WALLACE, VINCENT, CARROLL, BASSETT, ROPITINI, JONES AND ATKINS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 139

WALLACE, VINCENT, CARROLL, BASSETT, ROPITINI, JONES AND ATKINS v CHIEF EXECUTIVE OFTHE DEPARTMENT OF CORRECTIONS [2023] NZHC 139 [8 February 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-579[2023] NZHC 139UNDER the Judicial Review Procedure Act 2016BETWEEN ELETISE NATASH WALLACE, RACHELVINCENT, DOMINIQUE CARROLL,MIHI ISABELLA BASSETT, TIPAREROPITINI, TARIANA JONES AND LARAATKINSApplicantsAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 2 February 2023Appearances: V Casey KC and A L Hill for ApplicantsM Mortimer-Wang and C Fleury for RespondentJudgment: 8 February 2023JUDGMENT OF McQUEEN J[1] This proceeding is an application for judicial review of decisions and actionsof the respondent in relation to Arohata Women's Prison (Arohata). The applicantsallege that the respondent has effectively and indefinitely closed Arohata for the long-term accommodation of sentenced prisoners, following the transfer of most sentencedwomen (except those who were to be shortly released) to Christchurch Women'sPrison (CWP) or Auckland Regional Corrections Facility (ARCF).[2] The applicants unsuccessfully sought urgent interim orders in September 2022.Ara Poutama Aotearoa | Department of Corrections (Corrections) then implementedthe transfer of sentenced women from Arohata to ARCF or CWP as planned. Asubstantive hearing of the application for judicial review is set down for three days on13 March 2023.[3] The parties have worked collaboratively in the provision of disclosure to date.The respondent has responded to three Official Information Act 1982 requests,provided 51 documents by way of two tranches of discovery and provided someanswers via counsel to questions raised by the applicants. The respondent has alsofiled affidavit evidence in both September and December 2022, including from thekey decision-maker, Mr Marsh, National Commissioner at Corrections (and formerlyDeputy National Commissioner).[4] Despite these steps having been taken, the applicants say they require furthermaterial, and therefore now seek directions under s 14(h) and (i) of the Judicial ReviewProcedure Act 2016 requiring the respondent to provide discovery of certain specifieddocumentation and permitting the applicants to administer specified interrogatories tothe respondent.[5] The respondent has indicated he will meet a small number of the requestsvoluntarily but otherwise opposes the application on the basis of that most informationsought is not relevant to the pleadings, fails the test of proportionality and that to grantthe application will jeopardise the substantive hearing.The applicants' claim[6] The applicants challenge the lawfulness of the respondent's decisions andactions in relation to the "mass transfer" of sentenced women prisoners away fromArohata, the "indefinite closure" of Arohata's specialist Drug Treatment Programme(DTP) and the "indefinite closure" of Arohata for the long-term placement ofsentenced women prisoners.[7] The statement of claim sets out four grounds of review based on unlawfuldiscrimination, irrationality and unreasonableness, failure to have regard to relevantconsiderations, and failure to act in accordance with the purposes and principles of theCorrections Act 2004.[8] The respondent admits that as a part of a wider "network rebalancing" exercisedirected at addressing acute staffing issues, sentenced women prisoners have beentransferred from Arohata to CWP or ARCF but denies there has been any decision toclose Arohata's Drug Treatment Unit or that there has been any decision to closeArohata for the long-term placement of sentenced women prisoners.The law relating to discovery and interrogatories in judicial review proceedings[9] The relevant law in relation to the availability of discovery and interrogatoriesin the context of judicial review is clear and not a matter of dispute between the partiesother than as to how the principles apply in the present case.[10] Discovery is not available as of right in judicial review, rather the power toorder it is discretionary.1 As McGechan on Procedure notes:2The requirement for relevance and proportionality in discovery areparticularly important in judicial review. Judges are responsible for narrowingthe issues and supervising the proceeding to ensure that relevant materialplaced before the Court is reduced to the necessary minimum [11] In judicial review proceedings public authorities are under a duty to explain intheir evidence the decision-making process, the relevant factual and othercircumstances, and the reasons for the decision under challenge.3 As recently statedby Gendall J:4Given this, it has been said that discovery orders are generally unnecessary inreview proceedings and also that such orders will not generally tend topromote the purpose of judicial review as a prompt and untechnicalmechanism to ensure public power is exercised lawfully.1 McGechan on Procedure (online looseleaf ed, Thompson Reuters) at [JR14.08]; citing Chatfield& Co Limited v Commissioner of Inland Revenue [2016] NZCA 614; Keenan v Attorney-General[2014] NZHC 1649; and Air New Zealand Limited v Auckland International Airport Limited(2011) 16 PRNZ 783 (HC).2 At [JR14.08]; citing Te Runanga o Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007; and Gama Foundation v Chief Executive of the Ministry of SocialDevelopment [2021] NZHC 3146.3 At [JR14.08]; citing Te Runanga O Ngati Awa v Attorney-General, High Court Wellington, CIV-2006-485-1025, 28 March 2007 at [6]; and Gama Foundation v Chief Executive of the Ministry ofSocial Development and Attorney-General [2021] NZHC 3146 at [10].4 Ferguson v Chief Executive of the Department of Corrections [2022] NZHC 1430 at [21].[12] The Court's task in ensuring that material sought by way of discovery isrelevant to the proceedings and necessary in the circumstances requires it to:5 make an assessment of what discovery is required to enable the applicantto fairly argue its case, whilst at the same time ensuring that the materialsremain relevant, and the requirements are consistent with the objective ofjudicial review being a simple, untechnical and prompt procedure.[13] The material sought must be both relevant to the proceeding and necessary inthe circumstances.6 It must also be proportionate.7[14] Interrogatories in judicial review proceedings are unusual.8 Similar questionsof relevance and oppressiveness (including a proportionality assessment) arise.9The application for discovery and interrogatories[15] The applicants contend that an unusual feature of this application for judicialreview is that there are core matters of fact that are disputed. The applicants say:(a) the respondent denies that he has even made the decisions or taken theactions under challenge: he denies that Arohata has been effectivelyclosed for the long-term housing of sentenced women for an indefiniteperiod;(b) the respondent similarly denies that in ceasing to operate Arohata forthe long-term housing of sentenced women he also effectively closedNew Zealand's only DTP for sentenced women for an indefinite period;5 Above n 4, at [22], citing Gama Foundation v Chief Executive of the Ministry of SocialDevelopment and Attorney-General [2021] NZHC 3146 at [10]; and Te Runanga O Ngati Awa vAttorney-General HC Wellington, CIV-2006-485-1025, 28 March 2007 at [6].6 Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007at [6].7 Smith v Attorney-General [2017] NZHC 2810 at [30].8 McGechan on Procedure, above n 1, at [JR14.08]. Cases in which they have been allowed areextremely rare: See Zaoui v Greig [2005] 1 NZLR 105 (HC); and Deliu v New Zealand LawSociety [2013] NZHC 1584.9 Wright v Attorney-General (No. 3) [2021] NZHC 18, at [10]–[17]. Approach upheld on review inWright v Attorney-General [2021] NHZC 1478. Both of which cited Todd Pohokura Ltd v ShellExploration Ltd [2009] NZCA 561 at [14]–[16].(c) they strongly dispute the respondent's claim that transfer decisionsfollowed and were based on and reflective of an assessment ofindividual circumstances for each woman: they say no suchassessments were made, and that the effective decision was that allsentenced women (except those due to be released) would be (andwere) transferred;(d) the respondent makes high level claims that actions to reduce theadverse impact of the transfers were put in place and delivered: theevidence of the applicants alleges that the reality is very different, butthe respondent simply continues to assert that this is the correct positionin fact; and(e) the respondent claims that his actions were justified as an essential partof a network reconfiguration to address staffing shortages elsewhere,particularly at Mt Eden and Springhill prisons, and that other options toaddress staffing shortages were not available: the applicants dispute thisand say that these claims require full disclosure of the alternativeoptions considered and the reasons why each was rejected.[16] The applicants say that the sentenced women in the Arohata catchment area arebearing the cost of the network rebalancing exercise. They say the network rebalancingexercise is an easy and efficient option for the respondent but is seriously detrimentalto the sentenced women prisoners, their children and whānau. They highlight that theevidence filed for the respondent in December 2022 says nothing about the timeframein which Arohata will return to taking sentenced prisoners nor is there any evidencefrom the directors of CWP or ARCF. The applicants say that the respondent's evidencesuggests a DTP will be provided at ARCF but they are concerned about the timing ofthat for relief the Court may give—the evidence suggests it will open in April but thesubstantive hearing of this matter is presently scheduled for March.[17] As a result, the applicants seek discovery in two categories. The first relates towhat they describe as the effective closure of Arohata for long term housing ofsentenced women and the DTP for an indefinite period, and the respondent'sconsideration of alleged alternatives. The second category relates to the allegedindividual assessment of each woman for transfer decisions, and conditions in thereceiving prisons.[18] The applicants submit that the discovery sought is limited, specific, and isproportionate to the significance of the claim. They say much of the material has beenrequested since September 2022. They accept that discovery and interrogatories mayaffect the upcoming hearing (and will certainly affect the timetable for their provisionof evidence in reply and possible application for cross examination) but say that theinformation sought is critical to their ability to fairly present their case fully to theCourt and to do justice to the parties, given the disputes of fact. They say that a deferralof the hearing will not prejudice either party.The respondent's position[19] The respondent submits that the application should be dismissed. He says theevidence and disclosure put the record of the decisions under challenge before theCourt, and explains them.[20] The respondent raises two key matters in support of its opposition to theapplication. The first is that the applicants' claim relates to what is described in thestatement of claim as the "mass transfer" of prisoners from Arohata and not todecisions relating to particular individuals who were transferred.10 The respondentsubmits that relevance is determined by the pleadings and the pleadings do not"identify, describe, plead or challenge individual transfer decisions". He says this isconsistent with the causes of action pleaded. Rather, the respondent submits, thedocuments sought are relevant to implementing the decision now under challenge,which is not relevant to the claim.[21] The second key matter is that the respondent says the applicants are seekinginformation that post-dates the decisions under challenge. The respondent submits that"the general rule is that judicial review proceedings are determined on the basis of the10 See First Amended Statement of Claim dated 5 October 2022 at [2].material before the decision-maker at the time of the decision".11 He accepts thatupdating evidence may be needed if the case reaches the point of relief but submitsthat disclosure of subsequent information cannot help the applicants establish whetherthe decisions under challenge were lawful, fair and reasonable at the time.[22] The respondent also submits that many of the requests are not proportionate,as they would require the review of dozens of prisoner files and substantial review ofthe communication of a large number of staff for relevance, all of which would requiresignificant time and effort. He says that that parties have worked well together to bringthis matter to a prompt hearing and the discovery and interrogatories sought willdisrupt that. He notes that the hearing date may be prejudiced and that matters will nolonger be simple, untechnical and able to be determined promptly. The respondentwishes to proceed with the hearing scheduled for 13 March 2023, given the legal riskposed to Correction's operation.[23] Finally, the respondent says it is important to distinguish between the fact thatan account has been given by him of relevant events, and whether that account is notgood enough or should not be accepted. He says that an account has been providedand it is a matter for submission at the substantive hearing as to the sufficiency of thataccount.Discussion[24] The requests for further discovery are set out in Annex A to the applicants'memorandum seeking directions dated 24 January 2023. Counsel for the respondenthelpfully provided these in a table format with his response to each request. Prior toaddressing each request in turn, I discuss the broad categories of documents sought bythe applicants, the respondent's objections, and my general approach to the categories,in order to minimise repetitive discussion in relation to each request.11 See Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR1648 at [33]. The respondent submits that the exceptions given to the general rule in this quoterelated to causes of action that turned on evidence external to the record of the decision itself, suchas and faith or breach of natural justice, neither of which is pleaded in the present case.Documents relating to individual women transferred[25] The application for disclosure of documents relating to individual women mustbe assessed against the matters in dispute, as shown by the pleadings. I have reviewedthe pleadings carefully. I accept the respondent's submission that the proceeding isframed at a high level, challenging the "mass transfer of women" from Arohata. He iscorrect when he says that there is no mention in the statement of claim of individualwomen nor the decision to transfer any particular woman and on what basis that mighthave taken place. The causes of action are also pleaded generally.[26] However, the respondent has chosen to plead in his defence that decisions weremade in relation to whether each individual woman should be transferred (see forexample, [24(c)] of the statement of defence which pleads "the individual decisionsbeing made pursuant to the process pleaded below at para [50]"). At [50] of theamended statement of claim (ASOC) the applicants plead:In approving those transfers [of the Arohata women], the respondent or hisdelegate had formed the view that all the sentenced women at Arohata weresuitable for transfer except a small number of women.[27] The pleading from the respondent in his statement of defence states:He admits paragraph 50 and says further:(a) As part of the network rebalancing exercise relating to Arohata Prison,over the course of September 2022, he identified individual sentencedprisoners at Arohata Prison that would be transferred from ArohataPrison to CWP or (where appropriate) ARCF.(b) Prisoners were first identified through Department of Correctionsprisoner management software that triages transfer decisions based onfactors drawn from Corrections' records.(c) The initial lists generated were then supplemented by input andfeedback from Corrections staff including those on-site at ArohataPrison to further supplement the matters to be taken into account inidentifying prisoners for transfer.(d) The selection of prisoners to transfer was kept under constant review,with the result that numbers of prisoners and timings of transferschanged over the course of this period.(e) [28] It therefore seems to me that the respondent has confirmed that Corrections'transfer decisions were made on an individual basis. The applicants do not accept thatthis happened (rather they say a decision was made to transfer all sentenced women atArohata) but anticipate that the respondent will seek to rely on this matter as part ofhis justification of the decisions under challenge. If this is the respondent's intention,his submission that such documents are relevant to operationalising the decision underchallenge but not to the decision itself is not convincing.[29] However, I am concerned that the discovery sought by the applicants in relationto individual women would be onerous for the respondent to comply with and causeexcessive delay. Although the request now relates only to the applicant women (andnot all women transferred), it is still substantial. The respondent has explained thatresponding to the requests would require an extensive collation exercise and perhapsalso further affidavit evidence.[30] This is undesirable in the context of a judicial review proceeding designed tobe simple, untechnical and prompt. I also note that evidence for the respondent clearlystates that individual assessments did occur (see the affidavits of Mr Marsh andMs Carey (Prison Director at Arohata) and it remains to be seen what the respondent'sreply evidence addresses in this regard.[31] On balance, I conclude that given the general nature of the pleaded case for theapplicants and the disproportionate nature of the discovery requested, I should refusethe requests for discovery in relation to the decisions to transfer individual women. Ido so, however, with the caveat that the applicants may raise this issue again at thesubstantive hearing, should they consider that the respondent's case as advanced at thehearing requires such information to be disclosed in order for the applicants to fairlyargue their case.Documents post-dating the actions and decisions[32] I do not accept that documentation that post-dates the decisions and actionsunder challenge is generally relevant in the absence of a clear link between postdecision documents and the issues before the Court.12 The respondent submits,correctly in my view, that such documents cannot inform the basis on which therespondent made his decisions, which are now under challenge. The applicants saythat such documents will inform the Court about what has actually happened, and thismay be relevant to relief. I accept that may be the case but prefer to deal with that issueif a clear link arises. Updating evidence from the respondent may be required toproperly address relief.Alternatives to the decisions taken by Corrections[33] Generally speaking, I accept the submission by the applicants that alternativeresponses to the staffing and operational issues faced by Corrections are relevant tothe matters in dispute as they relate to assessing Corrections' approach in choosing the"national rebalancing exercise" as the preferable solution.Relevance and Proportionality[34] I am mindful of the general approach to discovery and interrogatories in ajudicial review proceeding and accept that discovery must be both relevant andproportionate.[35] I now turn to each request made, to consider it against my broad conclusionsabove, and, specifically whether the request is required to enable the applicants tofairly argue their case consistent with the objective of judicial review being a simple,untechnical and prompt procedure. I confirm that I have considered each request inthis way, despite not repeating this point in relation to each request.Discovery RequestsRequest 1[36] This request relates to a memorandum dated 14 August 2022 from Mr Marshto the Executive Leadership Team, attached to Mr Marsh's second affidavit asexhibit "K". The applicants seek the full document, other than redactions properly12 Comalco v Broadcasting Standards Authority [1995] NZAR 428; and Clements v AucklandCouncil [2018] NZHC 553 at [18].required to protect legal professional privilege. In this document, [66] to [74] are underthe heading: "Legal implications–—confidential and legally privileged". I do notunderstand the applicants to challenge the redaction of that section. Rather they focuson the redacted paras [25] to [29] and [31], which appear under the heading:"Corrections has already implemented a range of initiatives at a local, regional andnational level in response to staff shortages". Ms Casey sought my review of theseparagraphs to confirm that they are properly subject to legal professional privilege.She submits that this is the core decision paper and so the issue is particularlyimportant.[37] I note that this document was also attached to Mr Marsh's first affidavit, whereadditional material was redacted. Since the filing of Mr Marsh's first affidavit, [56]and [78] have been reassessed by the respondent and are no longer redacted inexhibit "K" in Mr Marsh's second affidavit. Mr Marsh explains at [3.21] of hisaffidavit that "the remaining redactions contain privileged legal advice" (whichincludes paras [25] to [29] and [31]).[38] The respondent did not make any specific submissions at the hearing inresponse to Ms Casey's request that I inspect the document in order to be satisfied thatparas [25] to [29] and [31] are appropriately redacted on grounds that the contents areprivileged. This may be explicable because, as the hearing unfolded, counsel for therespondent was left with only a short time in which to make submissions andunderstandably focused on his key points.[39] While I have the power to inspect the document for the purpose of ruling onprivilege, I should be satisfied that the circumstances warrant exercising that power.13The learned authors of McGechan on Procedure have noted that there are inherentdifficulties in inspection by the Court as it usually occurs where only one party hasseen the documents in question.1413 See Seamar Holdings Ltd v Kupe Group Ltd [1995] NZLR 274, (1995) PRNZ (CA).14 McGechan on Procedure, above n 1, at [HR8.25.02]; citing NZ Iron Sands Holdings Ltd v TowardIndustries Ltd [2019] NZHC 1416, [2019] NZAR 1199 at [22], [34] and [38].[40] Here, the request is made in relation to only one document so any inspectionby me would not be onerous. The document is not part of an affidavit as to the statusof documents, where the Court is reluctant to go behind the affidavit without cogentevidence to challenge the view expressed.15 On the other hand, counsel for Mr Marshhave had two clear opportunities to consider appropriate redactions in this document(the first redactions having been made in the context of provision of the documentunder the Official Information Act 1982) and I consider that I can assume thatcounsel's careful assessment is reflected in Mr Marsh's second affidavit.[41] The applicants have not advanced any reasons as to why there is doubt aboutthe assessment made. That the document is a "core decision document" is not a reasonof itself. In the circumstances, I decline to inspect the document.Request 2[42] This request relates to documents referred to in Corrections' "consolidationplan" document. Mr Marsh describes the consolidation plan as "steps mostly focusedon the redeployment of staff, with some limited transfers of prisoners withinregions".16 The applicants seek the "Arohata Plan" and the record of the PrisonDirector's decision that Tizard (a wing of Arohata) was not to close. The applicantssay that they are concerned about alternatives considered by the respondent so submitthat documents about such decisions are relevant. The respondent submits that theconsolidation plan was part of an earlier initiative that preceded the networkrebalancing exercise that is the subject of these proceedings and is therefore irrelevantto the pleaded decisions under challenge.[43] The ASOC at [61] pleads that the respondent did not, prior to 1 September2022, undertake an analysis of alternative options to address staffing shortfalls in theMt Eden and Springhill men's prisons other than closures at Arohata. The fourth causeof action pleads that the respondent's decisions and actions, "in the context wherealternatives are reasonable and practicable (especially when measured against the15 NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416, [2019] NZAR 1199 at[34].16 Second Affidavit of Leigh Marsh, 23 December 2022, at [2.4].adverse impacts of the current proposal)" are contrary to certain purposes andprinciples of the Corrections Act 2004.[44] I conclude that the "Arohata Plan" and any record of the Prison Director'sreasons for her decision that 'Tizard' was not to close (as referred to in theconsolidation plan) are potentially relevant to the matters in issue. I direct that they bedisclosed by the respondent.Request 3[45] This request seeks the records of a Corrections staff member, Cam List, and"HR" as co-leads for Option 8 (expand prison configuration by closing more units orprisons) in the Draft Retention Activities document dated 29 July 2022 exhibited toMr Marsh's second affidavit.17 The applicants say that this is relevant because itidentifies a workstream looking at closing a prison or unit.[46] The respondent says that these documents are not relevant and notes thatMr Marsh explains how that option was considered and the reasons for it beingdismissed.18[47] I am satisfied that Mr Marsh has explained in his affidavit why this option wasnot pursued. It seems to me that the workstream is vague (as emphasised by thequestion marks after the heading "Next Steps") and insufficiently connected to thematters at issue in this proceeding for it to be proportionate to grant this request.Request 4[48] This request seeks communications to and from the respondent'scommunications team and advisers relating to the decisions and actions affectingArohata from August 2022 to the end of September 2022.[49] I understand that this request relates to concerns about what was said in astatement Corrections released to the judiciary, legal profession and others on17 I could not locate some exhibit references in Mr Marsh's affidavit but I record that I found thediscussion of Option 8 on p 169 of Mr Marsh's second affidavit.18 Above n 16, at [3.6(a)].14 September 2022 titled "Update on work to ease staffing level pressures in prisons".As I understand it, the applicants are contending that this document revealsCorrections' intention to close Arohata to sentenced prisoners, a position denied by therespondent. The applicants say this demonstrates the respondent's denial of one of thecore matters at issue—what Corrections' intention was in relation to Arohata.[50] The respondent submits that internal communications about decisions thathave been made must necessarily post-date the decisions that were made and cannotbe relevant to the assessment of the legality, fairness and reasonableness of thedecisions made.[51] In general terms, the delivery of public messages from the communicationsteam seems unlikely to be relevant to understanding Corrections' decision making, andas the respondent submits, will necessarily post-date the actual decisions made. But inthis case, there is debate over whether the 14 September 2022 statement accuratelyreflects Corrections' position. The respondent does not consider that the statement isinconsistent with his position that there is no decision to close Arohata to sentencedprisoners, but the applicants do not accept this.[52] In these circumstances, I consider that the instructions given to therespondent's communications team in anticipation of the 14 September 2022statement are relevant to the question of Corrections' intentions, along with anycommunications from the communications team that seek to clarify or otherwisediscuss the instructions. I otherwise decline to order this request.Request 5[53] This request seeks documents recording the consideration and assessment ofalternative options to address staffing shortages at Mt Eden and Springhill prisons thatwould not involve the mass transfer of sentenced prisoners from Arohata and thesuspension of the DTP, or confirmation that such documentation does not exist. Theapplicants say that Mr Marsh's high-level statements in his affidavits about thesematters are insufficient.[54] The respondent submits that he has provided extensive information andmaterial about this. Mr Marsh describes the process the respondent has gone throughin his affidavits, as well as referring to and attaching documents. I accept that there isconsiderable information available as a result. However, I note that Mr Marsh attachesto his second affidavit a memorandum reporting on the "deep dive" on staffingpressures at Mt Eden prison and he says that he received a similar document forSpringhill prison.19 I consider that this document should be provided to the applicants.Beyond that, I decline this request.Request 6[55] This request seeks documents reporting on and relating to the statementpleaded at [23(d)] of the statement of defence that "the reassignment of staff did notyield sufficient results such that the rebalancing exercise was necessary". Theapplicants say, again, that high-level statements by Mr Marsh in his affidavits areinsufficient and that documents should be disclosed.[56] I accept the respondent's submission that this has been adequately addressedin evidence and attached documentation. This request is declined.Request 7[57] This request seeks documents recording consideration of any proposals toincentivise or compensate staff willing to transfer or be seconded outside of their ownregion. The applicants say that this too is relevant to whether a reasonably justifieddecision was made by the respondent, in the face of the level of harm that has flowedfrom the transfer of sentenced women prisoners from Arohata.[58] The respondent submits that he has provided information about this already.[59] I consider that this has been adequately addressed in evidence and the attacheddocumentation and therefore decline the request.19 Above n 16, at [2.12].Requests 8, 9 and 10[60] These requests relate to:(a) documents relating to and recording the National Coordination Centre's(NCC) review of the network rebalancing that took place in January2023 (as referred to by Mr Marsh in his second affidavit at [6.4]);(b) other documents (if any) reporting on or relating to the statementpleaded in the statement of defence at [23(h)] that the networkrebalancing exercise remained (and remains) under activeconsideration; and(c) the executed contractual and other key planning and decisiondocuments confirming that the DTP will in fact recommence fulloperation (in Auckland) in April 2023, as referred to in Ms Finnigan'saffidavit at [6.4].[61] The applicants say that the NCC review will inform the Court as to howCorrections thinks it has done, and information about any possible re-opening ofArohata will be relevant to the Court. They also say that these documents are relevantif Corrections intends to rely on keeping the network rebalancing under review asjustification of the decisions and actions. As for the documents relating to the DTP inAuckland, the applicants submit that they will enter a suitable confidentialityagreement if that is necessary for disclosure of the documents sought.[62] The respondent opposes all of these requests on the basis that they post-datethe decisions under review and are therefore not relevant to the pleaded issues. Heaccepts that what Corrections has done subsequently may be relevant to relief butsubmits that this should be dealt with at the time, should it be necessary.[63] I am not persuaded that discovery of these documents is necessary. It does notseem to me to be relevant to the challenge brought by the applicants to consider whatfurther steps Corrections has taken or is taking since it made the decisions underchallenge. To the extent that information about subsequent steps is required in thecontext of considering relief, further evidence could be provided at that time. Suchevidence is likely to be more helpful at that stage, given the passage of time prior tojudgment.Request 11[64] This request seeks identification of the author, recipient(s) and approximatedate of discovered document 0321 entitled "initial list of potential levers". Therespondent has indicated that he will meet this request voluntarily.Requests 12 and 13[65] These requests seek:(a) the records of assessments that were allegedly undertaken for each ofthe applicant women relating to their suitability for transfer, and therecords of the decisions to transfer them; and(b) for applicants Ms Jones and Ms Wallace (who were not transferred inthe initial tranches in September and early October 2022) the recordsof the decisions not to transfer them at that time and the assessmentsthose decisions were based on and the records of the furtherassessments and later decisions that resulted in their subsequent transfer(which will overlap in part with (a) above).[66] For the reasons set out above at [26]–[32], I decline these requests but note theability to revisit this at the substantive hearing, if necessary.Request 14[67] This request seeks the weekly reports on sentenced prisoners referred to inMs Carey's affidavit at para [5.6]. The applicants understand that these reports relateto newly sentenced women received into Arohata and their subsequent transfer to otherprisons. The applicants submit that matters such as this are not satisfactorily addressedin evidence.[68] The respondent says again that this request postdates the decision underchallenge and is not relevant to the pleaded issues.[69] I consider that this request relates to a timeframe after the challenged decisionsand therefore decline this request.Requests 15 and 16[70] These requests are resolved.[71] Request 15 relates to site impact assessments from CWP as referred to byMr Marsh in his second affidavit at [3.11]. The site impact assessment for CWP iscaptured in the "CWP" column of exhibit "H" of Mr Marsh's second affidavit. Theimpact assessments were collated in that spreadsheet and counsel for the respondenthas been instructed there is no other separate document.[72] Request 16 relates to site impact assessments for ARWCF. Counsel for therespondent has been instructed there was none prepared for ARWCF.Requests 17 and 18[73] These requests relate to all reports and communications from CWP or ARWCFto the National Office of Corrections or NCC relating to the proposed and actualtransfers to that prison from Arohata. The applicants submit that the situationCorrections transfers women into is relevant to the decision to transfer. They say thatthere is nothing in the evidence so far that addresses this. The applicants are preparedto cooperate with the respondent to narrow the scope of this request.[74] The respondent says that he considers the actual transfers irrelevant to thepleaded claim. He also notes that considerable material is already available in relationto the significant input from CWP on the network rebalancing exercise. He says furtherthat the order sought is disproportionate and even a tailored order would require fullreview of email servers, large-scale civil discovery style review, and would impose aconsiderable burden on the respondent.[75] For the reasons I set out earlier, I consider that the situation into which thewomen prisoners held in Arohata were to be transferred is relevant to the transferdecision, but only at a high level rather than at an individual level and only at the timeplanning the transfers was underway. I accept the respondent's submission thatmaterial already produced contains significant input from CWP on the nationalrebalancing exercise but observe that there does not appear to be equivalent materialfrom the ARWCF.[76] I order the discovery of communications from the Prison Directors of CWP (tothe extent not already provided) and ARWCF to the National Office or NCC duringthe period 18 August 2022 to 20 September 2022. That is the timeframe from the dateof the memorandum recording the network rebalancing decision, from which pointMr Marsh has given evidence that an "extensive internal consultation" took place, tothe date of the first transfers. However, discovery is only to be made in relation toproposed transfers of women prisoners generally to those prisons from Arohata. Anycommunication relating only to the transfer of an individual woman prisoner is notrequired to be provided.Requests to administer interrogatories[77] As I outlined earlier, interrogatories in the context of a judicial reviewproceeding are unusual. Interrogatories must relate to matters at issue between theparties.[78] The applicants sought leave to administer twelve interrogatories.Request 1[79] This request states:In Mr Marsh's first affidavit sworn 19 September 2022 at [34] he refers to12 sentenced women who are "not scheduled to transfer out of Arohata".Please state for each of these 12 women the date they left Arohata and if thatdeparture was a transfer to another prison or release.[80] The applicants say that they understand that the 12 women referred to have allleft Arohata, but they wish to confirm this.[81] I accept the respondent's submission that this post-dates the decisions underreview and is therefore irrelevant. I decline this request.Request 2[82] This request states:Please state the number of sentenced women received into Arohata after4 October 2022, and for each woman state whether she still remains atArohata. For those that have been transferred from Arohata, please state howlong she stayed at Arohata and the reasons for her transfer. Please statewhether any of these women were pregnant, and /or had children, whanau oriwi links in the region. For those that remain, please state how long eachwoman has been at Arohata and whether she is under consideration fortransfer, and if not, why not.[83] The applicants say this interrogatory goes to the fact Arohata is closed tosentenced prisoners and that this has been to the detriment of women prisoners. Therespondent says these matters are not pleaded in the ASOC and so are not relevant. Hesays that the affidavits of Mr Marsh and Ms Carey give an overview of subsequentdevelopments including prisoner transfer numbers and no further detail is necessary.[84] This request seeks information that post-dates the decisions under challenge.In my view, this interrogatory is unnecessary for the fair determination of theapplicants' claim. I decline this request.Request 3[85] This request states:Mr Marsh in his first affidavit at [18] refers to there being space available tohouse more (male) prisoners at Auckland South Corrections Facility but thatthis could not be used to relieve pressure on Mt Eden or Springhill becauseASCF "does not take remand prisoners." Please state:3.1 as at August 2022 how many vacant beds did ASCF have?3.2 what was the basis for ASCF "not taking" remand prisoners?3.3 what steps were taken to modify or attempt to modify the arrangementsso as to allow the placement of remand prisoners at ASCF? Pleasedisclose all relevant documentation recording those steps and theiroutcome.[86] The applicants submit that this information is relevant to understanding thealternatives open to Corrections. They say in relation to [3.1] that if no steps weretaken, or that steps were only possible at a certain cost, that is also relevant to theoptions Corrections did or should have considered.[87] The respondents submit that number of spaces at ASCF is not relevant to thepleaded claim. In response to [3.1] and [3.3] they also refer to Mr Marsh's secondaffidavit where he explains that the contract between the respondent and SERCOprovided for ASCF to hold sentenced prisoners and any conversion to holding remandprisoners would be a major change to the contract.[88] In my view, the question of alternative options available to the Department isat issue in the pleadings. I direct that this interrogatory be answered by the respondent.I decline to order the discovery request set out in the last sentence.Request 4[89] This request seeks:Exhibit B to Mr Marsh's second affidavit refers to ASCF also being able totake low security sentenced prisoners to free up capacity in other prisons inthe men's network, but this option not being favoured as low security prisoners"are often the ones doing essential services work at their [current location]".Please state what essential work was being referred to, what options wereconsidered to address that issue and facilitate the transfer of low securityprisoners to ASCF, and specify how many low security prisoners weretransferred to ASCF as part of the network reconfiguration?[90] I assume this is a reference to option 10 noted at page 66 of Mr Marsh'saffidavit. The applicants are concerned again about the alternatives considered by therespondent. They do not accept the respondent's argument that they are seekingevidence, rather they say they are seeking facts.[91] I direct that the respondent answer the first two parts of this interrogatory. Heneed not answer the question of how many low security prisoners were transferred toASCF as part of the "network configuration", which appears to me to be answered inpara [7.17] of Mr Marsh's second affidavit.Request 5[92] This request states:In his second affidavit at [5.4] Mr Marsh states that "the women's prisonnetwork had capacity to move prisoners in a way that could free staff to go toRimutaka; the men's prison network did not." Please state as at mid August2022 (or nearest sensible date) how many vacant beds did each prison (otherthan Mr Eden and Springhill) in the men's network have? Please state howmany of those vacant beds at each prison have subsequently been utilisedthrough the transfer of prisoners under the network reconfiguration.[93] While not accepting that it is necessarily relevant, the respondent willvoluntarily answer this interrogatory.Request 6[94] This request states:Mr Marsh in his first affidavit refers to an alternative option that was discardedas not feasible, being to transfer (male) prisoners to Hawkes Bay RegionPrison, and says: "but our assessment identified considerable strain on thehealth services there". Exhibit [unidentified] to Mr Marsh's second affidavithowever records that "Health facilities at CWP [Christchurch women'sprison] is very small and would require additional capacity for additionalprisoners." Please state what additional staffing capacity was provided for theCWP health facilities to accommodate the women transferred from Arohata,when was this put in place and for how long?[95] The applicants say that this relates to what the respondent did (or did not do)to fix a known problem at CWP. They do not accept the respondent's submission thatthis post-dates the decision under challenge.[96] I have not been able to locate the exact sentence quoted by the applicants in anexhibit to Mr Marsh's second affidavit, although the sentiment is expressed multipletimes in the spreadsheet that is exhibit "H" at pages 211, 212, and 214. Nonetheless,in my view, this interrogatory should be answered by the respondent as it relates to therespondent's assessment of alternatives. To respond to the respondent's concern thatthis post-dates the decision under challenge, the respondent need only answer whetherhe decided to provide any additional staffing for the CWP health facilities prior to thetransfer of women from Arohata to CWP in September 2022.Request 7[97] This request states:Exhibit H to Mr Marsh's second affidavit refers to the risk (as atAugust/September 2022) that relocation of prisoners away from their homeprisons will result in increased violence and aggression, and includes as"controls currently in place" to mitigate that risk the existence of "robustselection criteria" for the transfer of prisoners. Please state the selectioncriteria for the transfer of prisoners within the men's network at that time.Please state the selection criteria for the transfer of prisoners from Arohata atthat time. Please disclose relevant documentation regarding the same.[98] The applicants say that the criteria for transfer within men's prisons and fromArohata are relevant. They note they are not seeking the application of those criteriabut simply the criteria themselves. The respondent submit that this impermissiblyseeks evidence and post-dates the decisions under challenge.[99] I do not accept that this request post-dates the decisions under challenge. Thetimeframe mentioned is prior to or at the time of the decisions under challenge. Onceagain, the applicants' case looks to put the alternatives available to the respondentbefore the Court, and in my view these criteria are relevant. The respondent may eitheranswer the interrogatory or provide documentation that sets out the criteria, as heprefers.Request 8[100] This request states:Ms Finnigan in her affidavit at [5.2] states that "a transferability constraintwas put on people who shouldn't be moved due to being engaged in mentalhealth service delivery. This resulted in the three women who were alreadyengaged in the DTP being allowed to stay at Arohata prison and finish theprogramme before they were transferred." Please state what assessments wereundertaken, when and by whom, to identify sentenced prisoners at Arohatawith mental health needs other than the three prisoners completing the DTP,to determine whether any other prisoners should also be subject to a'transferability constraint'. Please disclose the reports to the NCC or NationalOffice on that issue.[101] The applicants say that Ms Finnigan's affidavit introduces a new concept of"transferability constraint" and they are concerned they will be met at the substantivehearing with an argument that the respondent adequately dealt with mental healthissues for the prisoners under consideration for transfer from Arohata. The respondentagain says this interrogatory impermissibly seeks evidence and post-dates thedecisions under challenge.[102] I consider that on reading all of Ms Finnegan's affidavit that her evidence,along with other evidence provided by the respondent, goes quite some way to explainthe approach taken by Corrections to transfer decisions as far as mental health andaddiction matters are concerned. There is consistent evidence about three womenalready engaged in the DTP being allowed to stay to finish the programme beforebeing transferred. I do not think that the level of detail sought by the applicants isnecessary to fairly resolve their claim. The applicants themselves can provide evidenceas to their own experience if they wish. I decline to order this interrogatory.Request 9[103] This request states:In exhibit F to Ms Finnigan's affidavit, it is stated that "if someone is on thewaitlist for inpatient mental health treatment, it is vital to ensure that theirmovement does not adversely impact on their wait time for treatment." Pleasestate how many of the women transferred from Arohata were on the waitlistfor inpatient treatment and what impact their transfer had on the wait time fortheir treatment.[104] The respondent submits that there is already evidence that adequatelyaddresses questions in relation to the DTP and inpatient forensic mental healthtreatment. It is not clear to me whether "inpatient mental health treatment" is the sameas "inpatient forensic mental health treatment". Counsel did not address this at thehearing. I do not think that the level of detail sought by the applicants is necessary tofairly resolve their claim. The applicants themselves can provide evidence as to theirown experience if they wish. I decline to order this interrogatory.Request 10[105] This request states:Exhibit F to Ms Finnigan's affidavit also refers to "Impact on Forensic [mentalhealth] services" and states "they already have a waitlists that are challengingto manage (e.g. women from Arohata to CWP)" Similarlyexhibit [unidentified] to Mr Marsh's second affidavit records that the impactof the proposed transfers to CWP would be "significant pressure on mentalhealth and forensic services" and further that CWP already had "little to nocover" for mental health and that "this move will make the problem worse."Please state what additional mental health and forensic services capacity wasprovided for the CWP to accommodate the women transferred from Arohata,when was this put in place and for how long?[106] The respondent is voluntarily providing an answer to this question.Request 11[107] This request states:Numerous documents annexed to Mr Marsh's and Ms Carey's affidavitsrecommend that consideration be given to not moving women with mentalhealth and forensic issues, and exhibits [unidentified] to Mr Marsh's secondaffidavit record that there is an "assumption that national position will be notto move any prisoners under forensics care". Please state how many of thewomen transferred from Arohata had recognised mental health issues, andhow many of the women transferred were under forensic care at the time oftheir transfer?[108] The applicants submit that it is an insufficient answer to this interrogatory torefer to Mr Marsh's evidence that prisoners were not transferred if they had medicalappointments (including for inpatient forensic mental health treatment) that wouldmean they missed out on treatment from external providers or could not be providedfor by Corrections medical staff at CWP or AWCF. They say they are entitled to havean answer to the interrogatory, given the "national position" set out in the exhibit toMr Marsh's affidavit.[109] I note that Ms Finnigan's affidavit states that:20We asked all of the mental health centre managers, intervention and supportmanagers, and forensic services to ensure a transferability constraint was puton people who shouldn't be moved due to mental health service delivery.Mental health support was provided to the women who arrived at CWP asneeded.20 At [5.2].[110] In light of this, I consider that the respondent should answer only the secondpart of the interrogatory, namely how many of the women transferred from Arohatawere under forensic care at the time of their transfer (as part of the "mass transfer").Request 12[111] This request asks:At the interim orders hearing on 19 September 2022 the Court was informedby counsel for the respondent that while sentenced women were to betransferred away from their children and other whanau, there was financialassistance available to assist families to visit them in Christchurch orAuckland. Please state how many women transferred from Arohata havereceived financial assistance for visits from their children or other whanau (ifany), and the amount of financial assistance provided for each transferredprisoner.[112] The applicants say that to their knowledge no financial assistance has beenprovided. The respondent says that this interrogatory seeks facts that post-date thedecision under challenge so is irrelevant.[113] I agree that this does post-date the challenged decision. The applicants maychoose to file evidence in relation to their experience in this context if they wish to doso.Request 13[114] This request seeks:In the statement of defence dated 21 October 2022 at [18.4] the respondentsadmits that at the time of the mass transfer in September/October 2022 themajority of sentenced women at Arohata were receiving support services inthe community, including counselling funded by ACC, and that those supportservices formed an important part of their wellbeing and rehabilitation.However, the respondent also pleads further in response that at that time mostof those services were being delivered remotely: the implication appears to bethat these services would continue to be provided from Wellington basedcommunity service providers to these women at their new location withoutdisruption, despite their transfer out of the Wellington region. Please statewhich community based support services sentenced women at the time wereengaged with, whether and in what way the delivery of those each category ofsupport services has been affected by the transfer (for example, byreplacement of service after what period, or discontinuance) and specify thenumber of women affected for each service type.[115] I accept that this interrogatory seek facts that post-date the decisions underchallenge and accordingly decline this request. Again, the applicants can file evidencerelating to their experience if they wish to do so.Requests 14 and 15[116] These requests state:In the statement of defence dated 21 October 2022 at [19] the respondentdenies that at the time of the mass transfer in September/October 2022 "many"of the 51 sentenced prisoners at Arohata came from Arohata's catchmentregion and have whānau, [hapū] and iwi links in that area, and pleads that only"some" do. Please state the number that fell within each group.In the statement of defence dated 21 October 2022 at [20] the respondentdenies that at the time of the mass transfer in September/October 2022 "many"of the 51 sentenced prisoners at Arohata in September 2022 had childrenand/or children for whom they have a caregiving relationship living in thecatchment area, and pleads that only "some" do. Please state the number thatfell within each group.[117] The applicants say that these interrogatories go to the proportionality of the"mass transfer" decision in light of the level of harm caused by it. The respondents saythat respondent's response of "some" was intended to be a constructive response tothe applicants' pleading of "many", which itself was not specific, the applicantsbearing the burden of proof. The respondent accepts that some prisoners within thecohort fell within the descriptions and says that greater specificity is not required. Theapplicants do not accept this, contending that they are entitled to interrogateMr Marsh's general evidence that the respondent did consider such issues.[118] I note that the respondent's position in his statement of defence is incorrectlystated above by the applicants in relation to [19]. In fact, the respondent admits [19]of the amended statement of claim and makes further statements.[119] As for the interrogatory relating to [20] of the statement of defence, therespondent does admit that some of the sentenced prisoners at Arohata have childrenin the Arohata catchment region and says, "the balance of the paragraph isinsufficiently particularised to be able to plead to and therefore save as admitted hedenies the paragraph".[120] In that circumstance, I consider that should the applicants seek further detailsin relation to para [20] of the statement of defence, they should particularise thatparagraph and seek a further response from the respondent.[121] In these circumstances, I do not grant leave to administer these interrogatories.Requests 16 and 17[122] These requests have been met voluntarily by the respondent.Conclusion[123] My decisions in relation to discovery and interrogatories will inevitably affectthe existing timetable and possibly the hearing currently set down for 13 March 2023.The parties will need time to consider their positions. I request that memoranda ofcounsel are filed by 5pm on Monday 13 February to indicate what position the partieshave reached in relation to a timetable to hearing and the hearing date itself. Atelephone conference can then be convened if necessary.McQueen JSolicitors:Amanda Hill Law Ltd, Lower Hutt for ApplicantsMeredith Connell, Auckland for Respondent