider it appropriate to make an order for costs.

The court found that the decision to terminate Smith's employment was not amenable to judicial review as it was a decision made in the context of the day-to-day operations of a prison and the general management of prisoners. The court found that even if the decision was amenable to judicial review, Smith faced significant hurdles in making out his grounds for review. The court found that the policy considerations against a court making a mandatory interim order requiring positive action were strong, and such orders were relatively rare. The court found that the balance of convenience weighed against the grant of interim relief, and the overall justice of the case also weighed against the grant of interim relief. The court found that the relief sought was not available under section 8 of the Judicature Amendment Act 1972 as the court would not be able to discharge the burden of showing that the relief sought was necessary to preserve Smith's position. The court dismissed the application, and the court did not consider it appropriate to make an order for costs.

Orders