Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371; [2011] 1 NZLR 112 (16 August 2010)

Last Updated: 24 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2010
[2010] NZCA 371

BETWEEN ARTHUR WILLIAM TAYLOR
Appellant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Hearing: 27 July 2010

Court: Randerson, Potter and Asher JJ

Counsel: Appellant in Person
V E Casey for Respondent

Judgment: 16 August 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There will be no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

		Para No
Introduction		[1]
Background		[4]
Application to adduce further evidence		[13]
Pleadings		[15]
The decision of Heath J		[17]
The jurisdictional issue		[19]
Approach to s 8		[22]
Statutory background to the prison regime		[28]
The merits of Mr Taylor’s application for review		[34]
Conclusion on Judicial Review		[44]
Other causes of action		[46]
Result		[49]

Introduction

[1] Arthur William Taylor is a prisoner in the eastern wing of Paremoremo Prison. The eastern wing holds prisoners with the highest security ratings in New Zealand. Mr Taylor is classified as “CB”, the highest of all ratings.
[2] Mr Taylor has a two year old daughter. Through to October 2009 she had been having visits with her father in prison where he was allowed to have direct physical contact with her. In October the prison manager terminated physical contact visits so that future visits would involve separation by a perspex screen in accordance with the usual rule that applies to all visitors to prisoners in the eastern division.
[3] Mr Taylor filed judicial review proceedings challenging that decision and sought interim relief restoring contact visits. In a decision delivered on 8 March 2010 Heath J dismissed that application for interim relief and made various directions.^[1] Mr Taylor now appeals against that decision refusing him interim relief.

Background

[4] Mr Taylor’s daughter was born in June 2007. She was conceived while Mr Taylor was in prison and her mother was awaiting sentence on charges relating to her part in an earlier escape from custody by Mr Taylor. Mrs Taylor has now been released from custody. A short while after her birth the daughter was removed from her mother’s care. She was placed under the guardianship of the High Court with the Chief Executive of the Ministry of Social Development (“MSD”) acting as its agent. On 17 December 2008 the Family Court made a declaration that the daughter was in need of care and protection. That decision was challenged but upheld on appeal. She is presently in the care of a foster parent.
[5] From late 2007 and on a regular monthly basis from January to September 2009 Mr Taylor was allowed contact visits with his daughter. The arrangements were made between a social worker in the MSD, and a representative of the Manager of Paremoremo Prison. Mr Taylor’s daughter was transported to and from the prison by a contractor engaged by the MSD. A representative of the Chief Executive of MSD was present during the access visits. An exchange of emails dated 26 August 2008 has been produced between Pamela Putland of the MSD and Solomon Nui of Paremoremo Prison recording this arrangement.
[6] Auckland Prison (East Division) at Paremoremo is New Zealand’s maximum security prison. It holds 230 high security prisoners. The general policy of the eastern division at Paremoremo Prison is to prohibit contact visits to prisoners. This is a policy unique to the high security eastern wing and is implemented because of the very high security risk. Other prisons allow contact visits. In the eastern wing visitors normally meet prisoners in a special room which is supervised, and where there is a perspex screen between the visitor and the prisoner. However, for Mr Taylor’s daughter’s visits a contact visiting room was made available. In addition to a social worker being present in the room with the daughter, a prison staff member would supervise the hour-long visit from the other side of the glass frontage. The daughter’s caregiver and pushchair would be searched prior to entry into the visitors’ room.
[7] Mr Taylor has a history of escape and his last conviction involved kidnapping prison staff. During the period of 24–27 September 2009 there were nine incident information reports relating to Mr Taylor’s conduct. He was alleged to have made threats affecting the safety of a staff member. He was alleged to have deliberately damaged property including perspex cell windows. Mr Taylor was described as being in an “uncontrollable rage” and “aggressive and volatile”. A sprinkler was allegedly deliberately damaged causing flooding to a cell and landing. There was a deliberate destruction of toilet bowls. On the face of the complaints, he was on a long-term and angry rampage. Criminal charges have been laid in the District Court. The incidents are regarded as serious and are said to have imposed health and safety risks for the staff and other prisoners.
[8] Mr Puohotaua, the prison manager, observed in an affidavit before the High Court that the previous contact visit arrangements were made between the MSD and the prison, and he stated:

I understand that the arrangement described above was simply left to continue without any real basis for it (except as noted, on the mistaken understanding that developed that these arrangements were in accordance with the Court order).

[9] Following those incidents in September 2009 he determined that it would not be in the interests of prisoner safety for contact visits from Mr Taylor’s daughter to continue. No other prisoner in the east division was allowed contact visits except on rare occasions involving compassionate grounds (for example, if there had been a death in the family). Another MSD deponent Ms K Urwin produced the national policy on “Unit Attributes and Managing Risk” which limits visits for the highest security risk inmates to non-contact visits.
[10] Mr Puohotaua also stated that another reason for terminating the visits was that using a staff member to arrange the contact visits reduced the number of staff available to meet security requirements and maintain the good order of the unit in the prison. He stated that it was also considered appropriate, in terms of managing the prisoner and in terms of the good management and discipline of the prison, that Mr Taylor have only the same visiting arrangements as other prisoners in the east division.
[11] Mr Puohotaua deposed that he understood that the social worker, Ms Putland, did not consider there was any particular reason relating to the best interests of the child for there to be special visiting arrangements. He produced an email from Ms Putland, who was the social worker who had organised the visits in August 2008. This email of 28 October 2009 from Ms Putland to a Ms Sutton of Paremoremo Prison read:

Re CYFS view about future access:

The specialist report recommends access only 3-4 times per year. CYFS supports access being determined in the best interests of [Mr Taylor’s daughter] and given the other matters mentioned in the report about the anxiety and disruption to [Mr Taylor’s daughter] it may be that an even lower frequency will be appropriate, however, that is a matter to be determined by the Court.

[12] There are ongoing Family Court proceedings relating to Mr Taylor’s daughter and issues as to contact and access. The specialist report referred to in the email was obtained in the context of those proceedings.

Application to adduce further evidence

[13] Prior to the hearing of this appeal Mr Taylor applied for leave to adduce further evidence in the form of an affidavit from him annexing briefs of evidence from Dr Greg Newbold, an Associate Professor of the School of Sociology and Anthropology at the University of Canterbury, and Ruth Wood, a regular visitor to East Division at Paremoremo for approximately seven years. Dr Newbold commented on international policies in relation to prisons and prison visits, and some history of Paremoremo’s security and visit policy. He gave his view that contact visits should not be used to sanction an inmate for behaviour in the prison not related to the visits. He suggested that the sole concern should be the interests of the child. Ms Wood commented on the difficulties in having meaningful interaction, particularly with young children, in the Paremoremo visiting room on standard visiting terms. They both put forward further views supportive of contact visits.
[14] The Crown initially opposed that application, but in submissions to us Ms Casey for the Chief Executive of the Department of Corrections did not strongly pursue the objection, putting it on the basis of principle rather than substance. We do not consider that the filing of the affidavits significantly prejudices the Crown, and given the urgent nature of the initial hearing and the limited resources available to Mr Taylor, we have decided to receive the evidence and take it into account in our considerations.

Pleadings

[15] The amended statement of claim before Heath J contained four causes of action, based on breach of natural justice, unreasonableness, illegality/failing to take into account relevant considerations and/or breach of statutory duty, and legitimate expectation. A declaration was sought that the cancelling of the agreement for the monthly visits, and the failure to make provision for contact visits at reasonable times and of reasonable duration, were unlawful and invalid. An order quashing or setting aside the decision to cancel the agreement was sought. Further, an injunction or order described to be in the nature of mandamus was sought, requiring the respondent to permit the plaintiff to have contact visits with his daughter in conditions which allowed for appropriate child/parent interaction at reasonable times and of reasonable duration. In addition there was reference to a declaration under s 3 of the Declaratory Judgments Act 1908 and that the plaintiff and his daughter should have a right to contact visits at reasonable times and in humane conditions.
[16] In his application for interim relief Mr Taylor sought an order that:

The respondent must allow the plaintiff to have contact visitation with [his daughter] on the same terms and under the same conditions as existed prior to the manager of Auckland prison cancelling the contract on or about 28 September 2009.

The decision of Heath J

[17] Heath J declined to grant interim relief. He accepted the submission of Ms Casey for the Chief Executive of the Department of Corrections that Mr Taylor was seeking mandatory relief. While not accepting necessarily that s 8(1) of the Judicature Amendment Act 1972 set out a restrictive list of orders that a court may make, he concluded:^[2]

In 2001, the Law Commission considered the vexed topic of mandatory relief against the Crown. The Commission recognised limitations in the wording of s 8, particularly in the context of an apparent ability, both under the prerogative writs and the judicial review procedure, to make orders in the nature of mandamus against the Crown. Notwithstanding that inconsistency, Parliament has not seen fit to legislate to provide the same type of interim relief as would be available after a final hearing. In my view, this is fatal to Mr Taylor’s claim. An order declaring that the Crown ought not to do any particular thing or take further action cannot restore the status quo, before 28 September 2009, in respect of contact visits by his daughter. For that narrow jurisdictional reason, the application for interim relief must fail.

(Footnotes omitted, emphasis added.)

Having reached this decision, he also observed that if there had been jurisdiction he would have held that there was a serious question to be tried.

[18] Mr Taylor argues that Heath J erred in determining the narrow jurisdictional point against him. The Chief Executive of the Department of Corrections has filed a cross-appeal, and submits that Heath J was wrong to conclude that there was a serious question to be tried.

The jurisdictional issue

[19] The interim order sought by Mr Taylor is mandatory in form. In the course of argument a version expressed in negative language was discussed:

Pending further order of the High Court the respondent should not enforce his non-contact policy in relation to AT pending the substantive decision.

[20] Such a change of form cannot disguise the fact that any Court-ordered resumption of contact visits will require positive action by the prison to check and process the visitors in a particular way, make a special room available, and have prison officers allocated to supervise the visit.
[21] Section 8(1) and (2) provide:

8. Interim orders

(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:

(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

(2) Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order,—

(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:

(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.

Approach to s 8

[22] In Carlton and United Breweries Limited v Minister of Customs,^[3] Richardson J observed:

Section 8 of the Judicature Amendment Act 1972 does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant’s challenge and the expected duration of an interim order. Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.

Carlton was cited in Minister of Fisheries v Antons Trawling Company Ltd,^[4] where the Supreme Court stated:

Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.

(Footnote omitted.)

[23] As these statements indicate, s 8(1) is broadly expressed. The exercise of discretion where necessary for the purpose of preserving the position of the applicant is central but it is not appropriate to limit the discretion by reading qualifications into its broad terms. Section 8(1)(c) expressly empowers a court to declare that any licence that has been revoked or suspended in the exercise of the statutory power will continue and, if necessary, be deemed to have continued in force. By definition this empowers a Court to declare that a state of affairs that previously existed and which has been revoked should resume pending the substantive hearing. Subsection (1)(c) can apply against the Crown as respondent. It gives the Court a declaratory rather than a directive power, and is not excluded by subsection (2) from application to the Crown, as are subsections (1)(a) and (b).
[24] We have derived little assistance from the 2001 Law Commission Report Mandatory Orders against the Crown and Tidying Judicial Review,^[5] referred to by Heath J. It did not focus on interim orders, but rather the availability of mandatory (in the sense of directive) orders against the Crown. This is not an issue in this appeal since Ms Casey for the Crown advised that in accordance with convention, the Department will comply with any declaration made under ss 8(1)(c) or 8(2)(a) and (b). She eschewed any submission that there was a technical jurisdictional barrier to the relief that Mr Taylor sought, because of its mandatory nature. She submitted however that an interim order under s 8 requiring a respondent to take positive steps (or a declaration to similar effect) will be unusual given the terms in which s 8 is expressed.
[25] There is no limit placed on the nature of interim relief in r 30.4 of the High Court Rules, which gives the court the power to make an interim order in relation to extraordinary remedies on “whatever terms the court thinks just”. Nevertheless, extraordinary remedies must be treated and disposed of as if they were an application for review.^[6]
[26] The focus on preserving the applicant’s position and the prohibitory words used in s 8(1)(a) and (b) and 2(a) and (b) indicate that orders or declarations of a restraining nature will ordinarily be more appropriate for the interim order jurisdiction whether or not the extraordinary remedies are invoked. There are strong policy reasons against a court making mandatory interim orders or declarations requiring positive action. Such orders may not be able to be monitored, may require interaction between parties who are at arms length, and may involve inappropriate intervention by the court in decisions about the best use of scarce resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities.
[27] It is always possible to draft an interim order or declaration in prohibitory form as Mr Taylor demonstrated with the revised declaration identified in [19] above. But it is the substance and effect of the order or declaration that matters. Does it oblige the respondent merely to refrain from doing some act or does it require positive steps to be undertaken? While orders and declarations under s 8 which, in substance, require a respondent to take positive steps would be relatively rare, we do not consider there is a jurisdictional bar to orders having that effect where it is necessary to preserve the plaintiff's position and where, as a matter of discretion, it is appropriate to make such an order. The discretion is wide and, as has been observed,^[7] it is undesirable to trammel it with formulations or limitations not found in the section itself.

Statutory background to the prison regime

[28] The operation and control of prisons is provided for in the Corrections Act 2004 and regulations made under its authority. The purpose of the corrections system, as stated in s 5(1) of the Corrections Act, is to “improve public safety and contribute to the maintenance of a just society”. Section 6(1)(a) provides that the “paramount consideration” in decisions about the management of persons under control or supervision is that public safety is maintained. While a prisoner is not wholly deprived of the rights available to other citizens, the particular need in prisons to maintain order and discipline has been recognised in a number of decisions. In his dissenting judgment in Drew v Attorney-General, McGrath J commented in relation to the Penal Institutions Act (the predecessor to the Corrections Act): ^[8]

It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security ...

This statement was subsequently quoted and adopted by the Court of Appeal in Department of Corrections v Taylor.^[9]

[29] That need to maintain discipline within prisons militates against any restriction being placed against the discretionary ability of the Department of Corrections to control prison visits. A court will hesitate before making any order affecting the discretion of a prison manager to control visits, and that hesitation will be even greater when the proposed orders have a mandatory quality in the sense of directing positive action. A court imposition of such positive duties on the prison manager might require the prison manager to use prison resources in a manner which may compromise that public safety (which is the “paramount consideration” as described in [28]).
[30] Under s 33(1) the manager may make rules for the management and for the conduct and safe custody of the prisoners, and under s 33(4), any rules made may be revoked “at any time by the prison manager”. Consistent with this, reg 196 of the Corrections Regulations 2005 provides:

196 No legitimate expectation as to conditions, etc

(1) To avoid doubt, a prisoner does not have any legitimate expectation of–

(a) being accommodated in, or of being provided with, the same or similar conditions during the whole term of his or her sentence, period of remand, or other period of detention; or

(b) being provided with the same or similar programmes or opportunities during the whole term of his or her sentence, period of remand, or other period of detention.

(2) Subclause (1) does not affect any entitlement conferred on a prisoner by the Act or these regulations.

[31] The legislation makes it clear that a person does not have any legitimate expectation that the terms and conditions relating to accommodation, programmes or opportunities in the prison environment will remain the same throughout the term of the sentence, remand or other period of detention. Prison authorities are at liberty to change any such conditions as required for disciplinary or other purposes consistent with the legislation so long as entitlements under the Act or regulations are not affected.
[32] Mr Taylor has emphasised purposes of the Corrections Act, set out in s 5(1)(a)–(c), which provide for the humane treatment of prisoners and their rehabilitation. Section 6 contains a number of principles, relied on by Mr Taylor, which refer to the fair treatment and rehabilitation of prisoners – in particular s 6(1)(f)–(i). The only “entitlement” of prisoners to visitors is in s 73(1), which provides that a prisoner is entitled to receive at least one private visitor each week for a minimum duration of 30 minutes.
[33] There are various avenues open to a prisoner who is unhappy with prison visits. There is an internal complaints system set out in subpart 6 of Part 2 of the Corrections Act (and Mr Taylor has indeed lodged a complaint). There are also prison inspectors who may investigate complaints, as contemplated by ss 156 to 159, and visiting justices who visit prisons and enquire into the treatment and conduct of prisoners. Prisoners may lay a complaint with an Ombudsman or a representative under the Ombudsmen Act 1975.

The merits of Mr Taylor’s application for review

[34] Mr Taylor claims a legitimate expectation that his daughter’s contact visits would continue. He denies that reg 196(1) defeats this. He submits reg 196(2) preserves his entitlement to humane management and care, as conferred by reg 6(1) and s 5(1)(a) of the Corrections Act . He referred in particular to s 5(1)(b), which provides that the United Nations Standard Minimum Rules for the Treatment of Prisoners apply. In essence he asserts that the application of the non-contact policy was a capricious and unfair reaction to his alleged conduct in September 2009.
[35] We do not accept that any of the provisions referred to by Mr Taylor create any “entitlement” to contact visits with his daughter. The only “entitlement” to visitors is set out in s 73(1). It is not suggested that Mr Taylor has been deprived of this entitlement.
[36] What is now sought by Mr Taylor as contact with his daughter must be compared with what Mr Taylor had in September 2009, prior to the application of the non-contact policy. In September 2009 there was no order of the Family Court giving him any right to contact with his daughter. She was in the care and protection of the Chief Executive of the MSD. Visits were made by arrangement between an MSD representative and the prison management. Mr Taylor was not a direct party to the arrangement although he was involved in the discussions which led to the arrangement. He is best regarded as a beneficiary of the arrangement as his own pleadings state. The emails outlining the arrangement and the different statutory imperatives applicable under the Care of Children Act 2004, the Children, Young Persons, and Their Families Act 1982 and the Corrections Act 2004 strongly suggest that the visits were terminable at the will of the MSD or the prison authorities. Indeed, Mr Nui in his email of 26 August 2008 from the prison observed that “each visit will be treated as a special visit as in all the visits that have occurred so far.”
[37] To suggest that Mr Taylor had an ongoing entitlement to contact visits with his daughter would inhibit the statutory responsibility of the Chief Executive of the MSD to act in the best interests of the child should it be considered those interests were not being advanced by the visits continuing. It would also constrain the obligation on the part of the prison authorities in their management of the prison to ensure good order and discipline.
[38] Mr Taylor argues that the arrangement constituted a licence under s 8(1)(c). However, if Mr Taylor were to obtain the orders he seeks, he would have converted this monthly arrangement between the MSD and the prison management into a right to contact visits for however long it takes for this matter to be heard and determined. He would end up with more than he had originally. Recognising this difficulty, Mr Taylor proposed that the continuation of the visits under an interim order could be subject to the discretion of the prison authorities to terminate them. However, this proposal is self-defeating. Once it is recognised that such a discretion exists, the prospects of obtaining a final order requiring the visits to continue become very weak. There was no licence in the sense put forward by Mr Taylor of a long-term arrangement for monthly contact visits.
[39] There is also a prospect of considerable delay in the hearing of the substantive case. Heath J in his judgment and other judges in the High Court and the Court of Appeal have observed that this application needs to be heard urgently. However, Mr Taylor has not moved quickly. He has not yet filed all his affidavit evidence. There is pending a two-day interlocutory hearing, where he will be seeking various interlocutory orders including discovery. He has also widened the scope of the proceedings to rely on a claim based on the New Zealand Bill of Rights Act 1990. In his latest submissions he has indicated that he wishes to extend the scope of the proceedings to complain about the extent to which prisoners are allowed fresh air and exercise. There is a question whether Mr Taylor is committed to a quick resolution of his application, and there is every prospect of extensive delays. If he obtains the orders he seeks, Mr Taylor would have no incentive to bring about a hearing which might lead to those orders being revoked. He will via the interim orders have achieved all he initially set out to achieve.
[40] We accept the premise that underlies Mr Taylor’s submissions, that the standard eastern division no contact visit policy is far from ideal for any sort of meaningful visit, particularly a visit between a parent and a very young child. We do not overlook Mr Taylor’s submission that contact visits are in the interests of his daughter and that the bond may weaken if contact visits are not allowed. As he emphasises the paramount purpose of the Children, Young Persons, and Their Families Act 1989 at s 6 is the welfare and interests of the child. However it is the principles in the Corrections Act 2004 which guide the operation of the corrections system. The inevitable consequence of a parent being imprisoned, particularly a parent whose conduct has resulted in him having the highest security rating and being in the east division of Paremoremo, is that in the interests of public safety there will be many compromises between what is ideal for meaningful relationships and what is required to maintain public safety and the necessary security measures within a high security prison.
[41] Moreover, what Mr Taylor proposes may not be in the interests of his daughter. The MSD has not sought to appear in this proceeding and support Mr Taylor’s position. The email of 28 October 2009 recommends access only three to four times a year or less, presumably because his daughter is settling into a foster home. If Mr Taylor obtains the orders he seeks, he will have an entitlement to monthly visits. This would appear to inhibit the Chief Executive of the MSD’s responsibility to act in what is considered to be the interests of the child.
[42] On the basis of the observations in Mr Puohotaua’s affidavit, he was faced with cogent evidence that Mr Taylor was on an angry campaign of deliberate damage to prison property, displaying overt hostility to prison authority, coupled with the discovery that he was enjoying contact visits in breach of the standard policy. In those circumstances a decision to terminate the exceptional arrangement does not seem surprising. Under the management regime created by the Corrections Act the prison manager had no duty to consult Mr Taylor before making such a decision.
[43] Thus, a number of discretionary factors work against the granting of interim relief. The orders Mr Taylor seeks would:

(a) give him a right to monthly visits that he did not have at the time contact visits were prohibited;

(b) inhibit the ability of the Chief Executive of the MSD (and ultimately the Family Court) to make such decisions as are considered to be appropriate in the best interests of the daughter;

(c) turn an informal arrangement between the prison and the Chief Executive of the MSD into a court direction for his benefit;

(d) require the manager of Paremoremo Prison, in the interim, to revoke a decision he has made in the interests of good management in the context of maintaining order within the prison;

(e) mandate the prison to take positive action, in particular to process contact visitors, make a room available, and apply staff to supervise;

(f) place him in an exceptional and privileged position in relation to other prisoners;

(g) by-pass the complaints systems provided in the Corrections Act; and

(h) create a new regime that will be susceptible to delay and may inure for a long period.

Conclusion on Judicial Review

[44] These particular factors measured against the scheme and purpose of the Corrections Act show that Mr Taylor’s case is weak both on the merits and discretionary grounds. We do not consider it necessary to formally determine the cross-appeal as the observation of Heath J about there being a serious question to be tried was an obiter observation only not related to the substance of his decision. However, we have considered the merits of the application at [34]–[43], and do not agree that there is a serious question to be tried at least in relation to the relief sought. We do not consider it likely that Mr Taylor at the substantive hearing will obtain an order that has the effect of directing the prison manager to allow monthly contact visits. Should he be successful the most Mr Taylor could expect would be a direction that prison management review the visiting policy and, possibly, that his position be considered afresh.
[45] Therefore, we agree with Heath J’s conclusion that the application for interim relief under s 8 must fail, although for somewhat different reasons.

Other causes of action

[46] In his submissions to Heath J Mr Taylor made some references to bringing his claim under the Declaratory Judgments Act 1908. He has relied on that cause of action before us.
[47] This is based on a misunderstanding of the nature of the Declaratory Judgments Act procedure. Under s 3 of the Declaratory Judgments Act a speedy and inexpensive procedure is provided for the determination of a question as to the:

... construction or validity of any statute ... or any deed, will, or document of title, or any agreement made or evidenced by writing...

Mr Taylor’s complaints do not concern any such issue of construction or validity. Rather they turn as is usual with judicial review on the lawfulness of actions and procedural fairness. There is no single issue of construction of an instrument or document that can determine the proceeding. This cause of action cannot succeed.

[48] Mr Taylor also now puts forward another cause of action based on breach of the New Zealand Bill of Rights Act 1990. It was not mentioned to Heath J, and Mr Taylor did not develop it before us. Such a claim faces the same problems already discussed in relation to judicial review.

Result

[49] The appeal is dismissed. Given Mr Taylor’s circumstances, we make no order as to costs.

Solicitors:
Crown Law Office, Wellington, for Respondent.

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^[1] Taylor v Chief Executive, Department of Corrections [2010] NZHC 201; [2010] NZAR 234 (HC).
^[2] At [34].
^[3] Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430–431.
^[4] Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, 18 PRNZ 754 at [3].

^[5] Law Commission Mandatory Orders against the Crown and Tidying Judicial Review (NZLC SP10, 2001).
^[6] Judicature Amendment Act 1972, s 6.

^[7] Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20 (CA) at 23 per Cooke P.
^[8] Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA) at [85] per McGrath J dissenting.

^[9] Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [49]; see also Goldberg v Attorney-General [2004] NZAR 159 (HC) at [57].