CLARKE v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2023] NZHC 1651

CLARKE v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2023] NZHC 1651 [29 June 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2023-412-49[2023] NZHC 1651BETWEEN DAVID WILLIAM CLARKEApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 June 2023Appearances: A L Pinnock for ApplicantM J Mortimer-Wang and C S A Fleury for RespondentJudgment: 29 June 2023JUDGMENT OF EATON J(As to Interim Relief)This judgment was delivered by me on 29 June 2023 at 3.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicant is a prisoner presently housed at the Otago Corrections Facility(OCF). By application dated 5 June 2023, he applied for judicial review of a decisionmade by the respondent to transfer the applicant from the OCF to Christchurch Prison"within a few days".1[2] The applicant seeks interim orders prohibiting his transfer from the OCFpending determination of the substantive application to review.[3] The applicant was unrepresented when filing the current applications. He isnow represented by Ms Pinnock. Mr Mortimer-Wang, on behalf of the respondent,opposes both the substantive application and the application for interim orders.Process to date[4] The application for interim relief was first called before me as Duty Judge on6 June 2023. A telephone conference was urgently convened. At that time, Mr Clarkeunderstood he was to be transferred to Rolleston Prison at 7 am the following day. Hehad filed an unsworn affidavit in support of the application for interim relief. At thetelephone conference, counsel for the respondent advised that the transfer decisionimpacted a number of inmates and was being implemented in two stages. Since beingserved with the proceedings, the manager of the OCF had agreed not to transferMr Clarke until Stage 2, then scheduled for 13 June 2023. The application for interimrelief was adjourned to Friday, 9 June 2023.[5] On 9 June 2023, the respondent filed a notice of opposition and an affidavitfrom the Prison Director of the OCF, David Miller, together with submissions inopposition to the application for interim relief. Mr Clarke had only recently receivedthat material and sought time to prepare a response. Mander J granted an adjournmentto 14 June 2023 for a fixture to determine the interim relief application. Mr Miller'saffidavit advised that the applicant's date of transfer was "still to be confirmed pendinghis application for interim orders".1 The decision was to transfer Mr Clarke to Rolleston Prison.[6] On 12 June 2023, Mr Clarke filed an affidavit in response to Mr Miller'saffidavit. On 13 June 2023, Osborne J issued a minute advising the parties that thesubstantive application could be heard on 28 June 2023. Given that early hearing date,Osborne J proposed that the 14 June hearing be vacated in favour of a substantivehearing on 28 June 2023. Osborne J enquired whether the respondent wouldvoluntarily refrain from transferring the applicant until 28 June 2023. Agreement wasreached, and the interlocutory hearing was vacated. In consenting, the respondentnoted: "The Chief Executive's position is intended to be a practical response to theCourt's minute."[7] On 14 June 2023, Mr Clarke filed further brief response submissions.[8] By memorandum of 20 June 2023, Mr Clarke gave notice of his intention toengage counsel. It was implicit within the memorandum that Mr Clarke would beseeking an adjournment of the substantive hearing. By memorandum of the same date,Mr Mortimer-Wang advised that an adjournment application was not opposed but gavenotice that if the 28 June hearing date was not to be utilised for the substantive hearing,the respondent intended to proceed to transfer Mr Clarke to Rolleston Prison on anoperationally convenient date from 29 June 2023 onwards. Counsel proposed theapplication for interim orders be heard on 28 June 2023.[9] On 22 June 2023, Ms Ryan, a partner with the law firm, Solomons, filed amemorandum on behalf of Mr Clarke, confirming arrangements for legalrepresentation were underway and that counsel, Ms Pinnock, had been provisionallyengaged. Ms Ryan advised that legal representation was subject to a grant of legal aidand that an adjournment of the substantive hearing would be necessary to enable thatapplication to be processed. She advised that, if legal aid was granted, Solomonswould act as instructing solicitors to Ms Pinnock. A one-month adjournment of thesubstantive application was sought with consequential variations of timetablingdirections. The substantive application was adjourned, and the application for interimrelief was set down for hearing on 28 June 2023.[10] On 28 June, Ms Pinnock appeared for Mr Clarke, having secured an interimlegal aid grant, and Mr Mortimer-Wang appeared with Ms Fleury (via VMR) on behalfof the respondent.The interim relief application[11] The applicant seeks an interim order under s 15 of the Judicial ReviewProcedure Act 2016 prohibiting the respondent from transferring him to RollestonPrison. The respondent opposes the application.[12] Ms Pinnock submits says the transfer decision was unlawful in that thedecision-maker did not comply with the requirements of s 54 of the Corrections Act2004 (the Act) and in particular failed to have regard to Mr Clarke being isolated fromhis son and partner if transferred to Rolleston Prison. Ms Pinnock contends that ifMr Clarke is transferred to Rolleston Prison he will be:(a) denied face-to-face, bi-monthly visits with his son;(b) denied face-to-face, twice-weekly visits from his partner;(c) denied fortnightly to monthly, fact-to-face counselling sessions with hiscounsellor; and(d) unable to retain the regular ongoing AVL contact with hisUnited Kingdom family;[13] Mr Clarke has deposed that the proposed transfer will isolate him from hisfamily and would have a tremendous impact on his mental and emotional wellbeing.[14] In opposing the application for interim relief, Mr Mortimer-Wang submits:(a) the Courts take a careful approach to interim orders which cut acrossdecisions as to prison management;(b) Mr Clarke does not have a strong substantive claim;(c) there will be negative consequences for the Department of Corrections(the Department) if an interim order is granted;(d) many of the alleged negative consequences for Mr Clarke will bemitigated; and(e) an interim order is not necessary to preserve the Court's ability to granteffective relief in the substantive application for review.Legal principles[15] Section 15 of the Judicial Review Procedure Act 2016 provides:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(3) However, if the Crown is a respondent,—(a) the court may not make an order against the Crown undersubsection (2)(a) or (b); but(b) the court may, instead, make an interim order—(i) declaring that the Crown ought not to take any furtheraction that is, or would be, consequential on theexercise of the statutory power:(ii) declaring that the Crown ought not to institute orcontinue any proceedings, civil or criminal, inconnection with any matter to which the applicationrelates.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[16] In Minister of Fisheries v Antons Trawling Company Ltd, the Supreme Courtconfirmed the general approach to interim relief under the predecessor to s 15 of theJudicial Review Procedure Act.2 The Supreme Court held:3Before a Court can make an interim order under s 8 of the JudicatureAmendment Act 1972 it must be satisfied that the order sought is reasonablynecessary to preserve the position of the applicant. If that condition is satisfiedthe Court has a wide discretion to consider all the circumstances of the case,including the apparent strengths or weaknesses of the applicant's claim forreview, and all the repercussions, public and private, of granting interim relief.[17] The purposes of interim relief are:4 to relieve the applicant from the adverse effects of a challenged decisionuntil the challenge is heard and determined, and to preserve the ability of theCourt to grant effective relief if the challenge is successful.[18] Of particular significance to the present application, the Court must considerwhether the applicant would be unfairly prejudiced by reason of a delay in obtaininga final hearing.5[19] A two-stage enquiry is appropriate. At the first stage, the applicant mustestablish a position that is necessary to preserve. At the second stage, the Court willconsider whether it is appropriate to exercise the wide discretion to make an order.The overall interests of justice must be considered.62 Minister of Fisheries v Antons Trawling Company Limited [2007] NZSC 101, (2007) 18 PRNZ754.3 At [3].4 Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571at [24].5 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).6 ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00, 18 December2000 at [17].DiscussionPosition to preserve[20] Mr Mortimer-Wang, whilst submitting that Mr Clarke does not have a right,entitlement or expectation that he be housed in a particular prison, acknowledges thatthe question of a "position to preserve" in judicial review is a wider enquiry thanwhether a right exists. This position was both conceded by the respondent andaccepted by the Court in Wallace v Chief Executive of Department of Corrections.7[21] Mr Clarke seeks to remain at the OCR. I accept he has a position to preserve.Mr Mortimer-Wang does not suggest otherwise.Discretion to grant relief[22] I first consider the apparent strength of the applicant's claim for review.[23] There is no doubt the Chief Executive may direct the transfer of a prisoner.Section 53(1) of the Act provides that a prisoner may be transferred on the directionof the Chief Executive, from any prison to any other prison in which he or she may belawfully detained. Section 54(1) prescribes the reasons the Chief Executive maytransfer a prisoner from one prison to another. Each of those reasons relates to anindividual prisoner. Section 54(3) is relevant to the transfer decision under review. Itprovides:(3) A prisoner may be transferred by the chief executive from one prison(the first prison) to another prison—(b) to enable effective management of the national prisonermuster:[24] Of particular relevance to Mr Clarke's substantive application is s 54(4):(4) When considering whether to transfer a prisoner for 1 or more of thereasons set out in subsection (1) or when considering how a transferfor 1 or more of the reasons set out in subsection (2) or subsection (3)7 Wallace v Chief Executive of the Department of Corrections [2022] NZHC 2464 at [56].is to be effected, the chief executive must, as far as is reasonablypracticable, have regard to—(a) the desirability of providing the least restrictive environmentfor the prisoner that is consistent with the maintenance ofpublic safety and the safety of staff members and otherprisoners; and(b) the need to facilitate the rehabilitation and reintegration of theprisoner into the community, taking into account theavailability and location of appropriate services andprogrammes that will contribute to the achievement of thoseobjectives; and(c) the desirability of ensuring that the prisoner is detained at alocation as close as is practicable to his or her family.[25] Mr Miller's affidavit explains the transfer decision. His affidavit merges theissues that arise in both the substantive and interim relief applications. He deposesthat the decision to transfer Mr Clarke was made for prison muster reasons. Mr Millerdescribes two "big picture" factors behind the decision to transfer Mr Clarke and otherOCF prisoners. First, the Department is facing extreme staffing pressures across theprison network, leading to considerable stress on the Department's ability to maintainsafe staff-prisoner ratios. The prison muster is managed to ensure the most effectiveoutcomes for prisoners and staff.[26] Second, three units at Christchurch Men's Prison are to close. Those units haveheld high security prisoners who require placement in other appropriate units. At thesame time, new modular units for low security prisoners have come online at RollestonPrison. Those units are not suitable for high security prisoners. The solution reachedwas that the OCF would become the high security prison for the Southern Region.The high security prisoners from Christchurch Men's Prison are to be transferred tothe OCF, and many of the low security prisoners presently housed at the OCF are tobe transferred to Rolleston Prison to take up the new modular units. The decision wasmade to close Unit 31, where Mr Clarke is presently housed. The intention is for theapproximately 60 prisoners held in that unit to be transferred to Rolleston Prison formuster reasons.[27] Mr Miller deposes that the specifics of who and when those prisoners were tobe transferred was considered by a group of staff at the OCF, including the ReceivingOffice, Health, Programme Co-ordinators, Principal Corrections Officers, and others.The purpose of that exercise was to consider personal circumstances bearing on theintended transfer, including upcoming court hearings, Parole Board hearings,programmes, employment, and health status.[28] Mr Clarke is in voluntary protective segregation. Mr Miller deposes that alllow security, voluntary protective segregated prisoners are being transferred toRolleston Prison, and there are no options within the OCF to house Mr Clarke underthe voluntary protective segregation regime at OCF. Mr Miller says that if Mr Clarkewas not transferred, extra staff resources would have to be dedicated to keeping a unitor part of a unit open solely for Mr Clarke. He says the point of the transfer is toensure prisoners are housed in appropriate conditions and achieve safe staff-prisonerratios, and if Mr Clarke were to remain in the OCF on a medium-term basis, that goalis jeopardised.[29] Mr Miller is confident Rolleston Prison can facilitate phone and AVL contactsand in-person visits for Mr Clarke. He acknowledges there may well be practicalconstraints which will impact on the face-to-face visits Mr Clarke has with his son andpartner.[30] He deposes that Rolleston Prison has a health team that can offer support forMr Clarke's mental health.[31] In Wallace, Grice J considered a challenge to a large-scale transfer of prisonersfrom Arohata Prison to Christchurch Women's Prison to address staffing issues andrelated safety and welfare issues. Grice J observed:[88] This is a case where the Court must exercise some caution beforeintervening in administrative or management decisions of governmentagencies or departments involving logistical complexities. This mustparticularly be so when staff and prisoner safety and possibly that of thepublic, may be put at risk. As the Court of Appeal put it in Taylor v ChiefExecutive of Department of Corrections, the Court must be careful to avoidstepping into what are management decisions involving resource allocation.(footnote omitted)[32] The decision to transfer Mr Clarke was made to effectively manage the prisonmuster. Necessarily, the decision engages staff and prisoner safety and welfare issues.[33] Further, the essential context of the current challenge is a statutory scheme thatexpressly disclaims any legitimate expectation as to conditions. Section 82B of theCorrections Act provides:82B No legitimate expectation as to conditions, etc(1) To avoid doubt, a prisoner does not have any legitimate expectationof—(a) being accommodated in, or of being provided with, the sameor similar conditions during the whole term of his or hersentence, period of remand, or other period of detention; or(b) being provided with the same or similar programmes oropportunities during the whole term of his or her sentence,period of remand, or other period of detention.(2) Subsection (1) does not affect any entitlement conferred on a prisonerby this Act or regulations made under it.[34] As Lang J noted in Reekie v Attorney-General:8 there is no requirement in the Act or Regulations that a Prison Manager mustconsult or seek input from a prisoner before a decision is made to effect a transfer toanother prison. Nor is there any requirement that prisoners be consulted about themanner in which they are conveyed from prison to prison. Obligations of that kindwould obviously be wholly impracticable given the number of prisoners Correctionsis required to transfer between prisons for a variety of reasons on a daily basis. Thoseresponsible for making such decisions therefore have a considerable degree ofdiscretion so long as the transfer is being made in accordance with s 54(1) to (3) ofthe Act and taking into account the matters set out in s 54(4).(footnote omitted)[35] Mr Mortimer-Wang submits that the approach of Grice J was appropriate andought to be adopted. I agree. This Court will appropriately be reluctant to intervenein a prisoner transfer in any case where staff-prisoner ratio and consequential safetyissues are raised. I accept the submission made by Mr Mortimer-Wang that a transferdecision is a multifactorial, operational decision that properly falls to administrativedecision-makers, subject to procedural supervision by this Court. The Court ought to8 Reekie v Attorney-General [2019] NZHC 1679 at [76].be cautious to prohibit administrative action that appears to have a lawful andprocedurally proper foundation.[36] The evidence presently available indicates Mr Clarke's transfer decision fellwithin a permitted statutory ground, being s 54(3)(b) of the Act. Consequently, thes 54(4) considerations, including familial proximity, fall to be assessed in the contextof how and not whether a prisoner is transferred. This factors against the granting ofinterim relief.[37] Ms Pinnock submits that no regard was had to familial issues in making thetransfer decision. Mr Miller says prison staff took into account the face-to-face visitswith Mr Clarke's son.9 He refers to correspondence between Catholic Social Servicesand the Principal Corrections Officer, Philip Savage, dated 16 September 2022 andreferring to the supervised visits with the son.10 Mr Miller deposes that, on the materialhe has reviewed, he believes Mr Clarke's family circumstances were known to staff atOCF and were considered as part of the transfer decision.11 I am not persuaded therespondent failed to have regard to familial considerations.[38] Ms Pinnock submits the respondent has not considered all availablealternatives to a transfer to Rolleston Prison. She refers in particular to the possibilityof Mr Clarke being housed in the Intervention Support Unit. Mr Mortimer-Wangsubmits it is not for this Court to conduct an inquiry as to whether all alternatives to aprison transfer have been explored. He submits such an inquiry falls clearly outsidethe scope of substantive review and interim relief. I agree.[39] At this interim stage, the decision to transfer Mr Clarke appears to be lawfuland reasonable. On the evidence I have reviewed, I am not persuaded the substantivereview application has great merit.9 Affidavit of David Miller at para 27.10 At 28.11 At 30.Adverse effects and effective relief[40] Ultimately, I consider this application to be determined by the assessment asto whether an interim order is necessary to preserve the Court's ability to granteffective relief in the substantive application. Mr Clarke's transfer to Rolleston Prisonis not irreversible. In the event his substantive application is successful, he will betransferred back to the OCF.[41] In the meantime, whilst I accept he and his family will suffer distress andanxiety because of physical separation, I do not consider that immediate consequenceto reach the threshold to justify interim relief. It is likely the substantive applicationwill be determined within months. Mr Clarke enjoys court ordered, facilitated face-to-face visits from his son every two months. The number of visits impacted by arefusal to grant interim relief is minimal. Ms Pinnock observes that the currentFamily Court orders require those visits to be conducted at the OCF. In my view, thereshould be little difficulty having the visitation orders amended to respond to thetransfer.[42] As Mr Miller has deposed, there will be facilities available at Rolleston Prisonto permit AVL visits and face-to-face visits. The circumstances personal toMr Clarke's partner and child will dictate whether face-to-face visits can beconducted. As Ms Pinnock acknowledges, there is no evidence addressing that issuebefore the Court.[43] Ms Pinnock refers to the evidence Mr Clarke is on a wait list for a surgicalprocedure at Dunedin Hospital. It is not known where Mr Clarke is on that list orwhen that surgery might take place. In those circumstances, I do not consider thisfactor favours a grant of interim relief.[44] Finally, I am satisfied that appropriate mental health specialists will beavailable to assist Mr Clarke to deal with the distress arising from the transfer.Result[45] The application for interim relief is declined.[46] I direct the Registrar to liaise with counsel to ensure the substantive hearing isheard on the earliest available date. Counsel should agree a timetable for the filing ofany further evidence and submissions.[47] Given Ms Pinnock's indication that Mr Clarke is legally aided, no costs issueshould arise. If that is not the case, Mr Mortimer-Wang is to file a costs memorandumwithin five working days....................................................Eaton JSolicitors:Crown Law Office, WellingtonSolomons, DunedinCopy to:Adriana Pinnock, Barrister, Dunedin