Dodwell v Civil Aviation Authority HC Wellington CP189/01

[2001] NZHC 1114

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP189/01

IN THE MATTER of the Judicature Amendment Act 1972

BETWEEN PETER DODWELL
of Wellington, Medical Practitioner
Plaintiff

AND THE CIVIL AVIATION AUTHORITY
of Wellington, a Crown Entity created by Section 72A of the Civil Aviation Act 1990
Defendant

Date of Hearing: 31 October 2001

Date of Decision: 31 October 2001

Reasons for Decision: 16 November 2001

Counsel: D B Collins QC for Plaintiff
K I Murray for Defendant

REASONS FOR DECISION OF DURIE J

Solicitors:
Rainey Collins Wright & Co, Wellington for Plaintiff
K I Murray, Wellington for Defendant

Introduction

[1] This is an application to stay proceedings in order that additional persons be cited as defendants. I declined the relief sought in the application and now give reasons.

Background

[2] The substantive proceeding is an application to review the decision of the defendant, the Civil Aviation Authority, to publish a report on “The Process of Determining Fitness to Fly Aeroplanes in New Zealand” by Professors Scott and Gorman. The plaintiff, who is an employee of the defendant, seeks review for the reason that the report is critical of the plaintiff and of processes that the plaintiff had put in place, and because the plaintiff had no opportunity to reply to those criticisms before the report was published.

[3] The defendant sought a direction that the report’s authors be cited as additional defendants. In seeking a stay upon that ground, Mr Murray for the defendant submitted that the authors are the true target in the judicial review proceedings, the proceedings being directed to the defendant for no larger reason than that the authors are not amenable to review. He pointed to paragraph 15 of the claim and the prayer for relief. Paragraph 15 alleges that the authors had a duty to ensure that the plaintiff was treated fairly by ensuring that the plaintiff had a fair and reasonable opportunity to respond to any criticism of him in their report. The relief sought is a declaration that the criticisms of the plaintiff in the report were invalid and void. Mr Murray made the further point that judicial review is directed to procedural fairness and not to the merits of the determinations in question.

[4] Mr Collins responded that paragraph 15 is but prelude to paragraph 16 which identifies the true basis for the action, namely, the public dissemination of that which might otherwise have been handled in-house. Paragraph 16 contends that the defendant owed a duty to the plaintiff to ensure that he had been afforded a fair and reasonable opportunity to respond to any criticisms before the report was published. The relief that is sought is the relief that is necessary to cure the effects of publicity.

[5] Those points having been made they can now be parked save only to the extent that they inform the issue of whether a direction should be given that the authors be cited as additional defendants. I did not understand Mr Murray to contend that the defendant was not a proper defendant, but were it necessary to determine that, as far as one can on this application, I would find there is a case to be argued in respect of the present defendant.

[6] Mr Murray submitted:

(a) The matters in dispute cannot be effectually and completely determined without including the professors (a matter provided for in s 10 Judicature Amendment Act 1972 and High Court Rule 97); and

(b) It would be a breach of natural justice for the proceeding to be determined without the professors being parties to it.

Effective Disposal

[7] Process was abused, in Mr Murray’s submissions, when, for lack of clear notice to affected persons or citation of proper parties, proceedings begun and continued cannot, in the end, be brought to final orders. He instanced Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA) and Dunedin Taxis (1965) Ltd v Dunedin Airports Ltd (1990) 3 PRNZ 391 as cases where hearings on judicial review had been wasted because persons directly affected had not been made parties to the proceedings or, they had not otherwise an opportunity to be heard. Deadman v Luxton (High Court, Wellington, CP 71/99, 4 May 1999, Gendall J) illustrates the positive adding of interested persons as parties in interlocutory stages to avoid such negative outcomes.

[8] The test, in Mr Collins’ submission, was that articulated by Lord Diplock in Pegang Mining Co Ltd v Choong San (1969) 2 MLJ 52 at 55 when he said:

“. . . one of the principal objects of the rule is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate on the matter in dispute in the action without his being given an opportunity of being heard.

. . . The test is: will his rights against or liabilities to any person to the action in respect of the subject matter of the action be directly affected by an order which may be made in the action?”

[9] This test was applied by Henry J in Hallam v Ryan (1989) 3 PRNZ 132 and Tompkins J in Petromont Holdings Ltd v Director-General of Agriculture and Fisheries (High Court, Auckland, M 986/93, 18 August 1993).

[10] The susceptible rights referred to in De Luxe Motor Services, Dunedin Taxis and Deadman concerned commercial interests, held or contended for by persons either as parties to a contract or arrangement or as tenderers. In this case, the authors’ former interest as persons commissioned or contracted to a task, is now spent, save only that the defendant may call upon them to assist in these proceedings. Their interests are now subsumed to those of the defendant as, presumably, the proprietor of their product. That remaining to the authors is a general interest in the protection of their reputation.

[11] I was referred to no case where reputational interest alone provided a basis for joinder. The interest of commissioners appointed to public inquiries is not comparable. Reputation, in those cases, is connected to the performance of duties while the holder of a public office. Similarities in principle flow from Royal Australasian College of Surgeons v Phipps [1993] 3 NZLR 1 (CA); [2000] 2 NZLR 513 (PC). In that case, the authors of a report that was critical of a third person were the subject of review proceedings. However, they were reviewable not because they were the authors as such, or because they were contractors to a public body, but because of their own constitutional status.

[12] The question of reputational interests stands to be considered further in the context of natural justice. The conclusion under the present heading of “effective disposal” is that the relief sought in the substantive proceedings is not jeopardised by the absence of the authors as parties on account of the authors’ rights and interests.

Natural Justice

[13] Mr Murray submitted that for the protection of the authors’ reputational interests, they had a right to be heard and the Court’s own procedure would not be fair if they were not heard. The authors were entirely independent in their conduct of the review, and they alone were responsible for settling the process that was adopted. Their interests were not protected by being called as witnesses, he submitted. Mr Murray acknowledged that the authors knew of the review proceedings but submitted that it was not for them to apply to be joined. Rather it was for the Court to direct that they be cited.

[14] Mr Collins submitted that as the report itself acknowledged (and which is exhibited in these proceedings) the report comes from a review commissioned by the defendant. The authors were but one component of a review team acting at all times under the defendant’s auspices. The authors had no independent status and no independent statutory power of decision, but were merely the defendant’s agents.

[15] Indicative, in my view, is the case of a consultant who advises a public body on appropriate action. Having advised, the consultant has no further interest or role. That does not change if the public body, having acted in reliance upon the report, is sued, though the consultant may be called upon to elaborate. The principle appears to be that advisers trade on the basis of their reputations and their confidence that their product will withstand scrutiny as to both methodology and conclusion. Their reputation rests on the result of their labour, and not on their ability to elaborate later by way of justification.

[16] The question is whether it makes a difference if the principal publishes the report and the integrity of that report is directly challenged in consequential proceedings. I do not see that that makes a difference. The author, having written, moves on, or must look to the principal for protection. The foundation for the case against the principal is that the principal, having published, has commended the report as worthy of serious consideration. The conclusion is that the authors do not have an interest entitling them to a direction that they be cited as parties, on the defendant’s motion, on grounds of natural justice.

[17] For those reasons the application was declined.

[18] The plaintiff is entitled to costs on the basis of category 2b and there is an order to that effect.