FORREST v TE WHATU ORA (HEALTH NEW ZEALAND) [2022] NZHC 2550

FORREST v TE WHATU ORA (HEALTH NEW ZEALAND) [2022] NZHC 2550 [4 October 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-442[2022] NZHC 2550UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN BRENDON DOUGLAS FORRESTApplicantAND TE WHATU ORA (HEALTH NEWZEALAND)RespondentHearing: 4 October 2022Appearances: B D Forrest (Applicant) in person (by AVL)W S Taffs for RespondentJudgment: 4 October 2022[REDACTED] ORAL JUDGMENT OF OSBORNE JThis judgment contains redaction ofpersonal or sensitive information.The application[1] Brendon Forrest applies for a writ of habeas corpus. He submits that hispresent detention [REDACTED] is unlawful.Background[2] Copies of the orders I am about to refer to have been produced to the Court.[3] Mr Forrest is subject to a [REDACTED] order (the Order) made in the[REDACTED] Court on 20 November 2018 under [REDACTED] Act [REDACTED](the Act).[4] The Order specified that Mr Forrest is: required to continue to be detained [REDACTED][5] The Order was in force until renewed by the [REDACTED] Court on 21 May2019, when the Order was extended pursuant to [REDACTED] of the Act (the firstextension).[6] On 19 January 2019, the [REDACTED] Court issued an order indefinitelyextending the Order pursuant to [REDACTED] of the Act (the [REDACTED] Order).[REDACTED] was identified in that Order as the place of detention [REDACTED].[7] [REDACTED]Mr Forrest's transfer [REDACTED] to Christchurch[8] On 11 May 2022, Mr Forrest commenced judicial review proceedings againstthe respondent. Mr Forrest sought a transfer [REDACTED] to Christchurch, and inparticular, to [REDACTED]. I note that, [REDACTED], it is evident that plans hadbeen made to that end for some considerable time [REDACTED].[9] Mr Forrest withdrew those proceedings in September 2022 as the transfer hadbeen completed [REDACTED].[10] [REDACTED].Grounds of this application[11] Mr Forrest states two grounds in his notice of application:(a) [REDACTED] was not the place of confinement identified in the Order[REDACTED], with the consequence that Mr Forrest is nowunlawfully detained at [REDACTED]; and(b) [REDACTED].Ground 1: place of detention[12] In his supporting affidavit, Mr Forrest noted that the Order specified[REDACTED] at which Mr Forrest was to be detained [REDACTED]. He states thathis argument is that, for his transfer to [REDACTED] to be valid, the original orderhad to be varied by a [REDACTED] Judge.[13] Mr Forrest's transfer to [REDACTED] was in fact carried out in accordancewith the statutory provisions.[14] Relevantly, [REDACTED] the Act requires every [REDACTED] order tospecify [REDACTED].[15] [REDACTED] of the Act then provides for the transfer [REDACTED] at thedirection of the [REDACTED]. Such directions or arrangements under[REDACTED] of the Act are sufficient authority for the transfer [REDACTED].[16] Accordingly, contrary to Mr Forrest's submission, the arrangements made forthe transfer of Mr Forrest [REDACTED] to Christchurch (as he in fact sought throughhis judicial review proceeding) were not required to be the subject of a variation byorder of the [REDACTED] Court.[17] That ground of application fails.Ground 2: a defective [REDACTED] review?[18] Mr Forrest in his affidavit explained that second ground of application in thisway:[REDACTED][19] In his notice of application, Mr Forrest states that: [REDACTED].[20] The respondent has produced to the Court a copy of an 11-page report dated16 August 2022. [REDACTED].[21] [REDACTED].[22] [REDACTED].[23] That said, there is not, in the information produced to the Court, evidence that[REDACTED] for the purposes of this review (and under [REDACTED] of the Act)in fact [REDACTED]. Mr Forrest has stated on oath that [REDACTED]. I will returnto this issue below.[24] The second aspect of this ground of Mr Forrest's application is that he hasnever seen the [REDACTED] of review. It is unclear why that might be the case,given the statement [REDACTED] that he was sending a copy [REDACTED]. I notein the course of submissions today, Mr Forrest has referred to the [REDACTED] ashaving seen the report and, as I understand it, the certificate.[25] That said, Mr Forrest will now have a copy of both documents as they havebeen served as part of the respondent's documents in this proceeding. He has his rightsof review [REDACTED] under [REDACTED] the Act. The late delivery of thecertificate (if indeed it was delivered late) does not affect the validity of the Order.[26] [REDACTED] of the Act requires the formal review [REDACTED] withinstated intervals. The regime provided for [REDACTED] calls for:(a) [REDACTED].[27] I return to the first aspect of Mr Forrest's second ground of application, whichlies in his statement that [REDACTED] review on him.[28] Mr Taffs, for the respondent, has correctly referred to the Court of Appeal'sdecision in Manuel v Superintendent of Hawkes Bay Regional Prison, as indicatingthe practical limitations of habeas corpus in contrast to other types of proceedings,such as judicial review.1[29] The decision in Manuel emphasises that the person detaining another can fairlybe expected to establish on demand the legal justification for detention (involvingproduction of the relevant warrant or order), in this case the [REDACTED] order. Itwill be a rare case where the habeas corpus procedures will permit the Court to enquireinto challenges on administrative law grounds to decisions which lie upstream ofapparently regular warrants or orders.2[30] If Mr Forrest is ultimately to pursue an argument that something went amiss inthe [REDACTED] review, that is an argument that should properly be pursued througha review to the Review Tribunal or possibly by judicial review proceedings. In hisaffidavit, he essentially maintains that his right to have his [REDACTED] review hasnot been met. That does not cut across the continuing validity of the [REDACTED]Order. This situation is distinguishable from that in the case cited by Mr Forrest tome, Keenan v Director of Mental Health Services.3 In that case, [REDACTED]. Asthose were prerequisites to the making of an order, it was strongly arguable that MrKeenan's detention was illegal. Here, the [REDACTED] Order has been issuedlawfully and remains in force. If [REDACTED] review was flawed in any way, theproper review can still take place.4[31] Having discussed with Mr Forrest in the course of his submissions on atentative basis these conclusions, I indicated that I viewed there was an alternativeapproach which may advance his concerns. In the course of discussion with Mr Taffs,he was able to indicate that he was providing an undertaking that within five workingdays, the relevant responsible officer of the respondent would file and serve anaffidavit addressing the matters which I have identified are not fully covered in[REDACTED] report. Those matters addressed in that way will enable Mr Forrest todetermine whether he indeed has matters which he can and should properly pursue1 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).2 Manuel, above n 1, at [49].3 Keenan v Director of Mental Health Services [2006] 3 NZLR 572 (HC).4 I make no determination as to whether the review conducted by [REDACTED] was in any wayflawed.through alternative remedies. I accept the undertaking of the respondent made throughMr Taffs this morning.Outcome[32] For the reasons I have stated, however, the application for a writ of habeascorpus will be dismissed.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: B D Forrest (Applicant) Self-represented