Stanley Allen Gilmour v Chief Executive of the Department of Corrections

IN THE SUPREME COURT OF NEW ZEALAND

SC 69/2017
[2017] NZSC 147

BETWEEN	STANLEY ALLEN GILMOUR Applicant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	William Young, OʼRegan and Ellen France JJ
Counsel:	W G C Templeton and T A Chubb for Applicant D J Perkins and M J McKillop for Respondent
Judgment:	3 October 2017

JUDGMENT OF THE COURT

The application for recall is dismissed.

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REASONS

The applicant seeks a recall of our judgment of 4 September 2017 dismissing his application for leave to appeal from a judgment of the Court of Appeal.[1] In issue is a parole assessment report provided to the Parole Board under s 43 (1) of the Parole Act 2002 by the Department of Corrections. His complaint is that a contribution which he, as a probation officer, had prepared in respect of a particular offender was not included in the final parole assessment report. In our judgment we said the offender’s principal case manager who finalised the report in the sense of signing and submitting “was entitled to form a judgment as to what should be included”.[2]
[1]Gilmour v Chief Executive of the Department of Corrections [2017] NZSC 133.
[2]At [6].
The basis of the recall application is that there was no evidence of such “entitlement” nor of any right of “veto” vested in the principal case manager. The application was supported with a mass of evidential material as to how the parole assessment reports are prepared.
The application for recall is misconceived and the material relied on in support of it beside the point. The Court of Appeal held that the contents of the report are for the Department to determine and in particular that it “was open to the Department to view the information [in question] … as not relevant to the Board’s task”.[3] This is the same approach as we took, save that we personalised the process by treating the principal case manager as the Departmental decision-maker. This personalisation was immaterial to the outcome of the application for leave to appeal. This is because the question which the applicant wished to raise on appeal (namely that the Department was required to include his contribution) did not depend on the identity of the person who decided that it should not be included. To the extent that the applicant’s complaint is that the Department was not entitled to exclude his contribution, this is just a re-run of the argument already addressed in the leave judgment.
[3]Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250 (Harrison, Winkelmann and Asher JJ).
Accordingly, the application for recall is dismissed.

Solicitors:
Sellar Bone and Partners, Auckland for Applicant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the case of Stanley Allen Gilmour v Chief Executive of the Department of Corrections, the applicant, Gilmour, sought a recall of the Supreme Court’s judgment which had dismissed his application for leave to appeal a decision of the Court of Appeal. Gilmour argued that a contribution he made as a probation officer was omitted from a parole assessment report submitted to the Parole Board by the Department of Corrections, and that the principal case manager had no authority to exclude his contribution. The case required the Supreme Court to determine whether the applicant's contribution should have been included in the report and whether the principal case manager had the authority to exclude it.

The legal issues before the court included the scope of authority of the principal case manager in determining the contents of a parole assessment report and whether there was any procedural error in excluding the applicant’s contribution. The court considered the provisions of the Parole Act 2002 and the principles of administrative law concerning the discretionary powers of decision-makers within the Department of Corrections. The Court of Appeal had already ruled that the contents of the report were for the Department to determine, and that it was open to the Department to consider the information in question as not relevant to the Board’s task. The Supreme Court was tasked with reviewing whether the applicant’s contention that the Department lacked the authority to exclude his contribution was valid.

In dismissing the application for recall, the Supreme Court found that the applicant's argument was a reiteration of the issue already considered in the leave judgment. The court held that the principal case manager, in finalising the report, was entitled to form a judgment as to what should be included, and that there was no evidence of a procedural error or lack of authority on the part of the case manager. The Court of Appeal’s determination that the contents of the report were for the Department to determine was consistent with the Supreme Court’s approach, albeit personalised to the case manager. As the applicant’s complaint was essentially about the Department’s decision-making process, and not about the identity of the decision-maker, the application for recall was deemed misconceived.

The Supreme Court concluded that the application for recall should be dismissed, reaffirming the Court of Appeal's judgment and the Supreme Court’s earlier decision. The court found no basis to reconsider its previous ruling, as the applicant’s argument did not present a new or significant legal issue. The final orders of the court upheld the dismissal of the recall application without further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established