Smith v Chief Executive, Department of Corrections

[2020] NZHC 751

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-150

[2020] NZHC 751

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of a judicial review of the Department of Corrections Child Protection Policy

BETWEEN

MICHAEL RICHARD SMITH

Applicant

AND

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

15 April 2020

Appearances:

Applicant in person

R S May and S B McCusker for the Respondent

Judgment:

16 April 2020

JUDGMENT OF COOKE J

(Interim relief)

[1]    By application dated 3 April 2020 Mr Smith seeks a series of orders or directions including, most relevantly:

… an injunction with immediate effect to set aside the Child Protection Policy until these proceedings are complete.

[2]    Mr Smith had earlier filed a statement of claim seeking judicial review of the Policy referred to in the application, which he says prevents him contacting any of his children under 16 years of age whilst he is in prison. One of his children is in Germany, and he is particularly concerned about the impacts of COVID-19 given that she had a serious illness earlier in her life.

SMITH v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 751 [16 April 2020]

[3]    By memorandum dated 9 April 2020 counsel for the Chief Executive indicated that the Chief Executive opposed the orders.

[4]    The proceedings were originally referred to me as Duty Judge in the week of 6 April 2020, and I scheduled a telephone hearing  yesterday.  Prior to the hearing  Mr Smith provided a further memorandum responding to the respondent’s memorandum, as well as an affidavit dated 12 April 2020.

Background

[5]    Mr Smith has seven children, four of whom are under 16. He is currently sentenced to imprisonment for fraud offending. He was sentenced in 2015.

[6]    Mr Smith wishes to have contact with his children. He says that the Child Protection Policy operated by the Department of Corrections means that he is not allowed to have any communication with any children under the age of 16. His concern about this is even more acute given the current circumstances concerning COVID-19.   Six  of his  children  are understood to be living with their mother,    Mr Smith’s wife. Mr Smith understands the seventh is currently in Germany. He is particularly concerned about her given the current COVID-19 threat as she suffered from a serious illness when she was young. He wishes to pass on his “love and blessings” to her which he explains is an important part of his culture as a Jew.

[7]    Mr Smith points out that there have been previous assessments of the family relationship in the Family Court. He points to two Family Court decisions. The first, in March 2011, recorded that an experienced social worker had concluded that there were no care or protection issues for the children in the care of either parent. The second is from December 2019, where the Court decided not to make protection orders, and held that his children would have the choice whether to have contact with Mr Smith. Mr Smith says that two of his children have indicated they wished to have contact with him, but that under the Policy he is not able to do so. He says in his affidavit:

I am very distressed that the Department of Corrections Child Protection Policy prevents me from having any form of contact with children, even if the children want to communicate with me. This is even more restrictive than a

court-ordered protection order. At least I can defend a protection order becoming final. The Department of Corrections implements a child protection policy with no hearing or right of review. They didn’t even notify me when they put the policy in place against me. Letters I have written to my children and letters they have written to me have not got through. I only found out about it by chance when I noticed an alert that is registered against my record

…

[8]    Mr Smith makes the point that in the current circumstances he is not able to initiate any communication with his children presently living with his wife as there are children under 16 present at that household, and any such communication would be regarded by Corrections as inconsistent with the Policy. Mr Smith challenges the Policy in his judicial review claims.

Jurisdiction

[9]    An initial issue arises in relation to the jurisdiction to make the order sought by Mr Smith. Mr Smith relies on r 7.53 of the High Court Rules 2016. He has not made an application under s 15 of the Judicial Review Procedure Act 2016. He says that his decision to proceed in this way is deliberate, as no orders could be made under s 15 as “there is no position to preserve — the horse has long since bolted” such that “it would not be proper to bring an application under s 15 …”.

[10]Section 11 of the Judicial Review Procedure Act 2016 provides:

11 Proceedings for mandamus, prohibition, or certiorari must  be treated as application for review

(1)This section applies if, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, proceedings are commenced for a writ or an order of or in the nature of—

(a)      mandamus; or

(b)      prohibition; or

(c)      certiorari.

(2)If this section applies, the proceedings must be treated and disposed of as if they were an application for judicial review.

[11]   Whilst the concluding words of this section do not end with the words “under this Act” it is apparent that this is what the section means.1 Section 11 applies to this application for judicial review, and the application for interim relief should accordingly be dealt with under this Act under s 15.

[12]   The related point is that r 7.53 of the High Court Rules 2016 does not apply to judicial review proceedings. It is a rule in the part of the Rules that govern ordinary proceedings. Under the Judicial Review Procedure Act 2016 certain High Court rules apply in relation to an application for review under that Act, but not all the High Court rules automatically apply.2 Part 30 of the High Court Rules 2016 is a specific part of the Rules that recognises the Court’s inherent judicial review jurisdiction. But judicial review under Part 30 only arises in relation to review that is not covered by the Judicial Review Procedure Act 2016, such as the review of decisions that are not within the meaning of a “statutory power of decision” under that Act. There is an interim relief power in r 30.4 of Part 30 expressed in broad terms, although it is doubtful that a different approach would be adopted to interim relief under r 30.4 as compared to     s 15.3

[13]   It follows, in my view, that any application for interim relief in this judicial review proceeding is to be addressed under s 15 of the Judicial Review Procedure Act. That section contemplates orders being granted when there is a position to preserve. A purposive and untechnical approach should be adopted to that threshold requirement. Section 15 should be interpreted in light of its purposes, including relieving an applicant from the adverse effects of a decision until a challenge is heard, and the preservation of the ability of the Court to grant effective relief.4 But in the present case, as Mr Smith’s submissions frankly acknowledged, there is no position to preserve. For that reason I dismiss the application for interim relief.

1      A consideration of s 6 of the Judicature Amendment Act 1972 and the definition of “application for review” under that Act reflect that (see s 3(1) Judicial Review Procedure Act 2016).

2      See s 8(2) and Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 444 at [15], citing Ngati Tama Ki Te Waipounamu Trust v Tasman  District Council [2018] NZHC 2166 at [17]–[19].

3      See Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [25].

4      At [21]–[25].

Hearing of the substantive application

[14]   I discussed with Mr Smith, and Mr McCusker for the Chief Executive whether it would be appropriate to have the substantive application for judicial review heard earlier than usual, and whether directions could be given to that effect. That seems to me to be appropriate given that a significant issue does appear to be raised by the challenge.

[15]After discussing the position the following directions were agreed:

(a)That within seven days (five working days) Mr Smith is to file and serve a further affidavit in support of his substantive claims. At the same time he is to provide disclosure of relevant documents held by him, such as the correspondence he has had with the Department about his situation.

(b)The Chief Executive is to file and serve his affidavit evidence seven days (five working days) thereafter.

(c)The Registrar is to allocate a half day hearing for hearing the judicial review challenge at an early opportunity.

(d)Seven working days before the hearing, Mr Smith is to file and serve his submissions.

(e)Five working days before the hearing the Chief Executive is to file and serve his submissions.

(f)The submissions for the Chief Executive should include a pdf copy of the authorities relied on by the Chief Executive, and should be sent by email to the email address of the Corrections Officer who has been assisting Mr Smith (which was identified during the hearing).

[16]   I also note that Mr Smith sought various other orders in his interlocutory application — that filings be by way of email, that he can submit handwritten material,

and that affidavits can be filed without being sworn in front of the required officers. With the exception of the direction concerning handwritten documents, all those directions are effectively already in place as a consequence of the Chief High Court Judge’s COVID-19 protocol dated 25 March 2020, and the subsequent urgent amendments to the High Court Rules that were made last week. In terms of handwritten materials, leave is duly given.

[17]I also reserve leave to the parties to apply to vary the directions set out above.

Cooke J

Solicitors:
Luke Cunningham Clere, Wellington for the Respondent