Borrowdale v Director-General of Health
[2021] NZCA 33
•1 March 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA520/2020 [2021] NZCA 33 |
| BETWEEN | ANDREW BORROWDALE |
| AND | DIRECTOR-GENERAL OF HEALTH |
| Court: | Brown and Gilbert JJ |
Counsel: | J A Farmer QC and L C A Farmer for Appellant |
Judgment: | 1 March 2021 at 10.30 am |
JUDGMENT OF THE COURT
AThe application by the New Zealand Law Society for leave to intervene is granted.
B There is no order as to costs.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
Mr Borrowdale is appealing the judgment of the Full Court of the High Court on his challenge to the legality of the New Zealand Government’s COVID-19 restrictions.[1] The New Zealand Law Society (NZLS) was granted leave to intervene in, and it participated in, the hearing in the High Court.[2] NZLS now makes a similar application for leave to intervene in the appeal.
Relevant principles
[1]Borrowdale v Director-General of Health [2020] NZHC 2090 [Full Court judgment].
[2]Borrowdale v Director-General of Health [2020] NZHC 1379 [High Court leave judgment].
This Court may grant an application for leave to intervene under r 48 of the Court of Appeal (Civil) Rules 2005. The relevant principles for granting leave to intervene were summarised in Ngāti Whātua Ōrākei Trust v Attorney-General as follows:[3]
(a) The power is broad in nature but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation.
(b) In an appeal involving issues of general and wide importance the court may grant leave when satisfied that it would be assisted by submissions from the intervener.
(c) The fact that the case raises issues of principles transcending the particular facts is not in itself sufficient to extend rights of hearing beyond the parties.
(d) The Court will take into account the relevant expertise or the unique position of an intended intervener as well as the impact of the intervention on appeal.
(Footnotes omitted.)
The application
[3]Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11].
The grounds on which NZLS seeks leave to intervene are as follows:
(a)The issues raised on the appeal are of general and wide public importance and concern the operation of the rule of law and the administration of justice in the context of the New Zealand Government’s response to the pandemic.
(b)NZLS has a statutory function under the Lawyers and Conveyancers Act 2006 to: (a) assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice, the reform of the law;[4] and (b) to represent its members.[5] NZLS thus has particular expertise to bring to the issues in this appeal.
(c)NZLS was granted leave to intervene in the High Court and presented a different perspective that sat somewhere between the appellant and the respondents. It contends that this Court may be materially assisted by that perspective.
(d)One of Mr Borrowdale’s grounds of appeal relates to a submission advanced by NZLS in the High Court This is found at [1(f)] of Mr Borrowdale’s notice of appeal and reads:
The High Court erred in law in granting leave to the Intervener to refer to historical documents that had not been properly adduced in evidence and by permitting discovery to proceed on an informal basis without proper disclosure by the Respondents.
According to NZLS, the “historical documents” referred to are materials recording orders made under the Public Health Act 1908 and the Health Act 1920.[6] These were part of a survey of the relevant legislative history.
[4]Section 65(e).
[5]Section 66.
[6]See Full Court judgment, above n 1, at [54]–[60].
NZLS proposes that if leave to intervene is granted it will have no claim to costs and would not enlarge the issues raised by the appeal. Any impact on timing or cost would be minimal, as demonstrated by its involvement in the High Court which comprised only short and focused submissions.
The parties’ positions
Mr Borrowdale opposes the application while the respondents abide the Court’s decision.
In an initial memorandum of 30 October 2020 counsel for the appellant, Mr Farmer QC, contrasted the nature of Mr Borrowdale’s representation in the High Court and on appeal. Observing that at the date of the leave judgment in the High Court[7] Mr Borrowdale was not represented by counsel (although he did subsequently obtain representation for the High Court hearing), he submitted that through their counsel the Crown and Mr Borrowdale can be expected to present fully and adequately all relevant arguments on the appeal issues. Hence there is no need to call on the expertise of the various national committees of NZLS which it was said would involve largely if not entirely an exercise in duplication.
[7]High Court leave judgment, above n 2.
In a subsequent memorandum of 8 January 2021 Mr Farmer QC submitted that Mr Borrowdale, in common with NZLS, is motivated by rule of law concerns and will certainly draw on the NZLS submissions made in the High Court that are consistent with those concerns. With reference to ground of appeal 1(f),[8] he advised the appellant is prepared to abandon that ground if the Court viewed that as a reason for granting intervener status to NZLS.
Discussion
[8]At [3(d)] above.
While Mr Borrowdale’s case will undoubtedly be assisted by the presence of Mr Farmer QC as counsel, it is pertinent to note that Thomas J never suggested that NZLS was filling a lacuna created by (at that point) Mr Borrowdale’s lack of counsel. On the contrary the Judge considered that Mr Borrowdale was well equipped to advance his argument and would call on assistance as and when required.[9]
[9]High Court leave judgment, above n 2, at [42].
The relevant question on the present application is whether this Court considers, as Thomas J concluded in the context of the High Court proceeding, that suitably focussed submissions from NZLS would be of assistance in its consideration of the appeal.
The appeal involves matters of general and wide importance. We consider that the Court may be assisted by having the benefit of the perspective of a neutral party which has the statutory functions of NZLS and the range of legal expertise it is able to call upon from among its members.
We anticipate that the role which NZLS would play on appeal would be similarly limited to that adopted in the High Court. Consequently we believe there is little risk of the participation of NZLS resulting in an expansion of the issues, an elongation of the hearing or significantly increased costs.
While the present application is a little more finely balanced than when the equivalent application was made in the High Court, we consider that, as in the High Court, this Court is likely to receive assistance from submissions made by NZLS.
Result
The application by the New Zealand Law Society for leave to intervene is granted.
There is no order as to costs.
Solicitors:
Crown Law Office, Wellington for Respondents
New Zealand Law Society, Wellington for Intervener
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