VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 31

VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 31 [24 January 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1748[2022] NZHC 31UNDER the Judicial Review Procedure Act 2016; theNew Zealand Bill of Rights Act 1990; theCorrections Act 2004; and the CorrectionsRegulations 2005IN THE MATTER of an application for judicial reviewBETWEEN XAVIER LUCIAN VALENTApplicantAND DEPARTMENT OF CORRECTIONSRespondentHearing: On the papersAppearances: Applicant in personV McCall and J K Williams for respondentDate of judgment: 24 January 2022JUDGMENT OF JAGOSE JThis judgment was delivered by me on 24 January 2022 at 5.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar[1] As judicial review list judge, I have Xavier Valent's 6 December 2021application for an order specified Corrections staff attend to give evidence at thehearing of his application on 3 February 2022, and Corrections' 14 January 2022application for the hearing to be conducted by AVL. Mr Valent also seeks tocross-examine Corrections' deponent, Jeanette Elsie Burns, Corrections'Commissioner Prisoners of Extreme Risk Directorate, who holds Prison Directordelegations for the Prisoners of Extreme Risk Unit in which Mr Valent resides.[2] Although it would be preferable the judge to be allocated the hearing determinethese applications, no allocation yet is made, and the necessity for prior arrangementsfor the pending hearing mean the applications should promptly be determined, asI now do.Evidence for the hearing[3] Mr Valent seeks judicial review of Corrections' alleged refusal to make suitablearrangements for his haircut. Corrections says it makes hair clippers available toprisoners for haircuts to be self-administered, as it has made available to Mr Valent,but otherwise relies on prison administration concerns to rebuff Mr Valent's preferenceanother cuts his hair for him.[4] On judicial review, this Court assesses if susceptible powers are exercised "inaccordance with law, fairly and reasonably".1 'Fair' and 'reasonable' are terms of artin judicial review, respectively broadly meaning procedurally regular andsubstantively rational. Relief generally is discretionary.2[5] As I previously have explained to the parties,3 the "so-called 'duty of candour'"— that those whose decisions are under challenge have "a duty to explain thedecision-making process, the relevant factual and other circumstances and the reasonsfor the decision" — is a responsibility attached to public decision-making.4 It means,1 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1NZLR 544 (CA) at 552.2 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].3 Valent v Department of Corrections HC Auckland CIV-2021-404-1748, 20 October 2021 (Minuteof Jagose J), at [2].4 Ririnui v Landcorp Farming Ltd, above n 2, at [105].as Mr Valent has established a challenge to a decision in judicial review terms, thereis nothing more for him to do. As a decision-maker subject to review, Corrections'obligation then is to explain "how and why [it] acted or decided as [it has]".5[6] Corrections' explanation is contained in Ms Burns' affidavit sworn2 December 2021. Mr Valent seeks additional evidence be given by specifiedCorrections officers, and further seeks to cross-examine Ms Burns. He contends theformer is necessary to give the Court insight into "the context and managerial conductof the internal prison environment" (original emphasis) — perhaps incontradistinction to Ms Burns' corporate position, although he does not specificallyrefer to her evidence — and the latter to dispute Corrections' "numerous claims tojustify [his] extreme risk status and consequent extreme restrictions".[7] Mr Valent's intentions may be explicable by the substantive relief he seeks:this Court's direction Corrections "permit and facilitate a full and proper haircut promptly in advance of future court appearances". But judicial review is not concernedwith the merits of the decision under scrutiny. The Court has no foundation on whichto give the direction Mr Valent seeks.6 Rather, if Corrections' decision is impugned inlaw, fairness or reason, the Court may choose to require Corrections to reconsider it.[8] Generally, 'insight' into the internal prison environment, or the correctness ofCorrections' assessment of Mr Valent's risk, is not material to Mr Valent's challengeto Corrections' decision. Nothing of Ms Burns' evidence is identified as requiringsupplementation. Any unlawfulness, unfairness or unreasonableness in Corrections'decision is not determined by her subjective assessment of it, as might be contested oncross-examination. If — contrary to Corrections' obligation as a decision-makersubject to review — material evidence is omitted, adverse inferences are available.7All that is consistent with judicial review's purpose "as a relatively simple untechnicaland prompt procedure",8 to "be determined in a convenient and expeditious manner".9I will decline Mr Valent's applications.5 Judicial Review Procedure Act 2016, s 18; Bain v Minister of Justice [2013] NZHC 2123, [2014]NZAR 892 at [37].6 Judicial Review Procedure Act 2016, ss 16–17.7 Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA) at [153].8 Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.9 Judicial Review Procedure Act 2016, s 13(2)(a).Remote hearing[9] Mr Valent consents to Corrections' application for hearing by AVL. Givenyesterday's national move to the red 'traffic light setting' as part of COVID-19'smanagement in the community, remote hearing is in any event this Court'spresumptive conduct unless a Judge decides in the interests of justice in-personhearing is necessary.10 I cannot identify any such interest. I will direct remote hearing.Result[10] Mr Valent's applications to call witnesses and to cross-examine Corrections'deponent are declined.[11] I direct the remote hearing of this matter on 3 February 2022.—Jagose JSolicitors:Crown Law, WellingtonDepartment of Corrections – Legal Services, WellingtonCopy to:The applicant10 Courts (Remote Participation) Act 2010, ss 5 and 6; Protocol, "High Court operations underCovid-19 Protection Framework", 20 December 2021.