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Boscawen v Attorney-General

Boscawen v Attorney-General

Case [2009] NZCA 12 17 February 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA433/2008
[2009] NZCA 12
BETWEENJOHN SPENCER BOSCAWEN

First Appellant
ANDGARTH NEIL MCVICAR

Second Appellant
ANDRODNEY PHILIP HIDE

Third Appellant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Respondent

Hearing:23 October 2008

Court:Glazebrook, O'Regan and Arnold JJ
Counsel:N Pender, P Butler and M P Patterson for Appellants

J C Pike, C C Inglis and L M Fong for Respondent

Judgment:17 February 2009 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellants must pay to the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] This is an appeal against the decision of Clifford J to strike out the claim made by the appellants for judicial review of the decision of the Attorney-General not to bring to the attention of the House of Representatives provisions in the Electoral Finance Bill 2007 which the appellants said were inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 (NZBORA). The appellants contend that the Attorney-General failed to discharge the duty imposed on him by s 7 of the NZBORA. The decision under appeal is now reported as Boscawen v Attorney-General(No 2) [2008] NZAR 468.
[2] The appellants sought declarations in the High Court that:
(a)the Attorney-General breached s 7 in not bringing to the attention of the House, on the introduction of the Bill, provisions in the Bill which appeared to be inconsistent with the rights and freedoms contained in the NZBORA;
(b)the Attorney-General was also in breach of that duty in not bringing those apparent inconsistencies to the attention of the House later in the legislative process;
(c)the Electoral Finance Act 2007 was inconsistent with the NZBORA in numerous specified respects.

[3] Clifford J struck out the claim on the basis that it was clearly untenable because:
(a)The Attorney-General’s exercise of statutory power under s 7 of the NZBORA was non-justiciable by virtue of art 9 of the Bill of Rights 1688 (Imp.) and the principle of comity between the Courts and Parliament;
(b)The Attorney-General’s obligation to report under s 7 arises only once, on the introduction of a Bill, and is not a continuing obligation;
(c)There was no jurisdiction under the Declaratory Judgments Act 1908 to make the declarations sought by the appellants.

[4] There was no dispute before us that the Judge applied the appropriate test for strike out, by reference to the decision of this Court in Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267. However, the appellants say the Judge was wrong to find their claims to be untenable. They seek the reinstatement of their claim, in modified form. They now wish to pursue:
(a)An application for a declaration of inconsistency in respect of the Electoral Finance Act;
(b)An application for a declaration that the Attorney-General breached his statutory duty by not alerting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boscawen v Attorney-General

Details

AGLC: Boscawen v Attorney-General [2009] NZCA 12
Case: [2009] NZCA 12
Decision Date: 17 February 2009

CaseChat Overview and Summary

In Boscawen v Attorney-General, the Court of Appeal of New Zealand dismissed an appeal against the decision of the High Court to strike out a claim for judicial review of the Attorney-General's decision not to bring to the attention of the House of Representatives provisions in the Electoral Finance Bill 2007, which the appellants claimed were inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 (NZBORA). The appellants contended that the Attorney-General failed to discharge the duty imposed on him by section 7 of the NZBORA. The Court of Appeal upheld the decision of the High Court Judge that the appellants' claim was untenable and should have been struck out. The Court of Appeal held that the Attorney-General's reporting function under section 7 of the NZBORA is non-justiciable by virtue of article 9 of the Bill of Rights 1688 and the principle of comity between the Courts and Parliament. The Court of Appeal also held that the Attorney-General's obligation to report under section 7 arises only once, on the introduction of a Bill, and is not a continuing obligation. Finally, the Court of Appeal held that there was no jurisdiction under the Declaratory Judgments Act 1908 to make the declarations sought by the appellants. The Court of Appeal awarded costs to the Attorney-General for a standard appeal on a band A basis and usual disbursements. The appellants are jointly and severally liable for those costs and disbursements.

Orders