TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1078

TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1078 [21 May2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-207[2020] NZHC 1078UNDER the Judicial Review Procedure Act 2016BETWEEN ARTHUR WILLIAM TAYLORApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 20 May 2020Counsel: Applicant in personS C Carter for RespondentJudgment: 21 May 2020JUDGMENT OF CHURCHMAN JBackground[1] By proceedings dated 14 May 2020, the applicant has applied for judicialreview of a direction made by a probation officer that he leave the address at which hehad been residing.[2] The applicant has also applied for interim orders prohibiting the respondentfrom taking any further action on the challenged direction pending final determinationof the judicial review proceedings.[3] In addition to the notice of proceedings and statement of claim, an affidavit ofthe applicant has also been filed along with a memorandum of submissions.[4] The respondent opposes the application for interim orders and has filed amemorandum objecting to the orders sought and an affidavit of Jayden Southon dated15 May 2020.[5] By minute of 15 May 2020, Simon France J determined that interim orderswere neither needed nor appropriate to hold the situation over the weekend and offeredan urgent two-hour hearing on 20 May 2020 to determine the interim application.[6] By email sent to the Court and the respondent at 6.37 pm on 19 May 2020, theapplicant said, "I wish to cross-examine Jayden Southon on his affidavit." The emailalso said, "I also anticipate Ms Julianne Miles will be present and wanting to giveviva voice [sic] evidence."[7] No formal application for leave to cross-examine or to call oral evidence hasbeen made.[8] Any application for leave to cross-examine a deponent in a judicial reviewapplication should:1state the factual areas for cross-examination relating them to the grounds forchallenging the decision and matching them to passages in particular affidavitsand documentary material contended to give rise to gaps and deficiencieswhich should be subject to cross-examination.[9] The overall principle for determining leave is whether, given the affidavits, thecontradictions or inconsistencies are so fundamental, that cross-examination isnecessary to enable justice to be done.2[10] The sorts of factors which might justify the granting of leave to cross-examineare where there is a lack of adequate or proper explanation of the decision-making1 See Graham Taylor: Judicial Review – A New Zealand Perspective (4th ed, LexisNexis, Wellington2018) at 10.01 citing McGechan on Procedure (Looseleaf), Thomson Brookers (at [J72:9.04]),and Hamlin v State Services Commission [1987] 1 NZLR 598 at 596-597.2 Nicholls v Health and Disability Commissioner [1997] NZAR 351; Edwards v Toime (No. 1)[2005] NZAR 140; and TP v Tovey [2014] NZHC 922.process, where there is a material conflict of affidavit evidence, or where thecredibility of a deponent is in issue.3[11] I indicated to the applicant that, in the absence of identification by him of thefactual areas for cross-examination and their relation to the grounds for challengingthe decision, the Court was not in a position to make an informed decision as towhether this was an appropriate case for the granting of leave. Such informationshould be provided as part of a formal application for leave.[12] Similar considerations applied in relation to the calling of oral evidence. Suchevidence may be heard in judicial review proceedings if counsel agree to it, or theCourt may make an order under s 14(2) of the Judicial Review Procedure Act 2016.However, in order to make such an order, the Court must know the nature of the oralevidence proposed to be called and be satisfied that it is just to permit the calling oforal evidence. If the applicant wishes to pursue such an application at the substantivehearing, he will need to satisfy the Court why it is necessary to call oral evidenceinstead of reducing that evidence to affidavit form.The interim application[13] Mr Taylor has sought interim relief against a decision directing him to leavethe accommodation that he had been residing at while on parole.[14] Since filing the application for interim relief, he has, in fact, left that addressand had been residing at accommodation arranged and paid for by the respondent. Thearrangement was he would have this accommodation for one week expiring thiscoming Friday.[15] Mr Taylor was concerned that his possessions, including material relating tohis work as a legal consultant, remained at the former address and that because of thedirection that he leave that address, he was unable to uplift these items.3 See Stratford Racing Club v Adlam [2008] NZCA 92 at [63], and Smith v Attorney-General [2017]NZHC 463 at [4]-[5].[16] He was also concerned that he had insufficient time to arrange alternativeaccommodation between now and when the current temporary arrangement came toan end.[17] He submitted that he had been distracted from focusing on looking foralternative accommodation as a result of his need to prepare for this hearing.[18] For the respondent, it was submitted that it had addressed Mr Taylor'simmediate needs by sourcing and funding a week's accommodation for him. It wassubmitted that Mr Taylor had failed to engage with the respondent's efforts to assisthim into longer term accommodation.[19] Counsel accepted that the respondent had an obligation to facilitateMr Taylor's transition to suitable accommodation and that it was not in anyone'sinterests for him to end up homeless or being forced to reside with people engaging incriminal activity because he could not find anything more suitable.The law[20] The parties were largely agreed on the applicable legal principles governingapplications for interim relief in judicial review proceedings.[21] Section 15 of the Judicial Review Act 2016 gives the Court jurisdiction to makean interim order if in its opinion it is necessary to do so to preserve the position of theapplicant.[22] The case of Carlton & United Breweries Ltd v Minister of Customs4 wasaccepted by both parties as being the leading case. That case confirms that the Courthas a wide discretion to consider all the circumstances of the case, including theapparent strength or weaknesses of the claim of the applicant for review, and all therepercussions, public or private, of granting interim relief.4 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).[23] The factual situation is that the Police had been called to a number of domesticincidents at the address (although no charges have been laid in respect of thoseincidents). The complainant (Ms Miles) was the lawful occupier of that address.Ms Miles is not the owner of the property in question but has an entitlement, pursuantto the Will of her late partner, to occupy the property for her lifetime until her death,or entry into another relationship. The sole trustee of the trust that owns the propertywas not aware that the applicant was residing in the property and confirmed that hehad no tenancy or other legal interest in the property.[24] There was conflicting evidence as to whether Ms Miles had returned to theproperty after the applicant had left. The applicant asserted that she was residing inParaparaumu and the respondent contended that she was back residing in the property.[25] The applicant referred to the provisions of the Residential Tenancies Act 1986and the requirement for notice under that Act. However, although the applicant claimsthat Ms Miles has sublet the premises to him and that he is paying rent and otheroverheads, he is not a tenant of the owner and has no lease agreement or permissionfrom the owner to be there. Indeed, it may well be that Ms Miles is in breach of theconditions upon which she is entitled to occupy the property if she has, in fact, subletit and now resides elsewhere.[26] The fact that the applicant has been directed not to have contact with Ms Miles,should not preclude him from being able to uplift those items of his personal propertythat remain at the address. In the circumstances, it would be appropriate for therespondent to facilitate that happening.[27] It would also not seem to be a situation where the applicant's position can bepreserved. He has already physically left the premises and is residing somewhere else.The respondent has acted responsibly in arranging and funding, on an interim basis,alternative accommodation.[28] Through counsel, the respondent has indicated that it is prepared to continueto assist the applicant to find suitable alternative accommodation. It is up to Mr Tayloras to whether or not he chooses to engage constructively with the respondent in thatregard.[29] To the extent that it is possible to assess the strengths of the applicant'ssubstantive proceedings, his case would seem to rest on the proposition that it was notin fact the probation officer who personally made the decision to direct him to leavethe address but another entity within the Department of Corrections. If the applicantis able to establish that, he will be able to rely on decisions such as Shahid v ScottishMinisters.5 However, given the contents of Mr Southon's affidavit, it will not be easyfor the applicant to establish that the relevant decision was, in reality, not made by theprobation officer. His case could not be categorised as being strong.[30] There is also the added complication that if, in fact, Ms Miles has withdrawnher consent to the applicant residing at the address or if the trust that owns the propertydoes not consent to that, even if the applicant was ultimately successful in establishingthe invalidity of the decision, the Court would not be able to grant the relief sought.[31] The rights relied on by the applicant under the New Zealand Bill of Rights Act(NZBORA) need to be balanced against the right of the respondent to imposeconditions on where a person on parole may live.[32] The factors relied upon by the respondent in determining that the address wasno longer suitable such as the family harm callouts, excessive alcohol consumption,illicit drug use and the presence of two people regarded as unsuitable and who werepreviously unknown as occupants, are the sorts of factors that might legitimately betaken into account by the respondent in determining whether the residence continuedto be suitable.Conclusion[33] Considering all of these factors, I am not satisfied that the requirements ofs 15(2) of the Judicial Review Procedure Act have been met and that it is necessary togrant the interim orders to preserve the position of the applicant.5 Shahid v Scottish Ministers [2015] UKSC 58.[34] The applicant will still be able to challenge the impugned decision by way ofjudicial review.[35] I expect the respondent to co-operate fully in assisting the applicant to retrievesuch of his possessions as remain at the address, and also anticipate that the respondentwill continue to attempt to assist the applicant in locating suitable alternativeaccommodation.[36] Accordingly, for these reasons, the application for interim order is dismissed.[37] Costs are reserved.Churchman JSolicitors:Luke Cunningham Clere, Wellington for Respondentcc: A W Taylor