Wallace v Chief Executive of the Department of Corrections
[2023] NZHC 139
•8 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-579
[2023] NZHC 139
UNDER the Judicial Review Procedure Act 2016 BETWEEN
ELETISE NATASH WALLACE, RACHEL VINCENT, DOMINIQUE CARROLL, MIHI ISABELLA BASSETT, TIPARE ROPITINI, TARIANA JONES AND LARA ATKINS
Applicants
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 2 February 2023 Appearances:
V Casey KC and A L Hill for Applicants
M Mortimer-Wang and C Fleury for Respondent
Judgment:
8 February 2023
JUDGMENT OF McQUEEN J
[1] This proceeding is an application for judicial review of decisions and actions of the respondent in relation to Arohata Women’s Prison (Arohata). The applicants allege that the respondent has effectively and indefinitely closed Arohata for the long- term accommodation of sentenced prisoners, following the transfer of most sentenced women (except those who were to be shortly released) to Christchurch Women’s Prison (CWP) or Auckland Regional Corrections Facility (ARCF).
[2] The applicants unsuccessfully sought urgent interim orders in September 2022. Ara Poutama Aotearoa | Department of Corrections (Corrections) then implemented the transfer of sentenced women from Arohata to ARCF or CWP as planned. A
WALLACE, VINCENT, CARROLL, BASSETT, ROPITINI, JONES AND ATKINS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 139 [8 February 2023]
substantive hearing of the application for judicial review is set down for three days on 13 March 2023.
[3] The parties have worked collaboratively in the provision of disclosure to date. The respondent has responded to three Official Information Act 1982 requests, provided 51 documents by way of two tranches of discovery and provided some answers via counsel to questions raised by the applicants. The respondent has also filed affidavit evidence in both September and December 2022, including from the key decision-maker, Mr Marsh, National Commissioner at Corrections (and formerly Deputy National Commissioner).
[4] Despite these steps having been taken, the applicants say they require further material, and therefore now seek directions under s 14(h) and (i) of the Judicial Review Procedure Act 2016 requiring the respondent to provide discovery of certain specified documentation and permitting the applicants to administer specified interrogatories to the respondent.
[5] The respondent has indicated he will meet a small number of the requests voluntarily but otherwise opposes the application on the basis of that most information sought is not relevant to the pleadings, fails the test of proportionality and that to grant the application will jeopardise the substantive hearing.
The applicants’ claim
[6] The applicants challenge the lawfulness of the respondent’s decisions and actions in relation to the “mass transfer” of sentenced women prisoners away from Arohata, the “indefinite closure” of Arohata’s specialist Drug Treatment Programme (DTP) and the “indefinite closure” of Arohata for the long-term placement of sentenced women prisoners.
[7] The statement of claim sets out four grounds of review based on unlawful discrimination, irrationality and unreasonableness, failure to have regard to relevant considerations, and failure to act in accordance with the purposes and principles of the Corrections Act 2004.
[8] The respondent admits that as a part of a wider “network rebalancing” exercise directed at addressing acute staffing issues, sentenced women prisoners have been transferred from Arohata to CWP or ARCF but denies there has been any decision to close Arohata’s Drug Treatment Unit or that there has been any decision to close Arohata for the long-term placement of sentenced women prisoners.
The law relating to discovery and interrogatories in judicial review proceedings
[9] The relevant law in relation to the availability of discovery and interrogatories in the context of judicial review is clear and not a matter of dispute between the parties other than as to how the principles apply in the present case.
[10] Discovery is not available as of right in judicial review, rather the power to order it is discretionary.1 As McGechan on Procedure notes:2
The requirement for relevance and proportionality in discovery are particularly important in judicial review. Judges are responsible for narrowing the issues and supervising the proceeding to ensure that relevant material placed before the Court is reduced to the necessary minimum …
[11] In judicial review proceedings public authorities are under a duty to explain in their evidence the decision-making process, the relevant factual and other circumstances, and the reasons for the decision under challenge.3 As recently stated by Gendall J:4
Given this, it has been said that discovery orders are generally unnecessary in review proceedings and also that such orders will not generally tend to promote the purpose of judicial review as a prompt and untechnical mechanism to ensure public power is exercised lawfully.
1 McGechan on Procedure (online looseleaf ed, Thompson Reuters) at [JR14.08]; citing Chatfield & Co Limited v Commissioner of Inland Revenue [2016] NZCA 614; Keenan v Attorney-General [2014] NZHC 1649; and Air New Zealand Limited v Auckland International Airport Limited (2011) 16 PRNZ 783 (HC).
2 At [JR14.08]; citing Te Runanga o Ngati Awa v Attorney-General HC Wellington CIV-2006-485- 1025, 28 March 2007; and Gama Foundation v Chief Executive of the Ministry of SocialDevelopment [2021] NZHC 3146.
3 At [JR14.08]; citing Te Runanga O Ngati Awa v Attorney-General, High Court Wellington, CIV- 2006-485-1025, 28 March 2007 at [6]; and Gama Foundation v Chief Executive of the Ministry of Social Development and Attorney-General [2021] NZHC 3146 at [10].
4 Ferguson v Chief Executive of the Department of Corrections [2022] NZHC 1430 at [21].
[12] The Court's task in ensuring that material sought by way of discovery is relevant to the proceedings and necessary in the circumstances requires it to:5
… make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time ensuring that the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure.
[13] The material sought must be both relevant to the proceeding and necessary in the circumstances.6 It must also be proportionate.7
[14] Interrogatories in judicial review proceedings are unusual.8 Similar questions of relevance and oppressiveness (including a proportionality assessment) arise.9
The application for discovery and interrogatories
[15] The applicants contend that an unusual feature of this application for judicial review is that there are core matters of fact that are disputed. The applicants say:
(a)the respondent denies that he has even made the decisions or taken the actions under challenge: he denies that Arohata has been effectively closed for the long-term housing of sentenced women for an indefinite period;
(b)the respondent similarly denies that in ceasing to operate Arohata for the long-term housing of sentenced women he also effectively closed New Zealand’s only DTP for sentenced women for an indefinite period;
5 Above n 4, at [22], citing Gama Foundation v Chief Executive of the Ministry of Social Development and Attorney-General [2021] NZHC 3146 at [10]; and Te Runanga O Ngati Awa v Attorney-General HC Wellington, CIV-2006-485-1025, 28 March 2007 at [6].
6 Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007 at [6].
7 Smith v Attorney-General [2017] NZHC 2810 at [30].
8 McGechan on Procedure, above n 1, at [JR14.08]. Cases in which they have been allowed are extremely rare: See Zaoui v Greig [2005] 1 NZLR 105 (HC); and Deliu v New Zealand LawSociety [2013] NZHC 1584.
9 Wright v Attorney-General (No. 3) [2021] NZHC 18, at [10]–[17]. Approach upheld on review in Wright v Attorney-General [2021] NHZC 1478. Both of which cited Todd Pohokura Ltd v Shell Exploration Ltd [2009] NZCA 561 at [14]–[16].
(c)they strongly dispute the respondent’s claim that transfer decisions followed and were based on and reflective of an assessment of individual circumstances for each woman: they say no such assessments were made, and that the effective decision was that all sentenced women (except those due to be released) would be (and were) transferred;
(d)the respondent makes high level claims that actions to reduce the adverse impact of the transfers were put in place and delivered: the evidence of the applicants alleges that the reality is very different, but the respondent simply continues to assert that this is the correct position in fact; and
(e)the respondent claims that his actions were justified as an essential part of a network reconfiguration to address staffing shortages elsewhere, particularly at Mt Eden and Springhill prisons, and that other options to address staffing shortages were not available: the applicants dispute this and say that these claims require full disclosure of the alternative options considered and the reasons why each was rejected.
[16] The applicants say that the sentenced women in the Arohata catchment area are bearing the cost of the network rebalancing exercise. They say the network rebalancing exercise is an easy and efficient option for the respondent but is seriously detrimental to the sentenced women prisoners, their children and whānau. They highlight that the evidence filed for the respondent in December 2022 says nothing about the timeframe in which Arohata will return to taking sentenced prisoners nor is there any evidence from the directors of CWP or ARCF. The applicants say that the respondent’s evidence suggests a DTP will be provided at ARCF but they are concerned about the timing of that for relief the Court may give—the evidence suggests it will open in April but the substantive hearing of this matter is presently scheduled for March.
[17] As a result, the applicants seek discovery in two categories. The first relates to what they describe as the effective closure of Arohata for long term housing of sentenced women and the DTP for an indefinite period, and the respondent’s
consideration of alleged alternatives. The second category relates to the alleged individual assessment of each woman for transfer decisions, and conditions in the receiving prisons.
[18] The applicants submit that the discovery sought is limited, specific, and is proportionate to the significance of the claim. They say much of the material has been requested since September 2022. They accept that discovery and interrogatories may affect the upcoming hearing (and will certainly affect the timetable for their provision of evidence in reply and possible application for cross examination) but say that the information sought is critical to their ability to fairly present their case fully to the Court and to do justice to the parties, given the disputes of fact. They say that a deferral of the hearing will not prejudice either party.
The respondent’s position
[19] The respondent submits that the application should be dismissed. He says the evidence and disclosure put the record of the decisions under challenge before the Court, and explains them.
[20] The respondent raises two key matters in support of its opposition to the application. The first is that the applicants’ claim relates to what is described in the statement of claim as the “mass transfer” of prisoners from Arohata and not to decisions relating to particular individuals who were transferred.10 The respondent submits that relevance is determined by the pleadings and the pleadings do not “identify, describe, plead or challenge individual transfer decisions”. He says this is consistent with the causes of action pleaded. Rather, the respondent submits, the documents sought are relevant to implementing the decision now under challenge, which is not relevant to the claim.
[21] The second key matter is that the respondent says the applicants are seeking information that post-dates the decisions under challenge. The respondent submits that “the general rule is that judicial review proceedings are determined on the basis of the
10 See First Amended Statement of Claim dated 5 October 2022 at [2].
material before the decision-maker at the time of the decision”.11 He accepts that updating evidence may be needed if the case reaches the point of relief but submits that disclosure of subsequent information cannot help the applicants establish whether the decisions under challenge were lawful, fair and reasonable at the time.
[22] The respondent also submits that many of the requests are not proportionate, as they would require the review of dozens of prisoner files and substantial review of the communication of a large number of staff for relevance, all of which would require significant time and effort. He says that that parties have worked well together to bring this matter to a prompt hearing and the discovery and interrogatories sought will disrupt that. He notes that the hearing date may be prejudiced and that matters will no longer be simple, untechnical and able to be determined promptly. The respondent wishes to proceed with the hearing scheduled for 13 March 2023, given the legal risk posed to Correction’s operation.
[23] Finally, the respondent says it is important to distinguish between the fact that an account has been given by him of relevant events, and whether that account is not good enough or should not be accepted. He says that an account has been provided and it is a matter for submission at the substantive hearing as to the sufficiency of that account.
Discussion
[24] The requests for further discovery are set out in Annex A to the applicants’ memorandum seeking directions dated 24 January 2023. Counsel for the respondent helpfully provided these in a table format with his response to each request. Prior to addressing each request in turn, I discuss the broad categories of documents sought by the applicants, the respondent’s objections, and my general approach to the categories, in order to minimise repetitive discussion in relation to each request.
11 See Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33]. The respondent submits that the exceptions given to the general rule in this quote related to causes of action that turned on evidence external to the record of the decision itself, such as and faith or breach of natural justice, neither of which is pleaded in the present case.
Documents relating to individual women transferred
[25] The application for disclosure of documents relating to individual women must be assessed against the matters in dispute, as shown by the pleadings. I have reviewed the pleadings carefully. I accept the respondent’s submission that the proceeding is framed at a high level, challenging the “mass transfer of women” from Arohata. He is correct when he says that there is no mention in the statement of claim of individual women nor the decision to transfer any particular woman and on what basis that might have taken place. The causes of action are also pleaded generally.
[26] However, the respondent has chosen to plead in his defence that decisions were made in relation to whether each individual woman should be transferred (see for example, [24(c)] of the statement of defence which pleads “the individual decisions being made pursuant to the process pleaded below at para [50]”). At [50] of the amended statement of claim (ASOC) the applicants plead:
In approving those transfers [of the Arohata women], the respondent or his delegate had formed the view that all the sentenced women at Arohata were suitable for transfer except a small number of women.
[27]The pleading from the respondent in his statement of defence states:
He admits paragraph 50 and says further:
(a)As part of the network rebalancing exercise relating to Arohata Prison, over the course of September 2022, he identified individual sentenced prisoners at Arohata Prison that would be transferred from Arohata Prison to CWP or (where appropriate) ARCF.
(b)Prisoners were first identified through Department of Corrections prisoner management software that triages transfer decisions based on factors drawn from Corrections’ records.
(c)The initial lists generated were then supplemented by input and feedback from Corrections staff including those on-site at Arohata Prison to further supplement the matters to be taken into account in identifying prisoners for transfer.
(d)The selection of prisoners to transfer was kept under constant review, with the result that numbers of prisoners and timings of transfers changed over the course of this period.
(e)…
[28] It therefore seems to me that the respondent has confirmed that Corrections’ transfer decisions were made on an individual basis. The applicants do not accept that this happened (rather they say a decision was made to transfer all sentenced women at Arohata) but anticipate that the respondent will seek to rely on this matter as part of his justification of the decisions under challenge. If this is the respondent’s intention, his submission that such documents are relevant to operationalising the decision under challenge but not to the decision itself is not convincing.
[29] However, I am concerned that the discovery sought by the applicants in relation to individual women would be onerous for the respondent to comply with and cause excessive delay. Although the request now relates only to the applicant women (and not all women transferred), it is still substantial. The respondent has explained that responding to the requests would require an extensive collation exercise and perhaps also further affidavit evidence.
[30] This is undesirable in the context of a judicial review proceeding designed to be simple, untechnical and prompt. I also note that evidence for the respondent clearly states that individual assessments did occur (see the affidavits of Mr Marsh and Ms Carey (Prison Director at Arohata) and it remains to be seen what the respondent’s reply evidence addresses in this regard.
[31] On balance, I conclude that given the general nature of the pleaded case for the applicants and the disproportionate nature of the discovery requested, I should refuse the requests for discovery in relation to the decisions to transfer individual women. I do so, however, with the caveat that the applicants may raise this issue again at the substantive hearing, should they consider that the respondent’s case as advanced at the hearing requires such information to be disclosed in order for the applicants to fairly argue their case.
Documents post-dating the actions and decisions
[32] I do not accept that documentation that post-dates the decisions and actions under challenge is generally relevant in the absence of a clear link between post
decision documents and the issues before the Court.12 The respondent submits, correctly in my view, that such documents cannot inform the basis on which the respondent made his decisions, which are now under challenge. The applicants say that such documents will inform the Court about what has actually happened, and this may be relevant to relief. I accept that may be the case but prefer to deal with that issue if a clear link arises. Updating evidence from the respondent may be required to properly address relief.
Alternatives to the decisions taken by Corrections
[33] Generally speaking, I accept the submission by the applicants that alternative responses to the staffing and operational issues faced by Corrections are relevant to the matters in dispute as they relate to assessing Corrections’ approach in choosing the “national rebalancing exercise” as the preferable solution.
Relevance and Proportionality
[34] I am mindful of the general approach to discovery and interrogatories in a judicial review proceeding and accept that discovery must be both relevant and proportionate.
[35] I now turn to each request made, to consider it against my broad conclusions above, and, specifically whether the request is required to enable the applicants to fairly argue their case consistent with the objective of judicial review being a simple, untechnical and prompt procedure. I confirm that I have considered each request in this way, despite not repeating this point in relation to each request.
Discovery Requests
Request 1
[36] This request relates to a memorandum dated 14 August 2022 from Mr Marsh to the Executive Leadership Team, attached to Mr Marsh’s second affidavit as exhibit “K”. The applicants seek the full document, other than redactions properly
12 Comalco v Broadcasting Standards Authority [1995] NZAR 428; and Clements v Auckland Council [2018] NZHC 553 at [18].
required to protect legal professional privilege. In this document, [66] to [74] are under the heading: “Legal implications–—confidential and legally privileged”. I do not understand the applicants to challenge the redaction of that section. Rather they focus on the redacted paras [25] to [29] and [31], which appear under the heading: “Corrections has already implemented a range of initiatives at a local, regional and national level in response to staff shortages”. Ms Casey sought my review of these paragraphs to confirm that they are properly subject to legal professional privilege. She submits that this is the core decision paper and so the issue is particularly important.
[37] I note that this document was also attached to Mr Marsh’s first affidavit, where additional material was redacted. Since the filing of Mr Marsh’s first affidavit, [56] and [78] have been reassessed by the respondent and are no longer redacted in exhibit “K” in Mr Marsh’s second affidavit. Mr Marsh explains at [3.21] of his affidavit that “the remaining redactions contain privileged legal advice” (which includes paras [25] to [29] and [31]).
[38] The respondent did not make any specific submissions at the hearing in response to Ms Casey’s request that I inspect the document in order to be satisfied that paras [25] to [29] and [31] are appropriately redacted on grounds that the contents are privileged. This may be explicable because, as the hearing unfolded, counsel for the respondent was left with only a short time in which to make submissions and understandably focused on his key points.
[39] While I have the power to inspect the document for the purpose of ruling on privilege, I should be satisfied that the circumstances warrant exercising that power.13 The learned authors of McGechan on Procedure have noted that there are inherent difficulties in inspection by the Court as it usually occurs where only one party has seen the documents in question.14
13 See Seamar Holdings Ltd v Kupe Group Ltd [1995] NZLR 274, (1995) PRNZ (CA).
14 McGechan on Procedure, above n 1, at [HR8.25.02]; citing NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416, [2019] NZAR 1199 at [22], [34] and [38].
[40] Here, the request is made in relation to only one document so any inspection by me would not be onerous. The document is not part of an affidavit as to the status of documents, where the Court is reluctant to go behind the affidavit without cogent evidence to challenge the view expressed.15 On the other hand, counsel for Mr Marsh have had two clear opportunities to consider appropriate redactions in this document (the first redactions having been made in the context of provision of the document under the Official Information Act 1982) and I consider that I can assume that counsel’s careful assessment is reflected in Mr Marsh’s second affidavit.
[41] The applicants have not advanced any reasons as to why there is doubt about the assessment made. That the document is a “core decision document” is not a reason of itself. In the circumstances, I decline to inspect the document.
Request 2
[42] This request relates to documents referred to in Corrections’ “consolidation plan” document. Mr Marsh describes the consolidation plan as “steps mostly focused on the redeployment of staff, with some limited transfers of prisoners within regions”.16 The applicants seek the “Arohata Plan” and the record of the Prison Director’s decision that Tizard (a wing of Arohata) was not to close. The applicants say that they are concerned about alternatives considered by the respondent so submit that documents about such decisions are relevant. The respondent submits that the consolidation plan was part of an earlier initiative that preceded the network rebalancing exercise that is the subject of these proceedings and is therefore irrelevant to the pleaded decisions under challenge.
[43] The ASOC at [61] pleads that the respondent did not, prior to 1 September 2022, undertake an analysis of alternative options to address staffing shortfalls in the Mt Eden and Springhill men’s prisons other than closures at Arohata. The fourth cause of action pleads that the respondent’s decisions and actions, “in the context where alternatives are reasonable and practicable (especially when measured against the
15 NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416, [2019] NZAR 1199 at [34].
16 Second Affidavit of Leigh Marsh, 23 December 2022, at [2.4].
adverse impacts of the current proposal)” are contrary to certain purposes and principles of the Corrections Act 2004.
[44] I conclude that the “Arohata Plan” and any record of the Prison Director’s reasons for her decision that ‘Tizard’ was not to close (as referred to in the consolidation plan) are potentially relevant to the matters in issue. I direct that they be disclosed by the respondent.
Request 3
[45] This request seeks the records of a Corrections staff member, Cam List, and “HR” as co-leads for Option 8 (expand prison configuration by closing more units or prisons) in the Draft Retention Activities document dated 29 July 2022 exhibited to Mr Marsh’s second affidavit.17 The applicants say that this is relevant because it identifies a workstream looking at closing a prison or unit.
[46] The respondent says that these documents are not relevant and notes that Mr Marsh explains how that option was considered and the reasons for it being dismissed.18
[47] I am satisfied that Mr Marsh has explained in his affidavit why this option was not pursued. It seems to me that the workstream is vague (as emphasised by the question marks after the heading “Next Steps”) and insufficiently connected to the matters at issue in this proceeding for it to be proportionate to grant this request.
Request 4
[48] This request seeks communications to and from the respondent’s communications team and advisers relating to the decisions and actions affecting Arohata from August 2022 to the end of September 2022.
[49] I understand that this request relates to concerns about what was said in a statement Corrections released to the judiciary, legal profession and others on
17 I could not locate some exhibit references in Mr Marsh’s affidavit but I record that I found the discussion of Option 8 on p 169 of Mr Marsh’s second affidavit.
18 Above n 16, at [3.6(a)].
14 September 2022 titled “Update on work to ease staffing level pressures in prisons”. As I understand it, the applicants are contending that this document reveals Corrections’ intention to close Arohata to sentenced prisoners, a position denied by the respondent. The applicants say this demonstrates the respondent’s denial of one of the core matters at issue—what Corrections’ intention was in relation to Arohata.
[50] The respondent submits that internal communications about decisions that have been made must necessarily post-date the decisions that were made and cannot be relevant to the assessment of the legality, fairness and reasonableness of the decisions made.
[51] In general terms, the delivery of public messages from the communications team seems unlikely to be relevant to understanding Corrections’ decision making, and as the respondent submits, will necessarily post-date the actual decisions made. But in this case, there is debate over whether the 14 September 2022 statement accurately reflects Corrections’ position. The respondent does not consider that the statement is inconsistent with his position that there is no decision to close Arohata to sentenced prisoners, but the applicants do not accept this.
[52] In these circumstances, I consider that the instructions given to the respondent’s communications team in anticipation of the 14 September 2022 statement are relevant to the question of Corrections’ intentions, along with any communications from the communications team that seek to clarify or otherwise discuss the instructions. I otherwise decline to order this request.
Request 5
[53] This request seeks documents recording the consideration and assessment of alternative options to address staffing shortages at Mt Eden and Springhill prisons that would not involve the mass transfer of sentenced prisoners from Arohata and the suspension of the DTP, or confirmation that such documentation does not exist. The applicants say that Mr Marsh’s high-level statements in his affidavits about these matters are insufficient.
[54] The respondent submits that he has provided extensive information and material about this. Mr Marsh describes the process the respondent has gone through in his affidavits, as well as referring to and attaching documents. I accept that there is considerable information available as a result. However, I note that Mr Marsh attaches to his second affidavit a memorandum reporting on the “deep dive” on staffing pressures at Mt Eden prison and he says that he received a similar document for Springhill prison.19 I consider that this document should be provided to the applicants. Beyond that, I decline this request.
Request 6
[55] This request seeks documents reporting on and relating to the statement pleaded at [23(d)] of the statement of defence that “the reassignment of staff did not yield sufficient results such that the rebalancing exercise was necessary”. The applicants say, again, that high-level statements by Mr Marsh in his affidavits are insufficient and that documents should be disclosed.
[56] I accept the respondent’s submission that this has been adequately addressed in evidence and attached documentation. This request is declined.
Request 7
[57] This request seeks documents recording consideration of any proposals to incentivise or compensate staff willing to transfer or be seconded outside of their own region. The applicants say that this too is relevant to whether a reasonably justified decision was made by the respondent, in the face of the level of harm that has flowed from the transfer of sentenced women prisoners from Arohata.
[58]The respondent submits that he has provided information about this already.
[59] I consider that this has been adequately addressed in evidence and the attached documentation and therefore decline the request.
19 Above n 16, at [2.12].
Requests 8, 9 and 10
[60]These requests relate to:
(a)documents relating to and recording the National Coordination Centre’s (NCC) review of the network rebalancing that took place in January 2023 (as referred to by Mr Marsh in his second affidavit at [6.4]);
(b)other documents (if any) reporting on or relating to the statement pleaded in the statement of defence at [23(h)] that the network rebalancing exercise remained (and remains) under active consideration; and
(c)the executed contractual and other key planning and decision documents confirming that the DTP will in fact recommence full operation (in Auckland) in April 2023, as referred to in Ms Finnigan’s affidavit at [6.4].
[61] The applicants say that the NCC review will inform the Court as to how Corrections thinks it has done, and information about any possible re-opening of Arohata will be relevant to the Court. They also say that these documents are relevant if Corrections intends to rely on keeping the network rebalancing under review as justification of the decisions and actions. As for the documents relating to the DTP in Auckland, the applicants submit that they will enter a suitable confidentiality agreement if that is necessary for disclosure of the documents sought.
[62] The respondent opposes all of these requests on the basis that they post-date the decisions under review and are therefore not relevant to the pleaded issues. He accepts that what Corrections has done subsequently may be relevant to relief but submits that this should be dealt with at the time, should it be necessary.
[63] I am not persuaded that discovery of these documents is necessary. It does not seem to me to be relevant to the challenge brought by the applicants to consider what further steps Corrections has taken or is taking since it made the decisions under challenge. To the extent that information about subsequent steps is required in the
context of considering relief, further evidence could be provided at that time. Such evidence is likely to be more helpful at that stage, given the passage of time prior to judgment.
Request 11
[64] This request seeks identification of the author, recipient(s) and approximate date of discovered document 0321 entitled “initial list of potential levers”. The respondent has indicated that he will meet this request voluntarily.
Requests 12 and 13
[65]These requests seek:
(a)the records of assessments that were allegedly undertaken for each of the applicant women relating to their suitability for transfer, and the records of the decisions to transfer them; and
(b)for applicants Ms Jones and Ms Wallace (who were not transferred in the initial tranches in September and early October 2022) the records of the decisions not to transfer them at that time and the assessments those decisions were based on and the records of the further assessments and later decisions that resulted in their subsequent transfer (which will overlap in part with (a) above).
[66] For the reasons set out above at [26]–[32], I decline these requests but note the ability to revisit this at the substantive hearing, if necessary.
Request 14
[67] This request seeks the weekly reports on sentenced prisoners referred to in Ms Carey’s affidavit at para [5.6]. The applicants understand that these reports relate to newly sentenced women received into Arohata and their subsequent transfer to other prisons. The applicants submit that matters such as this are not satisfactorily addressed in evidence.
[68] The respondent says again that this request postdates the decision under challenge and is not relevant to the pleaded issues.
[69] I consider that this request relates to a timeframe after the challenged decisions and therefore decline this request.
Requests 15 and 16
[70]These requests are resolved.
[71] Request 15 relates to site impact assessments from CWP as referred to by Mr Marsh in his second affidavit at [3.11]. The site impact assessment for CWP is captured in the “CWP” column of exhibit “H” of Mr Marsh’s second affidavit. The impact assessments were collated in that spreadsheet and counsel for the respondent has been instructed there is no other separate document.
[72] Request 16 relates to site impact assessments for ARWCF. Counsel for the respondent has been instructed there was none prepared for ARWCF.
Requests 17 and 18
[73] These requests relate to all reports and communications from CWP or ARWCF to the National Office of Corrections or NCC relating to the proposed and actual transfers to that prison from Arohata. The applicants submit that the situation Corrections transfers women into is relevant to the decision to transfer. They say that there is nothing in the evidence so far that addresses this. The applicants are prepared to cooperate with the respondent to narrow the scope of this request.
[74] The respondent says that he considers the actual transfers irrelevant to the pleaded claim. He also notes that considerable material is already available in relation to the significant input from CWP on the network rebalancing exercise. He says further that the order sought is disproportionate and even a tailored order would require full review of email servers, large-scale civil discovery style review, and would impose a considerable burden on the respondent.
[75] For the reasons I set out earlier, I consider that the situation into which the women prisoners held in Arohata were to be transferred is relevant to the transfer decision, but only at a high level rather than at an individual level and only at the time planning the transfers was underway. I accept the respondent’s submission that material already produced contains significant input from CWP on the national rebalancing exercise but observe that there does not appear to be equivalent material from the ARWCF.
[76] I order the discovery of communications from the Prison Directors of CWP (to the extent not already provided) and ARWCF to the National Office or NCC during the period 18 August 2022 to 20 September 2022. That is the timeframe from the date of the memorandum recording the network rebalancing decision, from which point Mr Marsh has given evidence that an “extensive internal consultation” took place, to the date of the first transfers. However, discovery is only to be made in relation to proposed transfers of women prisoners generally to those prisons from Arohata. Any communication relating only to the transfer of an individual woman prisoner is not required to be provided.
Requests to administer interrogatories
[77] As I outlined earlier, interrogatories in the context of a judicial review proceeding are unusual. Interrogatories must relate to matters at issue between the parties.
[78]The applicants sought leave to administer twelve interrogatories.
Request 1
[79]This request states:
In Mr Marsh’s first affidavit sworn 19 September 2022 at [34] he refers to 12 sentenced women who are “not scheduled to transfer out of Arohata”. Please state for each of these 12 women the date they left Arohata and if that departure was a transfer to another prison or release.
[80] The applicants say that they understand that the 12 women referred to have all left Arohata, but they wish to confirm this.
[81] I accept the respondent’s submission that this post-dates the decisions under review and is therefore irrelevant. I decline this request.
Request 2
[82]This request states:
Please state the number of sentenced women received into Arohata after 4 October 2022, and for each woman state whether she still remains at Arohata. For those that have been transferred from Arohata, please state how long she stayed at Arohata and the reasons for her transfer. Please state whether any of these women were pregnant, and /or had children, whanau or iwi links in the region. For those that remain, please state how long each woman has been at Arohata and whether she is under consideration for transfer, and if not, why not.
[83] The applicants say this interrogatory goes to the fact Arohata is closed to sentenced prisoners and that this has been to the detriment of women prisoners. The respondent says these matters are not pleaded in the ASOC and so are not relevant. He says that the affidavits of Mr Marsh and Ms Carey give an overview of subsequent developments including prisoner transfer numbers and no further detail is necessary.
[84] This request seeks information that post-dates the decisions under challenge. In my view, this interrogatory is unnecessary for the fair determination of the applicants’ claim. I decline this request.
Request 3
[85]This request states:
Mr Marsh in his first affidavit at [18] refers to there being space available to house more (male) prisoners at Auckland South Corrections Facility but that this could not be used to relieve pressure on Mt Eden or Springhill because ASCF “does not take remand prisoners.” Please state:
3.1 as at August 2022 how many vacant beds did ASCF have?
3.2 what was the basis for ASCF “not taking” remand prisoners?
3.3 what steps were taken to modify or attempt to modify the arrangements so as to allow the placement of remand prisoners at ASCF? Please disclose all relevant documentation recording those steps and their outcome.
[86] The applicants submit that this information is relevant to understanding the alternatives open to Corrections. They say in relation to [3.1] that if no steps were taken, or that steps were only possible at a certain cost, that is also relevant to the options Corrections did or should have considered.
[87] The respondents submit that number of spaces at ASCF is not relevant to the pleaded claim. In response to [3.1] and [3.3] they also refer to Mr Marsh’s second affidavit where he explains that the contract between the respondent and SERCO provided for ASCF to hold sentenced prisoners and any conversion to holding remand prisoners would be a major change to the contract.
[88] In my view, the question of alternative options available to the Department is at issue in the pleadings. I direct that this interrogatory be answered by the respondent. I decline to order the discovery request set out in the last sentence.
Request 4
[89]This request seeks:
Exhibit B to Mr Marsh’s second affidavit refers to ASCF also being able to take low security sentenced prisoners to free up capacity in other prisons in the men’s network, but this option not being favoured as low security prisoners “are often the ones doing essential services work at their [current location]”. Please state what essential work was being referred to, what options were considered to address that issue and facilitate the transfer of low security prisoners to ASCF, and specify how many low security prisoners were transferred to ASCF as part of the network reconfiguration?
[90] I assume this is a reference to option 10 noted at page 66 of Mr Marsh’s affidavit. The applicants are concerned again about the alternatives considered by the respondent. They do not accept the respondent’s argument that they are seeking evidence, rather they say they are seeking facts.
[91] I direct that the respondent answer the first two parts of this interrogatory. He need not answer the question of how many low security prisoners were transferred to ASCF as part of the “network configuration”, which appears to me to be answered in para [7.17] of Mr Marsh’s second affidavit.
Request 5
[92]This request states:
In his second affidavit at [5.4] Mr Marsh states that “the women’s prison network had capacity to move prisoners in a way that could free staff to go to Rimutaka; the men’s prison network did not.” Please state as at mid August 2022 (or nearest sensible date) how many vacant beds did each prison (other than Mr Eden and Springhill) in the men’s network have? Please state how many of those vacant beds at each prison have subsequently been utilised through the transfer of prisoners under the network reconfiguration.
[93] While not accepting that it is necessarily relevant, the respondent will voluntarily answer this interrogatory.
Request 6
[94]This request states:
Mr Marsh in his first affidavit refers to an alternative option that was discarded as not feasible, being to transfer (male) prisoners to Hawkes Bay Region Prison, and says: “but our assessment identified considerable strain on the health services there”. Exhibit [unidentified] to Mr Marsh’s second affidavit however records that “Health facilities at CWP [Christchurch women’s prison] is very small and would require additional capacity for additional prisoners.” Please state what additional staffing capacity was provided for the CWP health facilities to accommodate the women transferred from Arohata, when was this put in place and for how long?
[95] The applicants say that this relates to what the respondent did (or did not do) to fix a known problem at CWP. They do not accept the respondent’s submission that this post-dates the decision under challenge.
[96] I have not been able to locate the exact sentence quoted by the applicants in an exhibit to Mr Marsh’s second affidavit, although the sentiment is expressed multiple times in the spreadsheet that is exhibit “H” at pages 211, 212, and 214. Nonetheless, in my view, this interrogatory should be answered by the respondent as it relates to the respondent’s assessment of alternatives. To respond to the respondent’s concern that this post-dates the decision under challenge, the respondent need only answer whether he decided to provide any additional staffing for the CWP health facilities prior to the transfer of women from Arohata to CWP in September 2022.
Request 7
[97]This request states:
Exhibit H to Mr Marsh’s second affidavit refers to the risk (as at August/September 2022) that relocation of prisoners away from their home prisons will result in increased violence and aggression, and includes as “controls currently in place” to mitigate that risk the existence of “robust selection criteria” for the transfer of prisoners. Please state the selection criteria for the transfer of prisoners within the men’s network at that time. Please state the selection criteria for the transfer of prisoners from Arohata at that time. Please disclose relevant documentation regarding the same.
[98] The applicants say that the criteria for transfer within men’s prisons and from Arohata are relevant. They note they are not seeking the application of those criteria but simply the criteria themselves. The respondent submit that this impermissibly seeks evidence and post-dates the decisions under challenge.
[99] I do not accept that this request post-dates the decisions under challenge. The timeframe mentioned is prior to or at the time of the decisions under challenge. Once again, the applicants’ case looks to put the alternatives available to the respondent before the Court, and in my view these criteria are relevant. The respondent may either answer the interrogatory or provide documentation that sets out the criteria, as he prefers.
Request 8
[100]This request states:
Ms Finnigan in her affidavit at [5.2] states that “a transferability constraint was put on people who shouldn’t be moved due to being engaged in mental health service delivery. This resulted in the three women who were already engaged in the DTP being allowed to stay at Arohata prison and finish the programme before they were transferred.” Please state what assessments were undertaken, when and by whom, to identify sentenced prisoners at Arohata with mental health needs other than the three prisoners completing the DTP, to determine whether any other prisoners should also be subject to a ‘transferability constraint’. Please disclose the reports to the NCC or National Office on that issue.
[101] The applicants say that Ms Finnigan’s affidavit introduces a new concept of “transferability constraint” and they are concerned they will be met at the substantive hearing with an argument that the respondent adequately dealt with mental health
issues for the prisoners under consideration for transfer from Arohata. The respondent again says this interrogatory impermissibly seeks evidence and post-dates the decisions under challenge.
[102] I consider that on reading all of Ms Finnegan’s affidavit that her evidence, along with other evidence provided by the respondent, goes quite some way to explain the approach taken by Corrections to transfer decisions as far as mental health and addiction matters are concerned. There is consistent evidence about three women already engaged in the DTP being allowed to stay to finish the programme before being transferred. I do not think that the level of detail sought by the applicants is necessary to fairly resolve their claim. The applicants themselves can provide evidence as to their own experience if they wish. I decline to order this interrogatory.
Request 9
[103]This request states:
In exhibit F to Ms Finnigan’s affidavit, it is stated that “if someone is on the waitlist for inpatient mental health treatment, it is vital to ensure that their movement does not adversely impact on their wait time for treatment.” Please state how many of the women transferred from Arohata were on the waitlist for inpatient treatment and what impact their transfer had on the wait time for their treatment.
[104] The respondent submits that there is already evidence that adequately addresses questions in relation to the DTP and inpatient forensic mental health treatment. It is not clear to me whether “inpatient mental health treatment” is the same as “inpatient forensic mental health treatment”. Counsel did not address this at the hearing. I do not think that the level of detail sought by the applicants is necessary to fairly resolve their claim. The applicants themselves can provide evidence as to their own experience if they wish. I decline to order this interrogatory.
Request 10
[105]This request states:
Exhibit F to Ms Finnigan’s affidavit also refers to “Impact on Forensic [mental health] services” and states “they already have a waitlists that are challenging to manage (e.g. women from Arohata to CWP)” Similarly
exhibit [unidentified] to Mr Marsh’s second affidavit records that the impact of the proposed transfers to CWP would be “significant pressure on mental health and forensic services” and further that CWP already had “little to no cover” for mental health and that “this move will make the problem worse.” Please state what additional mental health and forensic services capacity was provided for the CWP to accommodate the women transferred from Arohata, when was this put in place and for how long?
[106]The respondent is voluntarily providing an answer to this question.
Request 11
[107]This request states:
Numerous documents annexed to Mr Marsh’s and Ms Carey’s affidavits recommend that consideration be given to not moving women with mental health and forensic issues, and exhibits [unidentified] to Mr Marsh’s second affidavit record that there is an “assumption that national position will be not to move any prisoners under forensics care”. Please state how many of the women transferred from Arohata had recognised mental health issues, and how many of the women transferred were under forensic care at the time of their transfer?
[108] The applicants submit that it is an insufficient answer to this interrogatory to refer to Mr Marsh’s evidence that prisoners were not transferred if they had medical appointments (including for inpatient forensic mental health treatment) that would mean they missed out on treatment from external providers or could not be provided for by Corrections medical staff at CWP or AWCF. They say they are entitled to have an answer to the interrogatory, given the “national position” set out in the exhibit to Mr Marsh’s affidavit.
[109]I note that Ms Finnigan’s affidavit states that:20
We asked all of the mental health centre managers, intervention and support managers, and forensic services to ensure a transferability constraint was put on people who shouldn’t be moved due to mental health service delivery.
…
Mental health support was provided to the women who arrived at CWP as needed.
20 At [5.2].
[110] In light of this, I consider that the respondent should answer only the second part of the interrogatory, namely how many of the women transferred from Arohata were under forensic care at the time of their transfer (as part of the ”mass transfer”).
Request 12
[111]This request asks:
At the interim orders hearing on 19 September 2022 the Court was informed by counsel for the respondent that while sentenced women were to be transferred away from their children and other whanau, there was financial assistance available to assist families to visit them in Christchurch or Auckland. Please state how many women transferred from Arohata have received financial assistance for visits from their children or other whanau (if any), and the amount of financial assistance provided for each transferred prisoner.
[112] The applicants say that to their knowledge no financial assistance has been provided. The respondent says that this interrogatory seeks facts that post-date the decision under challenge so is irrelevant.
[113] I agree that this does post-date the challenged decision. The applicants may choose to file evidence in relation to their experience in this context if they wish to do so.
Request 13
[114]This request seeks:
In the statement of defence dated 21 October 2022 at [18.4] the respondents admits that at the time of the mass transfer in September/October 2022 the majority of sentenced women at Arohata were receiving support services in the community, including counselling funded by ACC, and that those support services formed an important part of their wellbeing and rehabilitation. However, the respondent also pleads further in response that at that time most of those services were being delivered remotely: the implication appears to be that these services would continue to be provided from Wellington based community service providers to these women at their new location without disruption, despite their transfer out of the Wellington region. Please state which community based support services sentenced women at the time were engaged with, whether and in what way the delivery of those each category of support services has been affected by the transfer (for example, by replacement of service after what period, or discontinuance) and specify the number of women affected for each service type.
[115] I accept that this interrogatory seek facts that post-date the decisions under challenge and accordingly decline this request. Again, the applicants can file evidence relating to their experience if they wish to do so.
Requests 14 and 15
[116]These requests state:
In the statement of defence dated 21 October 2022 at [19] the respondent denies that at the time of the mass transfer in September/October 2022 “many” of the 51 sentenced prisoners at Arohata came from Arohata’s catchment region and have whānau, [hapū] and iwi links in that area, and pleads that only “some” do. Please state the number that fell within each group.
In the statement of defence dated 21 October 2022 at [20] the respondent denies that at the time of the mass transfer in September/October 2022 “many” of the 51 sentenced prisoners at Arohata in September 2022 had children and/or children for whom they have a caregiving relationship living in the catchment area, and pleads that only “some” do. Please state the number that fell within each group.
[117] The applicants say that these interrogatories go to the proportionality of the “mass transfer” decision in light of the level of harm caused by it. The respondents say that respondent’s response of “some” was intended to be a constructive response to the applicants’ pleading of “many”, which itself was not specific, the applicants bearing the burden of proof. The respondent accepts that some prisoners within the cohort fell within the descriptions and says that greater specificity is not required. The applicants do not accept this, contending that they are entitled to interrogate Mr Marsh’s general evidence that the respondent did consider such issues.
[118] I note that the respondent’s position in his statement of defence is incorrectly stated above by the applicants in relation to [19]. In fact, the respondent admits [19] of the amended statement of claim and makes further statements.
[119] As for the interrogatory relating to [20] of the statement of defence, the respondent does admit that some of the sentenced prisoners at Arohata have children in the Arohata catchment region and says, “the balance of the paragraph is insufficiently particularised to be able to plead to and therefore save as admitted he denies the paragraph”.
[120] In that circumstance, I consider that should the applicants seek further details in relation to para [20] of the statement of defence, they should particularise that paragraph and seek a further response from the respondent.
[121]In these circumstances, I do not grant leave to administer these interrogatories.
Requests 16 and 17
[122]These requests have been met voluntarily by the respondent.
Conclusion
[123] My decisions in relation to discovery and interrogatories will inevitably affect the existing timetable and possibly the hearing currently set down for 13 March 2023. The parties will need time to consider their positions. I request that memoranda of counsel are filed by 5pm on Monday 13 February to indicate what position the parties have reached in relation to a timetable to hearing and the hearing date itself. A telephone conference can then be convened if necessary.
McQueen J
Solicitors:
Amanda Hill Law Ltd, Lower Hutt for Applicants Meredith Connell, Auckland for Respondent
1
10
0