TULLY v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 1306

TULLY v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 1306 [11 June 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-291[2020] NZHC 1306UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial reviewBETWEEN RUSSELL JOHN TULLYApplicantAND CHIEF EXECUTIVE, DEPARTMENT OFCORRECTIONSRespondentOn the papersJudgment: 11 June 2020JUDGMENT OF CHURCHMAN J[1] On 30 August 2019, Russell John Tully filed a notice of application for judicialreview, a memorandum and an application for a fee waiver.[2] Mr Tully is self-represented and had filled out a printed application for judicialreview form. That form commenced with a space where the applicant for judicialreview was to identify the decision which was sought to be reviewed and there was asubheading saying, "A copy of that judgment is attached". This part of the form hadbeen crossed out. There were no details of any decision that were sought to bereviewed.[3] The documents filed by Mr Tully were returned to him by the Registrar undercover of letter of 3 September 2019 which advised that the application could not beprocessed as there was no notice of proceeding. Had the documents filed been referredto a Judge, the lack of reference to any decision that was sought to be reviewed wouldalso have been identified along with the lack of mention of any grounds for review.[4] On 7 May 2020, notwithstanding further communication with the Registrar,Mr Tully refiled the original documents unchanged. Accompanying the documentswere what was described as "notice of urgent ex parte application". That documentwas essentially a without notice interim injunction application that sought ordersrelating to reinstatement of certain medications. It also made observations aboutMr Tully's preparation for an appeal to the Court of Appeal. The application containeda sentence which read, "I request urgent ex parte interim orders pursuant to the JudicialReview Procedure Act 2016 ".[5] Also attached was what was said to be a notice of proceedings. It wasaddressed to the Chief Executive of the Department of Corrections.[6] These documents were referred to me as Duty Judge pursuant to the High CourtRules (HCR) 5.35A.Analysis[7] Judicial review is the process by which the Courts review the manner in whichdecisions are made. The primary focus of such proceedings is on the process followedby the decision-maker rather than the outcome of the decision.1[8] As such, it is critical that any application for judicial review identify clearlythe particular decision in respect of which review is sought and the grounds uponwhich it is alleged that the process followed in relation to that decision was defective.[9] Part 30 of the HCR regulates judicial review proceedings. The Judicial ReviewProcedure Act 2016 (JRPA) sets out the procedures to be followed.[10] Section 8 of the JRPA requires that an application for judicial review must becommenced by filing in the High Court a statement of claim and notice of proceeding.1 See Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery [2014]NZHC 2810.[11] In Hayden v Wells,2 the Court upheld a registrar's refusal to accept for filingjudicial review documents where the statement of claim failed to give adequate noticeof the claim and could not be responded to in any meaningful way.[12] Section 9 of JRPA requires that the person whose act or omission is the subjectmatter of the judicial review application is required to be named.[13] Section 15 of JRPA authorises the Court to make certain interim orders.However, if the Crown is a respondent, the Court cannot make an order against theCrown but may make a declaration as to what action the Crown ought or ought not totake.[14] Where there is an application for an interlocutory injunction under HCR 7.53,an undertaking as to damages is required. This means that the applicant for an interiminjunction must undertake to meet any damages caused by the grant of the interiminjunction.[15] Mr Tully has asked the Court to grant "ex parte" injunctions. Such injunctionsare now referred to as "without notice" injunctions. This means that the injunctionsare granted without the respondent even being aware that the application was made.[16] Even if a valid statement of claim had been filed, it is inconceivable that thesorts of injunctions that Mr Tully appears to want (including one in respect of themaking available to him of a certain type of medication) could be granted without therespondent being given notice of the application and the ability to respond.[17] The documents filed by Mr Tully failed to comply with a number of therequirements of the HCR and the JRPA. They should not have been accepted for filing.Where proceedings are referred to a Judge under HCR 5.35A, the Judge may, underHCR 5.35B, make a number of orders including striking the proceedings out or stayingthem. The proceedings are unintelligible in their present form in spite of the advicegiven by the Registrar to Mr Tully. I therefore direct that the proceedings be struckout.2 Hayden v Wells [2012] NZHC 31.[18] When exercising the power to strike proceedings out under HCR 5.35B, I amobliged to advise the person who has filed the proceedings of their right of appealagainst the striking out. Accordingly, I draw to Mr Tully's attention his right to appealthis decision to the Court to Appeal.[19] Pursuant to HCR 5.35B(4), I direct that a copy of this decision be forwardedto the Chief Executive of the Department of Corrections.[20] If Mr Tully wishes to judicially review any decision or decisions, he must filea statement of claim clearly identifying the decision, the maker or makers of thedecision and the grounds upon which the decision is said to be unlawful. Suchproceedings would then be served on the decision-maker who would have anopportunity to respond including, if the proceedings failed to comply with the rules orto disclose a tenable cause of action, to strike the claim out.[21] Although it is always challenging for a self-represented litigant to properlyinitiate judicial review of other High Court proceedings, given Mr Tully's apparentinability to grasp important and elementary legal concepts, he may wish to seek theassistance by way of legal advice, and file an application for the grant of legal aid.Churchman Jcc: R J TullyChief Executive, Department of Corrections