Thomson v Attorney-General
[2025] NZHC 2541
•3 September 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-409-114 [2025] NZHC 2541
BETWEEN KANE JOHN THOMSON
Applicant
AND THE ATTORNEY-GENERAL
Respondent
Hearing: 15 August 2025
22 August 2025 - memorandum of counsel for the Respondent 26 August 2025 - memorandum from the Applicant
Appearances: Applicant self-represented
W S Taffs for the Respondent
Judgment: 3 September 2025
JUDGMENT OF HARLAND J
Introduction
[1] This judgment determines an application by Mr Thomson seeking interim orders under the Judicial Review Procedure Act 2016 (the Act) preventing his transfer within the prison system to another prison pending the determination of his application for judicial review.
[2] I have decided to dismiss the application. This judgment sets out my reasons for doing so.
THOMSON v ATTORNEY-GENERAL [2025] NZHC 2541 [3 September 2025]
Background
[3] The applicant is a serving prisoner. Since his sentence was imposed, he has been placed at the Otago Corrections Facility (OCF), Rolleston Prison and Christchurch Men's Prison (CMP).
[4] On 3 March 2025, while at Rolleston Prison, the applicant was charged with two misconducts. The first concerned an incident in which he called a Corrections officer a "corrupt piece of shit" and used foul language. The second concerned the applicant obstructing Corrections' staff by snatching a bag from their hand and repeatedly refusing to remove an extra mattress from his cell.
[5] The applicant has his own version of the events which he says led to these incidents with this particular prison officer.
[6] On 10 March 2025, the applicant filed a judicial review proceeding in this Court. He indicated that he also sought a stay of the disciplinary charges referred to above and an injunction preventing the Department of Corrections moving him from Rolleston Prison before he received certain remedial dental work.
[7] On 13 March 2025, the two misconduct charges were heard by a hearing adjudicator. The first charge (charge number 526268) against the applicant was found to have been proven. In relation to that charge, the hearing adjudicator noted there was "good mitigation" and imposed a penalty of 12 days' forfeiture/postponement of privileges. In relation to the second misconduct charge (charge number 526289), the applicant was simply warned to correct his conduct. It is not entirely clear from the record of hearing whether the case was proven or not proven because both outcomes have been circled by the hearing adjudicator.
[8]The applicant immediately appealed those decisions.
[9] On 13 March 2025, the applicant filed a formal application for an interim injunction and stay of proceeding, supported by an affidavit.
[10] On 16 March 2025, the applicant withdrew his appeals against the decisions of the hearing adjudicator.
[11] On 2 April 2025, counsel for the respondent filed an application to strike out the statement of claim.
[12] On 10 April 2025, the applicant's security classification was reassessed and changed from low-medium to high. The applicant considers he was incorrectly reclassified as high security and, despite questioning this, his classification has not been changed.
[13] Because the applicant's security classification changed, this meant he could no longer be held at Rolleston Prison. A decision was made that he would be transferred to the OCF where serving prisoners in the South Island who have a high-risk security classification are held. In the meantime, the applicant was transferred to CMP on 14 April 2025 where defendants on remand with a high-risk security classification are housed as well as some sentenced high-risk security prisoners, but not many.
[14] On 21 April 2025, the applicant says he was given less than twenty-four hours' notice that he was being transferred to OCF.
[15] On 23 April 2025, the applicant filed an amended statement of claim alleging 13 causes of action relating to allegations against the respondent. He pleads that the respondent has breached various provisions of the Corrections Act 2004 and the Crimes Act 1961.
[16] Since the filing of the amended statement of claim, the respondent has withdrawn her applications for strike out and a decision has been made that the applicant is to remain at CMP until this application has been resolved.
The application for interim orders
[17] The applicant filed three affidavits in support of his application for interim relief. The last two responded to the two affidavits filed on behalf of the respondent opposing his application for interim orders. It is apparent from reading the affidavits
and material provided to me that the issues to do with the applicant's teeth have long preceded his incarceration, but it seems the applicant is also concerned about the number of x-rays he has had. A recent email from the Canterbury District Health Board dated 17 July 2025 stated the followed:
This patient presented with deep, rampant caries across multiple teeth in October, so before proceeding with treatment, it was clinically appropriate to take additional radiographs to assess the apex (root tips) and ensure the teeth weren't already showing signs of infection or were beyond restoration. In a mouth with such a high decay rate and 6 months since initial imaging; a new PA was also beneficial to check for any new areas of decay that may have developed in the time between the original imaging and the hospital appointment. This approach aligns with best practice and supports safe, appropriate care planning.
[18] But as well, the applicant deposed he is on the list to see a psychologist for one-on-one treatment at CMP, not OCF. He is concerned that his medical and psychological needs will be delayed should he be transferred to OCF.
[19] The applicant also wants to stay at CMP because his recently unsuccessful Family Court proceedings will be subject to an appeal to this Court and because his grandfather is travelling to Christchurch in September and is planning to visit him in prison.
The application
[20] At the hearing, the applicant confirmed that his main reason for seeking interim relief is to enable the dental work undertaken in Christchurch to continue until it is completed. He is concerned that, if required to transfer to OCF, he will be placed further down the waiting list, a problem he has experienced in the past. In his view, this is particularly so because he submits Corrections does not take kindly to prisoners taking court action like this. Apart from this, the main one of which relates to his dental treatment, the applicant would have no issue about returning to OCF.
[21] The respondent opposes the application for interim orders and filed two affidavits in support:
(a) the first affidavit establishes that OCF is the appropriate place for the applicant, given the recent change to his security classification, even
though the applicant's classification is to be reviewed in October 2025; and
(b) the second affidavit from the assistant health centre manager at CMP deposed the applicant will receive the same level of dental treatment within substantially the same timeframe if he is transferred to OCF.
[22] The affidavit from the assistant health centre manager (Ms Hibbert) outlines that she has had oversight of the applicant's dental care since he was transferred to CMP from Rolleston Prison on 14 April 2025, which has included determining what dental treatment he should receive and whether it should be provided within the prison or at hospital. Ms Hibbert deposed the applicant's remaining work can be done at CMP in 90-minute appointment slots.
[23] More recently, and at my request, counsel filed a memorandum outlining the dental treatment the applicant has received:
(a) 9 October 2024 - at CMP;
(b) 30 October 2024 - at CMP;
(c) 22 January 2025 - at CMP;
(d) 19 February 2025 - at CMP;
(e) 28 March 2025 - at Christchurch Hospital; and
(f) 26 June 2025 - at Christchurch Hospital.
[24] Counsel advised that the reason some appointments were conducted at the hospital is due to the length of time required for the treatment as opposed to any specialist treatment which is not available from prison dental services.
[25]Counsel also advised that:
(a) the applicant only requires one more appointment, which is for three restorations/fillings. This has been scheduled for early November and is to be done within the prison rather than at hospital; and
(b) a booking has been made at OCF for Mr Thomson (should he be transferred) for 6 October 2025. This is for the same treatment as would be provided in Canterbury.
[26] The applicant filed a memorandum in response to counsel for the respondent's memorandum referred to in [23]-[25] above.
[27] Ms Hibbert has filed a second affidavit deposing to the matters largely contained in counsel's memorandum referred to above. But she also attached an email from the Te Whatu Ora dentist stating the following:
By way of context, KT was first seen at CMP for an examination in October 2024, at which time he required extensive dental treatment. At presentation, he had deep, rampant caries affecting multiple teeth. Over the past 10 months, our team has been working on the deeper, more urgent care to prevent further deterioration. KT had dental decay on almost all of his remaining teeth.
It would be helpful if, during each visit, KT could focus on the care being provided rather than attributing blame for the current state of his dentition, as the signs of prior and significant neglect of his oral health were evidence prior to our involvement. This would ensure clinical time is used more effectively to continue progressing his treatment.
[28] I note the following from the updating memorandum and Ms Hibbert's second affidavit:
(a) the applicant's security classification is not only due to the two misconducts referred to that triggered the change in his status however, in fairness to the applicant, he did not contend that to be the case;
(b) an email response regarding the x-rays the applicant is concerned about confirms that the exposure to radiation from taking such x-rays is extremely low and at a level which is less than the average daily natural background radiation or is similar to a 1-2 hour flight;
(c) only one more dental session is required, which can be completed at CMP or OCF. On this occasion, three fillings (referred to as restorations) are anticipated;
(d) the booking at OCF is sooner in time than the booking at CMP; and
(e) there are disputes about cancelled appointments, whether and why they occurred, but this does not get to the heart of the legal issue I need to determine.
[29] It is necessary to record Ms Hibbert's statement that none of the applicant's treatment decisions have been made because of the proceedings he has filed against the respondent. In fact, she deposed the applicant has received the same level of care as other prisoners in the Department's care in Canterbury, despite what she described as the challenging and sometimes abusive behaviour the applicant has directed at the health centre and Te Whatu Ora staff. Ultimately, Ms Hibbert said the health professionals involved in the applicant's treatment have tried and continue to try their best to help him with his dental issues.
Discussion
[30]The relevant provisions in s 15 of the Act provide:
15 Interim orders
(1) At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
…
(3) However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b)the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
...
(4) An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[31] Under ss 15 and 16 of the Act, the Court may make interim orders if the Court considers it is necessary to do so to preserve the applicant's position before the final determination of the application for judicial review.
[32] In Wallace v Chief Executive of the Department of Corrections, Grice J summarised the relevant principles with reference to Minister of Fisheries v Antons Trawling Company Ltd.1 The applicant must satisfy the Court there is a necessary position to preserve. The Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant's claim for review and all the repercussions, public and private, of granting interim relief.
[33] In Reekie v Chief Executive of the Department of Corrections, the applicant requested he be transferred back to the prison from which he had been transferred, rather than seeking to prevent the transfer occurring.2 The transfer had been precipitated by certain misconduct charges which the Judge described as relating to comparatively minor matters. The applicant said they had arisen because he was being deliberately and unfairly targeted because of other court proceedings he had taken against the Department and/or prison staff. In that case, the applicant's misconduct hearings had not yet occurred.
[34] Accepting that, in principle, the discretion to transfer a prisoner may be amendable to judicial review, the Judge found that both the transfer and other issues the applicant had raised did not establish a position that needed to be preserved. Taking into account public policy concerns as well, the Judge concluded that the balance between the respective interests did not favour the granting of interim relief in favour of the applicant.
1 Wallace v Chief Executive of the Department of Corrections [2022] NZHC 2464, citing Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754.
2 Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412.
[35] Because of the arrangements made by Corrections, as outlined above, the need for interim relief has dissipated. I accept the applicant has advanced other reasons for his application for interim relief however, in my view, none of these justify the granting of it. I am concerned that the one-on-one counselling with a psychologist may be delayed but, given the approach Corrections have taken to resolving the applicant's dental treatment, I consider arrangements can be made to ensure any transfer does not jeopardise the need for him to receive this assistance by being placed at the end of any list for such services at OCF.
[36] To be clear, I am not persuaded that the interim order sought is necessary to preserve the applicant's position pending the resolution of his substantive judicial review proceedings.
Result
[37]The application for interim relief is dismissed.
[38] The substantive judicial review proceedings are to be placed in a Duty Judge list for timetable directions to be made to progress them to a hearing. A judicial telephone conference is likely to be the most efficient way to deal with these matters.
Harland J
Solicitors:
Crown Solicitor's Office, Christchurch
Copy to:
K J Thomson, Applicant.
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