DAVID OWEN CREQUER AND ALPINE ENERGY LIMITED

[2024] NZHC 3107

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2023-476-000024

[2024] NZHC 3107

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

a judicial review of a decision not to employ a job applicant

BETWEEN

DAVID OWEN CREQUER

Plaintiff

AND

ALPINE ENERGY LIMITED

Defendant

Hearing (AVL):

15 October 2024

Counsel:

Applicant in person

R J Gordon for Defendant

Judgment:

24 October 2024

JUDGMENT OF GRAU J

[1]    Mr Crequer has applied for judicial review of a decision by Alpine Energy Limited (AEL) not to offer him a job. AEL applied for strike-out. After hearing from the parties and reviewing all of the material that has been filed, I consider this is a clear case for strike-out. AEL’s decision not to offer a job to Mr Crequer is not a decision this Court can judicially review. My reasons follow.

Background

[2]    AEL advertised a role on the “Seek” recruitment website for an electrical draftsperson. AEL received applications for the role from 38 applicants, including Mr Crequer.

CREQUER v ALPINE ENERGY LIMITED [2024] NZHC 3107 [24 October 2024]

[3]    Mr Crequer’s application was unsuccessful. He then corresponded with AEL, who told him there had been an overwhelming response to the advertisement and an extremely high calibre of candidates (of which he was one), but there were other applicants better suited to the role. Mr Crequer, who had previously worked in the role, responded and asked for some specific feedback as to the basis on which AEL concluded other applicants were better suited, noting that he had been employed in the same job for three years with good performance reviews, and a remuneration rate nearly at the top of the advertised range. AEL responded again by saying that other candidates were identified with more suitable experience for AEL’s future needs.

Mr Crequer’s claim

[4]    Mr Crequer then filed a statement of claim in October 2023. It set out that he knew the  successful  applicant  (from  his  previous  employment  at  AEL),  who Mr Crequer believed did not have the experience or qualifications or time in the job to have been a more suitable candidate. Thus, he surmised that either a proper recruitment process did not exist or was not followed. He set out his view that the decision-maker had not acted within the law, for example, under the Fair Trading Act 1986. He applied for judicial review. The relief Mr Crequer sought was to be offered the job in good faith with a nine-day fortnight and other standard conditions, and a pay rate at the top of what was advertised, or money to compensate him.

[5]    AEL is a limited liability company, incorporated on 13 March 1990. It is an energy company pursuant to the Energy Companies Act 1992 (the ECA).1 The ECA is an Act which provided for the formation of energy companies, vesting in such companies the undertakings of electric power boards and local authorities, and thus allowing the dissolution of electric power boards. The principal objective of energy companies such as AEL is “to operate as a successful business”.2

[6]    Accordingly, AEL is a company that has been established by statute. It is publicly owned; its shareholders being three city councils and a customer trust. But

1      Energy Companies Act 1992, ss 2 and 32.

2      Section 36(1).

in all other respects, it is otherwise an ordinary or normal incorporated company which conducts a commercial enterprise.

[7]    In February 2024, following the exchange of memoranda for the first case management review, Associate Judge Lester issued a minute asking Mr Crequer to revisit and clarify the basis of his claim.3     Relevantly, his Honour noted that if     Mr Crequer was seeking to bring a claim in judicial review, he needed to identify the statutory power or public power he said AEL was exercising in the employment process, and the grounds of review he relied on. His Honour observed that Mr Crequer could not simply complain of not being a successful applicant for a job. Mr Crequer was directed to re-plead his statement of claim to clarify the exact basis of his allegations, with a suggestion that he seek legal advice.4

[8]    Mr Crequer duly filed and served an amended statement of claim on 15 March 2024. He asserted the Court could review AEL’s decision. He contended that business decisions of electrical distribution companies can be, and have been, reviewed, as could decisions about employment selection. In his re-pleaded statement of claim, Mr Crequer said judicial review was the only action available to him. He asserted that the decision not to interview or employ him was a perverse outcome which was absurd, irrational, and manifestly unreasonable.

[9]    Mr Crequer observed that the Fair Trading Act did not provide an avenue of remedy or relief, but said he had referred to it as an example of a statute that outlined standards of lawful behaviour. He noted a good faith obligation in the recruitment process in general. In his view, the powers subject to judicial review did not have to be “particularly ‘statutory’” but were required to be powers of a body operating in a statutory context. He noted that AEL was community-owned and established by statute, and so AEL’s decision appeared to be amenable to judicial review on the grounds that the decision-maker did not act within the law or according to principles of natural justice and the decision was unreasonable or absurd. The relief sought was,

3      Crequer v Alpine Energy Ltd HC Timaru CIV-2023-476-24, 23 February 2024 (Minute of Associate Judge Lester).

4      At [8]–[10].

again, an order that AEL offer him the job he applied for. If not, he wanted the Court to order AEL to re-make its decision according to a proper process.

[10]   AEL then applied to strike-out Mr Crequer’s claim on the basis it did not involve the exercise of any statutory power or function and did not otherwise involve the exercise of a public power or have any public consequences.

[11]   Mr Crequer then filed a notice of opposition to the strike-out application, dated 15 May 2024. Mr Crequer was advised by the Registry that a filing fee was payable and corresponded with him several times. Mr Crequer did not pay a filing fee, however, meaning that Registry did not accept the notice of opposition for filing. He considers the filing of the strike-out application to be an abuse of process by AEL. It is his view that, if his application for judicial review was an abuse of process, the Court would have already struck it out. Mr Crequer does not think he should have to pay to oppose an abuse of process.

[12]   In a minute of 27 May 2024, Associate Judge Lester proposed to set the matter down, given that Mr Crequer considered the application to be without merit (despite that he has not paid for and duly filed a notice of opposition and does not intend to). However, his Honour also noted an Associate Judge does not have jurisdiction to strike-out an application for judicial review.5 Accordingly, the application was set down before me for consideration.

[13]   It remains Mr Crequer’s view that any decision by anyone can be judicially reviewed.

[14]   Mr Crequer relies on the definitions in the Judicial Review Procedure Act 2016 (the JPRA) of “statutory power of decision” and “statutory power”.  In particular,  Mr Crequer relied on the definition of “statutory power of decision” in s 5 of the JRPA, which provides:

5      Crequer v Alpine Energy Ltd HC Timaru CIV-2023-476-24, 27 May 2024 (Minute of Associate Judge Lester).

5        Meaning of statutory power

(1)In this Act, statutory power means a power or right to do any thing that is specified in subsection (2) and that is conferred by or under—

(a)any Act; or

(b)the constitution or other instrument of incorporation, rules, or bylaws of any body corporate.

(2)The things referred to in subsection (1) are—

(a)to make any secondary legislation; or

(b)to exercise a statutory power of decision; or

(c)to require any person to do or refrain from doing anything that, but for such requirement, the person would not be required by law to do or refrain from doing; or

(d)to do anything that would, but for such power or right, be a breach of the legal rights of any person; or

(e)to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person.

[15]   Mr Crequer focuses on a “statutory power of decision” being defined as “a power or right to do anything specified in subs (2) that is conferred by, or under, an Act, or the constitution or any other instrument of incorporation rules or bylaws of any body corporate”. As I understand his position, because AEL is an incorporated company, any decision it makes is therefore reviewable.

[16]   Mr Crequer also points to the lack of any other avenue of remedy. He correctly notes his issue is not an Employment Court matter because there is no existing employment relationship between himself and AEL, and he considers it is not open to him to apply to the Human Rights Tribunal on the basis of discrimination, because he does not know if there has been any discrimination against him.

[17]   In Mr Crequer’s view, his only available avenue is judicial review, and that is why it is available. He says judicial review is a backstop for what the law cannot cover. Mr Crequer referred to a range of cases that he said supported his position.

Discussion

[18]   The first point I  make  is  that  AEL  was  entitled  to  apply  to  strike-out  Mr Crequer’s  proceeding.   This  application  is  not  an  abuse  of  process.   For   Mr Crequer’s benefit, I also note that the Courts are reluctant to strike out proceedings, and it is a jurisdiction that is applied sparingly:6

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed … the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material … but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction …

[19]   The relevant guiding principles applicable to strike-out are well established. Under r 15.1(1) of the High Court Rules 2016, a Court may strike-out all or part of a proceeding where it:

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading;

(b)is likely to cause prejudice or delay;

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

[20]   Those principles apply to judicial review proceedings. There can be no cause of action if the issue is not justiciable, that is, amenable to judicial review.7

[21]   As AEL correctly points out, judicial review is concerned with the lawful exercise of public decision-making power. It is the nature and consequence of the exercise of the public power, as opposed to the source of the public power, that the

6      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267 (citations omitted).

7      Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [29].

courts are concerned with. The term “public power” can be taken to mean “exercises of power which in substance are public or have important public consequences”.8

[22]   It is also well-established that, absent exceptional circumstances, purely commercial decisions by a public body will often not be susceptible to judicial review.9 There needs to be a “public power” component to the decision.

[23]   Mr Crequer does not accept this is the case because, as I understand it, there is no definition of “public power” in the JPRA. While the JRPA does not define “public power”, Mr Crequer’s position is simply wrong. The JPRA only re-enacts the statutory procedure that was established by the Judicature Amendment Act 1972.10 It simplified judicial review procedure but did not transform the inherent nature of the Court’s jurisdiction. It did not affect the nature or scope of judicial review under which the Court may review decisions of statutory or incorporated bodies if they are public in nature or have important public consequences. As indicated, decisions of a purely private or contractual nature fall  outside the  scope of this  statutory  procedure.11  Mr Crequer was unable to point to any statutory power or public power that he alleges AEL was exercising here.

[24]   It is not the case that any of AEL’s decisions must be amenable to judicial review because its shareholders are local councils. As a limited liability company, AEL is a legal entity separate and independent from its shareholders. In any event, I agree with AEL that, even if it was a public body such as a government ministry or a state-owned enterprise, it is misconceived to think that every decision by such an entity is amenable to judicial review. That is just not the case. In particular, a recruitment decision affecting only Mr Crequer does not involve the exercise of any public power

8      Royal Australasian College of Surgeons v Phipps [1993] 3 NZLR 1 (CA) at 11–12; affirmed in Moncrief-Spittle v Regional Facilities Auckland Ltd [2021] NZCA 142, [2021] 2 NZLR 795 at [52].

9      See, for example, Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [65]; see also Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776; and Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609, [2017] 2 NZLR 470.

10 Judicial Review Procedure Act 2016, s 3.

11 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 915.

because it is not in substance public and does not have any public consequences. Nor do any of the cases relied on by Mr Crequer support the argument he makes.

[25]   As an example, Mr Crequer pointed to a very recent decision in Houkura Independent Māori Statutory Board v Auckland Council,12 which involved a judicial review of the decision of the Auckland Council to appoint a person as the Chair of Watercare Services Ltd (Watercare) rather than another person. Auckland Council has the sole power to appoint directors of Watercare pursuant to Watercare’s constitution. The Council’s power to appoint the director is therefore a statutory power of decision under s 5(2)(b) of the JRPA because it was a “power or right conferred by … the constitution or other instrument of incorporation … to make a decision deciding or prescribing or affecting” the director of Watercare, who themselves would have statutory rights, powers, and duties under the Local Government Act 2002. In contrast, AEL has no statutory power of decision in respect of its hiring practices or recruitment decisions, whether in statute, its constitution, or other instrument of incorporation.

[26]   Mr Crequer also told me at the hearing that there was a case involving a hospital board’s decision to employ one surgeon over another where that decision was judicially reviewed. He was unable to provide me with a reference to the case in the hearing. My research identified it may be the case of Wilson v White,13 which was later confirmed by Mr Crequer in a memorandum filed with the Court after the hearing (and which I will discuss later). Wilson v White involved an appeal against a pre-trial ruling in relation to the extent of allowable cross-examination. The Court of Appeal noted that, since the statement of claim had been filed, reliance on the appointment of the surgeon as being the exercise of a statutory power had been eschewed, and it was confined to a claim seeking extraordinary remedies under pt 7 of the (then) High Court Rules.14 It was not a judicial review of a recruitment decision, therefore it does not support his claim either. AEL has (unsurprisingly) been unable to locate any case in which an ordinary recruitment decision had been judicially reviewed, either successfully or not.

12     Houkura Independent Māori Statutory Board v Auckland Council [2024] NZHC 2623.

13     Wilson v White [2005] 1 NZLR 189 (CA).

14     At [6]; the High Court Rules were set out, at that point, in sch 2 of the Judicature Amendment Act 1908.

[27]The other cases relied on by Mr Crequer were even more remote.

[28]   As indicated above, on 18 October 2024, Mr Crequer filed a memorandum following the hearing. The memorandum set out cases (including Wilson v White) that Mr Crequer had sought to rely on in the hearing but could not recall at the time. He said that the memorandum was filed in response to my question at the hearing seeking clarification of the authority Mr Crequer was referring to.   In the memorandum     Mr Crequer also provides his own further comments on these cases and what they mean for his application. AEL objected to Mr Crequer filing the memorandum, noting that Mr Crequer needed leave of the Court to file further submissions. Mr Crequer then filed an application seeking such leave.

[29]   Contrary to Mr Crequer’s belief that his memorandum did nothing more than discuss information that was already before the Court the memorandum is, in effect, a further set of written submissions. For Mr Crequer’s understanding, I note that the filing of most (if not any) kinds of written material subsequent to a hearing—especially material which seeks to provide further explanation to points raised at the hearing or to clarify and apply case law—is generally going to be viewed as the filing of further submissions  requiring  leave  of  the  Court.  And  I  decline  leave  in   this  case. Mr Crequer’s memorandum does not provide helpful elucidation on any matters that had already been discussed.   As noted above,  Wilson  v White does  not advance   Mr Crequer’s case, nor do the other cases cited in his memorandum.

[30]   The short point is that the decision in question is that of a private employer and is a commercial decision with no public element, meaning judicial review is not available.

[31]   Mr Crequer has not pleaded any other reasonably arguable causes of action either. Nor is the relief sought available. Even if this was a reviewable decision, the Court could not order AEL to appoint Mr Crequer to a position that has already been filled. At most, it could say the decision was flawed.

[32]   Accordingly, AEL’s application for strike-out is granted, and Mr Crequer’s application for judicial review is struck out.

Costs

[33]   As to the issue of costs, Mr Crequer made it clear at the hearing that he did not want  to  pay  costs  should  his  application  be  unsuccessful.  Unfortunately  for  Mr Crequer, absent good reason to depart from it, the general principle is that costs will follow the event. Because Mr Crequer has been unsuccessful, he is to pay costs to AEL. However, I make an order that costs be awarded on a category 2A basis, as in my view, Mr Crequer’s application would have taken counsel of average skill and experience a comparatively short amount of time to respond to. If the parties are unable to agree as to the steps to be included in the table of costs within 10 working days, leave is reserved for AEL to file a table of costs with the Court for approval.

Grau J

Solicitors:
MinterEllisonRuddWatts, Wellington for Defendant