Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections

[2016] NZHC 1004

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000099 [2016] NZHC 1004

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 DPEARTMENT OF CORRECTIONS

Defendant

Hearing:

17 May 2016

[On the Papers]

Appearances:

P J Smith and N D Roper (Self-represented First and
Second Plaintiffs) in Person
V McCall and A Dixon for the Defendant

Judgment:

17 May 2016

JUDGMENT OF EDWARDS J [re Application to Cross-examine]

This judgment was delivered by Justice Edwards on 17 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 1004 [17 May 2016]

[1]      Mr  Smith  is  a  maximum  security  prisoner  at  Paremoremo  prison.    On

18 March 2016 his employment as a landing messman was terminated.   Mr Smith believes it was terminated in retaliation for bringing proceedings against the Department of Corrections.

[2]     Mr Smith has applied for an interim injunction reinstating him to that employment pending the determination of a judicial review of the decision to terminate.   The application for an interim injunction is set down for hearing on

18 May 2016.

[3]      Mr Sherlock is the Prison Director at Paremoremo prison.  He has sworn an affidavit in opposition to Mr Smith’s application for an interim injunction which sets out the process by which the decision to terminate Mr Smith’s employment was reached.

[4]      Mr Smith seeks leave to cross-examine Mr Sherlock on his affidavit.   The

Department of Corrections opposes the application.

[5]      Submissions have been received from both parties.  Both parties agreed that the application could be determined on the papers.

Relevant legal principles

[6]      Cross-examination on affidavits filed in support of judicial review is not allowed as of right.  Fact finding is not normally part of a judicial review, and cross- examination could lead to “unwarranted dalliance into factual assessments by the courts”.1    It might also detract from the objectives of convenience, expedition and

effective determination of judicial review proceedings.2

1      Geary v Psychologists Board [2009] NZCA 134, [2009] NZAR 338 at [22]; leave to appeal refused in Geary v Psychologists Board [2009] NZSC 67, (2009) PRNZ 415.

2      Section   10(1)   Judicature  Amendment  Act   1972;   Roussel   Uclaf   Australia   Pty   Ltd   v

Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656.

[7]      Cross-examination will usually only be permitted in relatively rare cases where the interests of justice require it,3 and where it is clearly necessary in order to resolve the matter before the Court.4

[8]      Cross-examination may be necessary where there is a potential for prejudice if the evidence is not tested.   Cross-examination was allowed in Wilson v White where there was an allegation of bias which was denied.5    It was also allowed in Edwards v Toime where credibility was directly in issue and the trial judge would not have been able to decide whether the process which resulted in the decision was lawful without making a finding of credibility.6

Grounds for the application

[9]      In  broad  terms,  Mr  Smith  says  cross-examination  of  Mr  Sherlock  is necessary because:

(a)      Mr Sherlock’s statement that he had no knowledge of Mr Smith’s proceedings against the Department at the time he made the decision to terminate Mr Smith’s employment is contradicted by email traffic discovered in the proceeding;

(b)      There  are  a  number  of  internal  contradictions  in  Mr  Sherlock’s

affidavit;

(c)      Mr Sherlock claims to consult with prisoners in his affidavit but does not elaborate on that statement.  Mr Smith should be allowed to cross- examine on this point as consultation is fundamental to the principle

of natural justice.

3      Geary v Psychologists Board, above n 1, at [1] (footnote omitted).

4      Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 92 at [63]; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1998] 1 NZLR 544 (CA) at 554; Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 384 (CA) at 353; and Roussel Uclaf Australia Pty Ltd, above n 2, at 657.

5      Wilson v White [2005] 1 NZLR 189 (CA) at [46].

6      Edwards v Toime (2003) 7 HRNZ 213 (HC) at [24].

Analysis

[11]     I am not persuaded that cross-examination of Mr Sherlock is necessary to resolve Mr Smith’s application for an interim injunction pending resolution of the judicial review.

[12]     Mr Sherlock’s affidavit sets out the matters relevant to the process which led to the decision to terminate Mr Smith’s employment.  He says he became aware that Mr Smith was employed as a messman in March 2016.  He considered that Mr Smith was unsuitable for the role given his history of manipulating Corrections staff and others.       Mr   Sherlock    deposes    that    he    discussed    the   issue    with    the Regional Commissioner  and  determined  that  as  Mr  Smith  was  not  a  “trusted prisoner” he should be removed from the role.  An email was sent to the Principal Corrections Officer advising him to terminate Mr Smith’s employment.

[13]     In terms of the reasons for the termination, Mr Sherlock says that he was aware that Mr Smith was working on a number of legal matters but he did not know specifically what the matters were.  He says he thought that one of the advantages of Mr Smith not being required to work would be that he would have more time to focus on those legal matters.  He also explains that he did not think it necessary or appropriate to tell Mr Smith directly that he could not be trusted with the messman job.  Mr Sherlock denies Mr Smith’s allegation that his employment was terminated as retaliation for bringing judicial review proceedings against the Department of Corrections.

[14]     Mr Smith’s first ground in support of the application is that Mr Sherlock’s statement that he had no knowledge of the judicial review in relation to the security classification is contradicted by emails discovered in the proceeding.  Those emails are attached to Mr Smith’s reply affidavit.  They suggest that Mr Sherlock was aware of the judicial review regarding the security classification decision, and that he was aware of it at the time he made his decision terminating Mr Smith's employment. Cross-examination on this issue would be directed at showing that Mr Smith had

more detailed and specific knowledge of the judicial review proceeding regarding the security classification than his affidavit suggests.

[15]     Whether or not Mr Sherlock was aware of the specifics of the judicial review proceeding is not essential to the disposal of the interim injunction application in my view.  Any conflict between Mr Sherlock’s affidavit and the emails is not so serious as to warrant further investigation through cross-examination.  Mr Smith is able to make submissions regarding the extent of Mr Sherlock's knowledge on the basis of

the evidence already adduced.7    Cross-examination on whether he was generally or

specifically aware of the proceeding is unlikely to add anything further to the evidence.  The application for interim relief can be determined properly and fairly without cross-examination on this issue.

[16]     Resolution  of  apparent  contradictions  in  the  affidavit  evidence  (if  any) through cross-examination is also not necessary to dispose of the interim injunction application.  The process is set out in the affidavit.  The alleged inconsistencies do not concern that process.  This is not a case where credibility issues (if any) need to be resolved in order to decide the interim injunction application.   I consider any cross-examination on these issues would risk the unwarranted dalliance into factual matters which the Court of Appeal warned against in Geary v Psychologists Board.

[17]     Finally,   I   do   not   consider   that   the   principles   of   consultation   and Mr Sherlock’s  understanding  of  them  require  further  elucidation  through  cross- examination in order to dispose of the interim injunction application.  All relevant facts are set out in Mr Sherlock’s affidavit.   Mr Smith’s response is set out in his reply affidavit.

[18]     In all the circumstances, I am not satisfied that this is a case where the interests of justice require cross-examination of Mr Sherlock.

7      See Huang v Minister of Immigration HC Auckland CIV-2005-404-5202, 24 July 2006 at [13].

[19]     The application is declined.  Mr Sherlock is not required to attend the hearing

on 18 May 2016 in person.

Edwards J