Wilson v Chief Executive of the Department of Corrections
[2023] NZHC 3693
•14 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000487
[2023] NZHC 3693
BETWEEN IVAN WILSON
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
AND
PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY
Second Respondent
Hearing: 16 August 2023 Appearances:
G E Minchin for Plaintiff
K C Grant and S K Shaw for First Respondent
E A Boshier / A A Sawant for Second RespondentJudgment:
14 December 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 14 December 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.
………………………………
Registrar/Deputy Registrar
Solicitors: Exco Legal, Wellington
Meredith Connell, Wellington Duncan Cotterill, Wellington
WILSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 3693
[14 December 2023]
Table of Contents
Para No
Introduction[1]
What happened?[5]
What are Mr Wilson’s legal claims?[9]
What do the respondents say in response?[13]
Issues[14]
First ground of review — error of law concerning telephone access [16]
Legislative framework[16]
Policies/information handbook[20]
Mr Wilson’s claim[26]
Was there any breach of the regulations/an error of law?[28]
Second ground of review — complaints process [41]
Legislative framework[43]
Policies[46]
Mr Wilson’s claim[47]
Evidential issue[49]
Was there any breach of the regulations/an error of law?[53]
Amenability to review/should relief be granted? [60]
Third cause of action — claim against the Chief Executive[67]
Result[71]
Introduction
[1] Mr Ivan Wilson is serving a sentence of preventative detention at Auckland South Corrections Facility.1 ASCF is a privately operated prison managed by Serco New Zealand Ltd. As a contract prison it has a prison director appointed by the operator.2
[2] In this judicial review application against the ASCF Prison Director, Mr Wilson seeks declarations challenging the following alleged actions or inactions by Ms Amanpreet Sidhu, a prison officer at the facility:
(a)refusing his request for a third lawyer’s phone number to be added to his list of approved phone numbers; and
(b)refusing to accept or process a formal complaint in respect of the first allegation.
[3] Mr Wilson claims that the Chief Executive of the Department of Corrections is also responsible for these actions on the basis that he has delegated powers and functions to Serco. He seeks a declaration to that effect.
[4]The Prison Director and the Chief Executive oppose the application.
What happened?
[5] In August 2021, Mr Wilson’s application for parole was declined. The Parole Board raised concerns about Mr Wilson’s risk of reoffending and requested Mr Wilson be re-interviewed by a psychologist to ensure necessary rehabilitation had been undertaken.
[6] Mr Wilson then sought to engage an independent psychologist to interview him via AVL. This was declined by Corrections due to COVID-19 restrictions. The
1 ASCF.
2 Corrections Act 2004, s 11. Referred to in the legislation as the “prison manager”.
psychologist was offered an opportunity to interview Mr Wilson by way of telephone and was asked to provide her availability. She did not do so.
[7] Mr Wilson wanted to contest in Court ASCF’s refusal to allow the AVL consultation. He identified a lawyer he wanted to talk to about this. In November 2021, Mr Wilson asked Ms Sidhu (second in charge at the unit) if the lawyer’s phone number could be added to his approved phone list. Ms Sidhu said it could not, as Mr Wilson already had the maximum number of lawyers on his list. She said ASCF policy was that no more than two lawyers will be approved at any one time. Mr Wilson contends that he then asked Ms Sidhu to provide a complaint form. Ms Sidhu allegedly refused.
[8] Mr Wilson did not pursue a formal complaint following the conversation with Ms Sidhu or take steps other than these proceedings to resolve his concerns. Mr Wilson made several other formal complaints using complaint forms while he was at ASCF.
What are Mr Wilson’s legal claims?
[9] Mr Wilson initially advanced four causes of action. The first two claims against the Prison Director sought declarations that the specific actions complained of (first, refusal to add the lawyer’s number to his list of approved numbers; second, refusal to accept, register or enter a complaint into the formal complaint system) each amounted to a “procedural irregularity”. This was based on asserted non-compliance with regs 86 and 87 of the Corrections Regulations 20053 relating to prisoner access to a telephone; and s 152 of the Corrections Act 20044 relating to objectives of the Corrections complaints system.
[10] A third cause of action against the Attorney-General was headed “illegality” and sought a declaration that the Attorney-General failed to ensure that its delegate, the Prison Director, adhered to its (unspecified) statutory obligations. The fourth was
3 The Regulations.
4 The Act.
a claim against the Attorney-General under s 27 of the New Zealand Bill of Rights Act 1990, seeking compensation.
[11] By the hearing, Mr Wilson had abandoned the fourth cause of action and it had been agreed that I should make (and I then made) an order substituting the Chief Executive of the Department of Corrections as the proper respondent in place of the Attorney-General.5 As well, the argument at the hearing proceeded on the basis that the declarations sought were that in each case the specific actions amounted to “errors of law” not that there had been “procedural irregularity”.
[12] During his submissions in reply, Mr Minchin accepted that s 152 of the Act does not provide a standalone ground of review. The section sets out organisational level responsibilities as to the objectives of a complaints system that are not breached by the actions of a single employee.6 Mr Wilson was granted leave unopposed7 to amend his second cause of action to replace s 152 with reference to reg 161 of the Regulations, which I will discuss below.
What do the respondents say in response?
[13] The respondents reject the substance of the allegations. They say that the actions relied upon are not amenable to review because they involve operational matters and/or are not matters for which declaratory relief should be granted. The Chief Executive also says the actions relied upon are not powers or functions for which he has responsibility through delegation.
Issues
[14] I address first the substance of the complaints. The claims fall away if there was no breach of the Regulations in the manner Mr Wilson asserts.
[15]Accordingly, I address the following issues:
5 This was on the basis that under s 199AA(6) of the Corrections Act the Chief Executive retains responsibility for actions of any person acting under powers delegated by the Chief Executive.
6 Bach v Prison Director, Auckland South Corrections Facility [2022] NZHC 2420 at [72] citing
Hudson v Attorney-General [2020] NZHC 3231 at [85].
7 As a condition of leave I permitted supplementary submissions from the Prison Director after the hearing.
(a)Was there any breach of the Regulations in respect to Mr Wilson’s access to a third lawyer?
(b)Was there any breach of the Regulations relating to the complaints process?
(c)If so, in each case were these breaches amenable to review?
(d)Should declaratory relief be granted?
(e)Is there any claim against the Chief Executive?
First ground of review — error of law concerning telephone access
Legislative framework
[16]ASCF’s operations are primarily governed by the Act and the Regulations.
[17] The Act sets out various minimum entitlements for prisoners. One of these is to have access to legal advisers, as provided in s 74:8
74 Legal adviser may visit prisoner
(1)The legal adviser of a prisoner may visit the prisoner at any time agreed to by the prison manager if the purpose of the visit is to discuss the prisoner’s legal affairs.
(2)If the manager does not agree to a particular time for a visit by a legal adviser, the manager must nominate an alternative time that is reasonable in the circumstances.
(3)An interview between a legal adviser, and a prisoner—
(a)must be held out of the hearing of any other person; and
(b)may, with the agreement of the prison manager, be held out of the sight of any other person.
[18] Another minimum entitlement relates to outgoing telephone calls. By s 77, a prisoner is entitled to make at least one outgoing telephone call of up to five minutes
8 Corrections Act, s 69(1)(f).
duration per week. That entitlement is in addition to any telephone call made to their legal adviser.9
[19] The statutory requirements relating to calls are supplemented by the Regulations. Relevantly for this application, regs 86 and 87 state:
86Access to telephones generally
(1)The manager of a prison –
…
(b) must ensure that a sentenced prisoner has access to a telephone at all reasonable times for the purpose of communicating with his or her legal adviser about pending proceedings:
…
(d)may allow prisoners to have reasonable access to a telephone at all reasonable times for the purpose of obtaining any type of legal advice or for any other purpose approved by the manager.
(2)In subclause (1)(b), proceedings are civil proceedings, or criminal proceedings, within the meaning of section 4(1) of the Legal Services Act 2011.
87Telephone charges
...
(2)A sentenced prisoner must be given reasonable access to a telephone, free of charge, for the purpose of a communication specified in regulation 86(1)(b).
…
Policies/information handbook
[20] ASCF also operates under detailed policies, chiefly ASCF’s Policy and Procedures Manual.10 The ASCF Manual provides detailed guidance to ASCF staff for the safe and efficient conduct of day-to-day operations at ASCF addressing a wide range of operational aspects. The Department of Corrections has a similar document
9 Section 77(4)(b).
10 The ASCF Manual.
called the Prison Operations Manual, which applies where the ASCF Manual does not cover a matter.
[21] The ASCF Manual outlines the use and procedures for a “prisoner telephone call control system”. Prisoners have a set of pre-approved programmed telephone numbers which they can access from phones within the prison. A prisoner is allowed to have a maximum of 10 personal telephone numbers on this programmed list, subject to a verification and approval process. The process is actioned through the prisoner applying to have their selected numbers programmed onto the telephone through a request they make through the Custodial Management System11 accessed from the prisoner’s in-cell computer and also through kiosks in the day rooms in each unit.
[22] The ASCF Manual records that numbers selected by a prisoner for programming need to be verified by a staff member to ensure, among other things, the person wishes to receive calls. Where a number is claimed to be a legal representative the number must be checked by prison staff to ensure that this is correct. Monitoring of calls occurs to ensure the prisoner is not continuing to engage in criminal activities or using the telephone to organise contraband. Calls to a legal representative are exempt from monitoring, placing these pre-approved legal representative numbers in a different position than others.
[23] The ASCF Manual also provides that prisoners will have free and reasonable access to a telephone other than through the above pre-approved programmed system if they are involved in additional/pending court proceedings, for the duration of those proceedings.
[24] Similar provisions to those in the ASCF Manual are mirrored in the Corrections Manual.
[25] Although neither the ASCF Manual nor the Corrections Manual limit the number of legal advisers permitted on a prisoner’s list, the ASCF information handbook provided to new prisoners on arrival states that prisoners are limited to two legal advisers in their approved phone list. Prison officers at ASCF enforce this policy.
11 CMS.
The process for obtaining approval, verification of numbers and for access to CMS is also outlined in the handbook.
Mr Wilson’s claim
[26]Mr Wilson’s case under the first claim is essentially that:
(a)Reg 86(1)(b) applied and was breached. Mr Wilson was denied access to a telephone for the purpose of communicating with his lawyer about “pending proceedings” being his potential claim challenging ASCF’s stance on the AVL call with his psychologist. He says this does not require proceedings to be “on foot.”
(b)Alternatively, reg 86(1)(d) was breached as to allowing prisoners access to a telephone for any type of advice. Mr Wilson says that the word “may” in this sub-regulation is not permissive. Rather, there is a discretion only as to how quickly access to a telephone is to be provided, rather than affecting the prisoner’s right to that access.
(c)The prison officer applied a blanket refusal to Mr Wilson’s request to add a lawyer to his list based on the arbitrary policy set out in the ASCF information handbook provided to prisoners (no more than two lawyers), rather than applying the ASCF Manual. Mr Wilson argued that the information handbook imposes an unlawful limitation on the entitlement in the Regulations.
[27] Mr Wilson seeks a declaration that the Prison Director’s “refusal to add the lawyer’s phone number on the applicant’s list of permitted phone numbers” amounted to an error of law.
Was there any breach of the regulations/an error of law?
[28] Mr Minchin emphasises that the right to consult for legal advice is fundamental to access to justice. That cannot be doubted. However, that does not tell me whether
the Regulations were met. Nor was his pleaded claim a challenge to the legality of the Regulations or policies.
[29] Neither reg 86(1)(b) nor 86(1)(d) give the prisoner an absolute right to telephone their legal adviser. The statutory scheme provides reasonable limitations on that right. Sub-reg (b) provides that a prison manager “must ensure” that the sentenced prisoner has access to a telephone to call their legal adviser but this is only at “all reasonable times” and only to communicate “about pending proceedings”. Sub-reg (d) provides that the prison manager “may allow” prisoners “reasonable access” to a phone at “all reasonable times” to obtain “any type of legal advice”.
[30] I reject that reg 86(1)(b) applies to the current facts. Mr Wilson wanted to seek legal advice about the availability of a potential claim from a lawyer he had yet to engage. “Pending” in reg 86(1)(b) refers to a proceeding (civil or criminal) that is underway, not just a possibility in the mind of the prisoner. This is for the following reasons:
(a)Reg 86(1)(b) is otherwise unworkable for prison management. As counsel for the Prison Director submitted, it cannot be intended that as soon as a prisoner formed a subjective impression that they might take some action, that would immediately crystallise into a pending proceeding and engage the entitlements of reg 86(1)(b). Prison staff must know whether the access is covered by reg 86(1)(b) or reg 86(1)(d). For that to work, a concrete proceeding must be in play.
(b)The current facts demonstrate this unworkability for both the prison staff and prisoner. The prison officer here was not told anything more than that Mr Wilson wanted to add a lawyer to his approved list. She was not in a position to know whether the purpose of consultation was for “pending proceedings”. Mr Minchin emphasised that this was Mr Wilson’s prerogative given that a prisoner is entitled to keep confidential what they wish to consult with their lawyer about. However the fact that there are proceedings issued is not confidential. Only the more confined interpretation enables the Regulations to work.
(c)The definition of “legal adviser” as used in reg 86(1)(b) is “the [lawyer] representing the prisoner”.12 That suggests an appointed legal adviser is contemplated. This can be contrasted with reg 86(1)(d) which refers to access to “legal advice”, encompassing where a legal adviser may not yet have been instructed.
(d)My view is consistent with the Shorter Oxford English Dictionary definition of “pending” as “[r]emaining undecided, awaiting decision or settlement.” 13 An example given is a divorce case.
[31] Turning to Mr Minchin’s alternative submission about reg 86(1)(d), his submission is to the effect that may in this sub-regulation means must. That interpretation is plainly inarguable when there is an internal contrast in the regulation with the word “must” in the previous three sub-regulations including reg 86(1)(b). If reg 86(1)(d) was intended to impose an obligation with discretion only as to timing, it could readily have been worded in that way.
[32] Rejecting Mr Minchin’s second argument means that reg 86(1)(d) provides a discretion to prison staff to allow prisoner access to the telephone for the purpose of obtaining any type of legal advice or for any other purpose approved by the manager. This regulation gives understandably necessary flexibility to the prison staff.
[33] There are limits on an exercise of a discretion. If reg 86(1)(d) was applied unreasonably then there may be cause for complaint. That is not Mr Wilson’s claim.
[34] Rather, Mr Wilson says that the information handbook placed an unlawful limitation on the prisoner’s rights in reg 86(1) by setting an arbitrary policy of two lawyers at any given time in the pre-approved list. As I will explain, I disagree. To the extent that the claim can also be characterised as contending that Ms Sidhu’s advice to Mr Wilson of the policy was an unreasonable exercise of the discretion in reg 86(1)(d), I also disagree.
12 Corrections Act, s 3.
13 Angus Stevenson (ed) Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007) vol 2, at 2146.
[35] As noted above, prison officers must verify each number a prisoner wishes to call so as to confirm that the number is for who the prisoner says it is. The prison must also have a clear delineation between personal and legal numbers to ensure that legal phone calls can be exempt from monitoring. In those circumstances it is reasonable for ASCF to restrict the number of lawyers who can be listed on a prisoner’s approved list. The approach taken by ASCF needs to be viewed in the context that a prisoner can swap out numbers using the CMS system.
[36] This has general relevance to the policy adopted but also relevance to Mr Wilson’s particular complaint. Mr Wilson could have swapped numbers via CMS to exchange one of the legal advisers on his list (only for a temporary period if he wished). Mr Wilson had used CMS to swap out lawyers’ numbers before and therefore he was familiar with the process.
[37] Accordingly, Mr Wilson was not foreclosed from access to a telephone for the legal advice he sought by operation of the policy. Moreover, substitution of lawyers is only one means by which Mr Wilson could obtain “access… to [the] legal advice” he sought within reg 86(1)(d). As the respondents submit, he could have contacted existing counsel, used a free phone to contact legal aid or sought ad hoc access to a legal adviser on another prison phone (which was available at the prison’s discretion outside the pre-approved number system).
[38] Mr Wilson suggests that Ms Sidhu cut off these options. However, I do not accept that this is an appropriate implication from the limited evidence on their fleeting exchange.
[39] While not supported by his pleading, Mr Wilson appeared to want to make a broader-based attack on whether the advice on the policy in the information book was consistent with the Act and Regulations. That is not engaged by the declaration sought which is tailored to the specific facts of the case. I would need a greater evidential platform to enquire into the policy more generally. However, my analysis above does not suggest the policy is inconsistent.
[40] Mr Wilson’s first cause of action fails. I do not need to address whether there was the exercise of a statutory power or decision that is amenable to review, or whether declaratory relief would be appropriate. However, I address these issues briefly after considering the second cause of action.
Second ground of review — complaints process
[41] Mr Minchin made clear in his oral submissions that he regards this and the previous claim as a “single event”. That is, the claim that the prison officer refused to provide Mr Wilson with a complaint form should be seen as connected with Mr Wilson seeking a further number for legal advice. He says the complaint issue is tainted by refusal to be given access to legal advice given that the latter is such a significant matter. He further says that both claims for declaratory relief turned on succeeding in the first claim.
[42] Given my conclusions on the first claim, it is not necessary for me to consider the complaint issue, but I do so for completeness.
Legislative framework
[43] Section 153 of the Act requires every prison to maintain an internal complaints system. The prison manager must ensure that the system complies with the objectives of the Corrections complaints system set out in s 152(1). These are:
(a)to enable complaints by persons who are or were under control or supervision to be dealt with internally on a formal basis;
(b)to ensure that all persons under control or supervision are aware of the complaints system and are able to make a complaint if and when they choose to do so, without fear of adverse consequences;
(c)to ensure that complaints are investigated in a fair, timely, and effective manner;
(d)to ensure that, if possible in the circumstances, complaints are dealt with reasonably promptly;
(e)to ensure that, if possible in the circumstances, complaints are dealt with at the lowest and most informal level;
(f)to ensure that all reasonable steps are taken to investigate complaints;
(g)to ensure that complainants are advised of the progress in investigating their complaints;
(h)to ensure that complaints are, to the extent possible, investigated in a culturally sensitive manner;
(i)to ensure that the identities of complainants are disclosed only to the extent that it is necessary to assist in the investigation of complaints.
[44] Section 154 requires that the Chief Executive ensure that every prisoner is able to, among other things, obtain assistance to enable the person to make a complaint.
[45] The Regulations provide for what is to be done at an operational level. Relevantly, regs 160 and 161 provide:
160Complaints to manager of prison and controlling officer of community work centre or probation office to be in writing
The manager of a prison or controlling officer of a community work centre or probation office—
(a)is not obliged to receive or process a complaint from any person who is or was under control or supervision unless the complaint is in writing; and
(b)must take all reasonable steps to ensure that sufficient forms designed to enable any person to record a complaint are readily available.
161Reasonable assistance to be provided
Every staff member must, if asked by a person who is or was under control or supervision for assistance in making a complaint to a manager of a prison or the controlling officer of a community work centre or probation office,—
(a)provide reasonable assistance to the person; and
(b)if the person is unable to make his or her complaint in writing, assist the person to make a complaint.
Policies
[46] As required by the Act, ASCF has a complaints policy which sets out the procedure to be followed for a prisoner to make a complaint. Complaints about any aspect of ASCF are made on a complaint form. Complaints lodged are inputted into CMS by prison staff and processed through that system.
Mr Wilson’s claim
[47] Mr Wilson pleaded that reg 161 requires ASCF “to provide reasonable assistance in the making of a complaint by providing a form if requested”.14 Mr Wilson seeks a declaration that “[the Prison Director’s] failure to accept, register or enter [Mr Wilson’s] complaint into the formal complaint system amounted to an error law.”
[48] The claim focusses on the single incident when a particular prison officer is said to have refused to provide Mr Wilson with a complaint form.
Evidential issue
[49] Mr Wilson deposed that when he asked for a form, the prison officer, Ms Sidhu, refused to provide it, saying: “If you don’t like it have your lawyer call management, it is their policy. It is the way we do things here.” Ms Sidhu says she does not recall that exchange.
[50] The respondents submitted that Mr Wilson ought to have sought leave to cross-examine Ms Sidhu. This would have doubtful utility given that her position is that she does not recall this part of the conversation. There would be more utility in cross-examination of Mr Wilson. Either way, no application for cross-examination was made.
[51] Judicial review is a poor forum for the resolution of contested factual issues.15 The parties provided a range of considerations as to why I might conclude the exchange did or did not occur. There are no objective surrounding circumstances that point to a clear answer. I accept that it is more likely than not that a comment leading to Mr Wilson feeling rebuffed was made. However, I am sceptical that it was in the strident terms Mr Wilson recalls, as opposed to the prison officer simply repeating when pressed that a maximum of two lawyers’ numbers was management’s policy. It also seems improbable that the prison officer refused point-blank to provide a complaint form (as opposed to not having one to provide at that time) when the forms are readily available elsewhere.
14 Emphasis added.
15 Geary v Psychologists’ Board [2009] NZCA 134, [2009] NZAR 338 at [22].
[52] Mr Wilson supports his version of events by suggesting that Ms Sidhu intentionally sought to prevent him from complaining as this might be adverse to her, or her employer’s interests in case it related back to the refusal to allow an AVL call. I reject this. Ms Sidhu was not even told why Mr Wilson wanted to add another lawyer’s phone number. This motivation is not an inference available on the evidence.
Was there any breach of the regulations/an error of law?
[53] Reg 161 details one way in which a prison manager will discharge the broader obligation in s 154 to ensure prisoners are given the opportunity to obtain assistance to make a complaint. The regulation does not specifically require a staff member to “supply a complaint form if requested” as is pleaded by Mr Wilson. Rather, it requires “reasonable assistance.” What is “reasonable assistance” needs to be considered in all the circumstances of a concrete situation.
[54] There were numerous avenues readily available to Mr Wilson to make a complaint. Mr Wilson was housed in a unit where complaint forms were easy to access and available through all staff members. Hard copies were also kept in the office, which was open during unlock hours. In addition to complaint forms, the information handbook advises other complaints procedures. For example, it proposed first speaking to the prisoner’s nominated individual officer to seek to resolve an issue. The handbook also refers to the ability to make a complaint to the Ombudsman, the Prison Inspectorate, or other agencies, numbers for which were accessible.
[55] Mr Wilson says that he did not want to take his complaint further because he had been given the impression that “making waves” would not help his next parole hearing. That is in context where in an earlier hearing the Parole Board referred to complaints Mr Wilson had made and whether there would possibly be other ways of dealing with these.
[56] The fact is Mr Wilson lodged another formal complaint on 19 November 2021, within a matter of weeks of his exchange with Ms Sidhu. The making of that further complaint and then a subsequent complaint on 24 December 2021 demonstrates there was no impediment to Mr Wilson accessing complaint forms or making a complaint.
[57] Mr Wilson’s stated concern about not wanting to “make waves” is inconsistent with the fact that the present judicial review proceeding was filed in April 2022. That is prior to Mr Wilson’s subsequent parole hearing in May 2022. I was advised that Mr Wilson had also brought further legal proceedings in respect to a different complaint.
[58] Even if Ms Sidhu did say what is imputed to her, this establishes only that in that one exchange a staff member refused to provide a complaint form in an informal conversation with the prisoner. At its highest, this can be characterised as a breach by that staff member of her obligation in reg 161 to provide “reasonable assistance” to the prisoner in the making of a complaint in that particular moment.
[59] I reject that this corresponded to an error of law by the Prison Director of a “failure to accept, register or enter the applicant’s complaint into the formal complaint system”. This is the declaration sought. Assuming that an operational breach of this manner can amount to an error of law, there is no error of law established.
Amenability to review/should relief be granted?
[60] I consider these issues together. For the reasons below, even had I been satisfied there were breaches or errors of law in the ways contended, I would not have granted relief. I focus on the request for an additional legal number in light of Mr Wilson’s position that the two claims are connected, with relief on the complaint form issue dependant on success on the first issue.
[61] The Courts have recognised that some latitude in decisions made by prison staff in relation to day-to-day operations is appropriate.16 This reflects the difficulty for prison staff if every detail of how a prison was run was subject to judicial intervention, and that the Court does not have the resources for that in any event. Mr Wilson’s complaint goes to how the prison operates its phone system in an
16 Bach v Prison Director, Auckland South Corrections Facility, above n 6, at [95] citing Mitchell v Attorney General [2021] NZHC 2946 at [62]–[67]; Genge v Chief Executive, Department of Corrections [2018] NZHC 1302 at [37]; Greer v Prison Manager, Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; Mitchell v Attorney-General [2013] NZHC 2836 at [39]; Smith v Attorney-General [2016] NZHC 1145 at [28]; Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [132]–[133]; Daemar v Hall [1978] 2 NZLR 594 (SC) at 603-604; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85].
efficient way and in a manner that secures the safety and welfare of prisoners and those who prisoners wish to call. While the importance of access to legal counsel cannot be doubted, it is reasonable for ASCF to restrict the number of lawyers who can be listed on a prisoner’s pre-approved list.
[62] Management of the pre-approved number system includes a need to allocate resources to verify numbers and check for a range of risks including whether there is any restraining or protective orders in place. For calls to lawyers, there is a need to create special delineation, given that unlike others, these calls are not monitored. Access to lawyers on pending proceedings is addressed outside this pre-approved system. In my view, the decision to limit the number of legal advisers on a prisoner’s pre-approved list is not one amenable to review as it falls into a category of cases involving operational decisions of the prison, which the Courts should not micro-manage.17
[63] For similar reasons, the impugned decision is not one that justifies declaratory relief.18 Mr Wilson seeks a declaration that the one-off “refusal to add the lawyer’s phone number on the applicant’s list of permitted phone numbers” amounted to an error of law. As discussed earlier, this refusal or at least advice that he had reached the maximum number of lawyers, did not limit Mr Wilson’s access to the legal adviser of his choice. A declaration would be disproportionate to the issues raised in this proceeding. This application does not treat judicial review as it should, as a last resort,19 but rather almost as an alternative first step in a complaints process.
[64] Moreover, judicial review will rarely be granted where there is an alternative remedy available.20 In this situation, a prisoner can pursue other courses of action including the availability of referral to the Ombudsman or Prison Inspectorate before
17 Mitchell v Attorney General, above n 16, at [64] and [67].
18 Judicial Review Procedure Act 2016, ss 16, 18 and 19; and see H v Chief Executive, Ministry of Social Development [2018] NZHC 3137, [2019] NZAR 381 at [77].
19 Mitchell v Attorney-General, above n 16, at [34] citing Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].
20 Gill v Attorney-General, above n 19, at [19] citing GDS Taylor and JK Gorman Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [5.28].
the matter becomes one that goes to the High Court by way of an application for judicial review.21 Those remedies were available here.
[65] While the focus above is on the addition of a further lawyer’s number, the same observations apply to access to the complaint form.
[66] In both instances, the one-off issue has no further consequence. The Court’s role is to resolve live disputes, not to rule on matters that are minor and have been rendered academic.
Third cause of action — claim against the Chief Executive
[67] ASCF is managed by a Prison Director, the first respondent, who is appointed under s 11(2) of the Act. The Prison Director has certain powers and functions under the Act and the Regulations.22 The Regulations also place obligations on prison staff members.23
[68] The claim against the Chief Executive is for a declaration that he failed to ensure his delegate, the Prison Director, adhered to his statutory and legal obligations.
[69] The Chief Executive retains responsibility for actions of any person acting under powers or functions he or she has delegated under section 199AA of the Act. However, the actions now pleaded do not involve powers or functions that have been delegated by the Chief Executive. Rather they are matters that rest with the Prison Director or staff directly without delegation. They are powers conferred expressly by the Act and Regulations.
[70] For that reason, the claim against the Chief Executive does not reach first base. It would also fail due to my findings on the causes of action against the Prison Director.
Result
[71]Mr Wilson’s application for judicial review is declined.
21 Bennett v Superintendent, Rimutaka Prison (No 2) [2002] 1 NZLR 616 (CA) at [69].
22 Corrections Act, s 12.
23 Section 14.
[72] It is not clear to me whether Mr Wilson is legally aided, or if he is not, whether costs will be sought by the respondents. I ask that the parties advise the Court of the position by joint or separate memoranda.
Anderson J
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