REEKIE v ATTORNEY-GENERAL [2019] NZHC 1679

REEKIE v ATTORNEY-GENERAL [2019] NZHC 1679 [25 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1196[2019] NZHC 1679BETWEEN NICHOLAS PAUL ALFRED REEKIEPlaintiffAND ATTORNEY-GENERALDefendantHearing: 20-23 May 2019(Further submissions received 28 June, 12 and 17 July 2019)Appearances: Plaintiff in personS K Shaw and S M Kinsler for DefendantJudgment: 19 July 2019JUDGMENT OF LANG JThis judgment was delivered by me on 19 July 2019 at 12.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Reekie is serving a sentence of preventive detention. Between 2003 andJuly 2011 he was serving his sentence at Auckland Prison. On or about 30 June 2011the prison authorities decided to transfer him to the Northern Region CorrectionalFacility in Northland (NRCF). They implemented that decision on 5 July 2011.[2] The decision to transfer Mr Reekie to NRCF, coupled with the manner in whichthe transfer was carried out, has given rise to the present proceeding. Mr Reekiecontends that in transferring him to NRCF the prison authorities breached several ofhis rights under the New Zealand Bill of Rights 1990 (NZBORA) and also breached aduty of care that they owed to him at common law.The claims[3] Under each cause of action Mr Reekie seeks a declaration that his rights havebeen breached and/or monetary damages to reflect the gravity and consequences ofthe breach.First cause of action – breach of rights guaranteed under s 14 of NZBORA[4] Under this cause of action Mr Reekie contends the prison authorities breachedhis right under s 14 to seek and receive information by deliberately misinforming himregarding the reasons for the transfer and other matters relevant to the transfer.Second cause of action – breach of rights guaranteed under s 23(5) of the NZBORA[5] Mr Reekie also contends that his rights under s 23(5) were breached becausethe transfer and use of restraint mechanisms collectively were unreasonable, unlawfuland unnecessary. Further, the transfer thwarted attempts Mr Reekie had been makingto hold a family group conference designed to restore his relationship with his sisterVictoria. In addition, the Prison Inspectorate failed to investigate, or properlyinvestigate, the complaints Mr Reekie subsequently made about the decision totransfer him to Ngawha Prison and the manner in which the transfer was carried out.Third cause of action - breach of rights guaranteed under s 27(1) of NZBORA[6] Under this cause of action Mr Reekie contends the decision to transfer him toNgawha Prison and the manner in which it occurred, together with the likely andknown adverse consequences of the transfer, breached Mr Reekie's rights unders 27(1) of NZBORA.Fourth cause of action – negligence[7] Under this cause of action Mr Reekie alleges the individuals responsible forthe decision to transfer him to NRCF owed him a common law duty of care to ensurethat the complaints he made were dealt with impartially and in accordance with theprocedures mandated by the Department of Corrections (Corrections). He says thatthey breached that duty and are liable in damages to him as a result.Why was the decision made to transfer Mr Reekie from Auckland Prison toNRCF?[8] Before considering the individual causes of action I propose to make factualfindings regarding one of the key issues the proceeding raises. This relates to thereasons why Mr Reekie was transferred from Auckland Prison to NRCF. That issuewill be relevant to the determination of all four causes of action.[9] The person who made the decision to transfer Mr Reekie to NRCF was Mr NeilBeales, the Manager of Auckland Prison in June 2011. Mr Reekie contends Mr Bealesmade the decision in retaliation for a letter of complaint Mr Reekie had sent toMr Beales on 18 June 2011. The letter contained several complaints aboutMr Reekie's Residential Manager, Mr Murray Sweet. These included Mr Reekie'sconcern about Mr Sweet's involvement in a recent security re-classification ofMr Reekie.1 Mr Reekie also raised concerns that Mr Sweet had interfered in both afamily group conference Mr Reekie was endeavouring to arrange with his sister and acase Mr Reekie had lodged with the Human Rights Review Tribunal.1 The algorithm produced as a result of this process indicated Mr Reekie met the criteria for re-classification as a low-medium security prisoner but this was manually overridden and he retainedhis high-medium security classification.[10] Mr Reekie concluded the letter by saying:I am really annoyed by the actions of Mr Sweet as I had enough of hisinterference in my legal matters when he was my Unit Manager in 2008.Further Mr Sweet was the person who started everything that saw me movedback to East Division and all that has occurred since. Matters I am still sortingout and suffering the consequences of.This latest interference and targeting of myself by Mr Sweet is the final strawfor me, hence this Formal Complaint.4. At our meeting I warned you about Mr Sweet's conduct towards me andhis well known history and that is not just me. It is well known to theDepartment, Ombudsmen's Office and beyond.Mr Sweet should have been gone out of the job years ago, and everyoneknows it, but he has manipulated the system to a degree I wouldconsider and label corrupt, in order to pervert the course of justice andavoid criminal charges and/or dismissal from the job.While I respect your needing to support him to some degree as amember of your staff, my view of you went down, Mr Beales, whenyou started to sing his praises.I have no doubts you are aware of his reputation and you should havebeen right on top of this the moment a prisoner such as myself startedto raise concerns with you about what Mr Sweet was doing, butobviously you did not heed my concerns and hence my now makingthis formal complaint to you as a first step.[11] Mr Beales denies that the decision to transfer Mr Reekie to NRCF was madein retaliation for the complaint about Mr Sweet. Mr Beales says he had been awarefor a considerable time that there were significant difficulties in the relationshipbetween Mr Reekie and Mr Sweet. He said it was difficult to determine the exactcauses of this and where responsibility lay. By June 2011, however, Mr Beales wassatisfied Mr Reekie's rehabilitative prospects were being affected by his relationshipwith Mr Sweet. In addition, Mr Beales became aware in late June 2011 that Mr Reekiehad significant issues with other inmates in his unit. Mr Reekie had filed a complainton 2 May 2011 in which he raised concerns about his safety due to threats made byother prisoners who wrongly believed he had lodged a complaint against them. Thesefactors persuaded Mr Beales that Mr Reekie should be transferred to anotherinstitution.[12] The factors underpinning Mr Beales' decision to transfer Mr Reekie to NRCFare best discerned from the contemporaneous documentation. This provides the mostreliable means by which to determine why Mr Beales decided Mr Reekie should leaveAuckland Prison. It also avoids the risk of reasoning conducted through hindsight.[13] The complaint that Mr Reekie made on 18 May 2011 also needs to beconsidered in context. It was by no means an isolated complaint. The evidencedemonstrates that Mr Reekie is a person who is quick to lodge a complaint when heconsiders he has a genuine grievance. Many of these are investigated by the PrisonInspectorate, an agency that reports to the Chief Executive of Corrections rather thanthe manager of any prison. The Inspectorate is tasked with ensuring the fair, secureand humane treatment of prisoners. One of the key roles of the Inspectorate is toinvestigate complaints made by prisoners who consider they have been treated unfairlyor unreasonably by Corrections staff. The Inspectorate has its head office inWellington, but inspectors are based at prisons throughout New Zealand to deal withday to day issues that arise.[14] In an email sent on 5 May 2011 Mr David Morrison, a Regional Inspectorbased at Auckland Prison, had advised Mr Andy Fitzharris, the Chief Prison Inspector,that Mr Morrison was aware Mr Reekie had lodged 60 complaints or requests forinformation in the current financial year alone. Several of these related to concernsMr Reekie had raised about his interactions with the Health Services Manager at theprison. This had resulted in Mr Reekie lodging complaints with the Health andDisability Commission. The Commission had then referred the matter back toCorrections' Regional Health Services Manager to deal with. Mr Reekie hadsubsequently refused to meet with the Regional Health Services Manager after thatperson requested that the meeting take place in a booth to address safety concerns.The manner in which Mr Beales dealt with Mr Reekie's complaint dated 18 May 2011needs to be considered against the background of numerous earlier complaints, someof which had related to Mr Sweet.[15] Mr Reekie forwarded a copy of his letter of complaint about Mr Sweet to theChief Ombudsman, the Chair of the Human Rights Review Tribunal and Mr Fitzharrisat the head office of the Inspectorate. Mr Fitzharris then forwarded a copy of thecomplaint to Mr Morrison at Auckland Prison. He did so with a covering note that itwas probably not necessary for Mr Morrison to become involved at this stage, but heshould keep an eye on the complaint as it was likely to become a major issue forMr Reekie.[16] Mr Morrison advised Mr Fitzharris in an email sent on 29 June 2011 that hehad discussed Mr Reekie's complaint with Mr Beales. The email went on to sayMr Beales was to seek an explanation from Mr Sweet and was also investigating thepossibility of transferring Mr Reekie to Mt Eden Correctional Facility (MECF). Theemail concluded:The transfer is looked upon as management of issues as there could be acontinued security issue to the prison if Reekie continues to complain aboutMurray Sweet and also he is still complaining about Health Services. MECFis seen as a prison where Reekie can still receive his visitor (Ms Wood) to dealwith his legal meetings and receive medical treatment from a different healthprovider.[17] On 29 June 2011 Mr Beales received a response from Mr Sweet regarding theissues Mr Reekie had raised in his letter of complaint dated 15 June 2011. It is clearthat by this stage Mr Beales had already begun considering the possibility oftransferring Mr Reekie to another site.[18] Mr Beales had obviously made the decision to transfer Mr Reekie to NRCF bythe afternoon of 30 June 2011, when he sent the following email to Mr Morrison:Hi DavidAs we discussed.In addition to our discussion last week with regard to moving him [Mr Reekie]off site due to his ongoing complaints towards his residential manager, he hasalso managed to make himself very unpopular with the prisoners on hislanding. I am obliged on several fronts to ensure his safety, from his issueswith his manager and now his peer group. MECF will agree to take but onlyfor three months, and in return I am being asked to take a prisoner whorequires daily dialysis in the CBD. This is probably not something I can agreeto.NRCF however will take him with no strings attached and they are aware ofthe extensive nature of his litigation and complaints.As we have had a lengthy discussion on this, and in light of the fact that thereare no current criminal matters he is dealing with, I propose to send him toNRCF at the earliest opportunity.Kind regardsNeil[19] Mr Beales copied this email to Mr Sweet, Mr Rogers (a Principal CorrectionsOfficer at Auckland Prison) and Mr Christopher Lightbown, the Manager of NRCF.The email makes it clear that Mr Beales had already discussed the possibility ofMr Reekie being transferred to NRCF with Mr Lightbown and he had agreed to thisoccurring. Mr Beales had also obtained confirmation from Mr Rogers earlier in theday that Mr Reekie was not involved in any current criminal proceedings in Aucklandthat would require him to remain in Auckland.[20] Later the same day Mr Morrison forwarded a copy of the email to the HeadOffice of the Inspectorate in Wellington with the following message:Good Afternoon All,I refer you all to the email below from Prison Manager Neil Beales atAuckland.Prisoner Reekie has been causing a few problems lately which have beenimpacting on the safety and security of the prisoner and the prison. This is amuster issue and there are no reasons why this transfer cannot proceed.No doubt this prisoner will complain if he runs true to form.[21] During cross-examination Mr Reekie challenged Mr Beales on numerousoccasions and in different ways regarding his motivation for transferring Mr Reekieto NRCF but Mr Beales remained steadfast in his explanation. This is encapsulated inthe following response to one such challenge:As I've stated on several occasions over the last day, my decision to move youto NRCF was as a result of ongoing issues between you and staff, includingMr Sweet, and including my concerns that you had become offside withprisoners in the unit and looking at your history, it didn't appear to me thatyour continued stay at Auckland Prison was conducive to your long-termrehabilitation and reintegration needs. So, once again, it's incumbent upon meas the prison director at that time, or the prison manager at that time, to makesure that the site is safe and secure for everybody, staff and prisoners, and itwas important for me to make sure that you were able to go somewhere whereyou had a fresh start, where you had no issues with the staff or the managementteam or anybody in that management team, or the prisoners that you weregoing to be located with. That was the basis for my decision, I cannot recallexactly what day I made the decision or at what point I made the decision, butit was in the tail end of June 2011 and I believe it was the right decision tomake.[22] Mr Beales' evidence on this point is in line with his contemporaneous writtenand oral communications. The consistency and obvious logic of Mr Beales' approachsatisfies me beyond doubt that, although the complaint dated 18 June 2011 is likely tohave been the catalyst for Mr Beales' decision to transfer Mr Reekie to NRCF, he didnot make it in retaliation for the fact that Mr Reekie had made the complaint aboutMr Sweet. Rather, it reflected Mr Beales' genuine concern that Mr Reekie wouldbenefit from a change of custodial environment due to the issues that had arisen overa lengthy period between Mr Reekie and Mr Sweet. In addition, Mr Reekie's healthcare would change to another provider and the risk to his safety at the hands of otherprisoners would be averted. The latter would also reduce the risk to the security andorder of the prison.[23] Mr Reekie places considerable emphasis in this context on an email MrLightbown sent to several persons on 10 February 2012 when he was consideringwhether to transfer Mr Reekie from NRCF to Spring Hill Correctional Facility. In theemail Mr Lightbown observes that NRCF "agreed to take him [Mr Reekie] to giveAuckland some rest last July". Given that background he asks Spring Hill to considertaking him "to likewise support the region".[24] Several points need to be made about this email. First, it was sent aconsiderable time after the transfer to NRCF occurred and does not carry the sameweight as contemporaneous documentation. Secondly, Mr Beales made the decisionto transfer Mr Reekie to NRCf and not Mr Lightbown. As Mr Lightbown pointed outin his evidence, only Mr Beales can give the reasons the transfer was made. Thirdly,the letter is understandably couched in colloquial terms because Mr Lightbown wassending it to his work colleagues. It was not in any sense a considered document. Forthese reasons I do not accept the email provides any assistance in determining whyMr Reekie was transferred from Auckland Prison to NRCF.[25] During the hearing I asked Mr Beales why he had not taken the lesser step ofmoving Mr Reekie to a different part of Auckland Prison. Mr Beales pointed out thatMr Reekie was a voluntary segregated prisoner. This meant there were limitations onthe areas in which he could be housed at Auckland Prison. In addition, Mr Reekie hadbeen at the prison since 2003 and had built up a history with a number of staff at theprison. Staff are regularly rostered to work in different parts of the prison. As a result,Mr Beales considered there could be no guarantee that a move to another part of theprison would prevent Mr Reekie from coming into contact with staff with whom hehad been in conflict in the past. Mr Beales therefore saw "a clean slate at a new site"as being the best option available in the circumstances.[26] I see no reason to disagree with Mr Beales' assessment of the issues thatsurrounded Mr Reekie as at 30 June 2011 and the options available to deal with thoseissues at that time. I am therefore satisfied Mr Beales made the decision to transferMr Reekie to NRCF for reasons relevant to both the security of the prison andMr Reekie's safety and rehabilitation.First cause of action - breach of rights guaranteed under s 14 NZBORA[27] Section 14 of NZBORA provides:14 Freedom of expressionEveryone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.[28] As the wording of the section makes clear, s 14 relates to freedom ofexpression. Mr Reekie contends the prison authorities breached his right under thesection to seek and receive information because they deliberately misinformed him ofthe reasons for the transfer to NRCF.[29] The claim cannot succeed for several reasons. First, s 5 of the NZBORAprovides that the rights and freedoms contained in the Act are "subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free anddemocratic society". Section 56 of the Corrections Act 2004 (the Act) prescribes therights of prisoners to obtain the reasons for their transfer from one prison to another.It provides:56 Information about reasons for transfer(1) A prisoner who is transferred from one prison to another under section53(1) may ask the manager of the prison from which the prisoner wastransferred to specify the reasons for the prisoner's transfer.(2) A request under subsection (1) must—(a) be in writing, and(b) be forwarded to the manager within 1 month after the prisonerhas been transferred to the other prison.(3) Reasonably promptly, and in any case no later than 1 month, afterreceiving a request under subsection (1), the manager must inform theprisoner, in writing, of the reasons for the prisoner's transfer.[30] As will be evident, s 56(1) gave Mr Reekie the right to ask the manager ofAuckland Prison to specify the reasons for his transfer. Any such request needed tosatisfy the requirements set out in s 56(2). It therefore needed to be in writing and hadto be made no later than 5 August 2011, being one month following his transfer toNRCF. Provided Mr Reekie satisfied these requirements Mr Beales would have beenobliged to inform him of the reasons for the transfer reasonably promptly and in anyevent no later than 5 September 2011.[31] In the absence of a provision such as s 56 prisoners would arguably have theright to seek the reasons for a transfer before it takes place. I consider s 56 plainlyimposes a limit on that right. Parliament must be assumed to have decided it wouldbe impracticable or unreasonable for the prison authorities to be required to providereasons every time a prisoner is transferred from one prison to another. This reflectsthe fact that, as the evidence in the present case confirmed, numerous prisoners aremoved around New Zealand on a daily and weekly basis.2 Furthermore, transfers maybe undertaken urgently to deal with muster issues or to maintain security and order inprisons. Section 56 therefore requires requests for reasons to be made in writing andpromptly following transfer. Where this occurs the Prison Manager must respond tothe request within the next month.2 Mr Lightbown said that at NRCF alone approximately 150 prisoners would be transferred in andout every week.[32] In the present case Mr Reekie did not make a written request to Mr Bealesseeking the reasons for his transfer to NRCF. Instead he complained directly to theInspectorate about Mr Beales' conduct on 6 July 2011. His adviser Ms Wood did thesame. The Inspectorate then sought an explanation from Mr Beales regarding thereasons for the transfer. After receiving Mr Beales' explanation the Inspectoratereported back to Ms Wood on 7 July 2011 and to Mr Reekie on 20 July 2011.[33] Given this sequence of events it is clear that s 14 is not engaged. Mr Reekie'sright to seek information from the manager was not breached because he never soughtinformation from Mr Beales under s 56. Rather, he sought and received theinformation in question from the Inspectorate. Viewed in this light Mr Reekieexercised his rights under s 14 to seek and receive information albeit using a complaintto the Inspectorate rather than a request to the Prison Manager under s 56.[34] The essence of Mr Reekie's claim under this head is that a breach occurredbecause Mr Beales deliberately misinformed the Inspectorate, and hence Mr Reekie,about the reasons for the transfer. I do not consider this occurred but, even if it did, Ido not accept that it would constitute a breach of s 14. As I have already observed,s 14 is concerned with freedom of expression, including the right to seek and receiveinformation. I do not consider the right incorporates a right to receive information thatis correct.[35] This claim fails as a result.Second cause of action: breach of s 23(5) NZBORA rights[36] Section 23(5) provides as follows:23 Rights of persons arrested or detained(5) Everyone deprived of liberty shall be treated with humanity and withrespect for the inherent dignity of the person.[37] The leading authority as to how s 23(b) is to be applied remains the decisionof the Supreme Court in Taunoa v Attorney-General.3 All members of the Court inthat case considered s 23(5) cast a positive obligation on the state in relation to personsdeprived of their liberty. Elias CJ considered s 23(5) required the state to treatprisoners humanely.4 Blanchard J held that s 23(5) proscribes conduct that isunacceptable in New Zealand but which is of a lesser order than that proscribed bys 9.5 Such conduct does not rise to a level deserving to be called outrageous.6 TippingJ held that a failure to observe the law relating to the running of prisons may morereadily cause a breach of the state's positive duty under s 23(5).7 A claim under s 23(5)may therefore lie where the prison authorities have failed to meet a statutory standardand it will not matter why that has occurred.8[38] In the present case Mr Reekie alleges that both the decision to transfer him toNRCF and the manner in which it was carried out collectively resulted in a breach ofhis rights under s 23(5).The decision to transfer Mr Reekie to NRCF[39] I have already found9 that Mr Beales made this decision in order to removeMr Reekie from an environment that was not conducive to his rehabilitation and inwhich he was at risk of physical harm from other prisoners. This would likely satisfythe Chief Justice's requirement that the treatment of Mr Reekie be humane. Under theapproach taken by Tipping J, however, the reason for the transfer may not avoidliability for breach of s 23(5) if the decision nevertheless breached relevant statutoryprovisions.[40] As s 5(1)(a) of the Act confirms, the purpose of the corrections system is toimprove public safety and contribute to the maintenance of a just society by ensuringthat sentences imposed by the courts "are administered in a safe, secure, humane, andeffective manner". Where appropriate and where resources permit, its purpose is also3 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.4 At [79].5 With whom McGrath J agreed at [340].6 At [170].7 At [296].8 At [294].9 At [22]-[26].to assist in the rehabilitation of offenders and their reintegration into the communitythrough the provision of programmes and other interventions.10[41] Section 6 sets out the principles that guide the operation of the correctionssystem. Paramount of these is the maintenance of public safety.11 Furthermore,sentences must not be administered more restrictively than is reasonably necessary toensure the maintenance of the law and the safety of the public, corrections staff andpersons under control or supervision.12 In addition, contact between prisoners andtheir families must be encouraged and supported, where reasonable and practicableand to the extent that contact is consistent with the maintenance of safety and securityrequirements.13[42] The transfer of prisoners between prisons is governed by ss 53(1) and 54 of theAct which provide:53 Transfer from one prison to another(1) A prisoner may be transferred, on the direction of the chief executive,from any prison to any other prison in which he or she may be lawfullydetained.54 Reasons for transfer(1) A prisoner may be transferred by the chief executive from one prison toanother for 1 or more of the following reasons:(a) to assist in reducing the likelihood of reoffending by the prisoner:(b) to assist in facilitating the—(i) rehabilitation of the prisoner; or(ii) reintegration of the prisoner into the community on his orher release:(c) to place that prisoner in a prison closer to his or her family:(d) to respond to the needs of that prisoner, as identified in themanagement plan:10 Corrections Act 2004, s 5(1)(c).11 Section 6(1)(a).12 Section 6(1)(g).13 Section 6(1)(i).(e) to ensure the safety of that prisoner or any other person:(f) to implement a change in the security classification of thatprisoner:(g) to provide medical or psychiatric care for that prisoner:(h) to reduce the risk of self-harm by that prisoner if he or she isidentified as being at risk:(i) to reduce the risk to that prisoner if he or she is identified as beingvulnerable to mistreatment by other prisoners:(j) to grant a request by a prisoner for a transfer.(2) (3) A prisoner may be transferred by the chief executive from one prison(the first prison) to another prison—(a) to restore or maintain the security and order of the first prison:(b) to enable effective management of the national prisoner muster:(c) to allow repairs or alterations at the first prison:(d) in response to the closure or change of use of the first prison orpart of that prison.(4) When considering whether to transfer a prisoner for 1 or more of thereasons set out in subsection (1) or when considering how a transfer for1 or more of the reasons set out in subsection (2) or subsection (3) is tobe effected, the chief executive must, as far as is reasonably practicable,have regard to—(a) the desirability of providing the least restrictive environment forthe prisoner that is consistent with the maintenance of publicsafety and the safety of staff members and other prisoners; and(b) the need to facilitate the rehabilitation and reintegration of theprisoner into the community, taking into account the availabilityand location of appropriate services and programmes that willcontribute to the achievement of those objectives; and(c) the desirability of ensuring that the prisoner is detained at alocation as close as is practicable to his or her family.(5) A decision by the chief executive to transfer a prisoner must be made inthe prescribed manner.[43] It can immediately be seen that the transfer of Mr Reekie from Auckland Prisonto NRCF met several of the objectives contained in s 54. First, the transfer fell withins 54(1)(b) because by removing Mr Reekie from an environment in which he wouldbe required to continue to deal with Mr Sweet it assisted in facilitating hisrehabilitation. The transfer also ensured Mr Reekie's safety under s 54(1)(e) and (i)by reducing the identified risk that he was vulnerable to mistreatment by otherprisoners. In addition, his transfer restored or maintained the security and order ofAuckland Prison in terms of s 54(3)(a) because it removed the dysfunctionalrelationship between Mr Reekie and Mr Sweet and also averted the risk of Mr Reekiebeing physically harmed by other prisoners.[44] Section 54(4) sets out other factors that must be taken into account so far aspracticable when transfer is being considered. The factors referred to in s 54(4)(a) and(b) were clearly met because NRCF could accommodate Mr Reekie under a regimecommensurate with his existing security classification and his identified rehabilitativeneeds could be met there. At the time the decision was made Mr Reekie was not incontact with any members of his family so the factor identified in s 54(4)(c) was notrelevant.[45] The transfer would obviously have an impact on Mr Reekie's attempts to re-establish contact with his sister Victoria. As at 30 June 2011, however, no date hadbeen set for the family group conference Mr Reekie was endeavouring to set up.Mr Beales said he was not aware of this issue and may have taken it into account if hehad known of it when he made his decision. He did not see, however, why the familygroup conference could not have taken place at a prison outside Auckland if Mr Reekieand his sister wanted it to occur.[46] It follows that I consider the transfer of Mr Reekie from Auckland Prison toNRCF was authorised under s 54 of the Act on several bases. Of itself that decisioncould not give rise to a breach of s 23(5) of NZBORA.The manner in which the transfer was carried out[47] Mr Beales says that after he approved the transfer the logistics were thenarranged by Mr Fallon, the reception and movements manager at Auckland Prison.On 30 June 2011 Mr Fallon created a form headed "Instructions for Escorts for InterPrison Transfer." This set out the manner in which the transfer to NRCF would beundertaken on 5 July 2011.Failure to give Mr Reekie notice of the transfer[48] Section 55(1) of the Act requires a prisoner to be given seven days notice of animpending transfer unless one of the exceptions set out in s 55(2) applies. These are:55 Information to be given to prisoners(1) A prisoner must be—(a) informed of an impending transfer, and the destination, at least 7days in advance; and(b) provided with a reasonable opportunity to inform a member ofhis or her family of the impending transfer, and the destination,before the transfer is made.(2) Subsection (1) does not apply if—(a) the prisoner to be transferred is expected to create a managementdifficulty before the transfer is made or as a result of the transfer;or(b) the transfer is being made because there are reasonable groundsto believe that the safety of the prisoner or others at the prisonwithin which the prisoner currently resides is at risk; or(c) the transfer is being made to restore or maintain the security andorder of the prison from which the prisoner is being transferred;or(d) the transfer is being made to allow for the effective managementof the national prisoner muster; or(e) the transfer is being made under section 65(1) or (3) (whichrelates to removal for judicial purposes).[49] Mr Reekie was not advised of the proposed transfer until the morning of 5 July2011 and was not permitted to make any telephone calls before he left. In addition, hewas not permitted to take any of his property with him. This was packaged and sentto NRCF at a later date.14[50] Mr Beales said he decided not to give Mr Reekie the required notice under s55(1) because he believed Mr Reekie would immediately take steps to resist14 Corrections later paid Mr Reekie the sum of $300 by way of compensation for items of propertythat did not arrive at NRCF.implementation of that decision. Examples Mr Beales gave included Mr Reekiebarricading himself in a cell or threatening to self harm so that he would have to beplaced in an at risk unit.[51] I am satisfied Mr Reekie would not have taken the news of his transfer well.If history is any guide he would immediately have lodged a complaint and then takenwhatever steps were within his power to avoid being transferred away from AucklandPrison. I therefore consider Mr Beales could reasonably expect Mr Reekie to create amanagement difficulty if he was given the required notice of the proposed transfer. Inaddition, Mr Reekie was being moved both because his safety was at risk in AucklandPrison and to maintain security and order at Auckland Prison. As a result, reasonsexisted under s 55(2)(a),(b) and (c) not to give Mr Reekie prior notice of his impendingtransfer.Assessing Mr Reekie as having "at risk" status[52] Mr Reekie is concerned that he was erroneously assessed by staff at AucklandPrison as being at risk of self harm for the purposes of the transfer. This meant thestaff who accompanied him were required to record their observations of him every15 minutes during the four hour journey from Auckland Prison to NRCF. Mr Reekiepoints out that he was not regarded as being at risk at Auckland Prison, and the staffwho assessed him on his arrival at NRCF also recorded that he was not at risk.[53] Mr Beales accepts that Mr Reekie should not have been assessed as being atrisk for the purposes of the transfer because he did not meet the criteria for that status.He therefore considers the assessment was made in error by staff members responsiblefor arranging the transfer.[54] I do not consider anything turns on the error for present purposes, however,because it only lasted for the duration of the journey between Auckland Prison andNRCF. Furthermore, the only practical effect of the assessment was that staff membersin the van were required to observe Mr Reekie regularly and to record theirobservations in a log. That must have been to Mr Reekie's benefit and did not resultin any greater restriction on his freedom or ability to move around the van during thejourney. As he acknowledges, he was free to move around the rear of the van and tolie on the floor in order to make himself more comfortable.Use of mechanical restraints[55] Mr Reekie was transported from Auckland Prison to NRCF in a single cell vanin which he appears to have been the only prisoner. He complains that the van wasdirty and the only way in which he could make himself comfortable was by lying onthe floor of the van for lengthy periods. He says the entire journey was extremelyuncomfortable, and the use of handcuffs and waist restraints added to his discomfort.[56] The written instructions for the transfer recorded that Mr Reekie was to betransferred from Auckland Prison to NRCF on 5 July 2011 using a secure vehicle thatwas to take the most direct route possible. The form also recorded that Mr Reekiewas to be restrained during the journey using a waist restraint that was to be appliedat the last secure point before departure and removed at the first secure area at thedestination. In accordance with Corrections policy he did not wear any seat belt duringthe journey north.[57] Mr Beales explained that the issue of whether prisoners should wear seat beltsduring transfers by road has been the subject of considerable attention over a lengthyperiod by bodies including not only Corrections but also the Ombudsman. As at 5 July2011 seat belts were not worn during transfers because they were recognised as posinga risk to prisoners due to the fact that they could be used as ligatures. I did not takethat issue to be the subject of any claim or complaint by Mr Reekie.[58] Mr Reekie takes issue with the use of waist restraints and handcuffs in his case.The questions he asked Mr Beales during cross-examination suggest he believes theywere only used because staff had erroneously assessed him as being at risk of self harmor escape during the journey.[59] As Mr Beales explained, however, the at risk assessment would not have beenthe reason restraints were applied to Mr Reekie during the journey. Mr Reekie wasclassified as a high security prisoner and the staff who decided he should wear therestraints would have taken a range of factors into account in making that decision.These included the need to protect the escorting staff and the public at large from therisk that he posed during the transfer. Mr Beales said the use of handcuffs and waistrestraints is very common when transferring high security prisoners from one site toanother.[60] In any event r 125(1)(a) of the Corrections Regulations 2005 (the Regulations)permits prison officers to apply both handcuffs and waist restraints on a prisoner forthe purpose of escorting the prisoner outside of a prison. In the present case Mr Reekiewas to be outside prison boundaries and under escort by prison officers for the entirejourney between Auckland Prison and NRCF. Those responsible for arranging thetransfer therefore had the necessary legislative authority to require Mr Reekie to wearhandcuffs and waist restraints for the duration of that journey.[61] For these reasons I do not consider the use of handcuffs and waist restraints forthe duration of the transfer engages s 23(5) of NZBORA. It was clearly lawful andmade for a proper purpose. The use of mechanical restraints would obviously havemade the journey north more uncomfortable for Mr Reekie than would have been thecase if he had not been wearing them. That fact does not mean it was inhumane orotherwise showed lack of respect to Mr Reekie's inherent dignity.Failure to properly investigate Mr Reekie's complaints[62] Mr Reekie alleges Mr Beales, the Chief Prison Inspector (Mr Fitzharris) andCorrections all failed to investigate and/or properly investigate his complaints inaccordance with the Act, the Regulations and the policies and procedures promulgatedby Corrections.[63] This cause of action relates not only to Mr Reekie's complaints about histransfer to NRCF but also to three earlier complaints. These comprise his letter ofcomplaint about Mr Sweet dated 18 June 2011, a complaint made on 6 June 2011 aboutthe removal of an item from his canteen purchase and a formal complaint made on20 June 2011 about a decision declining him permission to interview another prisoner,Mr George Baker.[64] Whilst he was at Auckland Prison Mr Reekie was assisted in relation to hislegal affairs by Ms Ruth Wood. As I have already observed, Ms Wood lodged a formalcomplaint about the transfer with the Inspectorate on 6 July 2011. The complaint alsoraised concerns regarding the fact that Mr Reekie had voluntarily placed himself insegregation for safety reasons following his arrival at NRCF, and this meant he wasconfined to his cell for 23 hours every day. In addition, he had no ability at NRCF tocontinue with his legal work.[65] Mr Reekie lodged a formal complaint about the transfer with the Inspectorateon 6 July 2011. This raised concerns about the reasons for the transfer and the mannerin which it had been carried out.[66] Mr Morrison responded to Ms Wood's complaint by letter dated 7 July 2011.This stated that the Inspectorate had received information from the Prison Manager(Mr Beales) that the transfer was necessary because "the security of the prison and thesafety of Mr Reekie were at risk." It also said the decision was made to sendMr Reekie to NRCF because of the availability of beds there for Mr Reekie's securityclassification. The letter concluded that "the circumstances surrounding Mr Reekie'stransfer to NRCF [were] lawful and that his rehabilitation and reintegration needs willnot be compromised."[67] Mr Morrison responded to Mr Reekie's complaint by letter dated 20 July 2011.He did so after he had sought and received comments from Mr Beales about thecomplaint on 19 July 2011. Mr Morrison advised Mr Reekie of the response he hadreceived from Mr Beales regarding the reasons for the transfer and the manner inwhich it had been carried out. Mr Morrison did not find any substance to Mr Reekie'scomplaints about either issue.[68] Mr Reekie says that on 18 June 2012 he formally referred his letter ofcomplaint about Mr Sweet dated 18 June 2011 to Mr Fitzharris and also sent a copy tothe Chief Ombudsman. He alleges he followed the issue up on several occasions atmeetings with the Inspectors but, despite assurances that they would look into thematter, nothing was done to progress the complaint. This later prompted him to referboth the original complaint dated 18 June 2011 and the failure of the Inspectorate todeal with that complaint to the Chief Ombudsman on 8 June 2014.[69] On 12 August 2014 Mr Reekie also formally referred his earlier complaintabout the transfer and the manner in which it had been investigated by Mr Morrisonto the Chief Ombudsman for investigation.[70] The Chief Ombudsman responded to Corrections on 27 October 2015. Shedeclined to investigate the complaint about Mr Sweet dated 18 June 2011 but foundthat the Inspectorate's investigation of Mr Reekie's complaint about the transfer wasinadequate for the following reasons:The Inspector's Investigation of Mr Reekie's complaint was not completed toan adequate standard. The decision not to notify Mr Reekie of the transfer,the decision to place him on at risk status and the apparent non-compliancewith the review risk assessment process should have required furtherinvestigation and/or clarification from the Inspector as to the appropriatenessof those decisions.The Inspector's Investigation, whilst providing Mr Reekie with an outline ofthe prison manager's decision for the transfer, did not provide an analysis ofthat decision, and whether or not the transfer was, in fact, appropriate.Overall, I did not identify any systemic issues about the Inspector's handlingof Mr Reekie's complaints.[71] This sequence of events demonstrates that following Mr Reekie's transfer toNRCF both Mr Reekie and Ms Wood immediately invoked the review functionprovided by the Inspectorate. When Mr Reekie considered the Inspectorate's responseto be inadequate, he invoked the assistance of the Chief Ombudsman. It is obviouslya matter of regret that Mr Morrison's investigation of the transfer did not provideMr Reekie with a robust analysis of the reasons given by Mr Beales for the transfer toNRCF. That fact could not, however, amount to a breach of Mr Reekie's rights unders 23(5). The manner in which the Inspectorate dealt with his complaints did not engageissues relating to humanity or Mr Reekie's right to be treated with inherent dignity.Conclusion[72] Regardless of whether they are viewed individually or collectively, the mattersrelied upon by Mr Reekie under this cause of action do not establish a breach of hisrights under s 23(5) of NZBORA.Third cause of action: breach of rights under s 27(1) of NZBORA[73] Section 27(1) provides:27 Right to justice(1) Every person has the right to the observance of the principles of naturaljustice by any tribunal or other public authority which has the power tomake a determination in respect of that person's rights, obligations, orinterests protected or recognised by law.[74] Under this cause of action Mr Reekie alleges that in making and carrying outthe decision to transfer him to NRCF, and ignoring the consequences to him of doingso, the defendant has breached his rights under s 27(1). He contends "the defendanthas in totality actioned an unreasonable fetter upon the observance of and/or failed toobserve the principles of natural justice."[75] Mr Reekie particularises this claim by alleging the defendant acted "in breachof [Mr Reekie's] rights to be properly, accurately, promptly and fairly treated andinformed", "in breach of a fair and lawful, and/or independent process" and "in breachof the principles of justice, procedural fairness and fairness." He also alleges thedefendant acted in breach of numerous sections of the Act and Regulations.15 Finally,he alleges the defendant acted "in such a callous and/or deliberate manner as to subjectthe plaintiff and his family to serve [sic] adverse consequences for makingcomplaint[s]."[76] I have already held that Mr Beales had lawful grounds for transferringMr Reekie to NRCF.16 Furthermore, there is no requirement in the Act or Regulations15 Corrections Act 2004, ss 5, 6, 8,12, 29, 50, 51, 54, 55, 56, and 152; Corrections Regulations 2005,regs 5,6 and 164.16 At [43]-[46].that a Prison Manager must consult or seek input from a prisoner before a decision ismade to effect a transfer to another prison. Nor is there any requirement that prisonersbe consulted about the manner in which they are conveyed from prison to prison.Obligations of that kind would obviously be wholly impracticable given the numberof prisoners Corrections is required to transfer between prisons for a variety of reasonson a daily basis. Those responsible for making such decisions therefore have aconsiderable degree of discretion so long as the transfer is being made in accordancewith s 54(1) to (3) of the Act and taking into account the matters set out in s 54(4).17[77] In addition, the right of a prisoner to request the reasons for transfer iscircumscribed by the Act as set out above.18 I have also found that Mr Beales waslawfully entitled not to give Mr Reekie prior notice that he was to be transferred forthe reasons I have already given.19[78] Furthermore, reg 196 provides that prisoners have no legitimate expectationthat they will be accommodated in, or be provided with, the same or similar conditionsduring the whole term of a sentence. As the Court of Appeal observed in Taylor v ChiefExecutive of the Department of Corrections, this means prison authorities are at libertyto change any such conditions as required for disciplinary or other purposes consistentwith the legislation so long as entitlements under the Act or regulations are notaffected.20 If prisoners have no legitimate expectation they will be accommodated atthe same prison for the duration of a sentence it is difficult to see why they would havea right to be heard on decisions relating to the prison at which they are to serve theirsentence.[79] All of these factors persuade me that Mr Reekie had no right to be heard priorto being transferred to NRCF and he only had limited rights to enquire into the reasonsfor his transfer thereafter. He certainly had no right to be consulted about the mannerin which the transfer would be undertaken.17 These sections are set out at [42].18 At [29].19 At [51].20 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112at [31].[80] Taking those factors into account I see no room for any claim based on failureto observe the principles of natural justice under s 27(1). This claim must fail as aresult.Fourth cause of action: breach of common law duty of care[81] Under this head Mr Reekie claims Mr Beales had a duty of care at commonlaw to ensure Mr Reekie's complaint about Mr Sweet was dealt with impartially andin accordance with established protocols and procedures. Furthermore, he had a dutyto ensure Mr Reekie did not become the subject of any reprisal for having made anycomplaints.[82] In addition, Mr Reekie contends Mr Beales had common law duties to treathim fairly, lawfully, with dignity and respect and to only transfer him to another prisonfor lawful reasons. He also says Mr Beales had a "statutory duty of care to honestlyprovide accurate reasons for any transfer even where that occurred through theInspectorate.[83] Mr Reekie also contends Mr Lightbown had a duty of care to ensure he onlypermitted Mr Reekie to be transferred to NRCF in accordance with s 54 of the Act.The statement of claim goes on to allege that those members of the prison inspectoratewho dealt with Mr Reekie's complaints had a duty of care to investigate complaints toan adequate standard and in accordance with established procedures.[84] Mr Reekie alleges all of these persons breached these duties in numerous waysand that Mr Reekie has suffered significant loss as a result.[85] I do not propose to deal with Mr Reekie's individual allegations because I amsatisfied none of the persons he has named owed a common law duty of care toMr Reekie. All are undoubtedly subject to statutory duties to carry out their functionsin accordance with the legislation under which they have been appointed. Mr Reekie'sremedies for any breach of those duties lie in public law, including the proceduresprescribed by the Act and Regulations for dealing with complaints. He retains hisrights under NZBORA and also other legislation such as the Privacy Act 1993 andOmbudsmen Act 1975. He may also seek judicial review of any decisions he considerswere made in breach of his rights under the legislative regime. He exercised thoserights when he sought judicial review of a subsequent decision to transfer him fromNRCF to Spring Hill Prison in February 2012.21 Beyond these public law remedies,however, I do not consider Mr Reekie has any ability to seek redress at common law.[86] I reach this conclusion because the Act and Regulations contain acomprehensive suite of obligations imposed on prison management to ensure thehumane and safe treatment of prisoners. It also provides prisoners with limited rightsto challenge decisions made by management. Two factors in particular suggest that acommon law duty of care does not exist. The first is the wide discretion given to theprison authorities under the Act and Regulations regarding the management ofprisoners. This is subject only to the limitations and requirements imposed by theseinstruments and other relevant legislation. The second is the removal by reg 136 ofany legitimate expectation by prisoners that they will be accommodated at the sameprison or subject to the same conditions for the duration of their sentence. I do notsee there is any room for a common law duty of care in light of the statutory regime.[87] This aspect of Mr Reekie's claim bears similarities to Forrest v Attorney-General.22 In that case the plaintiff, also a serving prisoner, claimed he had beenmistreated whilst in prison. He alleged this resulted in the prison authorities breachinga common law duty of care they owed to keep him safe. Chisholm J rejected the claimin the following passage:[45] I agree with Ms Foster that these causes of action cannot get off theground. The Corrections Act provides a comprehensive code as to theCorrections system. It binds the Crown. Although Mr Forrest relied onTaunoa, I am unable to find anything in either the decision of the High Courtor the decision of the Supreme Court that might suggest that the private lawduties alleged by Mr Forrest existed in the circumstances under consideration.I do not accept that any such duties have arisen.[88] In Wool Board Disestablishment Co Ltd v Saxmere Co Ltd all three membersof the Court of Appeal found that the appellant Board had not been negligent when itperformed its statutory duties. Hammond J, with whom Ellen France J agreed, foundthat the trial Judge had been wrong "to have run an entirely parallel common law21 Reekie v Chief Executive Officer of the Department of Corrections [2013] NZHC 271.22 Forrest v Attorney-General HC Christchurch CIV 2009-409-2373, 1 November 2010.obligation with the statutory obligation.23 Hammond J observed that this fact aloneshould give rise to considerable concern because "careless performance of a statutoryobligation has always been held not of itself to give rise for liability for common lawnegligence".24 Hammond J then went on to say:[198] Secondly, it is hard to see what particular features would justify theimposition for the need of a common law duty having regard to the usualprinciples of foreseeability, proximity and policy. This case is a long wayfrom the sorts of categories where common law duties have been recognised.And any loss here is economic and indirect. Then, too, as Mr Kós urged onus, generally speaking our courts have set their face against the imposition ofa common law duty upon an administrative decision of the kind which was inissue here, confining a challenge instead to judicial review or the tort ofmisfeasance in public office.25 There is also the distinct alternative of judicialreview and a scheme of accountability imposed within the statute:26 ultimatelythis Board was under the surveillance of the Minister.Chambers J found that all of the private law claims must fail because the actions ofthe defendant Board were at all times lawful and reasonable.27[89] I take broadly the same view in the present case. In particular, it is difficult todiscern policy reasons in favour of the imposition of a common law duty of care whenthe Act and Regulations contain such a detailed regime to deal with complaints byprisoners and public law remedies are also available. Imposition of a duty of care onthose responsible for administering the New Zealand corrections system would alsobe a major step that could only be taken where the Court is sure it has the necessaryfacts to decide whether a duty of care should be imposed as a matter of policy. Thatis not the case here.[90] Significant issues also arise in relation to whether Mr Reekie suffered any lossor damage as a result of the acts he relies on. I have already held the transfer to NRCFwas lawful and made for proper reasons. The transfer also effectively resolved theissues Mr Reekie had raised in his complaint dated 18 June 2011 because it removedhim from the orbit of both Mr Sweet and the prisoners who had been threatening him.23 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513; [2011] 2 NZLR 442at [197].24 At [197], citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 732-735.25 Takaro Properties Ltd v Rowling [1987] 2 NZLR 700 (PC).26 Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33, [2007] 3 NZLR429 at [60].27 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd, above n 22, at [282].Furthermore, any failure to properly investigate complaints is unlikely of itself to havecaused damage. Any damage suffered by Mr Reekie is likely to have been caused bythe acts that form the subject of those complaints.[91] I am therefore satisfied this cause of action fails both because it is untenable atlaw and cannot in any event be sustained on the facts.Result[92] Mr Reekie's claims are dismissed.Costs[93] The defendant is obviously the successful party in this proceeding and isentitled to costs as a result. My tentative view is that costs should be awarded on acategory 2 basis together with disbursements as fixed by the Registrar. ShouldMr Reekie not be able to reach agreement with the defendant regarding costs I reserveleave to the parties to file concise memoranda regarding costs (ie no more than fivepages in length) and I will deal with the issue on the papers.Lang JSolicitors:Meredith Connell, WellingtonK Gibbons, Department of Corrections, Auckland PrisonCopy to:Plaintiff