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Forrest v Te Whatu Ora (Health New Zealand) [2022] NZHC 2550 (4 October 2022)

Last Updated: 24 March 2023

[REDACTED] ORAL JUDGMENT OF OSBORNE J

This judgment contains redaction of personal or sensitive information.

The application

[1] Brendon Forrest applies for a writ of habeas corpus. He submits that his present detention [REDACTED] is unlawful.

Background

[2] Copies of the orders I am about to refer to have been produced to the Court.

FORREST v TE WHATU ORA (HEALTH NEW ZEALAND) [2022] NZHC 2550 [4 October 2022]

[3] Mr Forrest is subject to a [REDACTED] order (the Order) made in the [REDACTED] Court on 20 November 2018 under [REDACTED] Act [REDACTED] (the Act).

[4] The Order specified that Mr Forrest is:

... required to continue to be detained [REDACTED]

[5] The Order was in force until renewed by the [REDACTED] Court on 21 May 2019, when the Order was extended pursuant to [REDACTED] of the Act (the first extension).

[6] On 19 January 2019, the [REDACTED] Court issued an order indefinitely extending the Order pursuant to [REDACTED] of the Act (the [REDACTED] Order). [REDACTED] was identified in that Order as the place of detention [REDACTED].

[7] [REDACTED]

Mr Forrest’s transfer [REDACTED] to Christchurch

[8] On 11 May 2022, Mr Forrest commenced judicial review proceedings against the respondent. Mr Forrest sought a transfer [REDACTED] to Christchurch, and in particular, to [REDACTED]. I note that, [REDACTED], it is evident that plans had been made to that end for some considerable time [REDACTED].

[9] Mr Forrest withdrew those proceedings in September 2022 as the transfer had been completed [REDACTED].

[10] [REDACTED].

Grounds of this application

[11] Mr Forrest states two grounds in his notice of application:

(a) [REDACTED] was not the place of confinement identified in the Order [REDACTED], with the consequence that Mr Forrest is now unlawfully detained at [REDACTED]; and

(b) [REDACTED].

Ground 1: place of detention

[12] In his supporting affidavit, Mr Forrest noted that the Order specified [REDACTED] at which Mr Forrest was to be detained [REDACTED]. He states that his argument is that, for his transfer to [REDACTED] to be valid, the original order had to be varied by a [REDACTED] Judge.

[13] Mr Forrest’s transfer to [REDACTED] was in fact carried out in accordance with the statutory provisions.

[14] Relevantly, [REDACTED] the Act requires every [REDACTED] order to specify [REDACTED].

[15] [REDACTED] of the Act then provides for the transfer [REDACTED] at the direction of the [REDACTED]. Such directions or arrangements under [REDACTED] of the Act are sufficient authority for the transfer [REDACTED].

[16] Accordingly, contrary to Mr Forrest’s submission, the arrangements made for the transfer of Mr Forrest [REDACTED] to Christchurch (as he in fact sought through his judicial review proceeding) were not required to be the subject of a variation by order of the [REDACTED] Court.

[17] That ground of application fails.

Ground 2: a defective [REDACTED] review?

[18] Mr Forrest in his affidavit explained that second ground of application in this way:

[REDACTED]

[19] In his notice of application, Mr Forrest states that: [REDACTED].

[20] The respondent has produced to the Court a copy of an 11-page report dated 16 August 2022. [REDACTED].

[21] [REDACTED].

[22] [REDACTED].

[23] That said, there is not, in the information produced to the Court, evidence that [REDACTED] for the purposes of this review (and under [REDACTED] of the Act) in fact [REDACTED]. Mr Forrest has stated on oath that [REDACTED]. I will return to this issue below.

[24] The second aspect of this ground of Mr Forrest’s application is that he has never seen the [REDACTED] of review. It is unclear why that might be the case, given the statement [REDACTED] that he was sending a copy [REDACTED]. I note in the course of submissions today, Mr Forrest has referred to the [REDACTED] as having seen the report and, as I understand it, the certificate.

[25] That said, Mr Forrest will now have a copy of both documents as they have been served as part of the respondent’s documents in this proceeding. He has his rights of review [REDACTED] under [REDACTED] the Act. The late delivery of the certificate (if indeed it was delivered late) does not affect the validity of the Order.

[26] [REDACTED] of the Act requires the formal review [REDACTED] within stated intervals. The regime provided for [REDACTED] calls for:

(a) [REDACTED].

[27] I return to the first aspect of Mr Forrest’s second ground of application, which lies in his statement that [REDACTED] review on him.

[28] Mr Taffs, for the respondent, has correctly referred to the Court of Appeal’s decision in Manuel v Superintendent of Hawkes Bay Regional Prison, as indicating

the practical limitations of habeas corpus in contrast to other types of proceedings, such as judicial review.¹

[29] The decision in Manuel emphasises that the person detaining another can fairly be expected to establish on demand the legal justification for detention (involving production of the relevant warrant or order), in this case the [REDACTED] order. It will be a rare case where the habeas corpus procedures will permit the Court to enquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants or orders.²

[30] If Mr Forrest is ultimately to pursue an argument that something went amiss in the [REDACTED] review, that is an argument that should properly be pursued through a review to the Review Tribunal or possibly by judicial review proceedings. In his affidavit, he essentially maintains that his right to have his [REDACTED] review has not been met. That does not cut across the continuing validity of the [REDACTED] Order. This situation is distinguishable from that in the case cited by Mr Forrest to me, Keenan v Director of Mental Health Services.³ In that case, [REDACTED]. As those were prerequisites to the making of an order, it was strongly arguable that Mr Keenan’s detention was illegal. Here, the [REDACTED] Order has been issued lawfully and remains in force. If [REDACTED] review was flawed in any way, the proper review can still take place.⁴

[31] Having discussed with Mr Forrest in the course of his submissions on a tentative basis these conclusions, I indicated that I viewed there was an alternative approach which may advance his concerns. In the course of discussion with Mr Taffs, he was able to indicate that he was providing an undertaking that within five working days, the relevant responsible officer of the respondent would file and serve an affidavit addressing the matters which I have identified are not fully covered in [REDACTED] report. Those matters addressed in that way will enable Mr Forrest to determine whether he indeed has matters which he can and should properly pursue

¹ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

² Manuel, above n 1, at [49].

³ Keenan v Director of Mental Health Services [2006] NZHC 1675; [2006] 3 NZLR 572 (HC).

4. I make no determination as to whether the review conducted by [REDACTED] was in any way flawed.

through alternative remedies. I accept the undertaking of the respondent made through Mr Taffs this morning.

Outcome

[32] For the reasons I have stated, however, the application for a writ of habeas corpus will be dismissed.

Osborne J

Solicitors:

Crown Solicitor, Christchurch

Copy to: B D Forrest (Applicant) Self-represented