Christian Congregational of Jehovahs Witnesses (Australasia) Limited v Royal Commission of Inquiry into Historic Abuse in State Care and in the Care of Faith-Based Institutions

[2024] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1487

[2024] NZHC 1691

BETWEEN

CHRISTIAN CONGREGATION OF JEHOVAHS WITNESSES (AUSTRALASIA) LIMITED

Applicant

AND

ROYAL COMMISSION OF INQUIRY INTO HISTORIC ABUSE IN STATE CARE AND IN THE CARE OF FAITH-BASED INSTITUTIONS

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

Hearing:

21 June 2024

Appearances:

S Jerebine, B Prewett, and J McCarthy for the Applicant S Mount KC and T Powell for the First Respondent

A Martin and J Varuhas for the Second Respondent (via VMR)

Judgment:

21 June 2024

ORAL JUDGMENT OF POWELL J

CHRISTIAN CONGREGATION OF JEHOVAHS WITNESSES (AUSTRALASIA) LIMITED v ROYAL

COMMISSION OF INQUIRY INTO HISTORIC ABUSE IN STATE CARE AND IN THE CARE OF FAITH- BASED INSTITUTIONS [2024] NZHC 1691 [21 June 2024]

[1]    These Judicial Review proceedings have been issued by the Christian Congregation of Jehovah’s Witnesses (Australasia) Limited (“CCJWA”) which is the organisation coordinating the religious activity of 170 congregations of Jehovah’s Witnesses in New Zealand.

Background

[2]    It has filed these proceedings, taking issue with a draft case study produced by the Royal Commission of Inquiry into Historic Abuse in State Care and in the Case of Faith-Based Institutions (“the Royal Commission”) and provided to CCJWA in the course of the Royal Commission’s work. It appears there has been substantial engagement over the draft case study with comment having been provided by the CCJWA to the Royal Commission. The Royal Commission is currently working through those comments and the comments of other faith-based organisations in a similar position so as to enable the Royal Commission to finalise its report which is due, at latest, on 26 June 2024.

[3]    Although CCJWA’s proceedings involve the draft case study, its primary concern will be the final case study that will form part of the Royal Commission’s report when it is produced. The proceedings came before me as Duty Judge after CCJWA sought an urgent judicial conference so as to discuss their request for production of various documents. By the time the conference was convened today, all but one of the documents requested to be produced by CCJWA, in respect of which CCJWA already had copies although not in a downloadable form, have now been resolved leaving only one document to be discussed at the conference, namely the final version of the case study, which has not yet been finalised and will not be until such time as the report of the Royal Commission is itself finalised.

What CCJWA is seeking

[4]    Somewhat unusually, there was no application for interim orders before the Court. Mr Prewett, on behalf of the CCJWA, submitted that in reliance on s 14 of the Judicial Review Procedure Act 2016 “at a case management conference” this Court “may require a party to make discovery, produce documents, or both”, and pursuant

to that power I should order the Royal Commission to provide CCJWA a copy of the final case study as soon as it has been finalised.

[5]    The Royal Commission appropriately abides the decision of the Court but by consent the Attorney-General was added as a second respondent and opposes the order that is now sought.

[6]    Mr Prewett submits that there is no real difficulty in providing the final report noting that it could be done, at latest, at the same time or immediately before it is sent to the Governor-General and that that is not inconsistent with the provisions of s 12 of the Inquiries Act 2013. In Mr Prewett’s submission, if that document is not provided at that point, CCJWA will be required to wait until the Royal Commission’s report has been transmitted by the Governor-General to the Minister of Internal Affairs and then tabled in Parliament which, according to recent correspondence, appears likely to take place in the week beginning 22 July 2024.

[7]    Mr Prewett submits that this is a significant time delay and that if CCJWA receives the report when it is completed, it will have an extra three or four weeks to effectively work out its litigation strategy and prepare appropriate amendments to its current proceedings so as to challenge any negative findings contained in the case study or, I presume, in the wider report.

Discussion

[8]    Having heard the submissions of counsel, while I accept that there may well be aspects of the Royal Commission’s final report which may be seen by different participants as being prejudicial, it is difficult to see how any real prejudice could accrue to CCJWA by requiring CCJWA to receive a copy of the final report, including the case study, at the same time as all other participants.

[9]    It is difficult to see that the three to four weeks we are now talking about could make any substantive difference to the ultimate time taken to resolve any judicial review proceedings concerning the final report of the Royal Commission, noting that any release of the relevant parts of the report to CCJWA would inevitably have to be the subject of restrictions on publication in any event.

[10]   I also share the concerns of Mr Martin on behalf of the Attorney-General that there appears to be a real disjunction between the current proceedings, as they involve the draft case study and which it would appear are never going to proceed to a hearing because they do not involve a decision of the Royal Commission, so as to engage the provisions of s 14 of the Judicial Review Procedure Act so as to require the Royal Commission to produce a document that is not yet in existence and will not be, in effect, until the time it is transmitted to the Governor-General.

[11]   On the contrary I consider that it is not appropriate to utilise s 14(2)(h) as sought by CCJWA so as to pre-empt the production process otherwise set out in s 12 of the Inquiries Act and which is incorporated into the Royal Commission’s terms of reference by way of cl 39 of those terms.

Decision

[12]   Taking these various matters together, which is of necessity a brief summary of the discussion that has taken place, I decline CCJWA’s request to order the production of the Commission’s final case study and/or the Commission’s final report.

[13]   Should any issue of costs arise as a result of the application the Attorney-General will have one month to file an appropriate memorandum. CCJWA will then have a month to respond following which I will determine any issue of costs arising on the papers.

[14]   The final issue that I am required to consider is whether these proceedings should appropriately be transferred to the Wellington High Court noting that this is where the Royal Commission is based, as is the Attorney-General and the Government, and this has been proposed by Mr Martin. There is no opposition by CCJWA to this course of action and I make the order transferring the proceedings accordingly.

Powell J