SMITH v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 751

SMITH v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 751 [16 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-150[2020] NZHC 751UNDER the Judicial Review Procedure Act 2016IN THE MATTER of a judicial review of the Department ofCorrections Child Protection PolicyBETWEEN MICHAEL RICHARD SMITHApplicantAND THE CHIEF EXECUTIVE, DEPARTMENTOF CORRECTIONSRespondentHearing: 15 April 2020Appearances: Applicant in personR S May and S B McCusker for the RespondentJudgment: 16 April 2020JUDGMENT OF COOKE J(Interim relief)[1] By application dated 3 April 2020 Mr Smith seeks a series of orders ordirections including, most relevantly: an injunction with immediate effect to set aside the Child Protection Policyuntil these proceedings are complete.[2] Mr Smith had earlier filed a statement of claim seeking judicial review of thePolicy referred to in the application, which he says prevents him contacting any of hischildren under 16 years of age whilst he is in prison. One of his children is in Germany,and he is particularly concerned about the impacts of COVID-19 given that she had aserious illness earlier in her life.[3] By memorandum dated 9 April 2020 counsel for the Chief Executive indicatedthat the Chief Executive opposed the orders.[4] The proceedings were originally referred to me as Duty Judge in the week of6 April 2020, and I scheduled a telephone hearing yesterday. Prior to the hearingMr Smith provided a further memorandum responding to the respondent'smemorandum, as well as an affidavit dated 12 April 2020.Background[5] Mr Smith has seven children, four of whom are under 16. He is currentlysentenced to imprisonment for fraud offending. He was sentenced in 2015.[6] Mr Smith wishes to have contact with his children. He says that the ChildProtection Policy operated by the Department of Corrections means that he is notallowed to have any communication with any children under the age of 16. Hisconcern about this is even more acute given the current circumstances concerningCOVID-19. Six of his children are understood to be living with their mother,Mr Smith's wife. Mr Smith understands the seventh is currently in Germany. He isparticularly concerned about her given the current COVID-19 threat as she sufferedfrom a serious illness when she was young. He wishes to pass on his "love andblessings" to her which he explains is an important part of his culture as a Jew.[7] Mr Smith points out that there have been previous assessments of the familyrelationship in the Family Court. He points to two Family Court decisions. The first,in March 2011, recorded that an experienced social worker had concluded that therewere no care or protection issues for the children in the care of either parent. Thesecond is from December 2019, where the Court decided not to make protectionorders, and held that his children would have the choice whether to have contact withMr Smith. Mr Smith says that two of his children have indicated they wished to havecontact with him, but that under the Policy he is not able to do so. He says in hisaffidavit:I am very distressed that the Department of Corrections Child ProtectionPolicy prevents me from having any form of contact with children, even if thechildren want to communicate with me. This is even more restrictive than acourt-ordered protection order. At least I can defend a protection orderbecoming final. The Department of Corrections implements a child protectionpolicy with no hearing or right of review. They didn't even notify me whenthey put the policy in place against me. Letters I have written to my childrenand letters they have written to me have not got through. I only found outabout it by chance when I noticed an alert that is registered against my record[8] Mr Smith makes the point that in the current circumstances he is not able toinitiate any communication with his children presently living with his wife as thereare children under 16 present at that household, and any such communication wouldbe regarded by Corrections as inconsistent with the Policy. Mr Smith challenges thePolicy in his judicial review claims.Jurisdiction[9] An initial issue arises in relation to the jurisdiction to make the order soughtby Mr Smith. Mr Smith relies on r 7.53 of the High Court Rules 2016. He has notmade an application under s 15 of the Judicial Review Procedure Act 2016. He saysthat his decision to proceed in this way is deliberate, as no orders could be made unders 15 as "there is no position to preserve — the horse has long since bolted" such that"it would not be proper to bring an application under s 15 ".[10] Section 11 of the Judicial Review Procedure Act 2016 provides:11 Proceedings for mandamus, prohibition, or certiorari must betreated as application for review(1) This section applies if, in relation to the exercise, refusal to exercise, orproposed or purported exercise of a statutory power, proceedings arecommenced for a writ or an order of or in the nature of—(a) mandamus; or(b) prohibition; or(c) certiorari.(2) If this section applies, the proceedings must be treated and disposed ofas if they were an application for judicial review.[11] Whilst the concluding words of this section do not end with the words "underthis Act" it is apparent that this is what the section means.1 Section 11 applies to thisapplication for judicial review, and the application for interim relief shouldaccordingly be dealt with under this Act under s 15.[12] The related point is that r 7.53 of the High Court Rules 2016 does not apply tojudicial review proceedings. It is a rule in the part of the Rules that govern ordinaryproceedings. Under the Judicial Review Procedure Act 2016 certain High Court rulesapply in relation to an application for review under that Act, but not all the High Courtrules automatically apply.2 Part 30 of the High Court Rules 2016 is a specific part ofthe Rules that recognises the Court's inherent judicial review jurisdiction. But judicialreview under Part 30 only arises in relation to review that is not covered by the JudicialReview Procedure Act 2016, such as the review of decisions that are not within themeaning of a "statutory power of decision" under that Act. There is an interim reliefpower in r 30.4 of Part 30 expressed in broad terms, although it is doubtful that adifferent approach would be adopted to interim relief under r 30.4 as compared tos 15.3[13] It follows, in my view, that any application for interim relief in this judicialreview proceeding is to be addressed under s 15 of the Judicial Review Procedure Act.That section contemplates orders being granted when there is a position to preserve.A purposive and untechnical approach should be adopted to that thresholdrequirement. Section 15 should be interpreted in light of its purposes, includingrelieving an applicant from the adverse effects of a decision until a challenge is heard,and the preservation of the ability of the Court to grant effective relief.4 But in thepresent case, as Mr Smith's submissions frankly acknowledged, there is no position topreserve. For that reason I dismiss the application for interim relief.1 A consideration of s 6 of the Judicature Amendment Act 1972 and the definition of "applicationfor review" under that Act reflect that (see s 3(1) Judicial Review Procedure Act 2016).2 See s 8(2) and Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council[2020] NZHC 444 at [15], citing Ngati Tama Ki Te Waipounamu Trust v Tasman DistrictCouncil [2018] NZHC 2166 at [17]–[19].3 See Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571at [25].4 At [21]–[25].Hearing of the substantive application[14] I discussed with Mr Smith, and Mr McCusker for the Chief Executive whetherit would be appropriate to have the substantive application for judicial review heardearlier than usual, and whether directions could be given to that effect. That seems tome to be appropriate given that a significant issue does appear to be raised by thechallenge.[15] After discussing the position the following directions were agreed:(a) That within seven days (five working days) Mr Smith is to file andserve a further affidavit in support of his substantive claims. At thesame time he is to provide disclosure of relevant documents held byhim, such as the correspondence he has had with the Department abouthis situation.(b) The Chief Executive is to file and serve his affidavit evidence sevendays (five working days) thereafter.(c) The Registrar is to allocate a half day hearing for hearing the judicialreview challenge at an early opportunity.(d) Seven working days before the hearing, Mr Smith is to file and servehis submissions.(e) Five working days before the hearing the Chief Executive is to file andserve his submissions.(f) The submissions for the Chief Executive should include a pdf copy ofthe authorities relied on by the Chief Executive, and should be sent byemail to the email address of the Corrections Officer who has beenassisting Mr Smith (which was identified during the hearing).[16] I also note that Mr Smith sought various other orders in his interlocutoryapplication — that filings be by way of email, that he can submit handwritten material,and that affidavits can be filed without being sworn in front of the required officers.With the exception of the direction concerning handwritten documents, all thosedirections are effectively already in place as a consequence of the Chief High CourtJudge's COVID-19 protocol dated 25 March 2020, and the subsequent urgentamendments to the High Court Rules that were made last week. In terms ofhandwritten materials, leave is duly given.[17] I also reserve leave to the parties to apply to vary the directions set out above.Cooke JSolicitors:Luke Cunningham Clere, Wellington for the Respondent