Taylor v Chief Executive of the Department of Corrections [2010] NZCA 203 (20 May 2010)

Last Updated: 27 May 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2010

[2010] NZCA 203

BETWEEN ARTHUR WILLIAM TAYLOR
Applicant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Court: William Young P, Hammond and O'Regan JJ

Counsel: Applicant in person
V Casey for Respondent

Judgment: 20 May 2010 at 11 am

(On the papers)

JUDGMENT OF THE COURT

1. The application for review of the decision not to appoint a counsel to assist the Court for this appeal is dismissed.
2. We make no order for costs.

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REASONS OF THE COURT

(Given by O’Regan J)

[1] Mr Taylor is a serving prisoner. He sought judicial review in the High Court of the decision of the Department of Corrections to terminate contact visits with his two year old daughter. He also sought interim relief allowing him to continue having contact visits until the conclusion of the judicial review proceedings. Heath J declined to grant such interim relief.[1]
[2] Mr Taylor appealed that decision to this Court. The appeal seeks to have the decision of Heath J overturned and an order made that the contact visits continue until the resolution of the High Court decision. Mr Taylor applied for an amicus curiae (counsel to assist the Court) to be appointed for the appeal. Arnold J declined to appoint a counsel to assist the Court.
[3] Mr Taylor seeks a review of Arnold J’s decision under s 61A(2) of the Judicature Act 1908, which provides that certain decisions of a single Judge of this Court are subject to review by a Court of three Judges.
[4] Mr Taylor’s request for the appointment of counsel to assist the Court was based on two separate grounds. The first was that his maximum security custodial status would inevitably delay or hamper his conduct of matters incidental to the appeal, so that it would be necessary for counsel assisting to prepare the case on appeal and bundle of authorities. He argued that he did not have access to computer facilities to undertake these tasks and prepare his submissions. The second was that counsel assisting could ensure that all available arguments on the point of law that will be in issue in the appeal are available to the Court.
[5] In relation to the first ground, counsel for the respondent agreed to prepare the case on appeal and to assist with preparation of the bundle of authorities. She also pointed out that Mr Taylor does, in fact, have access to computer facilities in prison.
[6] Mr Taylor accepted that the offer from counsel for the respondent resolved the problem in relation to the case on appeal and bundle of authorities, but maintained that there would be still delays arising from the restrictions on him by virtue of his status as a maximum security prisoner. He suggested that those restrictions made effective, timely, confidential communications with prospective witnesses or legal/technical advisers and even Court staff difficult, needlessly expensive, unwieldy and sometimes impossible.
[7] Arnold J was not convinced that these problems were a serious impediment to the conduct of the appeal. He indicated his view that Mr Taylor had access to the necessary legal materials. Having considered the matter afresh, we are satisfied that the restrictions inherent in Mr Taylor’s status as a maximum security prisoner do not provide a basis for the appointment of a counsel to assist the Court. The appeal does not involve the need to contact witnesses. Mr Taylor’s choice to represent himself means he does not need to contact his lawyer and the offer from the respondent’s counsel to undertake preparation of the case on appeal and bundle of authorities means that there is no basis for concern about compliance with the rules of the Court. We consider that transferring the obligation in relation to the case on appeal and bundle of authorities to the respondent is a more appropriate way of dealing with any difficulties Mr Taylor has in relation to compliance with the rules than is the appointment of a counsel to assist the Court to do what is, in effect, a clerical exercise.
[8] The second basis on which Mr Taylor suggested that counsel should be appointed to assist the Court was the need to ensure that all available arguments on the point of law are before the Court. Arnold J considered that Mr Taylor was well capable of representing himself, as the material he had already filed in connection with the appeal demonstrated. In any event, Arnold J considered that the application for interim relief did not involve any point of significance that could not also be raised in the substantive proceedings and that the appeal against the refusal of interim relief was something of a distraction: the more appropriate course would be to pursue substantive relief.
[9] Mr Taylor argues that there is a point of law as to the jurisdiction to grant interim relief in the circumstances of his case, which will not arise in the substantive proceedings. That point is whether the High Court had jurisdiction to order mandatory interim relief. We agree that issue may arise in the present appeal but we are satisfied that Mr Taylor’s articulation of the point demonstrates his ability to place before the Court the necessary arguments. And we agree with Arnold J that the more appropriate course in these circumstances would be to pursue substantive relief in the High Court rather than diverting the proceedings into a prolonged consideration of a point of law as to the availability of interim relief.
[10] Standing back and asking ourselves whether the Court requires the assistance of counsel, we reach the clear view that the answer is “No”. We are satisfied that compliance with the rules will be adequately provided for by the arrangements now in place and that Mr Taylor can articulate the arguments he wishes to pursue, so that the Court will derive sufficient assistance from his arguments and the response by counsel for the respondent, without the need for further assistance from a counsel to assist the Court.
[11] We therefore decline the application for review and uphold the decision of Arnold J to refuse to appoint a counsel to assist the Court.
[12] We make no order for costs.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Taylor v Chief Executive of the Department of Corrections [2010] NZHC 201; [2010] NZAR 234 (HC).