Greenpeace of New Zealand Incorporated v Charities Registration Board

[2019] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-418

CIV-2018-485-419 [2019] NZHC 929

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of the Charities Registration Board’s decision for registration as a charitable entity

AND

an appeal against the Charities Registration Board, established under section 8 of the

Charities Act 2005, declining the appellants application for registration as a charitable
entity

BETWEEN

GREENPEACE OF NEW ZEALAND INCORPORATED

Appellant/Applicant

AND

THE CHARITIES REGISTRATION BOARD

First Respondent

THE ATTORNEY-GENERAL

Second Respondent

Hearing:

2 May 2019

Appearances:

D Salmon for Appellant/Applicant

P J Gunn and L Dittrich for Second Respondent

Judgment:

17 May 2019

JUDGMENT OF COOKE J

[1]    Greenpeace of New Zealand Incorporated (Greenpeace) appeals from a decision of the Charities Registration Board (Te Rātā Atawhai) — (the Board) — declining its application for registration as a charitable entity. In addition, Greenpeace

GREENPEACE OF NEW ZEALAND INCORPORATED v THE CHARITIES REGISTRATION BOARD [2019] NZHC 929 [17 May 2019]

brings judicial review proceedings seeking that the decision be set aside because of apparent bias and related procedural impropriety. The Attorney-General appears as the effective contradictor on both proceedings with the Board itself abiding the decision of the Court. The decision of the Board declining Greenpeace charitable status involves a rehearing of that application following a successful appeal of the Board’s previous decision, which proceeded all the way to the Supreme Court.1

[2]    The present matter is an application by the Attorney-General that the appeal and judicial review proceedings be either consolidated or heard together.

Applicable power

[3]    The Attorney-General’s application is made pursuant to r 10.12 of the High Court Rules 2016, which provides:

Subpart 3—Consolidation of proceedings

10.12When order may be made

The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—

(a)that some common question of law or fact arises in both or all of them; or

(b)that the rights to relief claimed therein are in respect of or arise out of—

(i)      the same event; or

(ii)     the same transaction; or

(iii)    the same event and the same transaction; or

(iv)     the same series of events; or

(v)      the same series of transactions; or

(vi)     the same series of events and the same series of transactions; or

(c)that for some other reason it is desirable to make an order under this rule.

1      Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169.

[4]    The appeal is under Part 20 of the High Court Rules. The Judicial Review Procedure Act 2016 expressly applies Part 5 of the High Court Rules to an action for judicial review, but it does not otherwise expressly incorporate the balance including r 10.12.2 Rule 10.12 can nevertheless be applied. The Court has power to manage  and control the conduct of judicial review proceedings through the case management conference referred to in s 13, including by giving the directions contemplated by s 14. The Court of Appeal has indicated that this legislation was to some extent intended to create a procedural code for judicial review.3 The overlap between these powers and the balance of the High Court Rules is not precisely prescribed. But in effect the Court ultimately controls which of the balance of the High Court Rules are to apply to a judicial review proceeding, and how they apply.4 Put another way, the balance of the High Court Rules apply subject to judicial determination to the contrary.5 Similarly in relation to appeals under Part 20 of the High Court Rules, not all the general rules would apply, and the procedural rules in Part 20 override the more general rules when there is inconsistency.6

[5]    In terms of the present case there is no dispute that the Court has the power to order that the two proceedings be heard together. There is also no dispute on the relevant principles that are applied under r 10.12, which have been addressed in a number of cases. In Regan v Gill, the Court of Appeal said that it was difficult to conceive of a wider procedural discretion than that described in the rule.7

2      Judicial Review Procedure Act 2016, s 8(2). That is different from the former s 9 of the Judicature Amendment Act 1972 – see Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [JR8.01].

3      See Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353; and Roussel Uclef Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656–658.

4      So, for example, the Court does not apply the rules relating to the service of briefs of evidence in a judicial review proceeding, which proceeds on affidavit evidence.

5      Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [16]–[21]; and Wilson v The Department of Corrections [2018] NZHC 2977 at [5]. See also Kellian v Minister of Fisheries (2002) 16 PRNZ 223 (HC).

6      McGechan on Procedure, above n 2, at [HR20.1.03], citing Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786.

7      Regan v Gill [2011] NZCA 607 at [10], citing Medlab Hamilton Ltd v Waikato District Health Board (2007) 18 PRNZ 517 (HC) at [8]. See also Callplus Ltd v Telecom New Zealand Ltd (2001) 15 PRNZ 14 (HC).

The challenges here

[6]    Under s 59 of the Charities Act 2005 Greenpeace has a general right of appeal against decisions of the Board. Under s 61(6) of that Act, Greenpeace’s right to bring a judicial review challenge in addition to an appeal is preserved.

[7]    Greenpeace says in its appeal that the Board misinterpreted and misapplied the test for determining charitable status. The judicial review challenge is based on the contention that one of the three-member decision-making panel, Mr Simon Karipa, should not have been involved in the decision-making process. Mr Karipa was General Counsel of Te Ohu Kaimoana, a charitable body established under s 31 of the Maori Fisheries Act 2004 to represent Maori fisheries interests. Te Ohu Kaimoana and Greenpeace had been in dispute, particularly in relation to the Kermadec Ocean Sanctuary, which Te Ohu Kaimoana had opposed as being inconsistent with Maori fishing interests. Greenpeace’s support for the sanctuary included strong public criticism of Te Ohu Kaimoana, including criticism based on whether it was properly fulfilling its responsibilities to Maori under the principles of the Treaty. Greenpeace and Te Ohu Kaimoana were also otherwise generally in opposition to one another on fisheries matters. Given those factors, and Mr Karipa’s senior role at Te Ohu Kaimoana, Greenpeace contends it was not appropriate for him to be involved in considering its application.

[8]    There is a related procedural impropriety argument based around Mr Karipa not declaring a conflict of interest. He did so in relation to another body — Kiwis Against Seabed Mining — allegedly because that body had joined Te Ohu Kaimoana in a High Court challenge to an offshore mining permit where anti-mining and fisheries interests aligned.8 But Greenpeace was also a party to that challenge. Given that Te Ohu Kaimoana and Greenpeace were effectively on opposing sides of the Kaimoana Ocean Sanctuary debate, it is argued that declaring a conflict of interest in relation to Greenpeace was at least as important.

8      See Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217.

[9]    When originally filed in April 2018, the appeal and judicial review challenges were essentially mirror images of each other. Both advanced the questions of apparent bias/procedural impropriety arising from Mr Karipa’s involvement, and both also advanced claims that the Board had proceeded erroneously in the application of the relevant tests concerning charitable status, and the dealing with information and evidence relating to those tests. However, by joint memorandum dated 3 December 2018, Greenpeace separated the arguments. It removed what can be described as the appeal grounds from the judicial review proceeding, and removed the apparent bias/procedural impropriety grounds from the appeal. From that point in time each proceeding was capable of being heard and determined separately. It was this separation of the issues, and the consequent understanding that Greenpeace wanted them heard separately, that has led to the Attorney-General’s application that they be consolidated or heard together.

Application of the principles in the present case

[10]   Mr Gunn for the Attorney-General emphasised four key factors that he said warranted the two proceedings being heard together. First, the judicial review and appeal involved the same background facts and the same parties. Second, he indicated that the two proceedings could be heard together without any difficulty. Third, he argued that there would be no delay to the proceedings overall given that both were essentially at the same stage from a procedural point of view, and both could be dealt with at a two-to-three-day hearing. Lastly, he indicated that hearing them together would involve significant saving of time and costs.

[11]   In developing those submissions, Mr Gunn referred to the approach that had been taken in Re Foundation for Anti-Aging Research, where the Court heard an appeal and judicial review in relation to the Board together, and after allowing the appeal then addressed how the judicial review question should be considered.9 He emphasised the benefit of the Court being able to address the two related proceedings in this way. He also referred to the observations of Wild J in Callplus Ltd v Telecom New Zealand Ltd that economies in hearing time, and the efficient management of Court proceedings, was an issue that affected the Court as well as the parties, and that

9      Re Foundation for Anti-Aging Research [2016] NZHC 2328, (2016) 23 PRNZ 726.

the Court needed to have the ability to deal with cases before it in a most orderly and effective way.10

[12]   In response Mr Salmon argued that the cases should not be heard together primarily because Greenpeace had a distinct point to raise in its judicial review proceeding, and that this issue properly needed to be dealt with first. Greenpeace had not had a proper hearing of its application before the Board, and if it was right about this contention the matter needed to be remitted to the Board for reconsideration. Pursuit of appeals to the High Court, and potentially to the other courts should only take place once a proper decision of the Board had been made.

[13]   Greenpeace contended that its hearing before the Board had been compromised, and accordingly any appeals have also been compromised. In remitting the matter to the Board, a majority of the Supreme Court held that political and charitable purposes were not mutually exclusive, and whether Greenpeace’s advocacy or promotion of a cause was a charitable purpose depended on a close consideration of the circumstances.11 The Court also unanimously held that whilst promoting an illegal purpose would disqualify obtaining charitable status, isolated breaches of the law, even if sanctioned, might not be disqualifying. Again that would depend on the facts and circumstances. Both of these points mean that the gathering in and assessment of the facts was critical. The manner in which the Board is required to make such assessments involves it considering the applicant’s activities and any information it considers relevant.12 This can, and did, involve the Board gathering information from the public domain. Mr Salmon pointed out that it was very difficult on appeal to challenge the information gathering and assessment exercise by suggesting, for example, that the appeal Court consider information other than that considered by the Board. In that sense, the Board sets the parameters for the ultimate argument notwithstanding that there is a general right of appeal to the High Court, which is determined in accordance with the principles described by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.13

10     Callplus Ltd v Telecom New Zealand Ltd, above n 7, at [37].

11     Re Greenpeace of New Zealand Inc, above n 1.

12     Charities Act 2005, s 18(3)(a).

13     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[14]   Two key examples where Mr Karipa had an involvement in the exercise of gathering evidence, or assessing the evidence, were referred to. They are said to illustrate how Mr Karipa compromised the process. In one email, Mr Karipa provided a link to a television interview with Dr Russell Norman of Greenpeace describing activities that Mr Karipa said “appeared to be illegal”. In another email concerning the Board’s draft decision, Mr Karipa commented on a reference to Greenpeace’s Red Fish Guide, which relates to the sustainability of fish stocks, saying that the Guide was “highly controversial” and suggesting that the wording of the draft decision be changed. Mr Salmon’s point was that these inputs were not only adverse to Greenpeace and supported the claim of apparent bias, but that they illustrated why it was difficult for Greenpeace to effectively advance an appeal once the evidential framework for the argument had been set by an inappropriate process.

Assessment

[15]   I accept that the materials referred to demonstrate that Greenpeace has an arguable judicial review challenge on the basis advanced. It is not my role to reach conclusions on of the strength of this ground of challenge at this stage, particularly as there has been no response to it as yet in either evidence provided or submissions advanced. It might be said that having views about a body with the public profile of Greenpeace is inevitable, and that the members of the Board could not be expected to have no involvement in or knowledge of the charities sector.14 So, being an employee of a body that had been criticised by Greenpeace may not be disqualifying in itself. But I accept the argument is sufficiently strong for the Court to consider whether the most sensible and efficient course for the proceedings might be to hear this matter as an initial point in order to decide whether the application needs to be completely reheard by the Board. There is a respectable argument that this could be the best way forward.

[16]   I nevertheless accept the arguments of Mr Gunn that it remains more appropriate for the appeal and judicial review to be heard together. That is so for a series of related reasons.

14   See, for example, the dismissal of the procedural impropriety challenge in Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [199], [214] and [216].

[17]   First, even if Greenpeace were to succeed with its judicial review challenge so that the matter would be remitted to the Board, it may be more efficient for any such remittal to occur with the Court also determining any other questions that arise in the appeal. It could be unhelpful for the Board to be required to rehear the appeal when there were challenges on questions relating to its approach articulated in Greenpeace’s appeal that remained undetermined. Any such issues might be better addressed at the same time by the High Court.

[18]   Second, the respective fate of the judicial review challenge, and the appeal, are simply unknown at this time. Various permutations of success or failure of the judicial review challenge and the appeal are possible. It is undesirable for the judicial review and the appeal to split off into separate cases, each with their own rights of appeal (or orders for reconsideration). The potential complexity involved in having two streams of cases in the superior courts is undesirable. These disadvantages could be mitigated, but not eliminated, by a stay of the appeal. I also see no advantage in the judicial review and the appeal potentially being considered by two separate High Court judges. Indeed there might be some prospect for inconsistency if this were to happen.

[19]   Third, as Mr Gunn emphasised with reference to Re Foundation for Anti-Aging Research, if the two proceedings are heard together the Court maintains control of the issues that are addressed in both proceedings, and how they are addressed. In that case the Court decided not to deal with the judicial review challenge because of the success of the appeal.15 Similarly if the judicial review proceeding succeeded such that the Board’s decision was set aside, the Court might decide not to determine the appeal. The Court would have control of these issues, and could deal with them in a single judgment.

[20]   Related to this point, it is also possible that the outcome of either the appeal, or the judicial review, could render the other challenge practically moot. In Re Foundation for Anti-Aging Research, the Court recorded that it was not uncommon for the High Court to reverse the decision of the Board on appeal, which is what the Court did in that case.16 Here this could mean that Greenpeace could succeed with its

15     Re Foundation for Anti-Aging Research, above n 9, at [90]–[92].

16     At [96]–[99].

appeal and obtain an order that it have charitable status. That would render any argument of apparent bias or procedural impropriety redundant. By the same token an appeal by way of rehearing could potentially cure procedural impropriety before the Board, albeit that that might be considerably more difficult to establish with a challenge based on apparent bias.17 Nevertheless what happens on appeal might have an impact on the relief granted for any judicial review success. At the present stage it is difficult to know just how inter-related the issues might become.

[21]   Finally, there is the key question of cost and efficiency. Mr Salmon argued that the judicial review point could be dealt with within a day, perhaps half a day. Judging from the time taken for the appeal the first time around, the appeal itself would likely take one day. This means that it would appear that both the appeal and the judicial review could be dealt with at a two-day hearing. Mr Salmon’s response to the points referred to above was to emphasise that Greenpeace should not be put to the additional cost of having to deal with the appeal as well as the judicial review when this could be avoided. But given that both matters can be dealt with in a two-day hearing, and the efficiencies in terms of the management of the case and the understanding of the issues by the Court, it seems to me that hearing the two matters together is resource efficient, and cost effective, for all parties and the Court.

[22]   For completeness, I record that I do not accept Mr Salmon’s argument that the Crown has caused unnecessary delay to the proceedings. It seems to me that that responsibility is shared, particularly given that the splitting of the issues only occurred in December 2018, many months after the proceedings were filed, and without the issue concerning a split hearing being addressed.

[23]   For these reasons, I direct that the judicial review and appeal should be heard together. Having discussed the position with counsel, I also give the following directions for the progress of the proceedings. In doing so, I note that there has already been some delay with these proceedings:

17     See generally Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [25.6].

(a)The respondents are to file and serve their affidavit(s) in response to the applicant’s affidavit in the judicial review proceeding within 15 working days of release of this judgment.

(b)Any affidavits in reply are to be filed and served 10 working days after service of the respondents’ affidavit(s).

(c)The matter is to be given a two-day fixture by the Registrar after consultation with counsel.

(d)Greenpeace’s submissions on both matters are to be filed 10 working days prior to the fixture.

(e)The Attorney-General’s submissions are to be filed five working days before the fixture.

(f)The parties have leave to apply for amendment to these directions, or to seek a judicial telephone conference.

Cooke J

Solicitors:

LeeSalmonLong, Auckland for Applicant Crown Law, Wellington for Respondents