Smith v New Zealand Parole Board

[2024] NZHC 57

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-785

[2024] NZHC 57

UNDER

the Declaratory Judgments Act 1908

IN THE MATTER

of an application for declaratory judgments

BETWEEN

PHILLIP JOHN SMITH

Applicant

AND

THE NEW ZEALAND PAROLE BOARD

Respondent

Hearing:	On the papers
Appearances:	Applicant in person
Judgment:	1 February 2024

JUDGMENT OF COOKE J

(Declining leave under r 19.5)

[1]    The applicant, Phillip John Smith, is currently serving a term of imprisonment for murder. In these proceedings he seeks declarations that the Parole Board has misinterpreted provisions of the Parole Act 2002 when considering his release on parole and he seeks declarations accordingly.

[2]    The matter that is to be addressed at this stage is simply the appropriate part of the High Court Rules 2016 that should be used for Mr Smith’s declaratory judgment proceedings. Given that the application identifies an issue of interpretation that may have wider relevance I have decided to address the application made by Mr Smith concerning this matter by way of a judgment.

SMITH v THE NEW ZEALAND PAROLE BOARD [2024] NZHC 57 [1 February 2024]

The application

[3]    By application dated 6 December 2023 Mr Smith applies for leave under r 19.5 to commence these proceedings under the Declaratory Judgments Act 1908 as an originating application under pt 19 of the High Court Rules. The application is supported by an affidavit of the applicant sworn 24 November as well as a memorandum from him dated 22 November. The affidavit evidences communications between Mr Smith and the solicitor for the Parole Board indicating that the Board consents to the proceedings being commenced by originating application, and advising the name of counsel instructed by the Board in relation to the proposed proceedings.

[4]    When the application was first referred to the Duty Judge it was noted that the Court had not been provided with a copy of the proposed proceedings that the applicant sought to bring. An application under r 19.5 should normally be accompanied by the proposed originating application so that the Court can understand the subject matter of the proceedings, as well as a memorandum of counsel explaining why pt 19 is the more appropriate procedure. The applicant was advised by the Registry that he should file a statement of claim.

[5]    Mr Smith has subsequently filed the proposed statement of claim, and a further memorandum dated 18 January 2024. He has also provided initial disclosure of the kind that would be relevant to ordinary proceedings.

Assessment

[6]    There are two parts of the High Court Rules that are potentially relevant to Mr Smith’s application: pt 18 which concerns applications in equity and other statutes, and pt 19 which concerns originating applications. Under r 18.1(b)(v) applications under the Declaratory Judgments Act are identified as applications to which pt 18 should apply.

[7]    Mr Smith has identified, however, that s 3 of the Declaratory Judgments Act provides that a person “may apply to the High Court by originating summons” for declarations under the Act. On that basis he has made application to commence the proceedings by originating application, seeking leave under r 19.5 to do so. He also

points out that the Parole Board has consented to the proceedings being commenced by way of originating application.

[8]    Whilst the wording of s 3 of the Declaratory Judgments Act creates understandable confusion, it should not be read as mandating the procedure contemplated by pt 19 of the High Court Rules. When the Declaratory Judgments Act was passed in 1908 the rules of Court were in very different form. There are now more sophisticated forms of procedure contemplated by the current High Court Rules. Parts 18 and 19 are both involve more streamlined proceedings that do not involve the elaborate procedures appropriate for the ordinary civil jurisdiction of the High Court. For example, both contemplate the Court receiving evidence by way of affidavit. Accordingly, interpreted purposively, the procedures under pt 18 can be thought of as within what is contemplated by the words “originating summons” in s 3 of the Declaratory Judgments Act.

[9]    It is also important to recognise that the High Court Rules are themselves a schedule to the Senior Courts Act 2016, and they accordingly have statutory force. So the provision in r 18.1(b)(v) that pt 18 applies to proceedings under the Declaratory Judgments Act should be given effect.

[10]   The Court can still give leave under r 19.5 that proceedings proceed under    pt 19 rather than pt 18. It could be that, in accordance with that rule, the interests of justice mean that the pt 19 is more appropriate. A number of cases have considered the relationship between pt 18 and pt 19 proceedings, including in the context of applications for declarations.1 One of the relevant factors is that there is now less difference between pts 18 and 19, as both contemplate the Court adapting the procedures so that are appropriate for the particular case. For example, under r 19.5A, introduced by amendment in 2013, the Court can direct that the parties to a proceeding under pt 19 file a statement of claim or statement of defence.2 In the end the Court should be guided by ensuring that the procedural pathway is the most efficient and proportionate for the matters to be determined.

1      See for example Catherwood v Asteron Life Ltd [2021] NZHC 2612.

2      See generally Clarkson v Clarkson [2020] NZHC 2211.

[11]   In the present case there is no reason why the interests of justice require the proceedings to proceed under pt 19. Part 18 is identified by the High Court Rules as the appropriate part for proceedings under the Declaratory Judgments Act, and it remains the appropriate procedural pathway for this proceeding. I agree that there is no need for discovery or any other more elaborate procedures, and that the matter can be argued based on limited affidavit evidence. But that is all contemplated by pt 18.  I note that there are elements of Mr Smith’s claim that seem to involve criticisms of the Parole Board of a kind that might be more appropriately addressed in a judicial review proceeding under the Judicial Review Procedure Act 2016.  But the relief   Mr Smith seeks is purely declaratory, and he makes it clear that he is only seeking the Court’s decision on the appropriate meaning of the provisions of the Parole Act. In those circumstances the proceeding should continue under pt 18 in the normal way.

[12]   Included in the application was an application for directions as to service as is required by r 18.4(1)(b). I consider that there is no requirement for the proceedings to be served on anybody other than the Parole Board.

[13]Against the above background I give the following directions:

(a)The application for leave to commence these proceedings by way of originating application is declined.

(b)The applicant’s notice of proceeding and statement of claim are to be accepted for filing under pt 18, and should be served by the applicant in the normal way.

(c)The Registrar is to provide a copy of this judgment to Ms Vicky Owen (barrister and solicitor) and Mr Matthew Smith (barrister) who are instructed for the New Zealand Parole Board.

Cooke J