Taylor v Chief Executive of the Department of Corrections

[2020] NZHC 1078

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-207

[2020] NZHC 1078

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

ARTHUR WILLIAM TAYLOR

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

20 May 2020

Counsel:

Applicant in person

S C Carter for Respondent

Judgment:

21 May 2020

JUDGMENT OF CHURCHMAN J

Background

[1]    By proceedings dated 14 May 2020, the applicant has applied for judicial review of a direction made by a probation officer that he leave the address at which he had been residing.

[2]    The applicant has also applied for interim orders prohibiting the respondent from taking any further action on the challenged direction pending final determination of the judicial review proceedings.

[3]    In addition to the notice of proceedings and statement of claim, an affidavit of the applicant has also been filed along with a memorandum of submissions.

TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1078 [21 May 2020]

[4]    The respondent opposes the application for interim orders and has filed a memorandum objecting to the orders sought and an affidavit of Jayden Southon dated 15 May 2020.

[5]    By minute of 15 May 2020, Simon France J determined that interim orders were neither needed nor appropriate to hold the situation over the weekend and offered an urgent two-hour hearing on 20 May 2020 to determine the interim application.

[6]    By email sent to the Court and the respondent at 6.37 pm on 19 May 2020, the applicant said, “I wish to cross-examine Jayden Southon on his affidavit.” The email also said, “I also anticipate Ms Julianne Miles will be present and wanting to give viva voice [sic] evidence.”

[7]    No formal application for leave to cross-examine or to call oral evidence has been made.

[8]    Any application for leave to cross-examine a deponent in a judicial review application should:1

state the factual areas for cross-examination relating them to the grounds for challenging the decision and matching them to passages in particular affidavits and documentary material contended to give rise to gaps and deficiencies which should be subject to cross-examination.

[9]    The overall principle for determining leave is whether, given the affidavits, the contradictions or inconsistencies are so fundamental, that cross-examination is necessary to enable justice to be done.2

[10]   The sorts of factors which might justify the granting of leave to cross-examine are where there is a lack of adequate or proper explanation of the decision-making

1      See Graham Taylor: Judicial Review – A New Zealand Perspective (4th ed, LexisNexis, Wellington 2018) at 10.01 citing McGechan on Procedure (Looseleaf), Thomson Brookers (at [J72:9.04]), and Hamlin v State Services Commission [1987] 1 NZLR 598 at 596-597.

2      Nicholls v Health and Disability Commissioner [1997] NZAR 351; Edwards v Toime (No. 1)

[2005] NZAR 140; and TP v Tovey [2014] NZHC 922.

process, where there is a material conflict of affidavit evidence, or where the credibility of a deponent is in issue.3

[11]   I indicated to the applicant that, in the absence of identification by him of the factual areas for cross-examination and their relation to the grounds for challenging the decision, the Court was not in a position to make an informed decision as to whether this was an appropriate case for the granting of leave. Such information should be provided as part of a formal application for leave.

[12]   Similar considerations applied in relation to the calling of oral evidence. Such evidence may be heard in judicial review proceedings if counsel agree to it, or the Court may make an order under s 14(2) of the Judicial Review Procedure Act 2016. However, in order to make such an order, the Court must know the nature of the oral evidence proposed to be called and be satisfied that it is just to permit the calling of oral evidence. If the applicant wishes to pursue such an application at the substantive hearing, he will need to satisfy the Court why it is necessary to call oral evidence instead of reducing that evidence to affidavit form.

The interim application

[13]   Mr Taylor has sought interim relief against a decision directing him to leave the accommodation that he had been residing at while on parole.

[14]   Since filing the application for interim relief, he has, in fact, left that address and had been residing at accommodation arranged and paid for by the respondent. The arrangement was he would have this accommodation for one week expiring this coming Friday.

[15]   Mr Taylor was concerned that his possessions, including material relating to his work as a legal consultant, remained at the former address and that because of the direction that he leave that address, he was unable to uplift these items.

3      See Stratford Racing Club v Adlam [2008] NZCA 92 at [63], and Smith v Attorney-General [2017] NZHC 463 at [4]-[5].

[16]   He was also concerned that he had insufficient time to arrange alternative accommodation between now and when the current temporary arrangement came to an end.

[17]   He submitted that he had been distracted from focusing on looking for alternative accommodation as a result of his need to prepare for this hearing.

[18]   For the respondent, it was submitted that it had addressed Mr Taylor’s immediate needs by sourcing and funding a week’s accommodation for him. It was submitted that Mr Taylor had failed to engage with the respondent’s efforts to assist him into longer term accommodation.

[19]   Counsel  accepted  that  the  respondent  had   an  obligation  to  facilitate   Mr Taylor’s transition to suitable accommodation and that it was not in anyone’s interests for him to end up homeless or being forced to reside with people engaging in criminal activity because he could not find anything more suitable.

The law

[20]   The parties were largely agreed on the applicable legal principles governing applications for interim relief in judicial review proceedings.

[21]   Section 15 of the Judicial Review Act 2016 gives the Court jurisdiction to make an interim order if in its opinion it is necessary to do so to preserve the position of the applicant.

[22]   The case of Carlton & United Breweries Ltd v Minister of Customs4 was accepted by both parties as being the leading case. That case confirms that the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weaknesses of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.

4      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

[23]   The factual situation is that the Police had been called to a number of domestic incidents at the address (although no charges have been laid in respect of those incidents).  The complainant (Ms Miles) was the lawful occupier of that address.   Ms Miles is not the owner of the property in question but has an entitlement, pursuant to the Will of her late partner, to occupy the property for her lifetime until her death, or entry into another relationship. The sole trustee of the trust that owns the property was not aware that the applicant was residing in the property and confirmed that he had no tenancy or other legal interest in the property.

[24]   There was conflicting evidence as to whether Ms Miles had returned to the property after the applicant had left. The applicant asserted that she was residing in Paraparaumu and the respondent contended that she was back residing in the property.

[25]   The applicant referred to the provisions of the Residential Tenancies Act 1986 and the requirement for notice under that Act. However, although the applicant claims that Ms Miles has sublet the premises to him and that he is paying rent and other overheads, he is not a tenant of the owner and has no lease agreement or permission from the owner to be there. Indeed, it may well be that Ms Miles is in breach of the conditions upon which she is entitled to occupy the property if she has, in fact, sublet it and now resides elsewhere.

[26]   The fact that the applicant has been directed not to have contact with Ms Miles, should not preclude him from being able to uplift those items of his personal property that remain at the address. In the circumstances, it would be appropriate for the respondent to facilitate that happening.

[27]   It would also not seem to be a situation where the applicant’s position can be preserved. He has already physically left the premises and is residing somewhere else. The respondent has acted responsibly in arranging and funding, on an interim basis, alternative accommodation.

[28]   Through counsel, the respondent has indicated that it is prepared to continue to assist the applicant to find suitable alternative accommodation. It is up to Mr Taylor

as to whether or not he chooses to engage constructively with the respondent in that regard.

[29]   To the extent that it is possible to assess the strengths of the applicant’s substantive proceedings, his case would seem to rest on the proposition that it was not in fact the probation officer who personally made the decision to direct him to leave the address but another entity within the Department of Corrections. If the applicant is able to establish that, he will be able to rely on decisions such as Shahid v Scottish Ministers.5 However, given the contents of Mr Southon’s affidavit, it will not be easy for the applicant to establish that the relevant decision was, in reality, not made by the probation officer. His case could not be categorised as being strong.

[30]   There is also the added complication that if, in fact, Ms Miles has withdrawn her consent to the applicant residing at the address or if the trust that owns the property does not consent to that, even if the applicant was ultimately successful in establishing the invalidity of the decision, the Court would not be able to grant the relief sought.

[31]   The rights relied on by the applicant under the New Zealand Bill of Rights Act (NZBORA) need to be balanced against the right of the respondent to impose conditions on where a person on parole may live.

[32]   The factors relied upon by the respondent in determining that the address was no longer suitable such as the family harm callouts, excessive alcohol consumption, illicit drug use and the presence of two people regarded as unsuitable and who were previously unknown as occupants, are the sorts of factors that might legitimately be taken into account by the respondent in determining whether the residence continued to be suitable.

Conclusion

[33]   Considering all of these factors,  I am not satisfied that the requirements of    s 15(2) of the Judicial Review Procedure Act have been met and that it is necessary to grant the interim orders to preserve the position of the applicant.

5      Shahid v Scottish Ministers [2015] UKSC 58.

[34]   The applicant will still be able to challenge the impugned decision by way of judicial review.

[35]   I expect the respondent to co-operate fully in assisting the applicant to retrieve such of his possessions as remain at the address, and also anticipate that the respondent will continue to attempt to assist the applicant in locating suitable alternative accommodation.

[36]Accordingly, for these reasons, the application for interim order is dismissed.

[37]Costs are reserved.

Churchman J

Solicitors:

Luke Cunningham Clere, Wellington for Respondent cc:           A W Taylor