Bradfield v Attorney-General

[2019] NZHC 1570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-334

[2019] NZHC 1570

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules

IN THE MATTER OF

an application for judicial review of a decision made by or on behalf of the Chief of Navy

BETWEEN

CRAIG ANTHONY BRADFIELD

Plaintiff

AND

ATTORNEY-GENERAL

First Defendant

CHIEF OF NAVY
Second Defendant

DAVID JOHN FAIRWEATHER

Third Defendant

Hearing:	26 June 2019
Counsel:	C J Griggs and C M Kenworthy for plaintiff S V McKechnie for defendants
Judgment:	28 June 2019
Reasons:	5 July 2019

REASONS FOR JUDGMENT OF DOBSON J

Introduction

[1]    In August 2009, the applicant (Mr Bradfield) was enlisted into the Royal New Zealand Navy (the Navy) specifically for service in the Navy Band as a

BRADFIELD v ATTORNEY-GENERAL [2019] NZHC 1570 [5 July 2019]

bassoonist. He claims a current term of engagement that does not expire until 1 July 2025.

[2]    In October 2018, the second defendant (the Chief of Navy), acting by a delegate, directed that Mr Bradfield be medically discharged. There were deferrals to the date on which the discharge was to occur, but on 2 May 2019 Mr Bradfield’s legal advisers were advised that he would be discharged from 1 July 2019.

[3]    On 17 June 2019, Mr Bradfield commenced proceedings by way of application for judicial review to challenge the decision that he be discharged from the Navy. At the same time, he made application for interim orders under s 15 of the Judicial Review Procedure Act 2016 that would prevent his discharge coming into effect until substantive determination of his application for judicial review.

[4]    I heard argument on the interim orders application on 26 June 2019. I issued a results judgment on 28 June 2019 dismissing the application for interim orders.1 I now provide reasons for that decision.

Factual background

[5]    Mr Bradfield has pleaded that, when he enlisted in 2009, the Navy was aware he had a pre-existing medical condition relating to his back, which was exacerbated during initial training. Thereafter he was diagnosed by Navy medical personnel as having a chronic recurrent musculo-skeletal condition, which impacted on his physical functioning and fitness (the medical condition).

[6]    Mr Bradfield has pleaded that, when on notice as to his medical condition, the Navy granted him terms of engagement initially until the end of February 2013, then extended to May 2016.

[7]    In 2013, he was subject to a condition to undertake multi-stage fitness testing but, throughout his service, was never required to be fit for service at sea. In July 2016

1      Bradfield v Attorney-General [2019] NZHC 1508.

his commanding officer gave him a permanent exemption from the multi-stage fitness testing.

[8]On 30 October 2015, his engagement was extended to 30 June 2025.

[9]    Mr Bradfield pleads that he has performed his professional musician’s responsibilities to a high standard throughout. In December 2014, he was awarded a commendation for exemplary service.

[10]   In September 2017, Mr Bradfield suffered a minor accident, which resulted in his being put on light duties for 10 weeks. A medical review reported on in June 2018 found there had been no significant alteration since Mr Bradfield’s state of health was reviewed in 2013, and recommended that his service be retained. His then commanding officer recommended on 26 June 2018 that his conditions of service be revised, with his terminal date being brought forward to 30 June 2020 due to his back condition.

[11]   A medical review for retention of service was undertaken from July 2018. The naval director of music, who was Mr Bradfield’s manager, observed that his professional standards in terms of musicianship were high, but that he was unable to march, or lift and carry items, and that could be an issue, especially within such a small team as the Navy Band. The manager also observed that Mr Bradfield had extended periods of “no marching or parades” because of his back problems:

He is not able to carry out regular marching practise or endure long periods of standing, without it leading to restricted duties or a no marching chit. He is not able to travel long distances in a van without a deal of discomfort. The band travels throughout NZ, mainly in vans. He manages this, but as above, we can arrive at an event only to have a gap where he should be.

[12]   The medical review was an iterative process, leading to a decision in October 2018 that Mr Bradfield ought to be medically discharged. He was advised of this on 7 November 2018, with the discharge date then set at 30 January 2019. He was placed on sick leave on full pay from 7 November 2018. Among Mr Bradfield’s responses was a submission dated 13 November 2018. Although signed personally by him, it is apparent that it was prepared with legal assistance and was most likely drafted by a lawyer. It raised complaints that the discharge would be in breach of his rights under

the Human Rights Act 1993 (the HRA) and also in breach of a substantive legitimate expectation or contrary to some form of public law estoppel. Those are the grounds of challenge now pleaded in the proceeding.

[13]   The discharge date was extended from 30 January 2019 whilst dialogue continued, and in April 2019 a further discharge date of 1 July 2019 was confirmed. Mr Bradfield was advised of this by letter to his legal advisers dated 2 May 2019. That letter raised concerns at Mr Bradfield’s inability to achieve the fitness expected of all members of the Navy (that is, to be fit for sea service), and also his inability to perform his core duties as a musician.

[14]   Mr Griggs, who appeared for Mr Bradfield at the interim injunction hearing, argued, inter alia, that the medical discharge was based on a finding of Mr Bradfield being unfit for sea service, whereas his appointment to the Navy had always been on terms that he could not achieve that standard. For the Navy, Ms McKechnie’s response on this point is that the decision to medically discharge Mr Bradfield was ultimately made on the basis of his unfitness to carry out the specific tasks within the Navy Band.

Causes of action

[15]   On the premise that his medical condition constitutes a disability, Mr Bradfield pleads first that the decision to medically discharge him was unlawful as it was based on a prohibited ground of discrimination, contrary to ss 21(1)(h)(i) and 22(1)(c) of the HRA. Mr Bradfield has pleaded that those provisions of the HRA prohibit the Navy from discharging him on account of his medical condition in circumstances where he has demonstrated, since 2009, his capacity to perform the duties of a bassoonist in the Navy Band notwithstanding his medical condition, and that there is no evidence that his minor physical limitations have proved unmanageable for the Navy Band.

[16]   In a second cause of action, Mr Bradfield claims there has been a breach of a substantive legitimate expectation that he would serve out the term of his service to 30 June 2025. Since being given a commitment to that length of service in October 2015, Mr Bradfield claims that he has borrowed money to pursue professional development activities and entered into a fixed term tenancy on a residential property in the vicinity of the naval base where he worked. He alleges that the reviewable

decision amounts to a reneging on the promise inherent in the extension of service granted to him.

Jurisdiction for interim orders

[17]   Section 15 of the Judicial Review Procedure Act confirms jurisdiction for the Court to make interim orders where necessary to preserve the position of an applicant. In cases where the Crown is a respondent, s 15(3)(b)(i) provides that the Court may make an interim order declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power that is being challenged. That is the form of order sought against each of the defendants on the present application.

[18]   The Court of Appeal’s decision in Carlton & United Breweries Ltd v Minister of Customs, decided under the predecessor provision in s 8 of the Judicature Amendment Act 1972, is still relied on for the principles that are to apply to the Court’s jurisdiction.2 The first consideration is whether an applicant has a position that is put in jeopardy by the exercise of the statutory power and which it is reasonably necessary to preserve pending substantive determination. If that threshold is made out, then there is a wide range of considerations that may be relevant depending on the factual context in deciding whether interim orders should issue. A material consideration in most such applications is the strength of the applicant’s case.

[19]   Ultimately the granting of an interim order depends on the balance of convenience as between the parties and the overall justice of the case.

[20]   The dispute between Mr Bradfield and the Navy is an employment matter that would have been governed by the Employment Relations Act 2000 in the vast majority of employment relationships. However, it is common ground that the employment law regime operating under that Act does not apply to members of the armed forces.3 There is instead a process for seeking redress for the equivalent of personal grievances,

2      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

3      Defence Act 1990, s 45(5).

including a mechanism for escalating any complaint to superior authorities within the relevant branch of the armed forces.4

Mr Bradfield’s position

[21]   Mr Bradfield’s position is that he is sufficiently skilled as a bassoonist, and is willing and able to continue performance of his services in the Navy Band. He wishes to continue on his previous terms of service, implicitly until the end of the current period in 2025.

[22]   The Navy’s position is that Mr Bradfield has been on sick leave on full pay since 7 November 2018 and that a medical assessment of him is that he is not currently able to perform the tasks required of him as an able musician in the Navy Band. The Navy challenges the relative importance of any position Mr Bradfield had to protect, when he had not been performing any work duties since November 2018 and was on sick leave on full pay. If any interim orders were made, Mr Bradfield would remain in those circumstances until substantive determination of these proceedings.

[23]   From this perspective, an interim order was simply a matter of cash flow, maintaining earnings in the meantime but not affecting the discharge of any work duties.

[24]   Mr Griggs  submitted  that  the  absence  of  other  resources   meant  that   Mr Bradfield requires payment of his salary in order to enable him to meet the on- going costs of pursuing these proceedings. Ms McKechnie’s rejoinder on this point was that if interim orders were made so that Mr Bradfield’s salary continued to be paid notwithstanding the discharge decision, and the Navy’s decision was subsequently vindicated, the concern Mr Griggs raised suggested that the Navy would have real difficulty recovering what would be overpayments to which Mr Bradfield had not been entitled.

[25]   Mr Griggs also submitted  that  interim  orders  were  needed  to  preserve  Mr Bradfield’s position because, once dismissed, the Navy did not have the capacity

4      Defence Act 1990, s 49 (the provisions do not relate to civil staff, to whom the Employment Relations Act 2000 does apply).

to re-engage Mr Bradfield. Ms McKechnie disputed that as a correct statement of the legal position. She also relied on an assurance afforded by Lieutenant Commander McIntosh, the deputy director of legal services in the Navy, who confirmed in an affidavit that if Mr Bradfield’s discharge becomes operative and the Court then finds that the decision was unlawful, the Navy would respect the terms of the Court decision and re-engage Mr Bradfield on terms making up his pay from 1 July 2019.5

[26]   Assessing these various considerations of the relative necessity for preservation of Mr Bradfield’s position, I accept from his perspective that it is reasonably necessary for him to protect his position. In all the circumstances, however, it is hardly a compelling necessity and, whilst the threshold is made out by a modest margin, his does not present as the most compelling of cases in which it is necessary to protect his position.

Merits of the claims

Decision contrary to the HRA

[27]   Mr Bradfield’s claim that the decision by the Navy to discharge him on medical grounds is unlawful because disability constitutes a prohibited ground of discrimination raises a number of issues. As a matter of jurisdiction, complaints of discrimination generally proceed under the mechanisms provided in the HRA, by reference to the Human Rights Commission (HRC) and then, if necessary, to the Human Rights Review Tribunal (HRRT). In employment disputes governed by the Employment Relations Act, an employee wishing to pursue a personal grievance is required to elect whether a complaint arising under the provisions of the HRA is to be pursued before the Employment Relations Authority, or by way of complaint under the HRA.6

[28]   That recognition of options may well suggest, by analogy, that a member of the armed forces excluded from resort to the Employment Relations Act could

5      I deal below at [46] to [50] with the argument Mr Griggs advanced for doubting the Navy’s lawful capacity to re-engage Mr Bradfield.

6      Employment Relations Act 2000, s 112.

similarly elect between pursuit of a complaint under the HRA, and a challenge to the lawfulness of the discharge decision by way of judicial review.

[29]   I am mindful that Mr Bradfield has elected not to pursue a complaint under the process provided for in s 49 of the Defence Act 1990, which might arguably be recognised as an equivalent to the rights of employees in other contexts to refer a grievance to the Employment Relations Authority. I am not satisfied that the existence of that alternative under s 49 of the Defence Act should oust the jurisdiction of the High Court on judicial  review.  However,  the  existence  of  that  alternative  and Mr Bradfield’s election not to pursue it may be a factor in considering whether to grant interim orders.

[30]   There may be an issue about the more appropriate forum for evaluating the substance of any claim to discrimination on the basis of a disability. The Navy has indicated that it will defend its decision on the basis that it could not reasonably be expected to make accommodations for Mr Bradfield any longer to cover for his normal duties that his disability precludes him undertaking. Factual determinations would be required under s 29 of the HRA as to whether any special services or facilities required to be provided to enable him to satisfactorily discharge his duties are beyond those that it would be reasonable to expect the employer to provide.

[31]   The HRC and the HRRT have recognised familiarity with, and expertise in, determining the limits on what is reasonably expected of employers to accommodate employees with disabilities. As Ms McKechnie pointed out, where employees’ claims of unlawful discrimination are dealt with under the HRA, claimants are able to obtain declarations and damages by way of relief, but not reinstatement.7

[32]   Ms McKechnie invited analogy with the decision in Easton v Human Rights Commission.8 In that case, Mr Easton had complained to the Advertising Standards Authority about a television advertisement that he contended discriminated unlawfully against men. The Bank of New Zealand had provided funding to a charity, formed to prevent domestic violence, for the preparation and screening of an advertisement. On

7      See remedies in Human Rights Act 1993, s 92I.

8      Easton v Human Rights Commission [2009] NZAR 575.

the Advertising Standard Authority’s rejection of Mr Easton’s complaint, he sought judicial review of that decision, citing the Bank of New Zealand as a further respondent.

[33]   Randerson J struck out the application for judicial review against the Bank. He observed that the monetary relief sought against the Bank by Mr Easton would not be available to him in judicial review proceedings, and any complaint against the Bank on the grounds of discrimination should be pursued to the HRC and thereafter to the HRRT.9 That observation supports reservations about the appropriateness of judicial review as the preferable forum for assessing the justification for the alleged discrimination against Mr Bradfield. If Ms McKechnie cited it to advance the further proposition that the Court ought to decline jurisdiction to entertain the substantive application for judicial review, then I do not see the observations in Easton as supporting that proposition.

[34]   It is difficult to form a provisional view at this stage on the substantive factual dispute as to whether the Navy’s decision to discharge Mr Bradfield on medical grounds is justifiable under the relevant provisions of the HRA, or whether the decision is unreasonable given the level of HRA obligations to accommodate his disability.

[35]   For Mr Bradfield, his disability has been accommodated since 2009, to an extent that the Navy has been prepared to extend service until 2025 where, on his view, the extent of the disability has not increased.

[36]   For the Navy, an entitlement to periodically re-assess Mr Bradfield’s capabilities has now revealed a range of inadequacies in his ability to perform the role he has in the band, to an extent that the Navy is not prepared to accommodate any longer.

[37]   Although the dispute has been identified since late 2018, the Navy has had to respond in terms of evidence at short notice. It is premature to project what the full extent of evidence might be. As matters presently stand, I am not persuaded that

9 At [28].

Mr Bradfield has a strong case to make out his claim for discrimination, contrary to the requirements of the HRA.

Breach of substantive legitimate expectation

[38]   Mr Bradfield has pleaded that the October 2015 extension of his service until the end of June 2025 created an expectation that his service would last until then. Allegedly in reliance on the length of extension of his service, he borrowed some

$14,800 to finance professional development as a musician. He has also taken a fixed term tenancy on premises conveniently located to the Devonport Naval Base.

[39]   The Navy denies that any extension of period of service could give rise to a legitimate expectation or any form of estoppel precluding the Navy from amending the end date of his service. Ms McKechnie cited a provision from the Defence Force Order No 3, Pt 11, governing careers in the New Zealand Defence Force. Clause

11.5.16 stipulates that members of the armed forces could be released from the service at any time, and there is no requirement for the Crown to allow members to serve the full period of any terms of service.

[40]   Ms McKechnie also challenged Mr Bradfield’s claims to reliance on the length of extension of his service to incur obligations. She pointed out that the personal loan referred to had been taken out in November 2014, substantially before the final extension of service. On her analysis, when the loan was taken out, Mr Bradfield’s service was to terminate in May 2016. She also doubted the extent of detriment in relation to Mr Bradfield’s residential tenancy when the available documents suggest it will terminate in August 2019.

[41]   More generally, Ms McKechnie submitted that Mr Bradfield’s evidence was inadequate to justify any claim that, if he was now discharged, he would suffer substantial financial hardship from any reasonable reliance he has placed on the agreed length of service.

[42]   There is doubt as to whether substantive legitimate expectation is a recognised head of claim.10 In contexts such as the present, it is couched in terms akin to some form  of  estoppel,  but  Mr Griggs  has  not  suggested  that  as  an  alternative  in  Mr Bradfield’s case.

[43]   My provisional view is that there is unlikely to be any basis for granting relief to Mr Bradfield on the ground of breach of some form of substantive legitimate expectation. The arrangements for his service until July 2025 did not amount to a contract of employment enforceable by both parties until that time. The effect of the provisions of the Defence Force Order would immediately preclude that and once it is acknowledged that there are circumstances in which the length of service specified will not apply, a question arises of the relevance of circumstances perceived by the Navy as sufficient and appropriate to terminate his service prior to that date.

Other considerations

Delay

[44]   Mr Bradfield has known of the Navy’s view on medical discharge since approximately November 2018, and has known definitively of the termination date of 1 July 2019 since advice to his legal advisers on 2 May 2019.

[45]   There have therefore been opportunities both to commence the internal complaint process pursuant to s 49 of the Defence Act, and/or to commence judicial review proceedings, substantially earlier than the proceedings were initiated. By the time this proceeding was commenced, there were just 10 working days before the Navy’s  decision  was  to  become  operative.  It  is  apparent  from  the  terms  of   Mr Bradfield’s submission on his service review of 13 November 2018 that, by then, he had the benefit of legal advice identifying potential bases for claim under the HRA and for substantive legitimate expectation. It is difficult to accept that the proceedings were filed anywhere near the first reasonable opportunity available to Mr Bradfield. I accordingly treat the delay in commencement of the proceedings as a factor against a grant of interim orders.

10     For example, Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982 at [184]: “[The High Court] has danced with the doctrine for a long time, but seldom taken it home.”

Jurisdiction to reinstate?

[46]   Mr Griggs emphasised the importance of preserving Mr Bradfield’s position by raising the suggestion that the Court may lack jurisdiction in judicial review to require the armed forces to re-enlist a person who has been discharged.

[47]   I am satisfied that the authorities cited by Mr Griggs for his concern at the apparent limits on the Court’s jurisdiction do not raise that prospect. In Bradley v Attorney-General, a former naval officer succeeded in judicial review in establishing errors in the way he had been treated by the Navy that entitled him to declarations that certain steps prejudicing him had been invalid.11 Part-way through the process involving changes to Mr Bradley’s status in the Navy, he applied for release from the service and that was granted. In reviewing the scope of relief to which he might be entitled, Smellie J observed that that step had been “ill-advised and precipitate”. The Judge took the view that Mr Bradley had closed the door on his naval career so it would be inappropriate to exercise the discretion in relation to relief by making orders that had the effect of a reinstatement.

[48]   Mr Griggs also referred to an earlier judicial review application brought by Mr Bradley in which Tompkins J held that the decision to transfer Mr Bradley to another position in the Navy did not involve the exercise of a statutory power of decision and as such was not reviewable.12 That finding is distinguishable because there is no issue here but that the decision to discharge Mr Bradfield from the Navy did involve the exercise of a statutory power.

[49]   Given the context in which the observations from the latter Bradley proceeding that Mr Griggs has cited were made, I am satisfied that they do not raise any doubt about the Court’s jurisdiction to order reinstatement in the present application for judicial review.

[50]   I note that solicitors for the Navy promptly confirmed to Mr Griggs after the proceedings had been issued that, in the event Mr Bradfield was reinstated, the Navy

11     Bradley v Attorney-General [1988] 2 NZLR 454.

12     Bradley v Attorney-General [1986] 1 NZLR 176.

would compensate him by way of back pay to 1 July 2019. Parties cannot bestow jurisdiction on the Court by consent, but that communication and Ms McKechnie’s submissions recognised that there is no constraint on the Court’s powers, should grounds for an order for reinstatement be made out. In the absence of something in the nature of a privative provision, I am not prepared to recognise a risk of the inadequacy in potential remedies substantively available as a factor in favour of making the interim orders now sought by Mr Bradfield.

A public interest in unrecoverable payments?

[51]   A minor issue related to the preceding point is an aspect of the public interest as raised by Ms McKechnie. She characterised the principal concern for Mr Bradfield as being one of cash flow. If he makes out the invalidity in the decision on his medical discharge and becomes entitled to continuation of his wages, then unquestionably the Navy will honour that commitment. On the other hand, if the Navy were required to retain him until substantive determination of the judicial review and the Navy’s position was vindicated, then it would have a claim for repayment of wages from     1 July 2019.

[52]   Mr Griggs’ acknowledgement that the salary will be used to fund the proceedings does provide grounds for Ms McKechnie’s concern that the Navy will have incurred an unrecoverable expense it would be obliged to attempt to recover. She compared the procedure under the Employment Relations Act where any temporary reinstatement pending determination of a grievance before the Employment Relations Authority would only be made on the employee providing an undertaking as to damages, which would extend to repayment of amounts that the employer had been obliged to pay but which were subsequently held not to be lawfully payable. No such undertaking has been provided in this case.

[53]   This is not a factor that can carry great weight, given the secure position of the Navy as an employer. It is, however, another minor factor pointing against a grant of the interim orders sought.

Conclusion on balance of convenience

[54]   As reflected in the above reasoning, I am satisfied that the balance of convenience weighed against a grant of the interim orders sought.

Appropriate defendants

[55]   An additional point raised in argument by Ms McKechnie was what she characterised as the inappropriate and unnecessary inclusion of the third defendant. It is pleaded that Captain Fairweather holds the rank of captain and was at material times the holder of the appointment of Assistant Chief of Navy (Personnel and Training), under the command of the Chief of Navy, the second defendant. It is pleaded that it was Captain Fairweather who directed that Mr Bradfield be medically discharged, that he then afforded Mr Bradfield an opportunity to make submissions and subsequently approved Mr Bradfield’s medical discharge on 3 April 2019.

[56]   It is clear that Captain Fairweather was, in all these respects, acting as the delegate of the Chief of Navy.

[57]   When the proceeding was commenced, a request was made for Captain Fairweather to be removed from the proceeding on the basis that he only ever acted as a delegate of the Chief of Navy and that there would never be any issue that the Chief of Navy would not accept legal responsibility for steps taken by Captain Fairweather as a delegatee of his powers.

[58]   Mr Griggs declined to remove Captain Fairweather. He cited the Court of Appeal’s approach in the Chesterfields Preschools litigation.13 There, claims for misfeasance in public office were pursued against a delegate of the Commissioner of Inland Revenue who had exercised powers allegedly in breach of obligations owed to Chesterfields Preschools. In that case, the claims of misfeasance were pleaded against the Commissioner, despite the absence of any personal involvement, on the rationale that the Commissioner had to accept legal liability for the actions of delegates.

13     Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.

[59]   The Court of Appeal struck out the claims against the Commissioner on the basis that it was not arguable that the knowledge and acts of officers acting under delegated powers for the Commissioner could be attributed in a tortious claim to the Commissioner.14

[60]   The present case is the converse of that. The decision-making power was that of the superior officer and it is now accepted that in all circumstances legal responsibility for Captain Fairweather’s decisions is accepted by the Chief of Navy. In those circumstances, and where there is no suggestion of an absence of good faith by the decision-maker, there is no purpose in retaining Captain Fairweather as a third defendant.

[61]   I accordingly grant the application advanced by Ms McKechnie under s 14 of the Judicial Review Procedure Act 2016 for the removal of Captain Fairweather as the third defendant.

Costs

[62]   My provisional view is that the defendants are entitled to costs on the application for interim orders. However, given the context, I consider it appropriate to defer a final determination of costs on this stage of the proceeding, pending substantive determination.

Further steps

[63]   I invite counsel to confer on the steps needed to prepare the proceeding for substantive hearing, and, within 10 working days of delivery of this judgment, to file a joint memorandum on timetabling and length of fixture required.

Dobson J

Solicitors:

Stephens Lawyers, Wellington for plaintiff/applicant Simpson Grierson, Wellington for defendants/respondents

14 At [47].