Valent v Department of Corrections

[2022] NZHC 31

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1748

[2022] NZHC 31

UNDER

the Judicial Review Procedure Act 2016; the New Zealand Bill of Rights Act 1990; the Corrections Act 2004; and the Corrections Regulations 2005

IN THE MATTER

of an application for judicial review

BETWEEN

XAVIER LUCIAN VALENT

Applicant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

V McCall and J K Williams for respondent

Date of judgment:

24 January 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 24 January 2022 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 31 [24 January 2022]

[1]    As judicial review list judge, I have Xavier Valent’s 6 December 2021 application for an order specified Corrections staff attend to give evidence at the hearing of his application on 3 February 2022, and Corrections’ 14 January 2022 application for the hearing to be conducted by AVL. Mr Valent also seeks to cross-examine Corrections’ deponent, Jeanette Elsie Burns, Corrections’ Commissioner Prisoners of Extreme Risk Directorate, who holds Prison Director delegations for the Prisoners of Extreme Risk Unit in which Mr Valent resides.

[2]    Although it would be preferable the judge to be allocated the hearing determine these applications, no allocation yet is made, and the necessity for prior arrangements for the pending hearing mean the applications should promptly be determined, as     I now do.

Evidence for the hearing

[3]    Mr Valent seeks judicial review of Corrections’ alleged refusal to make suitable arrangements for his haircut. Corrections says it makes hair clippers available to prisoners for haircuts to be self-administered, as it has made available to Mr Valent, but otherwise relies on prison administration concerns to rebuff Mr Valent’s preference another cuts his hair for him.

[4]    On judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”.1 ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. Relief generally is discretionary.2

[5]As I previously have explained to the parties,3 the “so-called ‘duty of candour’”

— that those whose decisions are under challenge have “a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision” — is a responsibility attached to public decision-making.4 It means,

1      New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

2      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].

3      Valent v Department of Corrections HC Auckland CIV-2021-404-1748, 20 October 2021 (Minute of Jagose J), at [2].

4      Ririnui v Landcorp Farming Ltd, above n 2, at [105].

as Mr Valent has established a challenge to a decision in judicial review terms, there is nothing more for him to do. As a decision-maker subject to review, Corrections’ obligation then is to explain “how and why [it] acted or decided as [it has]”.5

[6]    Corrections’  explanation  is   contained   in   Ms   Burns’   affidavit   sworn  2 December 2021. Mr Valent seeks additional evidence be given by specified Corrections officers, and further seeks to cross-examine Ms Burns. He contends the former is necessary to give the Court insight into “the context and managerial conduct of the internal prison environment” (original emphasis) — perhaps in contradistinction to Ms Burns’ corporate position, although he does not specifically refer to her evidence — and the latter to dispute Corrections’ “numerous claims to justify [his] extreme risk status and consequent extreme restrictions”.

[7]    Mr Valent’s intentions may be explicable by the substantive relief he seeks: this Court’s direction Corrections “permit and facilitate a full and proper haircut … promptly in advance of future court appearances”. But judicial review is not concerned with the merits of the decision under scrutiny. The Court has no foundation on which to give the direction Mr Valent seeks.6 Rather, if Corrections’ decision is impugned in law, fairness or reason, the Court may choose to require Corrections to reconsider it.

[8]    Generally, ‘insight’ into the internal prison environment, or the correctness of Corrections’ assessment of Mr Valent’s risk, is not material to Mr Valent’s challenge to Corrections’ decision. Nothing of Ms Burns’ evidence is identified as requiring supplementation. Any unlawfulness, unfairness or unreasonableness in Corrections’ decision is not determined by her subjective assessment of it, as might be contested on cross-examination. If — contrary to Corrections’ obligation as a decision-maker subject to review — material evidence is omitted, adverse inferences are available.7 All that is consistent with judicial review’s purpose “as a relatively simple untechnical and prompt procedure”,8 to “be determined in a convenient and expeditious manner”.9 I will decline Mr Valent’s applications.

5      Judicial Review Procedure Act 2016, s 18; Bain v Minister of Justice [2013] NZHC 2123, [2014] NZAR 892 at [37].

6      Judicial Review Procedure Act 2016, ss 16–17.

7      Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA) at [153].

8      Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.

9      Judicial Review Procedure Act 2016, s 13(2)(a).

Remote hearing

[9]    Mr Valent consents to Corrections’ application for hearing by AVL. Given yesterday’s national move to the red ‘traffic light setting’ as part of COVID-19’s management in the community, remote hearing is in any event this Court’s presumptive conduct unless a Judge decides in the interests of justice in-person hearing is necessary.10 I cannot identify any such interest. I will direct remote hearing.

Result

[10]   Mr Valent’s applications to call witnesses and to cross-examine Corrections’ deponent are declined.

[11]I direct the remote hearing of this matter on 3 February 2022.

—Jagose J

Solicitors:

Crown Law, Wellington

Department of Corrections – Legal Services, Wellington

Copy to:
The applicant

10     Courts (Remote Participation) Act 2010, ss 5 and 6; Protocol, “High Court operations under Covid-19 Protection Framework”, 20 December 2021.