Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections [2016] NZHC 1145 (30 May 2016)

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UNDER	the Judicature Amendment Act 1972, the New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908
IN THE MATTER OF	a judicial review
BETWEEN	PHILLIP JOHN SMITH First Plaintiff NIKKI DAVID ROPER Second Plaintiff
AND	THE ATTORNEY-GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS _Defendant

Hearing:	18 May 2016
Appearances:	P J Smith in Person V McCall for the Defendant
_Judgment:	_{30 May 2016}

This judgment was delivered by Justice Edwards on 30 May 2016 at 4.30 pm, pursuant to

[1] On 18 March 2016 Mr Philip Smith lost his job as a landing messman in the maximum security block of Paremoremo Prison. He has filed a judicial review application in relation to the decision to terminate that employment which is scheduled for hearing on 15 July 2016.

[2] Mr Smith seeks a mandatory interim injunction reinstating him to his employment pending the determination of his judicial review application.

[3] Mr Smith is a maximum security prisoner held in the East Division of Paremoremo prison. Prisoners in the East Division are subject to the highest level of control and restriction in the prison system.

[4] Mr Smith is serving a life sentence for murder, and sentences for child sex offending, extortion and kidnapping. He is currently facing charges in the District Court relating to an alleged escape to Brazil in November 2014.

[5] In September 2015, Mr Smith was appointed a landing messman. His duties included serving breakfast and dinner, hot water, and cups of tea to other maximum security prisoners through hatches in their cell doors, and laundry duties performed on Sunday and Wednesday afternoons.

[6] Mr Smith received $14.00 per week for these duties of which $2.00 was deducted for rental of a television. Of more importance to Mr Smith was the fact that his employment allowed him respite from the hours spent confined to his cell. As a maximum security prisoner Mr Smith is locked in his cell for 22 and a half hours a day without employment, and approximately 20 and a half hours with employment.

[7] Mr Smith’s employment was terminated on 18 March 2016. He was told by the unit principal corrections officer (PCO) that the decision to terminate had been made so as to give him more time for his civil proceedings. The written record of the decision confirms those reasons.

[8] The decision to terminate Mr Smith’s employment was made by Mr Sherlock, the Prison Director for the Auckland prison at Paremoremo. Mr Sherlock has worked at Auckland prison for over 34 years and has been directly involved in the management of Mr Smith since December 2014. In an affidavit sworn in opposition to the application he states that Mr Smith is a highly intelligent and manipulative individual who cannot be trusted. Because of Mr Smith’s manipulative tendencies, he is managed at a higher management level than would ordinarily be the case.

[9] Mr Sherlock says that he only became aware that Mr Smith was working as a landing messman in March 2016 and was surprised that he should be in that role. He formed the view that the type of work Mr Smith was doing as a messman gave him access to other prisoners and opportunities to manipulate or coerce others. Mr Sherlock consulted with the Regional Commissioner who agreed with him that Mr Smith was not a trusted prisoner and that he should be removed from the role. Mr Sherlock sent an email to the unit PCO and advised him to terminate Mr Smith’s employment.

[10] Following Mr Smith’s dismissal, Mr Roper was offered the landing messman job. Mr Roper is another maximum security prisoner held in the same wing as Mr Smith. Mr Smith and Mr Roper are the first and second plaintiffs in this proceeding. They each seek judicial review of decisions to classify them as maximum security prisoners and to maintain that classification in subsequent security reviews.

[11] Mr Smith claims that the decision to terminate his employment was an act of retaliation for bringing this claim and other civil proceedings in which he is involved. Mr Sherlock denies that is the case stating his role is to manage Auckland prison to ensure the safety and security of prisoners and staff.

[12] Mr Smith’s challenge to the decision to terminate his employment is pleaded

as a separate cause of action in the second amended statement of claim filed on 15

[13] Numerous orders are sought by way of relief including declarations that the decision to dismiss was unfair, unreasonable, and unlawful, an order quashing the decision, and orders of compensation and exemplary damages. The relief of significance to the current application is “an order reinstating the first plaintiff’s prison based employment”.

[14] Mr Smith represented himself at the hearing appearing by video link. The focus of his submissions was on the unreasonable and unfairness grounds of review. There are four broad aspects to the unreasonableness challenge. First, Mr Smith says the decision was incapable of meeting the intended objectives of allowing him further time to work on his civil proceeding. Second, he says that the decision was inconsistent with the decision to employ Mr Roper who is in similar, if not identical, circumstances. Third, he says that Mr Sherlock failed to take into account relevant

confinement for a prisoner. Fourth, and finally, he says that Mr Sherlock disproportionately weighed other relevant considerations in reaching his decision.

[15] In relation to the challenge on unfairness grounds, Mr Smith says that Mr Sherlock did not afford him an opportunity to be heard before making the decision. He also points to the inadequate reasons given in support of the decision as providing a further ground of review.

[16] Mr Smith’s application for interim relief seeks an order “that his prison based employment be resumed immediately until the final determination of his judicial

¹The United Nations Standard Minimum Rules for the Treatment of Prisoners 2015 (Mandela

[17] The grounds stated in the application refer to the unfairness, irrationality and unreasonableness of the termination decision. Mr Smith relies on his rights under s 27(3) of the New Zealand Bill of Rights Act 1990 to bring civil proceedings which he says should be able to be exercised without fear of retaliation.

[18] Mr Smith submits that the relief he seeks is not available under s 8 of the Judicature Amendment Act 1972 (JAA). He therefore seeks to have his application determined under Part 30 of the High Court Rules.

[19] Part 30 of the High Court Rules governs applications for the extraordinary remedies. Rule 30.4 allows the Court to make an interim order on whatever terms and conditions the Court thinks just. In deciding whether to grant relief under this rule, the Court will consider whether there is a serious question to be tried, where the balance of convenience lies, and the overall justice of the case (the American

[20] Section 8 of the JAA provides that a Court may make interim orders if it is “necessary to do so for the purpose of preserving the position of the applicant” and for the purposes set out in s 8(1)(a) to (c). Subsections (1)(a) and (b) are expressed in prohibitory terms, whereas subsection (1)(c) relates to declaratory relief in relation to licences. Subsection (2) precludes the orders of prohibition set out in s 8(1)(a) and (b) being made against the Crown. Instead, the Court is empowered to grant declarations to the same effect.

[21] The approach to the grant of relief under s 8 of the JAA is set out in Carlton

& United Breweries Ltd v Minister of Customs.³If the Court is satisfied that an interim order is necessary to preserve the position of the applicant, it then has a wide

²American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 (HL) at 405–406; and Harvest Bakeries

_{Ltd v Klissers Farmhouse Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129
(CA).}

³_{Carlton & United Breweries Ltd v Minister of Customs
[1986] 1 NZLR 423 (CA) at 430–431.}

⁴Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3].

[22] This Court has considered applications for interim relief under both s 8 and Part 30.⁵Although Mr Smith concedes that his application must fail under s 8, I nevertheless consider an assessment under both approaches to be preferable in this case. A dual approach will ensure that the outcome is determined on the substance of the application rather than on the choice of procedural route.⁶The American Cyanamid approach is considered first, with the s 8 analysis addressed at end of this judgment.

[23] The parties’ submissions addressed each of the substantive grounds of review in some depth. Whilst I have had regard to all the arguments raised in those submissions, I have not addressed all the competing legal contentions in this judgment. My role is not to determine the substantive application, but to make a preliminary assessment of the merits at this interim stage.

[24] At one level it is understandable that Mr Smith should feel aggrieved at the termination of his employment. There have been no instances of misconduct in the course of his employment, and he was appointed to his job after he was returned to prison after being found in Brazil. The key reason for termination (that he was manipulative and could not be trusted) was not communicated to him, and the reason he was given (to spend more time on his civil proceedings) did not make sense in the context of the time already available to him to do so. The decision also coincided with the filing of this judicial review proceeding in respect of his security classification. It is not surprising that he harbours suspicions about the true reason for the decision in those circumstances.

[25] But an understanding as to how a grievance might arise does not equate to a meritorious claim for judicial review. As explained further below, I consider

⁵Middeldorp v Attorney-General HC Auckland CIV-2004-404-5610, 2 December 2004 at [36]; Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 400 at [18]; and Grassroots Trust v Secretary for Internal Affairs HC Wellington CIV-2011-485-13, 19 January

⁶For the purposes of this application I have assumed, without deciding, that there is a choice between procedural routes and that s 6 of the JAA does not require Mr Smith’s substantive application to be considered under the JAA.

Mr Smith faces significant hurdles in translating his sense of grievance into a serious question to be tried at the substantive review stage.

[26] The first hurdle Mr Smith faces is persuading the Court that the decision to terminate his employment is amenable to judicial review. Decisions regarding prison employment are made under s 66 of the Corrections Act 2004 (Act).⁷Subsection (1) provides the prisoner manager with a discretion regarding decisions about prisoner employment. Subsection (6) provides that prisoners may be employed in work which is “intended to provide the prisoner with work experience or to assist his or her rehabilitation or reintegration into the community” or which is “intended to reduce the costs of keeping prisoners in custody ...”.

[27] Neither the Act, nor the Corrections Regulations 2005, set out criteria which must be applied in deciding whether any prisoner may be employed. Nevertheless, the statutory discretion must be exercised in accordance with s 6(1) which provides that the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision.

[28] The statutory context makes it clear that decisions around prisoner employment are made as part of the day to day operations of a prison and the general management of prisoners. Courts have traditionally been reluctant to interfere with operational decisions of prison management, particularly where the impugned

decision does not impinge on a prisoner’s minimum entitlements.⁸Prison based

employment is not listed as one of a prisoner’s minimum entitlements in s 69 of the

[29] Such reluctance will be heightened in a case where management decisions are made in relation to maximum security prisoners. Mr Sherlock deposes to the various

_{challenges posed by maximum security prisoners and the flexibility
required to meet}

⁸See Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA) at [85]–[86]; Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [28]–[29]; Ericson v Chief Executive, Department of Corrections [2013] NZHC 3035 at [11]–[16]; Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; and Taylor v Chief Executive of Department of Corrections HC Auckland CIV-2011-404-3227, 5

those challenges on a day to day basis. In my view, a Court will be very slow to interfere with the decision to terminate employment when it is made in that context.

[30] But even if a Court was persuaded to scrutinise the decision, then Mr Smith would face further hurdles in making out his various grounds for review. A decision to terminate employment because a prisoner cannot be trusted, against a background of an alleged escape, does not appear to be inherently unreasonable. Mr Smith’s arguments regarding fairness will have to confront Court of Appeal authorities on underlying principles which appear to be against him. For example, in Department of Corrections v Taylor, the absence of an express statutory right to a hearing before a decision to refer a charge to a Visiting Justice was made, weighed against finding

that such a right existed under the New Zealand Bill of Rights Act 1990.⁹Although

each case turns on its own facts, I consider this case, and others concerning prison management decisions, pose real barriers for Mr Smith in making out his grounds for review.

[31] Assuming those hurdles can be overcome, then Mr Smith would face a further formidable hurdle in securing a mandatory order reinstating him to his employment. Mandatory relief against the Crown is relatively rare. As the Court of Appeal noted in Taylor:¹⁰

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 the 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.

[32] Those observations were made in the context of mandatory interim orders. The policy considerations are even stronger when considering orders granted on a substantive application in my view.

_{understand him to mean misconduct in employment terms). Fashioning an
order to}

⁹_{Department of Corrections v Taylor [2009] NZCA 129,
[2009] 3 NZLR 34 at [43]–[56].}

¹⁰Taylor v Chief Executive of the Department of Corrections, above n 8, at [26].

take into account the broad range of circumstances in which a prison manager could terminate employment would be practically very difficult. But, even if it could be done, it would still represent a significant impingement on the prison manager’s discretion to manage a prisoner’s employment. I consider it highly unlikely that the Court would make an order in such terms even if satisfied that there were grounds upon which the decision should be reviewed.

[34] Overall, I consider the prospects of Mr Smith securing a mandatory order reinstating him to his employment are very slim. This weighs heavily against an order being granted in essentially the same terms on an interim basis.

[35] Mr Smith’s further submissions as to why interim relief should be granted are

[36] Mr Smith says interim reinstatement is necessary because losing his employment means he is now confined to his cell for periods approaching solitary confinement as defined in the Mandela rules. I do not consider this factor tips the balance in favour of relief. There are other routes by which Mr Smith may challenge periods of confinement, assuming he has legal grounds to do so. Reinstatement of employment on a temporary basis to address periods of confinement would involve the Court interfering not only with decisions regarding employment, but also decisions regarding periods of confinement. In my view, there are no grounds to interfere with those decisions on an interim basis, and they are best left to those with the knowledge, skill and experience to make them.

[37] The short duration of any interim relief granted is another factor weighing in favour of interim relief in Mr Smith’s submission. But that factor cuts both ways. There would need to be a compelling reason for the Court to reinstate Mr Smith on an interim basis when the merits of such an order will be fully argued in a matter of weeks.

[38] In terms of competing prejudices, Mr Smith submits that the only prejudice to the Department is the amount to be paid in wages during the period of relief. He says this is a nominal amount which could be held as committed funds until the resolution of his substantive application to mitigate any prejudice to the Department.

[39] I do not agree that the prejudice is limited to the payment of wages. The grant of a mandatory interim injunction would restrain the prison manager in his management of not only Mr Smith, but also, other maximum security prisoners. It is the risk posed by placing restraints on the prison manager’s discretion to manage these high risk prisoners which is the significant prejudice to be weighed in the balance.

[40] Finally, as noted above, the grant of mandatory interim relief will only be made in special circumstances and only where the Court thinks the matter ought to be decided immediately.¹¹Although mandatory orders may now be made against Crown officials in their official capacity, the grant of mandatory interim relief against the Crown will still be relatively rare.¹²For the reasons already canvassed, I do not consider this to be one of those rare and special cases.

[41] The balance of convenience weighs against the grant of interim relief in my view.

[42] The merits of the substantive claim are weak, and the balance of convenience favours the Department. I consider the overall justice of the case weighs heavily

¹¹Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HCR 7.53.23].

¹²Bennett v Superintendent Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

[43] Mr Smith contends that the relief he seeks is not available under s 8 of the JAA. He submits that mandatory injunctions cannot issue under s 8, and that there is no “position to preserve” because the decision to dismiss has already been made.

[44] As to the first issue, the Court of Appeal has confirmed that there is no jurisdictional bar to the making of mandatory injunctions (or in the case of the Crown, declarations in the same terms) pursuant to s 8.¹³In accordance with convention, the Crown will abide by a declaration made under s 8(2), and Ms McCall confirmed that was the position in this case also.

[45] In relation to the second issue, the Court of Appeal’s decision suggests that a broad interpretation of the “position to be preserved” may be taken. The Court held that the power in s 8(1)(c) allowed a Court to declare that a state of affairs that previously existed should resume pending the substantive hearing.¹⁴Extending that reasoning to Mr Smith’s case suggests that the fact that the decision has already been made will not necessarily mean there is no position to preserve.

[46] On the basis of Taylor, it follows that Mr Smith’s application would not necessarily be precluded from being considered under s 8 of the JAA. However, I do not consider Mr Smith would be able to discharge the burden of showing that the relief sought was “necessary” to preserve his position. The broad discretion reserved to the prison manager under the Corrections Act 2004, the weak merits of the substantive claim, and the significant restraint on the prison manager’s discretion arising from the directive nature of the order sought, weigh against the grant of interim relief to preserve Mr Smith’s position.

[47] Whether decided under r 30.4 or s 8 of the JAA I do not consider there are rounds to reinstate Mr Smith to his employment pending a final determination of his

¹³_{Taylor v Chief Executive of the Department of
Corrections, above n 8, at [27].}

[49] I do not understand the Department to seek costs, and my preliminary view is that it is not appropriate to make such an order given Mr Smith’s circumstances. But if the Department does seek costs then it is invited to submit a short memorandum as to costs within 10 working days of receipt of this decision. Mr Smith may then submit a memorandum in reply within 10 working days of receipt of the

remand or who is detained under the Immigration Act 2009) may, while in custody,—

(a) be employed in any work that is directed or provided by the prison manager; and

(2) A prisoner who is detained only because he or she is awaiting trial or on remand or who is detained under the Immigration Act 2009 may be employed under this section if he or she asks to be employed.

(4) The manager of a prison in which any industry provides work under this section to prisoners in that prison must ensure that, in the operation of that industry, there are adopted only those accounting methods that are from time to time approved by the chief executive.

(a) be employed under this section only in work of a kind described in subsection (6) that is approved by the chief executive and under the conditions approved by the chief executive; and

(b) only be directed, under subsection (1)(a), to perform work of a kind specified in subsection (6)(b).

(a) intended to provide the prisoner with work experience or to assist his or her rehabilitation or reintegration into the community; or

(b) intended to reduce the costs of keeping prisoners in custody (for example, cooking, cleaning, and maintenance within the prison or any other prison).

(7) Any work in which a prisoner is employed under this section must be carried out in accordance with any prescribed requirements.

High Court of New Zealand Decisions

Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections [2016] NZHC 1145 (30 May 2016)

High Court of New Zealand

Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections [2016] NZHC 1145 (30 May 2016)