By Anna Longdill

Judicial review, declaratory judgment, Bill of Rights, and negligence claim by Extreme Risk Unit prisoners against Corrections – application for an order that a preliminary question (as to legality of the Extreme Risk Unit Operating Model) be determined before trial – High Court Rules 2016, rule 10.15 – difficulties in determining general question posed – demarcation difficulties – answering question not determinative of proceedings – no saving of time and resources

Wereta v Attorney-General [2025] NZHC 926 per Venning J

The Department of Corrections established a Prisoners of Extreme Risk Directorate (PERD) in 2019 in response to the need to accommodate mosque killer Brenton Tarrant safely and securely. The purpose of the PERD is to address the safe management of prisoners who are assessed as an ongoing risk of serious violence to others or from others and/or capable of influencing others to engage in serious violence or threats to the prison.

After establishing PERD, Corrections established the Prisoners of Extreme Risk Unit (PERU) at Auckland Prison. Since January 2021, PERU has comprised 20 cells across two wings of Unit 10.  Eighteen of the cells are residential. The other two are dry cells designed to monitor prisoners considered at risk of internal concealment.

The PERU cells measure around 9m² and receive no or very little direct sunlight. The cells have an adjoining yard of around 10m² which has a remote-controlled locking door. The yards receive little direct sunlight and are separated from the adjoining yard by concrete walls.  Prisoners cannot see the sky or any other prisoner or person whilst in the yards as they are totally enclosed by thick wire mesh. The cells have a shower and toilet area, a single bed, a television and shelving for personal belonging. There is a modified window hatch in the door of the cells which prevents prisoners from opening the hatch and seeing into the corridor.

Damian Wereta and eight other named plaintiffs have been detained at PERU. They brought proceedings in the High Court against the Attorney-General, Corrections, the Commissioner of the Extreme Risk Directorate and the Visiting Justice at PERU, seeking relief under the Declaratory Judgments Act 1908, the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990.

The pleaded causes of action are broad and include challenges to:

• appointments and delegations;
• the legality of the PERU Operating Model;
• the consistency of the PERU Operating Model and the legislative framework with the Bill of Rights;
• individual PERU placement and segregation decisions;
• Visiting Justices’ decisions extending segregation; and
• their treatment within PERU.

The prisoners also are pursuing a tortious claim of negligent infliction of physical, psychological and psychiatric harm.

The prisoners applied under rule 10.15 High Court Rules 2016 for an order that a preliminary question be determined before trial. The preliminary question was reframed during the hearing to be “whether the PERU Operating Model is unlawful and ultra vires the Corrections Act, Regulations and guidelines”, with further particulars.

Applicable principles: High Court Rules 2016, rule 10.15 – presumption that all matters in issue are determined in a single trial, particularly where case is complex – difficulties in determining the very general question proposed? (Court would need to define and determine at least 15 separate sub questions which would be an entirely unwieldy process. Evidence would be required to respond to specific allegations and inevitably potential for disputed questions of fact. If questions were answered in plaintiffs’ favour, respondents would be entitled to lead further evidence and have a separate and further hearing on discretionary relief) – demarcation difficulties? (attempting to isolate separate questions for a preliminary trial would create difficult demarcation issues with the balance of the proceeding) – will answering the question determine the proceedings? (no) – will there be a significant saving in court time and resources? (no, there may well be a duplication of resource and effort) – potential for delay? (likelihood of appeal from preliminary determination and vacation of trial pending appeal outcome)

Held: The application is dismissed.

WERETA v ATTORNEY-GENERAL — BC202561027 (1)