Alpine Energy Limited v Waters

[2014] NZHC 2381

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2014-476-000016 [2014] NZHC 2381

BETWEEN

ALPINE ENERGY LIMITED

Appellant

AND

KEVIN MURRAY WATERS Respondent

Hearing:	29 September 2014 (By way of telephone conference)
Appearances:	A Keir for Appellant Respondent In Person Dr MSR Palmer for the Intervener Human Rights Commission K Evans for Privacy Commissioner
Judgment:	29 September 2014

JUDGMENT OF GENDALL J

[1]      Before the Court is an application by the appellant Alpine Energy Limited to reconstitute the present  appeal  against  a decision  of the Human  Rights  Review Tribunal as an application for judicial review.

[2]      This  has  proved  necessary  because  the  present  appeal  before  this  Court (which is to be heard on Friday next, 3 October 2014) is an interlocutory decision of the Human Rights Review Tribunal which in terms of s 123 of the Human Rights Act

1993 it seems is not jurisdictionally open to appeal to this Court.

[3]      On this aspect, in A-G v Child Poverty Action Group Incorporated1  Ronald

Young J confirmed that the wording of s 123 of the Human Rights Act 1993 does not allow for an appeal from a ruling on an interlocutory matter.

1      A-G v Child Poverty Action Group Incorporated (HC) Wellington 17 May 2006, CIV-2005-485-

2140.

[4]      Before me today there seemed to be a broad measure of agreement between the parties that, so far as this jurisdictional point was concerned, there was a strong argument that an interlocutory decision of the Tribunal such as the one before the Court here was not subject to an appeal.

[5]      Notwithstanding this, in a later decision of this Court, A-G v Human Rights Review Tribunal and Child Poverty Action Group Incorporated,2 Miller J concluded that, notwithstanding the sections of s 123, it was appropriate for this Court to consider by way of judicial review decisions on interlocutory applications made by the Human Rights Review Tribunal and notwithstanding that no formal appeal might lie.

[6]      This conclusion it seems to me was probably reached on the basis of balance of convenience considerations, and both the need for there to be an appropriate appeal type remedy in these interlocutory situations and also to enable such matters to be properly reconsidered where appropriate.

[7]      On these aspects I agree with the reasoning of Miller J in the Attorney- General decision that judicial review does lie in a case such as the present.

[8]      It is my view that the appropriate way forward in this case is for the present (rather late) application from the appellant to have this proceeding reconstituted as an application for judicial review to be granted.   This will enable the substantive hearing of arguments of the parties to proceed at the scheduled hearing date on Friday next, 3 October 2014.

[9]      For these reasons I now make the following orders:

(a)       the  purported  appeal  by  the  appellant  in  this  proceeding  is  now constituted as an application for judicial review.;

2      A-G v Human Rights Review Tribunal and Child Poverty Action Group Incorporated (HC) Wellington 6 November 2006, CIV-2006-485-1713.

(b)the appellant by 5 p.m. on 30 September 2014 is to file and serve on all  parties  to  this  proceeding  an  amended  pleading  by  way  of statement of claim; and

(c)       the substantive hearing of this matter in the High Court at Timaru on

3 October 2014 will proceed on the basis that this is now a judicial review application.

...................................................

Gendall J

Solicitors:

Young Hunter, Christchurch

Matthew Palmer, Wellington

Office of the Privacy Commissioner, Wellington
Copy to Respondent