Forrest v Visiting Justice, Rimutaka Prison

[2014] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-2964 [2014] NZHC 634

UNDER

the Judicature Amendment Act 1972 and

New Zealand Bill of Rights Act 1990

IN THE MATTER

of a claim under NZBORA and Judicial
Review

BETWEEN

BRENDON DOUGLAS FORREST Applicant

AND

THE VISITING JUSTICE, RIMUTAKA PRISON

First respondent

THE DEPARTMENT OF CORRECTIONS

Second respondent

Tel Conference:	31 March 2014
Appearances:	Mr Forrest in person K Laurenson for Department of Corrections
Judgment:	31 March 2014
Reasons:	1 April 2014

REASONS FOR ORAL JUDGMENT OF CLIFFORD J

Background

[1]      The applicant, Mr Forrest, is serving a sentence of imprisonment.   He has calculated his release date as being 14 July 2015.

[2]      On Thursday 13 February 2014 an incident occurred in his cell.  Mr Forrest says he was assaulted by a prison officer during that incident.   The prison officer

says that Mr Forrest assaulted him.  That incident gave rise to three reviews by the

FORREST v THE VISITING JUSTICE, RIMUTAKA PRISON [2014] NZHC 634 [31 March 2014]

prison of Mr Forrest’s security classification between 13 and 18 February 2014.  His security classification was increased from low to maximum.

[3]      On 14 February 2014 Mr Forrest was served with three disciplinary charges, one for assault on a prison officer, one for damaging a window and one for misuse of a telephone.

[4]      On 16 February 2014 Mr Forrest made a complaint of assault against the prison officer.

[5]      The two charges of breaking a window and misusing a telephone were heard within the prison on 20 February 2014.  As I understand it, the charge for assault on the officer is yet to be heard pending the completion of the police investigation following Mr Forrest’s complaint of assault.

[6]      On 24 February 2014 Mr Forrest unsuccessfully challenged the outcome of those hearings before a Visiting Justice.

[7]      Mr Forrest was transferred from Rimutaka Prison to Auckland Prison  on

4 March 2014.

[8]      In these proceedings, filed on 26 February 2014, Mr Forrest is challenging his security reclassification, and the outcome of the two disciplinary charge hearings, as challenged before the Visiting Justice, on a wide range of grounds.   Yesterday, Mr Forrest filed an amended statement of claim.  Very much in summary, Mr Forrest is alleging breaches of s 27 of the New Zealand Bill of Rights Act 1990 and his rights to natural justice.

[9]      Yesterday Mr Forrest was at the High Court at Wellington in connection with another matter.  As well as filing his amended statement of claim, he also filed an ex parte interlocutory application for interim relief: he sought orders preventing his return to Auckland Prison.  Mr Forrest supported his interlocutory application with a memorandum, and an affidavit.  The Registry arranged for those papers to be served on the second respondent.  The Registry also scheduled an urgent telephone hearing

before me at 4.30 pm.  That hearing was attended by Mr Forrest and Ms Laurenson for the Department of Corrections.  Of necessity that hearing was relatively brief.

[10]     Mr Forrest’s  papers  were  before  me.    The  Department  had  not  had  the

opportunity to file papers, but Ms Laurenson made oral submissions.

[11]     I gave an oral judgment at the time, declining Mr Forrest’s application and giving very brief reasons.  I said I would record those reasons, and the background to Mr Forrest’s application, in writing subsequently.  I now do so.

Reasons for oral judgment

[12]     Mr Forrest argues that the order sought is necessary to preserve his position. The Department says that such an order is not necessary: Mr Forrest’s application can be heard and relief granted.   That relief will not be nugatory if, as matters transpire, the decisions which altered his security classification are reversed.

[13]     Section 8 of the Judicature Amendment Act 1972 provides that the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of an applicant, make interim orders including for the purpose of prohibiting any respondent to an application for judicial review from taking any further action that is or would be consequential on the exercise of the statutory power.

[14]     Mr Forrest’s initial transfer to Auckland Prison was an action consequent on the challenged reclassification decision.  I am prepared, for these purposes, to accept that Mr Forrest being sent back to Auckland after today’s hearing is a similar action.

[15]     I was not satisfied, in these circumstances, that making the order sought is necessary  to  preserve  Mr Forrest’s  position,  as  that  phrase  is  to  be  properly understood.   As Ms Laurenson submitted, if Mr Forrest succeeds in his judicial review challenges, relief could include the reversal of the classification and, as a consequence of that, a return to Rimutaka Prison.   The utility of that relief is not rendered  nugatory  by  Mr Forrest  being  returned  to  Auckland  Prison  today. Moreover, I was also concerned that Mr Forrest may be taking advantage of the coincidence that he has been brought back to Rimutaka Prison for the purposes of

another Court hearing.  The order he seeks, which is preventative in nature (that is preventing his return), is only theoretically possible because of that fact.  Were he still in Auckland, he would be asking for a mandatory order of transfer.   It is not clear to me that such an order comes within the purview of s 8.

[16]     I do note, however, that I consider that this is a type of application for judicial review  which  needs  to  be  heard  promptly.    Once  the  respondent  has  filed  its statement of defence, the application should be set down for hearing just as soon as possible.

“Clifford J”

Solicitors:

Crown Law Office Wellington for the respondents

Copy to: The applicant Mr B D Forrest.