Reekie v Department of Corrections

JurisdictionNew Zealand
CourtHigh Court
JudgeEllis J
Judgment Date20 June 2012
Neutral Citation[2012] NZHC 1412
Docket NumberCIV-2012-404-002814

[2012] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-002814

Under the Judicature Amendment Act 1972

and

Under the Declaratory Judgment Act 1908

In the Matter of an Application for Judicial Review and Interim Relief

Between
Nicholas Paul Alfred Reekie
Plaintiff
and
Chief Executive of the Department of Corrections
Respondent
Counsel:

Plaintiff in Person (via Audio Visual Link)

J Catran and Ms Inverarity for the Respondent

Application by serving prisoner for interim orders under s8 Judicature Amendment Act 1972 (interim orders) — plaintiff sought judicial review of respondent's decision to transfer him to Springhill Prison and sought orders halting all misconduct proceedings pending against him and for medication regime to be reinstated — pending charges were scheduled to be heard by a Visiting Justice who had indicated they would not be adjourned while the applicant prepared for another hearing in District Court — whether interim orders were to be granted — whether plaintiff's interests in getting interim relief outweighed the public interest against it.

Held: An interim order under s8 JAA was made if it was necessary to preserve the position of the applicant. In the present case, in relation to both the transfer and medication issue, R did not have any position to be preserved in the sense required by s8 JAA. He had been transferred from Auckland Prison some time before and the respondent had advised that there was a significant shortage of cells at the Auckland facility. R's position therefore was that he had applied for a transfer to Auckland and was on the waiting list.

While a decision to transfer or not to transfer a prisoner was amenable in principle to judicial review, in terms of s8(2) JAA (court does not have power to make any order against the Crown but can by interim order, declare that the Crown ought not to take any further action consequential on the exercise of the statutory power), no action was presently being proposed by the Crown that was consequential on the exercise of a statutory power that the Court could declare that it could not take.

There were strong policy reasons against making interim orders, particularly where the decisions concerned were likely to involve the utilisation of scarce resources and the balancing of “delicate priorities”. Further, at the substantive review hearing, the court would not simply direct that R be transferred to Auckland Prison. The most that could be ordered was that the relevant decision be made again. An applicant could not use interim orders to obtain a benefit he could not obtain at the substantive hearing ( Taylor v Chief Executive Department of Corrections). Interim orders were therefore inapt to deal with the transfer issue.

The medications issue was also not susceptible to the making of interim orders. The residual complaints about the regularity of delivery and/or access of medications were not referable to any “position” that R presently occupied. Even accepting that there were, on occasion, operational difficulties, those difficulties could not be resolved by the making a declaration under s8(2) JAA.

As to the misconduct charges, R did have a position to preserve in relation to those charges that were not determined and for which he was not yet punished. It was arguable that R's difficulty in obtaining W's assistance together with other matters might give rise to a valid substantive claim for relief.

However the question was where the balance lay between R's interest in being granted the relief sought and whatever public interest was engaged by the possible grant of relief. On one hand if the interim relief was not granted, then aspects of R's underlying claim would potentially be rendered nugatory (by the time the substantive proceedings were heard R would potentially have been convicted by the VJ and served any sentence). Against that was the importance of the prison authorities' ability to deal with minor disciplinary matters in a timely and efficient way. The prospect of a prisoner being able to halt such proceedings in their tracks by applying to the court could not be lightly countenanced.

There were procedural safeguards in the statutory provisions governing disciplinary hearings. Notwithstanding that the VJ had indicated that there would be no adjournment, it was likely one would be given if R was at a substantive disadvantage. The balance between the respective interests did not ultimately favour the grant of interim relief in this aspect of R's claim.

The declarations sought by R did not constitute the sort of relief contemplated by s8 JAA. Even if that were not the case, a declaration that the respondent was to comply with the law was not necessary. That was plainly the position and merely reiterating it in declaratory form served no useful purpose.

Application dismissed.

RESERVED JUDGMENT OF Ellis J

1

Mr Reekie is serving prisoner a sentence of preventive detention. Since 28 February 2012 he has been imprisoned at Springhill Correctional Facility (Springhill). Just prior to that date he was detained for a fortnight at Auckland Prison to enable him to participate in a two week civil hearing in the Auckland High Court. Before that, he was imprisoned at the Northern Regional Correctional Facility (NRCF), at Ngawha.

2

This judgment relates to an application by Mr Reekie for interim orders under s 8 of the Judicature Amendment Act 1972. That application, and his underlying claims for judicial review and for declaratory relief, relates to a wide range of matters arising from his present circumstances. Central to his concerns, however, is his desire to be transferred from Springhill to Auckland Prison.

3

Mr Reekie, who is self-represented, consented to appear before me by video link with Springhill. Although Mr Reekie is one of the more able and well informed lay-litigants that I have seen, I formed the view that his circumstances required that he be given a considerable amount of leeway, particularly when it came to the cross-over between his role as both witness and advocate.

4

That said, however, a number of the factual statements made by Mr Reekie were disputed by the Crown and could not properly be tested in the context of an interim orders application, particularly given the quantity of new material received from Mr Reekie just prior to the hearing. Some distillation of that material has also been required in the course of preparing this judgment, in which I have attempted to focus on the key issues at this, interim, stage.

5

More specifically, the interim orders sought by Mr Reekie are that:

  • (a) he be immediately transfer back to (Unit 2, West Division) Auckland Prison;

  • (b) all misconduct proceedings and/or penalties that are pending against him at Springhill immediately be halted; and

  • (c) the medication regime to which he was subject before he was sent to Springhill be immediately reinstated;

6

Mr Reekie also sought (interim) declarations that:

  • (i) all interferences with his ability to conduct his legal affairs cease immediately and that the respondent should, “to the degree that is reasonable in the circumstances”, respect those rights and entitlements and not seek to curtail them or his ability to exercise them;

  • (ii) the respondent and his employees, agents and servants “ought not to commit any further breaches of the Corrections Act 2004, the Corrections Regulations 2005 or the New Zealand Bill of Rights Act 1990 in the interim, in respect of the plaintiff's rights and interests contained … within those various Acts and Regulations”.

7

Before addressing the merits of the applications, it is necessary to say a little more about the background to them.

8

As regards transfer, Mr Reekie has particular concerns about:

  • (a) the manner in which he was moved to Springill (which he says was effectively without notice and contrary to expectations that had been given him by Corrections staff). In this respect I note that even Mr Kanawa (the Acting Prison Manager at Springhill) has described the placement of someone such as Mr Reekie at that facility as “unusual”;

  • (b) his subsequent (and, Mr Reekie would say, consequential) change of security classification from “low-medium” to “high-medium”;

  • (c) the nature of the facilities at Springhill, which he says are not designed or equipped to deal with prisoners such as he who are voluntarily segregated from their fellow inmates;

  • (d) the location of Springhill, because it is some distance from his support networks in Auckland. In particular his incarceration at Springill means that it is very difficult for his partner, Ms Wood (who also routinely acts as his MacKenzie friend in relation to various litigation matters) to visit during normal visiting hours which, for those in Mr Reekie's unit, are essentially confined to certain weekdays. Ms Wood has a job in Auckland which means she is only able to travel to Springhill on Mondays and Sundays, which days are outside visiting periods. Because visits outside ordinary hours are discretionary, this has a flow on effect in terms of Mr Reekie's ability to conduct his legal affairs.

9

As regards the misconduct charges, Mr Reekie presently faces a number of these. The charges appear to me to relate to comparatively minor matters, principally involving his interactions with other prisoners and with staff. 1 The possibility of some connection between the alleged behaviour giving rise to the charges and Mr Reekie's desire to be transferred necessarily arises.

10

Mr Reekie's position, however, is that the charges have arisen because he is being deliberately and unfairly targeted as a result of other Court proceedings he has taken against the Corrections Department and/or prison staff.

11

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3 cases
  • Macmillan v The Chief Executive of The Department of Corrections
    • New Zealand
    • High Court
    • 6 September 2021
    ...Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J. Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412, [2012] NZAR At [23]. [18] Even assuming that Mr MacMillan has a position to preserve in the sense of an entitlement to suitable pain med......
  • Reekie v Department of Corrections
    • New Zealand
    • High Court
    • 20 June 2012
    ...HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2012-404-002814 [2012] NZHC 1412 UNDER the Judicature Amendment Act 1972 AND UNDER the Declaratory Judgment Act 1908 IN THE MATTER OF an Application for Judicial Review and Interim Relief BETWEEN NICHOLAS PAUL ALFRED REEKIE Plaintiff AND CHIEF......
  • Gorgus v The Chief Executive of The Department of Corrections
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    • 1 September 2020
    ...Department of Corrections [2020] NZHC 2158. At [9] and [13]. At [19]. Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412. She considered that he had no position to “preserve” under s 8 of the Amendment Act 1972 and an applicant cannot obtain by interim orders what co......

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