Wereta v Attorney-General
[2025] NZHC 926
•15 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000248
[2025] NZHC 926
UNDER the Declaratory Judgments Act 1908, Judicial Review Procedure Act 2016, and New Zealand Bill of Rights Act 1990 BETWEEN
DAMIAN KARL WERETA
First Plaintiff/Applicant
XAVIER LUCIAN VALENT
Second Plaintiff/ApplicantMARK BYRNE
Third Plaintiff/Applicant…/2
Hearing: 9 April 2025 Appearances:
M J McKillop and A L Hill for Plaintiffs/Applicants
D J Perkins and K C Grant for Defendants/Respondents
Judgment:
15 April 2025
JUDGMENT OF VENNING J
This judgment was delivered by me on 15 April 2025 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Amanda Hill Law, Lower Hutt
Crown Law, Wellington
Counsel: M J McKillop, Wellington
WERETA v ATTORNEY-GENERAL [2025] NZHC 926 [15 April 2025]
AND
TANIELA KOTOITOGA DAVEN TIAKO WAITOKIA
Fourth Plaintiff/ApplicantSIONE TUPOUMALOHI
Fifth Plaintiff/ApplicantRAWIRI DAVID WERETA
Sixth Plaintiff/ApplicantJUNIOR HEART
Seventh Plaintiff/ApplicantJEREMY WILLIAM MATAIRA
Eighth Plaintiff/ApplicantSTEVEN ROGER WILLIAMS
Ninth Plaintiff/ApplicantATTORNEY-GENERAL
First Defendant/RespondentCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Second Defendant/Respondent
COMMISSIONER, PRISONERS OF EXTREME RISK DIRECTORATE, DEPARTMENT OF CORRECTIONS
Third Defendant/RespondentVISITING JUSTICE AT THE PRISONERS OF EXTREME RISK UNIT, AUCKLAND PRISON
Fourth Defendant/Respondent
Introduction
[1] The nine plaintiffs to this proceeding have been detained in a unit known as the Prisoners of Extreme Risk Unit (PERU) at Auckland Prison. They sue the Attorney-General, the Department of Corrections (Corrections) and the Commissioner of the Extreme Risk Directorate within Corrections (the Commissioner). They allege that their detention in PERU was and is unlawful.
[2] The plaintiffs apply for an order that a preliminary question be determined before trial. The application is opposed by the Attorney-General, Corrections and the Commissioner.
Background
[3] I take the background from the statement of claim. As yet the respondents have not filed statements of defence. A Prisoners of Extreme Risk Directorate (PERD) was established in 2019 in response to the need for Corrections to accommodate Brenton Tarrant safely and securely. The stated purpose of PERD is to address the safe management of prisoners who are assessed as:
(a)an ongoing risk of serious violence to others;
(b)an ongoing risk of serious violence from others; and/or
(c)capable of influencing others to engage in serious violence or threats to the Prison.
[4] PERD provides three tiers of service to the Prisons. Tier 3 services involve the direct management of prisoners by the Commissioner within PERU. Tier 2 and Tier 1 services involve supporting other prison sites or Community Corrections teams to assess risks thought to be posed by or to prisoners but not to the extent that Tier 3 services are required.
[5] After establishing PERD, Corrections established PERU in Unit 11 at Auckland Prison on a temporary basis before transferring PERU to Unit 10 in January
2021. The plaintiffs claim to have been detained in PERU at material times between 2019 and the date these proceedings were commenced.
[6] Since January 2021 PERU has comprised 20 cells across two wings of Unit 10 at Auckland Prison. Eighteen of the cells are residential cells. The remaining two are dry cells designed to monitor prisoners thought to be at risk of internal concealment.
[7] The cells measure 9m² more or less and receive no or very little direct sunlight. The cells have a shower and toilet area, a single bed, a television and shelving for personal belongings. There is a modified window hatch in the door which prevents the prisoner from opening the hatch and seeing into the corridor. The cell has an adjoining yard of 10m² more or less, which has a remote-controlled locking door. The yard receives very little direct sunlight and is separated from the adjoining yard by concrete walls. It is totally enclosed by thick wire mesh as a result of which the prisoners cannot see the sky or any other prisoner or person while exercising in the yard. The unit also has a larger yard, a day room, two non-contact interview rooms, a non-contact visits room, an AVL booth, and a health clinic.
The claims
[8] The proceedings seek relief under the Declaratory Judgments Act 1908, the Judicial Review Procedure Act 2016, and the New Zealand Bill of Rights Act 1990. The statement of claim raises the following causes of action:
Cause of action Summary Classification First Invalid appointments and delegations. Judicial review Second PERU Operating Model is inconsistent with legislative framework. Declaratory relief Third PERU Operating Model is irrational.
Three individual PERU placement decisions were irrational.
Declaratory relief
Judicial review
Fourth PERU Operating Model is inconsistent with freedom of expression, cannot be demonstrably justified. Declaratory relief Fifth Three individual segregation decisions were unreasonable. Judicial review
Sixth Visiting Justices’ decisions extending segregation were unlawful. Judicial review Seventh Treatment in PERU was inconsistent with Bill of Rights Act standards. Bill of Rights Act damages Eighth If treatment in PERU was inconsistent with legislative framework, the legislative framework is inconsistent with the Bill of Rights Act. Declaration of inconsistency Ninth Negligent infliction of physical, psychological and psychiatric harm. Tort of negligence
Current application
The particular application before the Court is for orders:
1.1determining that the legality of the [PERU] operating model is a separate question it is appropriate to try before any trial in the proceeding; and
1.2declaring that the PERU operating model is inconsistent with the requirements of the Corrections Act and Corrections Regulations.
[10] The grounds relied on to support the application are that the PERU operating model consists of:
(a)a policy document “Operating Model – PERU”;
(b)a policy document “Individual Management Plans – PERU”; and
(c)the practice of segregating all prisoners in PERU at all times.1
[11] That issue of the legality of the PERU Operating Model is raised directly by the second cause of action. The PERU Operating Model is defined in the statement of claim as the documentation constituting the PERU and the pleaded practices occurring in PERU, but for present purposes Mr McKillop confirmed the applicants rely on the three grounds referred to above at [10] as the PERU Operating Model.
[12] In the second cause of action the applicants allege that the PERU operating model is ultra vires the Corrections Act 2004, Corrections Regulations 2005 and
1 A further ground, the practice of directing prisoners’ detention in PERU for renewable 12-month periods was in the application but Mr McKillop confirmed it was not pursued for present purposes.
statutory guidelines.2 Specifically, in the second cause of action the applicants allege the PERU Operating Model is inconsistent with:
1.the statutory security classification regime;
2.the statutory segregation regime;
3.the statutory disciplinary regime; and
4.the statutory prisoner placement system regime.
[13] The applicants then go on to plead generally that, even if a residual power to adopt the PERU Operating Model existed, it is constrained by the Corrections Act and is inconsistent with the purposes and principles of the Corrections system.
[14] The applicants then seek a declaration that the PERU Operating Model is ultra vires the Corrections Act, Corrections Regulations and the guidelines issued under the Corrections Act.
Jurisdiction
[15] The jurisdiction for the order sought is r 10.15 of the High Court Rules 2016. The rule provides:
The court may, whether or not the decision will dispose of the proceeding, make orders for—
(a)the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and
(b)the formulation of the question for decision and, if thought necessary, the statement of a case.
[16] The discretion under r 10.15 is broad. The Courts generally take a practical approach. In Haden v Attorney-General Kós J identified five practical questions:3
2 The Prison Operations Model (POM) was issued by the Chief Executive under s 196(1) of the Corrections Act 2004.
3 Haden v Attorney-General (2011) 22 PRNZ 1 (HC). See also Karam v Fairfax NZ Ltd [2012] NZHC 1331.
1.Will there be difficult demarcation questions between those issues to be addressed at the first trial on the determination of the question and those left for the second?
2.Will the proceedings be brought to an end?
3.What potential timesaving does the separate question offer?
4.How will appeals be dealt with?
5.Are there any other practical considerations tending the one way or the other?
[17] Importantly, in Innes v Ewing Eichelbaum J confirmed that the predecessor to r 10.15 envisaged a two-stage process:4
… the first, the decision to order the separate determination of a particular question; the second the determination of that question itself. The purport of the question may be plain, but it needs to be formally defined, an aspect to which the expression “the formulation of the question for decision” in [now r 10.15(b)] refers. That statement or formulation of the question should be part of the first step.
Discussion
[18] There is a fundamental issue with the application before the Court in its current form. The question sought to be answered by the Court is inadequately formulated. As the respondents note, the question at 1.1 of the application does no more than raise a procedural query whether it is appropriate to determine the legality of the PERU operating model as a separate question appropriate to try before trial. The second aspect of the order sought at 1.2 does not identify a substantive question either, rather it repeats the relief the applicants seek in the second cause of action.
[19] As the former Chief Justice identified in Innes v Ewing, it is important to formally define the question the Court is being asked to determine as a separate issue to enable the Court to make an informed decision whether it is appropriate to order it
4 Innes v Ewing (1986) 4 PRNZ 10.
be determined first. In Treaty Tribes Coalition v Urban Maori Authorities the Privy Council suggested the Court of Appeal’s failure to properly formulate questions prior to argument led to error, including a failure to accord natural justice.5
[20] During the course of submissions, Mr McKillop suggested that the question could be reframed as “whether the PERU Operating Model is unlawful and ultra vires the Corrections Act, Regulations and guidelines.” While he accepted that was putting the question at a level of generality, he suggested that it could be further particularised:6
10.1 PERU placement decisions are made following a bespoke “extreme risk” assessment and not by reference to the risk assessment and unit placement process provided for by law, the statutory security classification regime;
10.2 PERU placements are intended to be long-term and are reviewed and confirmed on a 12-month cycle, which replaces statutory decision-making processes for unit placement and unlawfully exceeds the mandatory monthly review period for directed segregation and the mandatory six-monthly review period for security classification; [although as noted, Mr McKillop confirmed that this ground was not pursued at present];
10.3 PERU policy restricts association by default and treats association between prisoners as a reward for good behaviour, in breach of statutory segregation rules and the prison disciplinary regime;
10.4 PERU operates a behaviour management regime that deprives prisoners of privileges like yard time, television use and media access, on the basis of their individual behaviour, but without any need to prove misconduct despite the statutory prison disciplinary regime;
10.5 PERU operates as a de facto prisoner placement system, as defined by the Corrections Regulations, but without any of the statutory safeguards required of such a system; and
10.6 The nature of detention in PERU, as defined by the policies at issue, means that PERU placement decisions constitute a decision to implement prolonged solitary confinement (long-term segregation without association and with minimal out-of-cell movements) not permitted by any express, implied or common law power conferred on the defendants, such powers being constrained by the requirements of the New Zealand Bill of Rights Act 1990 and international law.
5 Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513 (PC).
6 Plaintiffs’ submissions dated 7 April 2025 (footnotes omitted).
[21] Mr McKillop supported his submission that the Court should direct a hearing of the preliminary question by noting that in Attorney-General v Refugee Council of New Zealand Incorporated the Court of Appeal was prepared to review the immigration operating instructions for lawfulness “as a whole” and “without reference to the way it might have been applied in individual cases”.7
[22] Mr McKillop also referred to the case of R (A) v Secretary of State for the Home Department where the United Kingdom Supreme Court said, when determining whether policy was unlawful:8
[c]alls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations …
Preliminary point
[23] In Clear Communications Ltd v Telecom Corporation of New Zealand Ltd the Court noted that there is a presumption all matters in issue will be determined in a single trial.9 That is particularly so where the case is a complex one. As is apparent from the claims raised, this case is a complex one.
[24] The Court could not embark on an attempt to determine the very general question that was proposed by Mr McKillop in submission without putting it in its factual context. It is implicit in the grounds relied on to support the determination of a preliminary question that the applicants accept that it would be necessary to drill down to a further set of sub questions. As Mr Perkins noted, that would effectively require the Court to frame a series of questions and to consider the relationship between the three general practices, policies and practices the applicants apparently rely on as constituting the PERU Operating Model (even noting for present purposes the applicants no longer pursue the practice of directing detention for renewable 12
7 Attorney-General v Refugee Council of New Zealand Incorporated [2003] 2 NZLR 577 (CA), at [20].
8 R (A) v Secretary of State for the Home Department [2012] UKSC 37, [2022] 1 All ER 177 at [41].
9 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1998) 12 PRNZ 333 (HC) at 334.
month periods) with the five sets of statutory provisions the applicants say the PERU operating model is inconsistent with. Even if it was possible to frame such questions that would require the Court to define and determine at least 15 separate questions. That would be an entirely unwieldy process.
[25] To answer the questions, evidence would be required as to the status of the PERU Operating Model and how it is operationalised and interacts with other policies. For example, Ms Compton-Moen annexes a copy of a PERU inspection by the Office of the Inspectorate. It acknowledges:
The PERU operating model is not intended as a detailed description of day- to-day operations and does not supersede the Prison Operations Manual which guide the practice of custodial staff in prisons nationwide, including in the PERU.
[26] As evidence would be required to respond to the specific allegations, there inevitably would be potential for disputed questions of fact.
[27] To complicate the matter further in this case, if the questions were answered in the applicants’ favour, the issue of relief would then become relevant. The relief sought in the second cause of action is a declaration which is discretionary relief. The respondents would be entitled to lead further evidence and have a separate and further hearing on the issue of whether, even if some or all of the questions were answered in favour of the applicants, a declaration ultimately ought to follow and in what terms.
[28] It follows that I agree with the submission for the respondents that in the absence of a full factual background any declaration about the policies and practices would have to be pitched at such a general level of abstraction it would be unhelpful. The above points weigh strongly against directing a preliminary question hearing.
[29] The cases referred to by Mr McKillop do not particularly assist the applicants. In Attorney-General v Refugee Council of New Zealand Inc,10 the appeal concerned the way the New Zealand Immigration Service dealt with people who claimed refugee status on arrival in New Zealand. It was an application for judicial review. The first issue involved interpretation of a specific section of the Immigration Act 1987 and the
10 Attorney-General v Refugee Council of New Zealand Incorporated, above n 7.
second issue concerned whether an operational instruction was unlawful. Ultimately the Court held on that second aspect that, when read as it should be, the operational instruction did not suffer from the vices ascribed to it by the Judge.11 Relevantly, however, while there is the passage Mr McKillop relied on, the Court later concluded that:
[32] Furthermore a representative and global approach is not a sound way of approaching implementation issues. We do not consider the Court should lend its aid to such an approach, the more so in respect of a period following a major adverse change in the international security climate. We do not think the High Court should have proceeded in the global representative way it did. In our judgment the Courts should confine their attention in relation to the actual implementation of the relevant statutory powers to individual cases where the particular facts can receive the necessary close examination. We therefore respectfully disagree with the Judge’s general and representative approach to this aspect of the case, and confine ourselves on the implementation front to the case of the second respondent, D, whose individual case is the only one before us.
[30] Rather than supporting the applicants’ argument for determination of a preliminary issue the findings of the Court of Appeal actually would count against that, and support the general practice of determining all issues in a single trial.
[31] In R (A) v Secretary of State for the Home Department,12 the Supreme Court accepted the test to be applied to a challenge to a policy statement was that as set out in Gillick v West Norfolk and Wisbech Area Health Authority,13 which calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. The Supreme Court then identified three types of cases where a policy might be found to be unlawful by reason of what it says or omits to say when giving guidance:14
(a)where the policy includes a positive statement of the law that is wrong;
(b)where the authority that promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of the law or because of an omission; and
11 At [20].
12 R (A) v Secretary of State for the Home Department, above n 8.
13 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402.
14 R (A) v Secretary of State for the Home Department, above n 8, at [46].
(c)where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission.
However, again the Supreme Court noted that much would depend on the particular context in which the policy is intended to be used. The PERU Operating Model is not a policy statement. The issue in that case was quite different to the issues these proceedings raise.
Demarcation
[32] I also agree with the submission for the respondents that attempting to isolate separate questions for a preliminary trial would create difficult demarcation issues with the balance of the proceeding.
[33] A principal difficulty would be the impact of a determination of the separate questions on the remaining issues in the second cause of action and on the other causes of action which will be held over for later trial. As Mr Perkins submitted, inevitably the status and wider context of the general policies and how they are operationalised would have an impact on, for example, whether the respondents in fact impose penalties for alleged misconduct through progression plans rather than via the statutory disciplinary regime. The practice of segregating prisoners in PERU would also bear upon whether their treatment amounts to prolonged solitary confinement.
Will answering the question determine the proceedings?
[34] No. Determination of a question as to the legality of the PERU Operating Model will not determine the proceeding. The balance of the second cause of action as well as the remaining causes of action and remedies would remain for trial.
Time and resources
[35] There would not be any significant saving in time if the Court were to seek to answer the question as a preliminary matter. Indeed, there may well be a duplication of resource and effort. I understand counsel consider that up to 30 to 40 days may be
required for the trial. The proposed two-day hearing on the separate question will not reduce the substantive hearing time required.
Appeals
[36] If a separate question(s) was ordered and determined, it is likely that there would be an appeal by the unsuccessful party from that determination. Given the potential impact of a ruling that the PERU Operating Model was ultra vires the substantive proceeding will not be able to be determined until all appeals had been resolved.
[37] Mr McKillop submitted the applicants were willing to accept that and the delays that might follow. However, there are broader interests of justice to consider. If this case was allocated a five or six week trial in late 2026 (assuming it is given priority – perhaps more likely 2027), and the trial had to be vacated while awaiting an appeal outcome, that would impact on other litigants awaiting hearings before the Court.
General considerations
[38] While acknowledging the considerations that the authorities have determined as appropriate to applications such as this, Mr McKillop emphasised the need for the Court to take a flexible approach. He suggested that if the Court considered a separate question could not be directed under r 10.15, then the wider relief available under the Judicial Review Procedure Act supported the Court directing the hearing of a preliminary question. However, as Mr Perkins pointed out, the second cause of action seeks declaratory relief under the Declaratory Judgments Act. It does not identify a particular decision that it is sought to review. Further, Mr McKillop accepted in his submissions that interim relief is not available under the second cause of action.
[39] It is apparent the driver for the applicants’ request for determination of a preliminary question (and the declaration that would follow) is their desire to have a prompt response to the conditions that they faced (and in the case of some, continue to face). While that is understandable, the authorities are clear that often what may be
seen as a “short cut” can complicate and delay the ultimate determination of the proceedings which would be in no-one’s interests.15
Result
[40] For the above reasons the Court is not minded to order the determination of a separate question (or questions) in this case quite apart from the difficulty in formulating such questions.
[41]The application is dismissed.
Costs
[42]Costs are reserved.
[43] A copy of this judgment is to go to the Civil List Judge for him to consider whether, in light of the indication of the likely hearing time required and the complexity of the issues, the case should be referred to a single judge for management for the future. Otherwise, the proceeding should be reviewed at a case management conference to be allocated by the Registrar in due course.
Venning J
15 Tilling v Whiteman [1980] AC 1 (HL) at 25; and Tepko Pty Ltd v Water Board (2001) 206 CLR 1 (HCA).
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