Tully v Chief Executive, Department of Corrections

[2020] NZHC 1306

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-291

[2020] NZHC 1306

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

RUSSELL JOHN TULLY

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

On the papers
Judgment:	11 June 2020

JUDGMENT OF CHURCHMAN J

[1]                  On 30 August 2019, Russell John Tully filed a notice of application for judicial review, a memorandum and an application for a fee waiver.

[2]                  Mr Tully is self-represented and had filled out a printed application for judicial review form. That form commenced with a space where the applicant for judicial review was to identify the decision which was sought to be reviewed and there was a subheading saying, “A copy of that judgment is attached”. This part of the form had been crossed out. There were no details of any decision that were sought to be reviewed.

[3]                  The documents filed by Mr Tully were returned to him by the Registrar under cover of letter of 3 September 2019 which advised that the application could not be processed as there was no notice of proceeding. Had the documents filed been referred

TULLY v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 1306 [11 June 2020]

to a Judge, the lack of reference to any decision that was sought to be reviewed would also have been identified along with the lack of mention of any grounds for review.

[4]                  On 7 May 2020, notwithstanding further communication with the Registrar, Mr Tully refiled the original documents unchanged. Accompanying the documents were what was described as “notice of urgent ex parte application”. That document was essentially a without notice interim injunction application that sought orders relating to reinstatement of certain medications.  It  also made observations about   Mr Tully’s preparation for an appeal to the Court of Appeal. The application contained a sentence which read, “I request urgent ex parte interim orders pursuant to the Judicial Review Procedure Act 2016 …”.

[5]                  Also attached was what was said to be a notice of proceedings. It was addressed to the Chief Executive of the Department of Corrections.

[6]                  These documents were referred to me as Duty Judge pursuant to the High Court Rules (HCR) 5.35A.

Analysis

[7]                  Judicial review is the process by which the Courts review the manner in which decisions are made. The primary focus of such proceedings is on the process followed by the decision-maker rather than the outcome of the decision.1

[8]                  As such, it is critical that any application for judicial review identify clearly the particular decision in respect of which review is sought and the grounds upon which it is alleged that the process followed in relation to that decision was defective.

[9]                  Part 30 of the HCR regulates judicial review proceedings. The Judicial Review Procedure Act 2016 (JRPA) sets out the procedures to be followed.

[10]              Section 8 of the JRPA requires that an application for judicial review must be commenced by filing in the High Court a statement of claim and notice of proceeding.

1      See Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery [2014] NZHC 2810.

[11]              In Hayden v Wells,2 the Court upheld a registrar’s refusal to accept for filing judicial review documents where the statement of claim failed to give adequate notice of the claim and could not be responded to in any meaningful way.

[12]              Section 9 of JRPA requires that the person whose act or omission is the subject matter of the judicial review application is required to be named.

[13]              Section 15 of JRPA authorises the Court to make certain interim orders. However, if the Crown is a respondent, the Court cannot make an order against the Crown but may make a declaration as to what action the Crown ought or ought not to take.

[14]              Where there is an application for an interlocutory injunction under HCR 7.53, an undertaking as to damages is required. This means that the applicant for an interim injunction must undertake to meet any damages caused by the grant of the interim injunction.

[15]              Mr Tully has asked the Court to grant “ex parte” injunctions. Such injunctions are now referred to as “without notice” injunctions. This means that the injunctions are granted without the respondent even being aware that the application was made.

[16]              Even if a valid statement of claim had been filed, it is inconceivable that the sorts of injunctions that Mr Tully appears to want (including one in respect of the making available to him of a certain type of medication) could be granted without the respondent being given notice of the application and the ability to respond.

[17]              The documents filed by Mr Tully failed to comply with a number of the requirements of the HCR and the JRPA. They should not have been accepted for filing. Where proceedings are referred to a Judge under HCR 5.35A, the Judge may, under HCR 5.35B, make a number of orders including striking the proceedings out or staying them. The proceedings are unintelligible in their present form in spite of the advice given by the Registrar to Mr Tully. I therefore direct that the proceedings be struck out.

2      Hayden v Wells [2012] NZHC 31.

[18]              When exercising the power to strike proceedings out under HCR 5.35B, I am obliged to advise the person who has filed the proceedings of their right of appeal against the striking out. Accordingly, I draw to Mr Tully’s attention his right to appeal this decision to the Court to Appeal.

[19]              Pursuant to HCR 5.35B(4), I direct that a copy of this decision be forwarded to the Chief Executive of the Department of Corrections.

[20]              If Mr Tully wishes to judicially review any decision or decisions, he must file a statement of claim clearly identifying the decision, the maker or makers of the decision and the grounds upon which the decision is said to be unlawful. Such proceedings would then be served on the decision-maker who would have an opportunity to respond including, if the proceedings failed to comply with the rules or to disclose a tenable cause of action, to strike the claim out.

[21]              Although it is always challenging for a self-represented litigant to properly initiate judicial review of other High Court proceedings, given Mr Tully’s apparent inability to grasp important and elementary legal concepts, he may wish to seek the assistance by way of legal advice, and file an application for the grant of legal aid.

Churchman J

cc:        R J Tully

Chief Executive, Department of Corrections