IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2020-485-203
[2020] NZHC 3231	

UNDER	Judicial Review Procedure Act 2016	
IN THE MATTER OF	An application for judicial review, the Corrections Act 2004, the Corrections Regulations 2005 and the Prison Operation Manual	
BETWEEN	STEPHEN THOMAS HUDSON
Applicant	
AND	THE ATTORNEY-GENERAL
(sued in respect of the Department of Corrections)
First Respondent

THE OFFICE OF THE INSPECTORATE
Second Respondent	

Hearing:	9 November 2020	
Appearances:	Mr Hudson in person (by AVL link) S B McCusker for the Respondents	
Judgment:	8 December 2020	

JUDGMENT OF GWYN J

Introduction

[1]	In these proceedings, the plaintiff, Mr Hudson, who is a prisoner at Rimutaka Prison, seeks judicial review arising from decisions made by the Department of Corrections (the Department), individual staff members of the Department and the Prison Inspectorate, on and following 4 September 2019.

HUDSON v A-G [2020] NZHC 3231 [8 December 2020]

[2]	The applicant says that on 4 September 2019 he became aware that the access of Unit 8 prisoners to their common areas had been changed from unlock at 8:00 am to unlock at 1:00 pm. (“Common areas” encompass the dining room, gym and recreation room, but what is at issue in this case is the access to the gym). As detailed later in this judgment Mr Hudson alleges that the decision was ultra vires the Corrections Act 2004 (the Act), including that the decision was imposed as a punishment on prisoners; and it was a breach of minimum entitlements as provided for in ss 69 and 70 of the Act. Mr Hudson’s claim also relates to the way in which his complaint about the 4 September event was subsequently treated, both by Corrections staff members and by the Office of the Prison Inspectorate.

[3]	Mr Hudson has filed three affidavits in support of his application. He has also filed an affidavit from another serving prisoner in Unit 8 in support of the application. In response, the respondents have filed affidavits from each of Principal Corrections Officer Rakai Tawhiwhirangi; Senior Corrections Officer John Gavin Derwin; Residential Manager Taunu Taepa; Custodial Systems Manager Simon George Hicks and Principal Inspector for the Office of the Inspectorate, Andrew David Fitzharris.

Amended statement of claim

[4]	Mr Hudson filed a statement of claim dated 4 May 2020 and the respondents responded to that claim by way of statement of defence dated 26 June 2020.

[5]	Subsequently, Mr Hudson has sought to file an amended statement of claim, dated 28 October 2020. As he explains in his memorandum of 6 November 2020,  Mr Hudson was not aware that the Court’s leave was required to file an amended statement of claim and, on becoming aware of that requirement, he sought leave to do so pursuant to r 7.7(1) of the High Court Rules 2016 (the Rules). The respondents opposed the filing of the amended statement of claim, noting that some of the new allegations raised in the amended claim require a response by way of pleading or additional evidence. Mr McCusker, for the respondent, specifically noted paragraphs O–P of the amended claim’s relief section.

[6]	O and P are new declarations sought by the applicant in the following terms:

O.  A declaration that in forcing prisoners to make use of their unlock time in outdoor conditions, without adequate shelter, and failing to provide jackets and wetweather clothing or any type of winter clothing to the general population of  prisoners in unit-8 the  D.O.C is  in breach of s 68(5)(a) and (b) CR [Corrections Regulations 2005] and is failing in its duty of care to the prisoners in unit-8.

P	A declaration that in restricting access to the indoor common areas of unit-8 the DOC is failing to provide the minimum entitlements set out at s 70 CA [Corrections Act 2004].

[7]	On the face of it, declaration O in particular, does appear to raise new substantive questions which would need to be addressed, not only in an amended statement of defence, but also by way of evidence from the respondents.

[8]	Mr McCusker also notes that, to the extent that these are fresh allegations, they would need to go through the standard prison complaints process, including complaint to the Ombudsman.1

[9]	In his oral submissions Mr Hudson argued that the new declarations sought are implicit in his complaint regarding the decision to restrict access to the common areas on 4 September 2019. He argues that the Prison Inspectorate has a responsibility to initiate an enquiry into the consequences of that 4 September 2019 decision. If he is not allowed to proceed in this hearing, on the basis of the amended statement of claim, he will need to bring fresh claims.

[10]	I concluded that the amended statement of claim, particularly declaration O, did raise new matters which the respondent had not had adequate opportunity to respond to.  Accordingly,  I  directed  that  the  hearing  proceed  on  the  basis  of  Mr Hudson’s statement of claim dated 4 May 2020. To the extent that Mr Hudson’s third affidavit relates to the new claims, I have not had regard to it.

Proper respondents

[11]	The proceeding as filed names the Attorney-General as the first respondent (sued in respect of the Department of Corrections), Residential Manager Taunu Taepa

1	Mitchell v Attorney-General [2013] NZHC 2836 at [34], citing Gill v Attorney-General [2010] NZCA 468, [2011] NZLR 433 at [19].

as second respondent, Senior Corrections Officer G Derwin as third respondent and The Office of the Inspectorate as fourth respondent.

[12]	Mr McCusker submits that the second, third and fourth respondents ought to be struck out. He says that SCO Derwin had no responsibility for the matters in issue and in any event neither of the named officers exercised any public power which would necessitate their joinder as individual parties. He relies on s 14(2) of the Crown Proceedings Act 1950 to submit that  the  Attorney-General,  on  behalf  of  the  Chief Executive of the Department of Corrections, is the appropriate respondent.

[13]	Section 14(2) relates to “civil proceedings” which, for the purposes of the Crown Proceedings Act, excludes proceedings brought under the Judicial Review Procedure Act 2016. However, Mr McCusker points to Wright v Darvill which held there was nothing in the Crown Proceedings Act which prevented applications for judicial review proceeding on an analogous basis, nor was there anything in the Judicature Amendment Act 1972, which prevents the Court from doing so.2 That position has not changed with the Judicial Review Procedure Act 2016.

[14]	I agree that it is appropriate to strike out the second and third respondents on the basis that any findings against the first respondent, and any relief ordered, will bind the Department of Corrections and its staff members.

[15]	I declined to strike out the Office of the Inspectorate. Although the Inspectors who comprise the Inspectorate are generally employees of the Department of Corrections, the Inspectorate does have specific functions under the Act.

The causes of action

[16]	Mr Hudson is a prisoner serving a life sentence at Rimutaka Prison where he has been incarcerated since 2002. He is housed in Unit 8 of Rimutaka Prison.

[17]	The statement of claim pleads that the majority of prisoners in Unit 8 are unlocked between 8:00 am and 11:30 am and between 1:00 pm and 4:30 pm. Some

2	Wright v Darvill [2015] NZHC 1821, at [12]–[14].

prisoners who are employed are unlocked at 6:30 am and some prisoners who are employed are not locked up between 11:30 am and 1:00 pm. This aspect of the pleading is not disputed.

[18]	On 4 September 2019, Mr Hudson became aware that Unit 8 prisoners’ access to the common areas had been changed from unlock time at 8:00 am to unlock at 1:10 pm.3 Mr Hudson says this new rule was created by SCO Derwin.

[19]	He says further that on 5 September 2019 the time prisoners could access their common areas changed again, from 1:10 pm to 10:00 am on weekdays and 9:00 am on weekends.

[20]	It is these events on 4 September 2019 and 5 September 2019 that are at the heart of Mr Hudson’s claim.

[21]	The first respondent says that Mr Hudson is incorrect in his assertion that unlock time for the common spaces was (prior to the new rule on 4 September 2019) 8:00 am. Prior to 4 September 2019, the common areas were unlocked at 10:00 am for use by the general population of Unit 8; the common areas were unlocked at  8:00 am only for the purposes of allowing access for cleaning staff. On 4 September 2019 PCO Tawhiwhirangi changed the unlock time of the common areas for the general population of the Unit from 10:00 am to 1:10 pm. However, that change – that is, opening at 1:10 pm, rather than at 10:00 am – was in effect only on 4 September 2019. As of 5 September 2019, the unlock time of the common areas reverted to the previous position, which was unlock at 10:00 am for the use of the general population of Unit 8.

[22]	While the statement of claim does not set out specific causes of action, the purport of the claim is apparent from the declarations sought at A to S of the prayer

3	Mr Hudson in fact refers to 1 pm exactly, but it seems the unlock hours do not always occur exactly on the hour or half hour, but 10 minutes earlier or later. Corrections says the indoor common areas are available from 1:10 pm to 4:20 pm, rather than 1:00 pm to 4:30 pm as Mr Hudson says. I adopt the times used by Corrections in this judgment, but nothing turns on these 10-minute discrepancies.

for relief. The claims fall under three broad headings: prisoner access to common areas; the complaints process; and the role of the Office of the Prison Inspectorate.

Prisoner access to common areas

[23]	Mr Hudson’s primary claims relate to access to the common areas. The claims are:

(a)	the restriction on prisoners from accessing their common areas was ultra vires ss 5, 6 and 50 of the Act;

(b)	the restriction in unlock hours was in breach of the minimum entitlement provisions in the Act (ss 69 and 70);

(c)	the restriction in common area access was the removal of a privilege as defined in reg 158 of the Corrections Regulations 2005 (the Regulations) and that removal of such privileges can only be made in accordance with the disciplinary powers under ss 133 and 137 of the Act.

[24]	I heard no submissions relating to the alleged breach of ss 5, 6 and 50. Those sections set out purposes and guiding principles and I read them as providing context to this proceeding, but nothing more.

Complaints process

[25]	Mr Hudson also makes a number of claims relating to the complaints process. Those are as follows:

(a)	his complaint was inaccurately entered into the Integrated Offender Management Screen (IOMS);

(b)	he was not provided with the statutorily-required assistance to make his complaint (s 154 of the Act);

(c)	the outcome of his complaint was predetermined;

(d)	a copy of the PC.01 complaint is missing from his file; and

(e)	the treatment of his complaint was in breach of s 151 of the Act.

Office of the Prison Inspectorate

[26]	Mr Hudson’s complaints about the Prison Inspectorate are:

(a)	the Inspectorate’s practice of requiring prisoners to make complaints by way of only a short, recorded telephone message, and in failing to interview Mr Hudson about his complaint, amounted to a failure to investigate his complaint in a fair and effective manner;

(b)	the Inspectorate did not investigate the implications of prisoners having to either forego unlock or exercise outside, including in poor weather conditions.

Prisoner access to common areas

Preliminary factual dispute: who made the decision to change the unlock hours?

[27]	I turn now to Mr Hudson’s central complaint about Unit 8. There is a preliminary factual matter in dispute between the parties: who made the decision on 4 September 2019 to change the unlock hours of the common areas.

[28]	Mr Hudson says that it was SCO Derwin who  decided on the new rule  on    4 September 2019 that prisoners in Unit 8 would have access to their indoor common areas from 1:10 pm until 4:20 pm.

[29]	Mr Hudson’s assertion that it was SCO Derwin who made the decision to change the unlock hours is based on a conversation or conversations he says he had with Mr Derwin. Mr Hudson’s account is that SCO Derwin said, “Why should prisoners who don’t work be able to use the gym, play ping-pong, while prisoners who work cannot”.

[30]	SCO Derwin and PCO Tawhiwhirangi both dispute that it was SCO Derwin’s decision. SCO Derwin  disputes saying the words Mr Hudson  attributes to him.  PCO Tawhiwhirangi says that it was his own decision. In response, Mr Hudson says that the PCO is simply attempting to shoulder the responsibility out of a sense of loyalty to SCO Derwin.

[31]	In his affidavit filed in the proceeding PCO Tawhiwhirangi attaches the notice, stamped with his name and title, which he says advised prisoners of his decision to change the hours of the common areas. Mr Hudson makes a variety of allegations in relation to that notice, e.g. that  it  is  in  fact  signed  by  SCO  Derwin  and  not  PCO Tawhiwhirangi.

[32]	PCO Tawhiwhirangi goes on to say that, on the same day he put up that notice, he spoke to the SCOs of Unit 8 (including SCO Derwin) and, having had that conversation, decided to revert back to the 10:00 am unlock time. That change took effect from the following day, 5 September 2020.

[33]	Mr  Hudson  asks  the   Court   to   conclude   that   SCO   Derwin   and   PCO Tawhiwhirangi are lying. There is no proper basis on which I could reach that conclusion, particularly in the absence of cross-examination of all three deponents. However, in any event, as I discussed with Mr Hudson, it seems to me that nothing turns on the question. The responsibility for the decision rests with the Department and any remedies granted in respect of the decision will bind the Department and all of its officers.

Was the change in unlock hours amenable to judicial review?

[34]	I turn now to Mr Hudson’s central complaint about Unit 8 prisoners’ access to the gym and recreation room.  As I have already noted, Mr Hudson says that, as of   4 September 2019, there was an ongoing change to those hours which significantly impacts on the residents of Unit 8, in breach of their statutory entitlements.

[35]	The Department says, first, decisions such as these are standard operational matters and not amenable to judicial review. Nor do they amount to a breach of

prisoners’ minimum entitlements and the changes were not implemented as a penalty as a forfeiture of privileges.

[36]	Second, the Department says that the change to the unlock hours was effective for only one day and therefore the issue is moot. I consider these issues in turn.

[37]	Simon Hicks, the Custodial Systems Manager for Rimutaka Prison, explains in his affidavit that the changing hours of a space within a prison Unit, such as the opening and closing times of common areas, is in his view “a standard operational decision” which lies with either the Principal Corrections Officer (PCO) or Residential Manager (RM) of a Unit. He notes that each prison Unit has its own set of routines, that depend on the particular focus of that Unit. The Prison Manager would not be expected to be consulted by the PCO or RM unless there was potential for a prisoner’s minimum entitlements to be affected under the Act.

[38]	Mr McCusker says that the decision on 4 September 2020 was a “classic day-to-day decision” of the type referred to in Daemar v Hall:4

The very nature of a prison institution will require that “on the spot” decisions be made by prison officers the effect of which will be to impose some restrictions and possibly punishments on inmates. I do not intend by this judgment to suggest that the power of those officers will be in any way curbed. If it were otherwise, the day-to-day running of a prison institution might be jeopardised and the life of prison officers made a nightmare. Interference with that kind of day-today activity would be as unthinkable as interference by the civil Courts with the actions of a non-commissioned officer on a parade ground.

[39]	More recently, in Smith v Attorney-General, the Court recognised that there is little scope for review of managerial decisions of prison officers:5
Prison authorities are at liberty to change any conditions, as required for disciplinary or other purposes consistent with the legislation, so long as entitlements under the Act or regulations are not affected.

[40]	And later in the same judgment, Katz J said:6

4	Daemar v Hall [1978] 2 NZLR 594 (SC) at 603–604.
5	Smith v Attorney-General [2016] NZHC 136, [2017] NZAR 331 at [128].
6	At [132].

The overall tenor of the Act, the Regulations and the case law as a whole demonstrates that without specific statutory or regulatory requirements it is unlikely that operational decisions of prison managers, including in relation to prison employment, will be subject to review by a court. The need to maintain security and discipline militates against restricting the discretionary ability of Corrections in this context, as do the circumstances of urgency in which these issues arise, and the specific judgement and expertise of the prison manager in each case.

[41]	Mr McCusker also refers to Greer v Prison Manager at Rimutaka Prison where the Court warned against “micro-managing” prison operations.7 Similarly, in Mitchell v Attorney-General the Court considered that complaints by the applicant about the removal of plastic wrappings from her prison cell and whether she was deprived of a “fit-for-purpose” mattress for six days would involve “micro-managing” the prison system and trivialising the High Court’s judicial review procedure.8

[42]	I accept Mr McCusker’s submission that adjudicating on an issue such as unlock hours for specified parts of a prison (in the absence of breach of specific statutory entitlements) would impinge on the management and operation of prisons and would, as Katz J put it in Smith:9
…be capable of significantly inhibiting a discretion which may sometimes need to be exercised in circumstances of considerable urgency and importance. This would see the court crudely monitoring and directing the day-to-day operational decisions of prison management.

Minimum entitlements under the Act

[43]	In light of the authorities discussed above, I find that Mr Hudson’s claim relates to the day-to-day management of the prison. The nature of the decision and the very limited time period engaged by the dispute suggests that, if the Court intervened, it would be micro-managing a prison. Mr Hudson must rely, therefore, on there being a breach of prisoners’ minimum entitlements or another provision under the Act. A breach of any minimum entitlement would be amenable to review. Mr Hudson has alleged that enforcement of the 10:00 am unlock time for the gym does impact on

7	Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1063, 18 December 2008 at [9].
8	Mitchell v Attorney-General, above n 1, at [35].
9	Smith v Attorney-General, above n 5, at [129].

some prisoners’ minimum entitlement to take at least one hour of physical exercise each day, pursuant to s 70 of the Act.

[44]	Section 69 of the Act says that every prisoner has the listed minimum entitlements, which include at s 69(1)(a) “physical exercise, as provided for in section 70.” Section 70 of the Act in turn provides:

70	Exercise

(1)	Every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise.

(2)	The physical exercise referred to in subsection (1) may be taken by the prisoner in the open air if the weather permits.

[45]	The unlock hours of 10:00–11:20 am and 1:10–4:20 pm on Mondays – Thursdays and 9:00–11:20 am and 1:10–4:20 pm on Fridays – Sundays plainly meet the requirements of ss 69 and 70. Enforcement of those hours does not constitute a breach of the statutory minimum entitlements.

[46]	As Mr Hudson submitted, however, it is possible that enforcement of the official unlock hours may create a difficulty for some prisoners who go out of the prison to work each day in being able to get their one hour of exercise. Working prisoners finish work at 3:00 pm, travel back to the prison and undergo a search at the gate; the meal parade is at 4:00 pm and the gym and common areas are locked at 4:20 pm.

[47]	I do not have any evidence before me as to the impact on individual prisoners nor, if there are any prisoners in that situation, whether some accommodation is reached between those individuals and prison officials to enable them to achieve one hour’s exercise per day. For that reason, I am not in a position to directly address the issue and so I am not able to find any basis to conclude that the unlock hours currently infringe s 70.

Removal of a privilege

[48]	Mr Hudson also says that the change of unlock hours for the common areas amounted to the removal of a privilege as defined in reg 158 of the Regulations and

the removal of such privileges can be made only in accordance with disciplinary powers under ss 133 and 137 of the Act.10

[49]	Regulation 158 relevantly provides:

158	Privileges

The penalty of forfeiture or postponement of privileges that may be imposed on a prisoner under section 133(3)(a) or 137(3)(a) of the Act comprises the loss or postponement of all or any of the following privileges:

…

(i) the opportunity  for  physical  exercise  beyond  the  minimum  entitlement conferred by section 69(1)(a) of the Act:

[50]	Sections 133 and 137 of the Act relevantly provide:

133	Powers of hearing adjudicator in relation to offences against discipline

…

(3)	If, at any hearing under this section, a hearing adjudicator finds the offence proved, he or she may impose 1 or more of the following penalties:

(a)	forfeiture or postponement of all or any privileges for any period not exceeding 28 days:

137	Powers of Visiting Justice in relation to offences by prisoners

…

(3)	If, at any hearing under this section, the Visiting Justice finds the offence proved, he or she may impose 1 or more of the following penalties:

(a)	forfeiture or postponement of all or any privileges for any period not exceeding 3 months:

[51]	In support of this allegation, Mr Hudson says that the rationale given for the decision by PCO Tawhiwhirangi (that is, that it causes disruption to work programmes as some employed prisoners use the gym before work and as a result are late for work), amounts to a blanket punishment of all prisoners in Unit 8. There were other options

10	See generally McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [45]–[49].

available for PCO Tawhiwhirangi to correct the behaviour of the individual prisoners who were late in leaving for work as a result of accessing the gym before its official unlock time.

[52]	In response, Mr McCusker says that no privileges were removed by the temporary change in unlock hours. The General Unit population of Unit 8 were still entitled to use the gym and recreation room, which was only shut for a period of less than three hours, for only one morning. It was not a punishment and was not a removal of a privilege from an individual prisoner as ss 133 and 137 of the Act envisage.

[53]	Mr McCusker emphasises that both the Prison Inspectorate and the Ombudsman have independently found that the change in unlock hours was not introduced as a punishment. That, in my view, is a significant obstacle for Mr Hudson to overcome in relation to this claim, notwithstanding the fact the Ombudsman’s decision appears to be provisional only at this stage. I am inclined to agree with the Ombudsman and Inspectorate. There is ample evidence that the 10:00 am unlock time is in place to improve the orderly running of the prison to allow for cleaning and punctuality rather than as a punishment.11

[54]	Mr McCusker also points to s 82B of the Act which states that a prisoner does not have any legitimate expectation of being accommodated in or being provided with, the same or similar conditions during the whole term of his or her imprisonment. There was no legitimate expectation that the unlock hours of the gym or recreation room would remain constant.

[55]	I conclude that the alteration in unlock hours was not a penalty of forfeiture or suspension of privileges in terms of reg 158 of the Regulations.

Is the issue of the change in unlock hours moot?

[56]	The question of what changes were made to unlock hours and for what period they lasted is central to this aspect of Mr Hudson’s claim and, as I have noted, is a matter of factual dispute between the parties.

11	For a more in-depth discussion of the reasons for the 10 am unlock time, see below at [60]–[61].

[57]	If, as the Department says, the official unlock hours, prior to the decision made by  PCO  Tawhiwhirangi  on  4  September,  were   10:00   am–11:20   am   and  1:10 pm–4:30 pm, then the decision in question had an impact for only half of one day. If, as Mr Hudson contends, the previous morning unlock hours were in fact 8:00 am–11:20 am, then the effect of that decision is ongoing and of more consequence.

[58]	PCO Tawhiwhirangi’s evidence sets out the daily routine for Unit 8. He says it is based on an 8–5 regime. Prisoners are unlocked from their cells at 8:00 am. At 8:20 am they are required to attend a breakfast parade in the dining room. At 8:45 am they undergo a cell inspection. Unit workers and work gangs are sent off to work at 9:00 am.

[59]	As to the specific matter in issue here, he says:

9.	Both before and after 4 September 2019, the unlock hours for the gym and recreation room for the General Unit population were:

9.1	10.00 – 11.20 am and 1.10 – 4.20 pm on Mondays – Thursdays; and

9.2	9.00 – 11.20 am and 1.10 – 4.20 pm on Fridays – Sundays.

[60]	PCO Tawhiwhirangi says that Mr Hudson is incorrect when he alleges that the gym and recreation room were previously unlocked at 8:00 am. As noted above, those areas were only ever unlocked at 8:00 am in order to allow the room cleaner access to clean them. They were not unlocked at 8:00 am for use by the general population of the Unit. The official unlock time was always 10:00 am.

[61]	PCO Tawhiwhirangi does make the point, however, that although the official unlock hour for the general recreation room was 10:00 am on Monday to Thursdays, there were issues with prisoners accessing the gym without permission prior to  10:00 am. He says this caused a number of issues. First, the cleaner could not do his job properly as there were prisoners in the gym and recreation room prior to 10:00 am. Second, it caused disruption to work programmes as some employed prisoners were going to the gym to get a work-out before leaving for work and then were not ready

for work on time, which made their instructors late for the start of the work day by having to wait for those prisoners.

[62]	I accept Mr Tawhiwhirangi’s evidence on the question of the unlock hours for the gym and recreation room. Having reached that view I conclude that the change to unlock hours for the gym and recreation room, to an unlock time of 1:10 pm Monday to Friday, was in effect for only one day, being 4 September 2019. This means that even if Mr Hudson’s claim were made out, the issue is moot. By that I mean that it has been overtaken by events. It is no longer an active issue. The result is that, even if Mr Hudson’s case had been successful, I would have refused to give him the relief that he seeks.12 Neither the circumstances surrounding the change in hours nor the minimal total impact effect of the brief change leads me to conclude that this is an exceptional circumstance13 where relief should be given despite the mootness of the issue.

[63]	Notwithstanding my conclusion that the change of official unlock hours was in effect for only that  one  day,  it  is  plain  from  both  PCO  Tawhiwhirangi’s  and  Mr Hudson’s evidence that the unofficial position had been somewhat different. Some prisoners had been accessing the gym from 8:00 am when it was opened for the cleaner, principally it seems employed prisoners who were attempting to do a work- out in the gym before leaving for work. Perhaps not surprisingly the prisoners felt aggrieved when that practice was brought to an end. That does not change the fact that the gym access hours do not breach the Act.

Complaints process

[64]	Mr Hudson also makes a number of claims in relation to the complaints process.

12	Following the approach in Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 at 502; and Smith v Attorney-General, above n 5, at [151]–[152].
13	Smith v Attorney-General, above n 12, at [151].

Inaccuracies in entering complaint

[65]	On 4 September 2020 Mr Hudson made a PC.01 complaint about the change in unlock hours for the common areas. As SCO Derwin sets out in his affidavit evidence, when a PC.01 complaint is made, the officer who receives the complaint form must enter it into the complaints screen on Corrections’ Integrated Offender Management Screen (IOMS) and then return the handwritten PC.01 form to the prisoner.

[66]	SCO Derwin was the officer who received Mr Hudson’s complaint and he acknowledges that when he was  entering  the  complaint  into  IOMS,  he  made  two errors. The first was that he accidentally omitted the word “non” from the phrase “non-sentence plan time” and, second, he referred to “six (50)” of the Corrections Act rather than “six (g) and s (50)” of the Corrections Act, as was set out in Mr Hudson’s handwritten complaint. SCO Derwin says this was an accidental error and it did not affect Corrections’ ability to deal with the substance of Mr Hudson’s complaint.

[67]	Mr Hudson says that SCO Derwin, in making these errors, breached ss 154(1) and 152(1)(c) and (f) of the Act and reg 161 of the Regulations.

152	Objectives and monitoring of corrections complaints system

(1)	The corrections complaints system has the following objectives:

…

(c)	to ensure that complaints are investigated in a fair, timely, and effective manner:

…

(f)	to ensure that all reasonable steps are taken to investigate complaints:

[68]	Section 154 of the Act provides:

154	Assistance to make complaints

(1)	The chief executive must ensure that a person under control or supervision is given the opportunity to—

(a)	obtain assistance to enable the person to make a complaint; or

(b)	verify any information recorded on a form or other document outlining a complaint.

(2)	The chief executive must ensure that any person who is under control or supervision who has difficulties with verbal or written communication is provided with assistance—

(a)	to complete any required documents; and

(b)	to prepare or present his or her case.

[69]	Mr Hudson also relies on reg 161 of the Regulations. Regulation 161 states:

161	Reasonable assistance to be provided

Every staff member must, if asked by a person who is or was under control or supervision for assistance in making a complaint to a manager of a prison or the controlling officer of a community work centre or probation office,—

(a)	provide reasonable assistance to the person; and

(b)	if the person is unable to make his or her complaint in writing, assist the person to make a complaint.

[70]	Mr Fitzharris, the Principal Inspector of Corrections, sets out Corrections’ three-tiered process for managing prisoner complaints. First, the complaint must be dealt with by staff at the relevant unit or the site, after which the complaint must be referred to the Corrections Service Complaints Response Desk at Corrections’ National Office. If the complaint is still not able to be resolved, the prisoner is able to make a complaint to the Office of the Inspectorate.

[71]	The complaints process is set out at PC.01 of the Prison Operations Manual (the Manual).

[72]	PC.01.04 of the Manual requires prison staff to assist any prisoner who has difficulties with written or oral communication, or difficulty communicating in English, with completing the PC.01 Form. Those prisoners must be advised that they may have a support person who can assist in completing the form.

[73]	Under reg 161, Mr Hudson must be given the assistance he asks for to make a complaint and under s 154, he should have the opportunity to obtain the assistance necessary to allow him to make a complaint. The evidence does not suggest either of those provisions was breached. First, Mr Hudson does not assert that he requested

SCO Derwin to provide him with assistance in completing the PC.01 Form.14 He was given assistance to have his complaint entered on the IOMS system. This meets the statutory requirements and means there was no breach of the PC.01 process.

[74]	Further, the errors made by SCO Derwin in entering the complaint into IOMS were, he says, inadvertent, and do not, on the evidence, appear to have had any impact on the nature of the complaint being clearly understood. RM Taepa says in his affidavit that SCO Derwin’s errors in entering the complaint into IOMS did not impact on his, Mr Taepa’s, ability to understand the nature of Mr Hudson’s complaint. He says, “I had no problem in understanding what his concerns were.” Mr Hudson says that the incorrect references to the legislation must have diminished RM Taepa’s ability to understand his complaint because RM Taepa would not have known the provisions he may be breaching. I am satisfied that RM Taepa understood the grievance and the main reasons underlying it. Moreover, reference to ss 6(g) and 50 would not have advanced Mr Hudson’s case. Those provisions are not directly relevant to his claim, and Mr Hudson argued his case in reliance on completely different provisions before me. I am not convinced that RM Taepa was hindered by the incorrect references and it was therefore not necessary for him to make further enquiries.

[75]	I also agree with the respondent that s 152 of the Act does not provide a standalone ground of judicial review. Rather, it informs the way in which the Department exercises its statutory powers and responsibilities under subpt 6 of pt 2 of the Act and as set out in s PC.01 of the Manual. Given my findings that Mr Hudson received assistance, that any errors made were accidental and that any errors did not hinder a proper understanding of his complaint, there is nothing to suggest that the Department erred in exercising its powers, even when informed by the principles of  s 152.

14 Mr Hudson required a prison official to enter his complaint electronically, which SCO Derwin did. Mr Hudson complains that he was not able to check the complaint to be sure it had been entered correctly, but there is nothing to suggest he asked to confirm the accuracy of the electronic complaint.

[76]	I also agree with Mr McCusker’s submission, as the court noted in Mitchell v Attorney-General, judicial review is a remedy of “last resort”, and complaints should first be processed through the Prison Inspectorate system and the Ombudsman.15

Alleged pre-determination of complaint

[77]	RM Taepa dealt with Mr Hudson’s PC.01 complaint in the absence of the Principal Corrections Officer of Unit 8. In his evidence, RM Taepa said that he met with Mr Hudson on 5 September 2019. He advised Mr Hudson that the unlock hours for the gym and recreation room had been changed back to 10:00 am. Mr Hudson disagreed with that decision and suggested to RM Taepa that unlock of the common areas could occur at 8:00 am, and the common areas could be cleaned at lunchtime. RM Taepa says he told Mr Hudson that would mean that the cleaners would need to work while the rest of the prison community had lunch and he did not think that was a fair outcome. He told Mr Hudson that he considered the matter to be resolved.

[78]	As the officer interviewing and assessing Mr Hudson’s complaint, RM Taepa was responsible for completing Sections B and C of the PC.01 Form. Mr Hudson alleges that by the time he met with RM Taepa on 5 September, Sections B and C had already been completed, thus predetermining his complaint.

[79]	There is a dispute between Mr Hudson and RM Taepa as to the date of the interviews. Mr Hudson’s evidence is that it occurred on 9 September, while RM Taepa says it occurred on 5 September. The IOMS complaint form is dated by RM Taepa on 5 September 2019 and in it he refers to the decision to change the Unit 8 common spaces hours back to 10:00 am as “yesterday”.

[80]	Mr McCusker also points to Section C of the Form which records that at the interview Mr Hudson continued to disagree with the decision to change unlock times and suggested that the recreation room could be opened at 8:00 am and cleaned at lunchtime. He says this confirms RM Taepa’s recollection that the Form was filled out at the time of the interview, as Mr Hudson’s suggestion about alternative arrangements was not contained in his original PC.01 complaint.

15	Mitchell v Attorney-General, above n 1, at [35].

[81]	The dispute subsequently proceeded to the Office of the Inspectorate.

[82]	I cannot conclude on the evidence that RM Taepa predetermined Mr Hudson’s complaint. There is evidence to support RM Taepa’s recollection that the interview took place on 5 September, discussed above, and there is therefore no basis to conclude that RM Taepa improperly filled out Sections B and C of the form.

Copy of PC.01 complaint missing from file

[83]	Mr McCusker confirmed that the Rimutaka Prison staff had not been able to find a copy of the PC.01 Form signed by Mr Hudson on his prison file. Mr Hudson alleges that this amounts to a breach of s 152(1)(c) of the Act and reg 166(b)(vi) of the Regulations. He says that RM Taepa “disposed of” the file copy.

[84]	In response, Mr McCusker says there is no evidence to suggest that RM Taepa disposed of the file copy and this is not pleaded in the statement of claim.

[85]	I agree with the respondent that if Mr Hudson wishes to pursue this aspect of his complaint he ought to do so through the prison complaints process. I note, however, that even if the allegation was substantiated through that process it would not amount to a breach of s 152(1)(c) or reg 166(b)(vi). As the respondent submits, those provisions impose organisation-level responsibilities which are not breached by the actions of a single employee.

Treatment of complaint

[86]	Mr Hudson also alleges that RM Taepa’s treatment of his complaint breached ss 152(1)(b), (c) and (f) of the Act. He says that in his conversation with RM Taepa (see [77] above), RM Taepa went on to say in response to the suggestion that the gym could be cleaned at lunchtime,  “That  sounds  very  biased  and  entitled  to  me.”  Mr Hudson says that these are words associated with offending behaviour and the statement was a personal attack on him. He claims this was an adverse consequence imposed on him  due  to  an  attempt  to  use  the  complaints  system,  in  breach  of s 152(1)(b).

[87]	The respondent concedes that the language used by RM Taepa in his response to the complaint was “robust”, but that does not give rise to a right of judicial review. In support the respondent relies on Greer v Prison Manager at Rimutaka Prison, although that case does not appear to have grappled with an allegation of inappropriate language.16 I agree  that  even  if  I  considered  RM Taepa  to  have  been  rude  to Mr Hudson, that could not be considered an “adverse consequence” of using the complaints system as envisaged by s 152(1)(b), nor any other provision of s 152.

[88]	Mr Hudson also complains that RM Taepa’s response shows he failed to understand the schedules of the cleaners involved. I do not think that can be inferred. Rather, I think RM Taepa disagreed with Mr Hudson’s argument: he did not think it would be fair to have the cleaners work during the normal lunch break, regardless of their overall schedule. That was a decision for RM Taepa to make and I do not disturb it.

[89]	Again, the respondent says, if Mr Hudson has concerns about RM Taepa’s treatment of his complaint he ought to utilise the PC.01 complaint process. Judicial review is inappropriate.

[90]	I do not find a breach of any of ss 151(1)(b), (c) or and (f) in RM Taepa’s handling of Mr Hudson’s complaint.

[91]	I dismiss Mr Hudson’s claims about the complaints process.

Complaints against the Office of the Inspectorate

[92]	Mr Hudson’s claim is that the Prison Inspectorate’s new process for considering complaints does not provide for the fair determination of those complaints. It therefore breaches s 152(1)(c) and (f) of the Act.

[93]	It is first necessary to explain the complaints process. Mr Fitzharris, the Principal Inspector for the Office of the Inspectorate, refers in his evidence to a change

made by the Inspectorate in early 2017 to the way complaints from prisoners were received.

[94]	Prior to 2017 could call the Inspectorate’s 0800 number and speaker to a duty Inspector, who took down details of their complaint. If the duty Inspector was on a call, prisoners were able to leave a detailed message about their concerns on the answerphone.

[95]	In 2017 this practice was changed so that all calls went directly to an answerphone message service. Mr Fitzharris says that the driver for this change was to increase access for all prisoners to the Inspectorate and to allow for complaints to be effectively triaged and managed, according to the urgency of the issue. He notes that under the previous practice, some prisoners made multiple calls and monopolised the phone system, which had the effect of limiting other prisoners’ access to speak to an Inspector.

[96]	Mr Fitzharris also says that the message service is cleared multiple times a day by a staff member dedicated to that task and all calls are triaged on the basis of urgency and subject matter. Calls relating to a lack of access to health services, access to legal advisors or matters which may be life threatening are the highest priority matters.

[97]	Mr Hudson alleges that this change in practice by the Inspectorate is a breach of s 152(1)(c) and (f) of the Corrections Act. In his submission it is unreasonable because the brevity of the message that may be left on the answerphone service does not allow prisoners adequate opportunity to fully explain their concern. He says too, that this practice creates an “unequal playing field” by requiring prisoners to leave a brief message but allowing for Inspectors to have more detailed discussions with Departmental employees. He says that, in his experience, the Inspectorate tends not to follow up with prisoners to clarify or seek more details about the complaint before coming to a conclusion.

[98]	In his oral submissions, Mr Hudson also noted that, in his view, the revised process inhibits those prisoners who are not educated and/or articulate from making a complaint.

[99]	Under s 156(1) of the Act, an Inspector of Corrections may investigate a complaint “in any manner the Inspector considers appropriate”. As Mr McCusker indicates, there is no statutory requirement on the Inspectorate to interview every prisoner who makes a complaint. In his submission the practice as revised since early 2017 does not breach s 152(1)(c) and (f) of the Act which require that “complaints are investigated in a fair, timely and effective manner” and “all reasonable steps are taken to investigate complaints”. Mr McCusker also submits that the Inspectorate’s complaints system is consistent with the objectives of the Prison’s complaints system as set out in s 152 of the Act. No minimum entitlements of prisoners are affected. Further, the change in practice is an operational decision as to how best to allocate the Inspectorate’s limited resources and how to increase access for all prisoners to the Inspectorate. Mr McCusker says that the change in practice is not amenable to judicial review.

[100]	In any event, as Mr Fitzharris notes, Mr Hudson “clearly set out his complaint” in his voice message and it was therefore not necessary for the Inspectorate to seek further clarification or further information from Mr Hudson. As Mr Fitzharris notes, after the Inspector had listened to Mr Hudson’s voice message, that Inspector then made enquiries with Rimutaka Prison about whether the unlock times for the common areas had changed and, if so, the reasons for this.

[101]	Mr Hudson attempted to point to deficiencies in the voice message he left. The Inspectorate’s letter of 18 October 2019, dismissing Mr Hudson’s claim, refers to a breach of minimum entitlements under the Act and that the restricted hours were introduced as a punishment, which suggests to me the Inspectorate adequately understood the complaint.

[102]	I see some force in Mr Hudson’s assertion that the way in which complaints must be made with the Prison Inspectorate may have the effect of deterring some prisoners from complaining at all. However, as Mr Fitzharris’ explanation makes clear, the Inspectorate has attempted to use its resources in a way that will, overall, provide the best access for prisoners. It has a broad discretion under s 156 as to the way in which it investigates a complaint.

[103]	I do not find any breach by the Prison Inspectorate of the requirements of s 156 in respect of the system by which prisoners make complaints for the reasons advanced by the respondent at [97]–[99]. Nor do I find any breach of the Inspectorate’s obligations in respect of its investigation of Mr Hudson’s specific complaint. The evidence suggests the relevant parties did understand the complaint and followed up accordingly.

[104]	Mr Hudson’s related complaint is that the Inspector failed to investigate the implications of prisoners having to either forego unlock or exercise outside, including in poor weather conditions.

[105]	The respondent says in response that by the time the complaint was considered by the Inspectorate this issue was moot because the unlock hours for the recreation areas had reverted back to 10:00 am.

[106]	I agree with Mr McCusker that the issue was moot by the time Mr Hudson’s complaint was investigated by the Inspectorate.

Other allegations

[107]	Mr Hudson’s third affidavit, and his written submissions, seek to raise some further allegations that are not covered in the statement of claim, although he had sought to introduce them in the amended statement of claim. He raises two key issues: first that prisoners who work in distribution or are undertaking course work from 9:00 am to 3:00 pm are being denied their minimum entitlements under s 70 of the Act on days when the weather is poor because the 10:00 am gym unlock time means that it is sometimes not physically possible for those prisoners to take their statutory entitlement to one hour exercise per day in the gym.

[108]	As I have already noted, because this was not an allegation pleaded in the statement of claim, the respondents have not had an adequate opportunity to respond by way of an amended statement of defence or by evidence. Mr McCusker also foreshadows a possible question as to standing, since Mr Hudson does not appear to be one of those prisoners who was either working in distribution or undertaking course

work, so would not be personally affected in the way he alleges.17 I have no evidence before me at this stage to make any determination or comment on this issue. It is up to Mr Hudson to decide whether to file a separate proceeding to progress that complaint, which he should do only after his complaint has gone through the standard prison complaints system.

[109]	The  second  of  the  additional  allegations  relates  to  prisoner  clothing.   Mr Hudson says that where prisoners are required to make use of their unlock times by exercising outdoor, they on occasion have to do so “without adequate shelter and failing to provide jackets and wet weather clothing or any type of winter clothing” and this is a breach of reg 68(5)(a) and (b) of the Regulations.

[110]	Regulation 68(3) states that a prison manager may require a prisoner to wear clothing or footwear provided by the prison. Under reg 68(5)(a) and (b) “clothing or footwear provided by the prison must be suitable for the activities or work likely to be undertaken by the prisoner” and “adequate for safety, warmth, comfort, and health.”

[111]	As with the allegation relating to those prisoners who work in distribution or are undertaking course work, this issue is not pleaded in the statement of claim and the respondents have not had an adequate opportunity to plead to it or provide evidence. For those reasons I reach no conclusion on the claims.

Conclusion

[112]	For the reasons explained above, none of Mr Hudson’s claims can be sustained. I therefore dismiss his application for judicial review.

[113]	In the normal course costs would be awarded in favour of the respondents as the successful parties. However, given Mr Hudson’s circumstances as a prisoner, and that he has identified an issue which, although not amenable to review in this proceeding, may raise a question for the Department as to its management of gym access  for  working  prisoners,  I  am  not  inclined  to  make  a  costs  order.    If  the

17	However, see generally Smith v Attorney [Standing] [2017] NZHC 1647, [2017] NZAR 1094; and
Taylor v Manager of Auckland Prison [2012] NZHC 3591 at [37]–[38].

respondents take a different view, they should file a memorandum within 10 working days of this judgment setting out why an order for costs would be appropriate.

Gwyn J
Solicitors/counsel:
S T Hudson, Rimutaka Prison
Luke Cunningham Clere, Wellington