H v Chief Executive of the Ministry of Social Development

[2018] NZHC 3137

ORDER PROHIBITING PUBLICATION OF NAMES OF THE APPLICANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-214

[2018] NZHC 3137

BETWEEN

H

Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:

28 November 2018

Counsel:

S J Fraser for the Applicant

B M McKenna and L M Jackson for the Respondent

Judgment:

30 November 2018

JUDGMENT OF CHURCHMAN J

Table of Contents

Introduction.......................................................................................................... [1]

Factual background............................................................................................. [9]

The applicant  [9]

The RCU  [13]

The BRC hearings  [24]

The judicial review causes of action................................................................. [31]

Freedom of expression  [37]

Peaceful assembly  [51]

Remedies............................................................................................................. [74]

Declaration  [76]
Mandamus/mandatory injunction  [100]

Damages  [107]

Costs  [127]

H v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 3137

[30 November 2018]

Introduction

[1]    The nature and limits of the rights of freedom of expression and peaceful assembly in a democratic society have been debated since as long ago as the year 399 BC when Socrates was tried by 500 his fellow Athenians for corrupting youth with his teachings.

[2]    In his defence, Socrates did not assert that the rights involved were individual rights which triumphed over his obligations as a citizen but the essence of his case was that he had entitlement to speak his mind and his students had a right to peacefully assemble to listen to him.1

[3]    Some 2000 years later, the rights we now know as freedom of expression and freedom of association were articulated by James Madison in the year 1791, in the First Amendment to the Constitution of the United States of America. The text of the first amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[4]    In New Zealand, these rights were incorporated into the New Zealand Bill of Rights Act 1990 (NZBORA). Section 14 of that Act says:

Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[5]Section 16 of NZBORA says:

Freedom of peaceful assembly

Everyone has the right to freedom of peaceful assembly.

[6]    The principal issues for determination in the present application for judicial review are whether the applicant’s NZBORA rights to freedom of expression and

1      See  Socrates and  the Athenians:  The  Gapfly and  the  Freedoms of Speech  and Association   P A Keane Keynote Address to the Hellenic Australian Lawyers’ Association, South Australian Chapter, 2018 John William Perry AO QC Oration, Adelaide Pavilion, 24 August 2018.

peaceful assembly have been breached. The pleadings also assert a breach of the right to natural justice set out in s 27 of NZBORA.

[7]    However, in light of the High Court’s recent judgment in Chief Executive of the Ministry of Social Development v L,2 the respondent has conceded that the applicant’s right to natural justice has been breached and, accordingly, it is not necessary for this Court to address that issue further.

[8]    A further issue in this case is the availability of the remedies sought by the applicant and whether the Court should exercise its discretion to grant some or all of the remedies.

Factual background

The applicant

[9]    The applicant is, and has for some years, been in receipt of a benefit. He has at times made claims for various supplemental benefits. This has bought him into contact with the staff of Work and Income New Zealand (WINZ).

[10]   The manner in which the applicant interacted with WINZ staff caused concern for the  respondent.  Those  concerns  are  articulated  in  an  internal  email  dated  14 October 2014. The concerns listed included:

(a)the applicant challenged virtually every decision;

(b)the applicant had recently been contacting WINZ wanting to speak to the person in overall authority;

(c)that during his contacts the applicant taunted whoever was on the phone and then raised complaints about matters such as service and demeanour;

2      Chief Executive of the Ministry of Social Development v L [2018] NZHC 2528.

(d)the applicant was someone skilled in the use of technology and this fact, coupled with the applicant’s 184 convictions for fraud, raised a concern that he was attempting to infiltrate WINZ’s systems;

(e)that staff had found the applicant’s calls “unusual, threatening and menacing”, and that he recorded all conversations;

(f)the applicant appeared to have a strategy to confuse and annoy people;

(g)the applicant followed up conversations with comments posted to a blog he maintained with comments being critical of the integrity and performance of senior public servants; and

(h)that on a good day the applicant he could upset and confuse five or more staff at various levels within MSD.

[11]The conclusion in the email was:

Going forward, it is my recommendation that all of the parties known to be engaging with [the applicant] should be called together to understand and to contain his activities which ultimately are highly likely to result in fraud. I also recommend that he be managed hence forth by the Remote Client Unit.

[12]   There was some support  for some of the concerns listed in  the email  of     14 October 2014 in the applicant’s own description of himself. In his affidavit dated 13 September 2018, the applicant described himself as being: “… a specialist in IT but am unable to find employment at the moment due to my criminal convictions.”

The RCU

[13]   As a consequence of the internal email of 14 October 2014, the applicant was transferred to be a client of the RCU as of 15 October 2014. The RCU had been established in 2004 by the respondent to provide services to clients who, due to unacceptable behaviour or exceptional reasons, could no longer access services through their local WINZ service centre.

[14]   The Court in the case of Chief Executive of the Ministry of Social Development v L3 noted that at any given time some 80 beneficiaries (out of a total of approximately

1.1 million) were required to interact with the respondent by means of the RCU.

[15]   The affidavit filed by Jennifer Mary Allan, on behalf of the respondent, dated 18 October  2018, confirmed that the  applicant  ceased  to  be a  RCU client as of  22 January 2018. She said that this meant that the applicant was able to return to accessing WINZ services and assistance through normal channels but would be managed as a “low trust client” by a senior case manager on site.

[16]At the relevant times, the respondent had a policy in relation to the RCU that:

Staff members who work within the Unit must use pseudonyms in order to protect their identity and safety.

[17]   Clients assigned to the RCU could make contact via telephone, fax, email or post.

[18]   The respondent had also established a body called the Benefits Review Committee  (BRC).  The  BRC  was  a  statutory  decision-maker  established  under s 10A(2) of the Social Security Act 1964 (SSA) to review Ministry decisions or recommendations in relation to benefits.

[19]   A BRC was comprised of two Ministry staff members and one person outside the Ministry who represented the interests of the community. Section 10A(7) of the Act provided that a BRC could not include any person who was involved in the decision under review.

[20]The BRC was empowered to confirm, vary, or revoke the impugned decision.

[21]   In exercising its powers, a BRC was effectively acting in the Chief Executive’s stead.4

3      Above n 2.

4      Arbuthnot v Chief Executive of the Department of  Work  and Income  [2007] NZSC 55; [2008] 1 NZLR 13 at [19].

[22]   Section 10A(9) of the Act required a BRC to provide its decision in writing, together with reasons for that decision. An applicant unsatisfied with the decision had a right of appeal, by way of rehearing to the Social Security Appeal Authority (SSAA, or the Authority).5

[23]   Clients in the RCU were entitled to use the BRC and, between May 2016 and October 2015, the applicant appealed some six decisions to the BRC.

The BRC hearings

[24]   As the manner in which these appeals were heard and the outcome of the decisions are relevant, I will set out the details of each appeal:

(a)On 29 May 2015, the BRC heard Review of Decision (ROD) 195844. The appeal related to the Ministry’s decision of 23 February 2015 to approve an advance benefit payment to the applicant of $1,000 for rent and bond instead of the $1,500 requested.

Pseudonyms were used by the two Ministry staff on the BRC but not the community representative.

The hearing proceeded on the papers with the applicant’s advocate filing a written submission on his behalf. There were no appearances at the hearing but the BRC had spent over 40 minutes trying to unsuccessfully contact the applicant’s advocate.

The Ministry’s decision to pay the applicant $1,000 for rent and bond was upheld but the BRC recommended that the Ministry pay the applicant a $500 advance payment of benefit for overdue rent. This was promptly paid.

5      Sections 12J(1), 12M(1) Social Security Act 1994.

(b)On 12 June 2015, the BRC heard ROD 195941. This related to a decision to pay a special benefit at a rate of $82.50 per week instead of the rate of $125 per week sought by the applicant.

Pseudonyms were used for all BRC panel members.

The hearing was on the papers. The Ministry’s decision was upheld. The applicant appealed the BRC’s decision to the Authority.

In a decision of 18 December 2015, the Authority criticised the BRC’s use of pseudonyms in relation to ROD 195941 and referred the matter back to the BRC.

(c)ROD 195941 was reheard by the BRC on 4 March 2016.

Pseudonyms were used by the Ministry staff on the BRC but not the community representative. The panel members’ real names were subsequently disclosed to the applicant.

The hearing was conducted by teleconference with the applicant having been given the option of attending via teleconference or having his advocate do.

The BRC upheld the Ministry’s decision.

The applicant appealed the BRC decision to the Authority.

(d)The Authority required the Chief Executive of the Ministry to provide an explanation for the conduct of the further hearing and the use of pseudonyms.

The Ministry responded by explaining that the use of pseudonyms had been an error and apologised unreservedly. As well as the names of the BRC members subsequently being released to the applicant, statements

from the Ministry staff involved confirming they had not been involved in the decisions being reviewed were also provided.

On 18 July 2016, the Authority issued a decision saying that it considered the explanation offered by the Ministry regarding pseudonyms to be highly unsatisfactory. However, the Authority chose not to refer the matter back to the BRC, considered the merits of the decision and upheld the Ministry’s decision.

(e)On 16 October 2015, the BRC heard ROD 204289. This related to a decision to decline an advance benefit payment of $887 for car tyres and wheel alignment.

Pseudonyms were used for all panel members (this decision pre-dated the July  2016  Authority  decision  in  relation  to  the  appeal  of ROD 195941).

The applicant and his advocate appeared by teleconference.

The BRC overturned the Ministry’s decision of 16 September 2015.

The Ministry paid the applicant $783, being the actual cost of car tyres and wheel alignment on 2 November 2015.

(f)On 11 December 2015, the BRC heard ROD 205240. This related to the declining of an application for advance payment of a benefit to cover vehicle registration costs.

No pseudonyms were used.

The applicant and his advocate both appeared via teleconference. The BRC overturned the Ministry’s decision.

(g)On 4 February 2016, the BRC heard ROD 209913. The appeal related to a decision to decline to include travel costs in his disability allowance relating to the applicant’s attendance at his support group.

No pseudonyms were used.

The applicant and his advocate appeared by teleconference. The BRC upheld the Ministry’s decision.

The applicant appealed to the Authority, and the Authority dismissed the appeal.

(h)ROD 205208 was lodged by the applicant on 8 October 2015. As the Ministry changed its decision following internal review, no hearing by the BRC was necessary.

[25]   By way of summary, of the six appeals that were heard by the BRC (inclusive of the rehearing of ROD 195941), four were completed on the basis that some or all of the members of the BRC used pseudonyms. Two of those four hearings proceeded on the papers and the other two proceeded with the applicant either having the option of participating in the teleconference or the applicant and his advocate actually participating in the teleconference.

[26]   In two of these hearings before the BRC, the applicant achieved what he wanted and those matters went no further.

[27]   Two of these four matters were referred to the SSAA. The SSAA referred ROD 195941 back to the BRC where it was reheard with the applicant appealing the decision on the rehearing. The SSC conducted a merits-based appeal and dismissed the appeal.

[28]   Of the two BRC hearings where there was no use of pseudonyms, in each case, the applicant and his advocate participated in the hearing by way of teleconference.

[29]   In the first one, the applicant was successful and the matter did not proceed further. In the second one, the applicant appealed and had a merits-based appeal before the SSAA, which was dismissed.

[30]   In all instances, the applicant either achieved an outcome that he was satisfied with (in terms of payment of the additional benefits he sought) or, in respect of the two matters where he was unsatisfied with the BRC’s decision (ROD 195941 and ROD 209913), had the benefit of a full merits-based appeal before the SSAA which upheld the substantive BRC decision in each case.

The judicial review causes of action

[31]The applicant has pleaded three separate causes of action. They are:

(a)a breach of natural justice – s 27(1) NZBORA;

(b)a breach of freedom of expression – s 14 NZBORA; and

(c)a breach of freedom of assembly – s 16 NZBORA.

[32]   The first two causes of action relate specifically to the failure of the BRC to disclose the real names of the members. The third cause of action challenges the manner in which the BRC conducted its hearings, in particular its failure to permit oral hearings which the applicant was able to attend in person.

[33]   The statement of claim pleads a novel version of the right of freedom of assembly: “The plaintiff was entitled to assemble peacefully before the BRC to present his case.”

[34]   The applicant’s claim that the principles of natural justice (and therefore s 27 NZBORA) were breached by the use of pseudonyms, on four occasions by BRC committees, is not in dispute.

[35]   The respondent has specifically accepted that in light of the High Court’s recent judgment in Chief Executive of the Ministry of Social Development v L,6 that the applicant’s right to natural justice was breached by the use of pseudonyms by members of the BRC. The real matter in issue relates to the relief that the Court should grant in respect of the admitted breach. The Court is also required to consider the claims of breaches of ss 14 and 16 NZBORA which were not matters covered by the decision in Chief Executive of the Ministry of Social Development v L.

[36]   I will address the arguments relating to breaches of the s 14 NZBORA right of freedom of expression and s 16 NZBORA freedom of peaceful assembly before considering questions relating to relief.

Freedom of expression

[37]   The applicant relied on the right of freedom of expression set out in s 14 NZBORA as including the freedom to seek and receive information and opinions of any kind in any form. It was submitted that the applicant was entitled to seek and receive information about the identities of the members of the BRC.

[38]   The written submissions filed in respect of this matter also referred to the placement of the applicant in the RCU.

[39]   The affidavit of the applicant dated 13 September 2018 also addressed the question of the applicant’s placement in the RCU with him stating that it was “humiliating and frustrating” and made him “miserable” and “feel excluded”. The applicant in his affidavit went so far as to suggest that the RCU was “illegal”.

[40]   As Mr Fraser, on behalf of the applicant, was obliged to concede, the Court, in this case, has not been asked to review the decision to place respondent in the RCU, or the operation of that unit. Therefore, whatever the applicant’s views as to the justification for him being placed in the unit, or whether the respondent was entitled to have such a unit, they are irrelevant to any issue before the Court.

6      Above n 2.

[41]   The only case referred to by Mr Fraser in support of his claim that the use of pseudonyms by the BRC breached the applicant’s right of freedom of expression is the decision of the High Court in Stemson v Police.7 However, this case is of no assistance in establishing the proposition that the use of pseudonyms will infringe the right of freedom of expression.

[42]   The case was a criminal appeal of a conviction for disorderly behaviour under s 4(1)(a) of the Summary Offences Act 1981. Mr Stemson was convicted for his conduct in a WINZ office following an erroneous refusal to provide him an application form. Baragwanath J overturned the conviction after considering fresh evidence that Mr Stemson was entitled to receive the form which had not been provided to him. The specific s 14 right identified by the Court as being held by Mr Stemson was:8

… under s 14 of the New Zealand Bill of Rights Act 1990, to express to WINZ both his call for the Grant and for the application leading to it and his displeasure at WINZ’s failure to deliver them.

[43]   The Court went on to state that s 14 embraced the common law right of lawful process. That finding was significant in the context of a conviction for behaving in a disorderly manner at the WINZ office.

[44]   Mr Fraser submitted that the decision in Stemson v Police was authority for the proposition that it is the duty of WINZ to facilitate, not impede, applications for a benefit. However, Stemson v Police was simply the application of the principle developed in cases like Hall v Director-General of Social Welfare9 and Chief Executive Department of Work and Income v Scoble10 that the Ministry was obliged to be “proactive in seeing to welfare, and not defensive or bureaucratic”.11 The obligation on the respondent to facilitate applications for a benefit had been recognised well before Stemson v Police.

[45]   The Court’s comments in Stemson v Police were made in the context of the particular facts of the case including the failure by WINZ staff to provide Mr Stemson

7      Stemson v Police [2002] NZAR 278.

8 At [42].

9      Hall v Director-General of Social Welfare [1997] NZFLR 902 (HC).

10     Chief Executive Department of Work and Income v Scoble [2001] NZAR 1011 (HC).

11     Above n 9 at 912.

with the form he needed and his behaviour in response to that, which had resulted in the disorderly behaviour conviction. The Court said:12

No one has the right, without permission, to enter a private office; still less to raise one’s voice, make demands, and disturb the office staff and those having business with them. But as the charge recognises, a WINZ office is not a private but a public place. That is where New Zealanders with a legitimate claim to a benefit have the legal right to enter and to receive the help they need to apply for their entitlement. The duty of WINZ is to facilitate, not to impede, that course.

[46]   The respondent in the present case noted the dearth of New Zealand authority on the scope of the right to seek and receive information contained in s 14 NZBORA. The fact that there is no relevant New Zealand authority does not mean that the Court, in an appropriate case, should not attempt to clarify the scope of the rights articulated in s 14.

[47]The issue is whether this is an appropriate case.

[48]   Mr Fraser referred the Court to a decision of the European Court of Human Rights which he submitted provided some guidance in relation to the right to seek and receive information.13 That case involved the interpretation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The relevant part of Article 10 expresses a right in this way:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

[49]   In that case, the applicant (a non-governmental human rights organisation), had sought information about the identity of public defenders in Hungary and the number of appointments given to such defence counsel in specific locations. The respondent claimed that the information sought was not public interest data (and therefore disclosable) and claimed that because defence counsel were not members of a body performing State, municipal or public duties, their names constituted private data which was not disclosable. The European Court of Human Rights held that, because

12 At [66].

13     Magyar Helsinki Bizottsag v Hungary Application No. 18030/11, European Court of Human Rights, Strasbourg, 8 November 2016.

the data was readily available and fell within the definition of public interest data, Article 10 had been breached. Given the difference in facts and its focus on the distinction between public and private data, it is not compelling authority for the proposition Mr Fraser relies on it for.

[50]   However, it is not necessary for the Court to expand the scope of the concept of freedom of expression in this way in order to vindicate the applicant’s rights. That is because the use of pseudonyms by the BRC has already been held by the High Court to be a breach of s 27 NZBORA. Finding that s 14 NZBORA was also breached would add nothing beyond the breach of s 27 already admitted. Any decision on the expansion of the scope of the traditional boundaries of s 14 is best left to a case where it is essential to resolution of the issues before the Court.

Peaceful assembly

[51]   In his written submissions, the applicant correctly noted that the freedom of peaceful assembly affirmed by s 16 NZBORA is not limited to gatherings for the purpose of protest.14 He claims that, in this case:

It is the right of individuals to gather for a common purpose or pursue common goals – in this case to determine eligibility to a benefit under the Social Security Act 1964.

[52]   As was the case in relation to the claimed right of freedom of expression, the submissions of the applicant go beyond the process adopted by the BRC and extend to the applicant’s concern about his placement in the RCU. The written submissions say that the applicant’s:

… right to peacefully assemble was for the common purpose of determining his eligibility to a benefit. It was breached when he was placed in the RCU, and more specifically, when he was denied to (sic) right to participate in his hearings on 29 May 2015 and 12 June 2015.

[53]   The limitation in the written submissions to the two particular dates is a narrowing of the claim as pleaded in the amended statement of claim which did not identify the particular BRC hearings relied on and implied that it was all six hearings.

14     Morse v Police [2011] NZSC 45 at [110].

[54]   The matter was further complicated during the course of oral argument when Mr Fraser conceded that the BRC was entitled to hold hearings on the papers and his complaint was in relation to the hearings which proceeded by way of teleconference. He submitted that, instead of a hearing by teleconference, the applicant’s right of peaceful assembly entitled him to be present in person at such a hearing.

[55]   Mr Fraser’s concession that the BRC was entitled to hold a hearing on the papers is inconsistent with his written submissions. In relation to the two identified hearings (29 May 2015 and 12 June 2015), the written submission stated:

The purpose of these Committee hearings was to make decisions about [the applicant’s] eligibility to benefits under the Social Security Act. [The applicant] was not permitted to attend, even by teleconference. This breached his right to peacefully assemble.

[56]   To the extent that sense can be made of the applicant’s conflicting submissions on this point, it seems that the applicant is contending that the freedom of assembly set out in s 16 entitles him to a particular type of hearing. That is a novel proposition. It does well beyond and substantive content of s 16 NZBORA previously recognised by any New Zealand  court.  The authors  of the  New  Zealand  Bill  of  Rights Act: A Commentary state:15

The freedoms of association and peaceful assembly generally do not impose positive duties on the State. Rather, the guarantees impose negative constraints on the State’s ability to interfere with the freedom of the individual to associate and assemble with other individuals which the State has not to breach (freedom from State interference). (citation omitted)

[57]   The BRC is created by statute.16 The heading of s 10A is “Review of decisions of Chief Executive made under delegation by other decision-makers.” A BRC is therefore only concerned with decisions where the decision-making power has been delegated by the Chief Executive to someone else. Beyond requiring that a person seeking a review must apply in writing within three months after receiving notification of the relevant decision, s 10A leaves the procedure to be followed by the BRC up to them. It permits a majority decision.17 It provides that no officer of the Department

15     New Zealand Bill of Rights Act: A Commentary, 2nd ed, Andrew Butler and Petra Butler, LexisNexis, Wellington 2015 at 15.5.3.

16     Section 10A Social Security Act 1964.

17     Section 10A(6).

shall act as a member of the BRC if that officer was involved and the decision being reviewed.18 There is a requirement that the BRC give written notification of its decision including decisions and advice as to the right of appeal to the SSAA.19

[58]   The two BRC hearings identified in the written submissions of Mr Fraser – 29 May 2015 (ROD 195844) and 12 June 2015 (ROD 195941) were dealt with on the papers. The applicant’s advocate had filed submissions, as had the respondent, and the decisions both record that no formal hearing was held.

[59]   It was not submitted that the applicant had made a request for a different type of hearing in relation to either case. Neither was it submitted that there was any particular characteristic of the matters in issue that meant that a papers hearing was inappropriate. No injustice can be pointed to as a result of the matter having proceeded on the papers.

[60]   The BRC is a low-level tribunal, essentially making administrative decisions on statutory entitlements. There is nothing in the purpose of the SSA, nor s 10A itself, that would indicate Parliament intended that any particular degree of formality of hearing was required.

[61]   Mr Fraser referred to the fact that in relation to the 29 May 2015 hearing, the evidence was that the BRC had attempted to contact the applicant’s advocate over a period of some 40 minutes. He submitted that an inference could be drawn that they saw it was necessary to have oral input from the applicant’s advocate.

[62]The relevant passage in the decision records:

No appearances were made at the hearing.

The Committee would like to note that they attempted to contact Benefit Rights Service over a period of 40 minutes but were unsuccessful.

[63]   The decision then goes on to clearly set out the arguments advanced on behalf of the applicant, and those for the respondent. There is no indication in the decision

18     Section 10A(7).

19     Section 10A(9).

why the BRC attempted to contact the applicant’s advocate. Neither is there any indication that they did not understand the written submissions provided to them, or that they believed that they needed to hear from the applicant’s advocate in person. There was no injustice or prejudice to the applicant in the process that followed. The outcome was one that the applicant was satisfied with and did not appeal.

[64]   It is not tenable to maintain that a hearing of a BRC involves an assembly of the type referred to by s 16 NZBORA and can realistically be described as a gathering “for a common purpose” or to “pursue common goals”. The submissions of the applicant in claiming this status for a hearing conducted by a low level administrative body go well beyond the types of assembly which have traditionally been identified as falling within the ambit of s 16.

[65]   Those cases where the right of peaceful assembly or freedom of association have been discussed, have tended to focus on the importance of those rights as part of the democratic process.20

[66]The authors of the New Zealand Bill of Rights Act: A Commentary state:21

Freedom of peaceful assembly and freedom of association are important building blocks of a free and democratic State. These rights ensure that citizens can participate in the shaping of public opinion. In democracies based on representation by a Parliament, rather than by referenda, the opportunity of citizens to voice their opinions collectively and form associations to support each other in their views (not only in political parties) and organise assemblies is important for the democratic process.

[67]   They go on to note that as well as assembling for overtly political purposes, it is important for democracies that other forms of group assemblies are also permitted:22

… like parties, coffee mornings or parades, since this part of community life is the first stepping stone for connecting with other members of the community, forming opinions and taking part in the day-to-day running of a State.

20 See the Supreme Court decision in Awatere-Huata v Prebble [2005] 1 NZLR 289 at [28], Elias CJ and [79] (Keith J). See also the decision of the Supreme Court of Canada in Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313 at 334 per Dickson CJ.

21     Above n 15 at 15.5.1.

22     Above n 15 at 15.5.1.

[68]   A hearing before an administrative body set up by statute does not have the quality of the type of assembly for a common purpose or pursuit of a common goal that has characterised those cases where the right has been identified.

[69]   They lack the “public opinion making” or aspect of participation in community life that has been identified as a feature of such assemblies.23  The attempt to invoke  s 16 NZBORA in this case is therefore misconceived.

[70]   Even if the BRC had been a judicial body, the applicant would not have had a legal right to an oral hearing whether pursuant to NZBORA or any other principle of law.24

[71]   In certain circumstances, requirements of fairness may oblige judicial bodies to hold an oral hearing.25

[72]The Courts have distinguished public decision-makers from courts of law.26

[73]   The sorts of factors which the Courts have held might require a judicial body to hold a hearing where the parties appear in person would be where considerations of credibility, personal characteristics or resolution of two conflicting versions of events are present.27 None of these factors exist in the present case.

Remedies

[74]   Having not found any breach of ss 14 and 16 NZBORA, it is now necessary to determine what remedy should flow from the acknowledged breach of s 27. I will address this in two parts.

[75]   Firstly, the application sought public law remedies such as declaration, an order in the nature of mandamus, and a mandatory injunction requiring for each previous

23     Above n 21.

24     R v Parole Board, ex parte West [2005] UK HL 1, [2005] 1 WLR 350 at [50].

25     P Joseph: Constitutional and Administrative Law in New Zealand I(4th ed, Brookers Ltd, Wellington 2014 at 25.4.4).

26     See Evans v Bradford [1982] 1 NZLR 638 and White v New Zealand Stock Exchange (No 2) [2002] NZAR 342.

27     Fraser v State Services Commission [1984] 1 NZLR 116 at 126.

sittings of the BRC that names of members sitting be disclosed to the applicant. Secondly, the claim sought public law damages for breach of NZBORA.

Declaration

[76]   The applicant seeks a declaration that the use of pseudonyms by members of the BRC breached the natural justice rights confirmed by s 27 NZBORA. Where a judicial review is sought of a decision of the Crown or an officer of the Crown, a declaration is the usual remedy.28

[77]   Like the other extraordinary remedies, the grant of a declaration is discretionary in proceedings for judicial review,29 and at common law.30

[78]   There are some well recognised restrictions around when the Court will exercise its discretion to make a declaration. In the case of Department of Internal Affairs v Whitehouse Tavern Trust Board, the Court said:31

It is well established that a Court will generally not make a declaration under the Judicature Amendment Act unless there is a dispute between the parties, the dispute arises from specific facts which are already in existence, the dispute is alive and its determination will be of some practical consequence to the parties or the public. The requirement that the declaration have utility means that it should be fact-specific, efficacious and capable of practical application. (footnote omitted)

[79]   Some of the other factors evaluated by the Court when considering whether a declaration is appropriate include whether the applicant has otherwise achieved the substantive result sought, whether it would serve a useful purpose, or whether the passage of time means that it could not have any practical effect.32

[80]   Mr  Fraser,  for  the  applicant,  in  response  to  the  arguments  raised   by Ms McKenna for the respondent as to the utility of the declaration sought, referred to

28     See M v Home Office [1994] 1 AC 377, [1993] 3 All ER 537 HL.

29     Sections 16, 18, 19 Judicial Review Procedure Act 2016.

30     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1057 at [1] and [112].

31     Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZAR 1708 at [80].

32     See Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].

the possibility that the issue of a declaration might repair unfair damage to the applicant’s reputation.33

[81]   However, in the present case, no issue of damage to the reputation of the applicant arises. The policy of BRC members using pseudonyms was not specific to the applicant but a generic one applied to all similar WINZ clients and, as a result of the order that I have made anonymising the applicant’s name in these proceedings, no- one will know of his involvement with the BRC.

[82]   However, even absent these two factors, I do not accept that the mere fact that the applicant has been the subject of a broad policy applied by the respondent is capable of damaging his reputation. The applicant’s affidavit did not explain how he believed that his reputation had been damaged.

[83]   The most significant factor in relation to the utility of a declaration is that the High Court has recently and unequivocally in the Chief Executive of the Ministry of Social Development v L, declared that the respondent’s practice of anonymising the names of BRC members was unlawful and in breach of the respondent’s obligations under s 27(1) NZBORA.

[84]   Collins J in that case concluded that express statutory authority was required before the rights protected by s 27(1) NZBORA could be compromised by anonymisation of the names of BRC members. He concluded that s 10A SSA did not provide such express statutory authorisation.

[85]   The arguments as to the prejudicial effect of the anonymisation of BRC members’ names that were advanced in Chief Executive of the Ministry of Social Development v L, were the same as those advanced in the present case. The Court in that case said:34

For present purposes, the engagement of the right to natural justice concerns Ms L’s desire to know the identities of members of the Committee hearing her review. That is so she can make an informed decision about whether or not to challenge the appointment of a particular member or members on the basis of

33     Relying on O’Regan v Lousich [1995] 2 NZLR 620.

34 Above n 2 at [39].

actual or perceived bias, because of her long history of interaction with employees of the Ministry and Committees, or because a Committee member may be disqualified by reason of their prior involvement with the decision that is the subject of the review.

[86]   There does not appear to be any aspect of the application for a declaration in the present case that is not already covered by the decision in the Chief Executive of the Ministry of Social Development v L. On that basis, there is no need for a declaration.

[87]   In his written submissions, Mr Fraser addressed the need for the remedies sought and effectively acknowledged the declaratory nature of the decision in Chief Executive of the Ministry of Social Development v L by saying:

A rehearing is not appropriate because the matters have been determined. A declaration, although requested, is an inadequate remedy. This is because “declarations” have already been made by the Authority and effectively by the High Court already and have been disregarded on an ongoing basis. There is a case that these ongoing breaches of s 27(1) undermine the rule of law.

[88]   The suggestion that the respondent had disregarded the decision of the High Court in Chief Executive of the Ministry of Social Development v L was hotly contested by the respondent.

[89]   Ms Allan, in her affidavit, explained that the failure to follow the guidance of the SSAA in relation to the first appeal of ROD 195941 was an error for which responsibility was accepted and an apology made.

[90]   Ms McKenna, in her oral submissions, indicated that, following a number of decisions which were equivocal on the practice of the use of pseudonyms by members of the BRC, the first case where the SSAA unequivocally indicated that this practice was not appropriate was the SSAA’s decision in the case of L that was overturned by Collins J.

[91]   Ms Allan’s supplementary affidavit of 26 November 2018 addressed what actions the respondent had taken to implement the decision of the High Court in L. She deposed that following the High Court judgment, the respondent immediately ceased the practice of BRC members using pseudonyms. She also provided details of

a new Remote Services Unit established by the respondent to provide services to clients who present a health and safety risk to staff.

[92]   I am satisfied that Mr Fraser’s submissions to the effect that the respondent has ignored or failed to implement the decision in L are unjustified.

[93]   The fact that the respondent has not immediately issued new policies but has sought to consult with staff before finalising them is not an indication of any lack of acceptance of the guidance given by the Court or lack of good faith on the part of the respondent.

[94]As Collins J set out in L’s case35

The respondent has obligations under the Health and Safety at Work Act 2015 to provide and maintain safe systems of work for its employees and these obligations require the respondent to eliminate or minimise risks to both the physical and mental health of its staff.

[95]   At [29], Collins J refers to the incident on 1 September 2014 when a Mr Tully entered the respondent’s premises in Ashburton and shot at four of its employees, killing two of them. This led to a prosecution of the respondent for breaching its obligations under the Health and Safety Employment Act 1992.36

[96]   It is therefore hardly surprising that, in circumstances where there are real potential consequences for the wellbeing and even the life of WINZ staff members as a result of the aggressive and violent behaviour of a small number of its clients, that the respondent would wish to consult with its staff members in relation to changes to policies designed to safeguard their wellbeing.

[97]   Mr  Fraser  submits  that  the  relief  sought,  including  a  declaration,  is,  “… required to vindicate (the applicant) and to deter this from happening again.”

[98]   No element of “vindication” would appear to arise on a making of a declaration. The applicant was not subject to an adverse finding as to his character or

35     Above n 2 at [27]-[24].

36     WorkSafe New Zealand v Ministry of Social Development [2016] NZDC 12806.

behaviour, and there is no question that he was somehow responsible for the policy of the use of pseudonyms by BRC members.

[99]   Given the changes set out in the supplementary affidavit of Ms Allan, I am satisfied that a declaration is not required in order to ensure that the respondent complies with its legal obligation.

Mandamus/mandatory injunction

[100]The applicant seeks:

(a)an order in the nature of mandamus that all future decisions include the names of members; and

(b)a mandatory injunction requiring for each previous sitting of the BRC that the names of members sitting be disclosed to the applicant in respect of his respective cases.

[101]   No remedy in the nature of mandamus or mandatory injunction lies against the Crown in judicial review proceedings.

[102]   Mr Fraser’s response to this proposition was to say that the entity named as the respondent in these proceedings was not the Crown but the Chief Executive of the Ministry of Social Development. In reality, the applicant is seeking to enforce obligations against a representative of the Crown.

[103]   An order in the nature of mandamus is an order that a duty be performed. It is, of course, a discretionary remedy. For an order of mandamus to issue, there must be a distinct request that the duty be performed and that the person on whom the duty to act rests must have unequivocally manifested their refusal to comply.37 As set out above, that is not the case here.

37     Woolf, Jowell and Le Sueur’s De Smith’s Judicial Review (6th ed, Sweet & Maxwell, London, 2007 at 894).

[104]   Even if an order in the nature of mandamus was available against the respondent, there would be no basis for issuing it given the fact that the respondent has changed its practice and no longer anonymises the names of the members of the BRC.

[105]   I also note that the applicant is no longer a client of WINZ required to interact through the RCU.

[106]   For similar reasons, if a mandatory injunction had been available against the respondent, it would not have been issued as the applicant has already received the information to which the request for an injunction was directed.

Damages

[107]The applicant sought damages being:

Compensation under the NZBORA in the sum of $15,000 for each and every time a BRC sat without providing names to the plaintiff in respect of his cases.

[108]   Mr Fraser, in his submissions, acknowledged the high threshold for the award of public law damages. He said that the behaviour of the respondent here met the “shocking” standard identified by the Court of Appeal in Attorney-General v Upton.38

[109]   Mr Fraser also categorised the failure by the respondent to comply with the direction by the SSAA in the appeal relating to ROD 195941 as going beyond the “bureaucratic bungle” that had been identified in Taunoa v Attorney-General39 and Combined Beneficiaries Union Inc v Auckland City COGS Committee.40

[110]A further justification put forward by Mr Fraser for the award of damages was:

… these breaches have continued and (probably) still take place, despite consistent directions from the Authority, and now the High Court as well.

38     Attorney-General v Upton [1998] NZCA (CA 305/96) p 62.

39     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

40     Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56.

[111]   For the reasons set out above, the submission that the respondent is continuing to use pseudonyms in the decisions of the BRC is unfounded.

[112]   In support of the claim for damages, Mr Fraser referred to what he said was humiliation and frustration that the applicant had experienced. However, it is clear that the source of the applicant’s humiliation and frustration was being placed in the RCU, not the manner in which the BRC dealt with his appeal. At [7] of his affidavit of 13 September 2018, the applicant said:

Being “put” in the RCU is so humiliating and frustrating. It makes me miserable and I feel excluded. The worst part is not being able to properly communicate with someone when I need something.

[113]   The process adopted by the BRC was addressed at [8] of the same affidavit where the applicant said that when a decision got to the BRC:

… more nameless people get to make a decision on my matter. I can’t debate it with them, I can’t attend the hearings and see them, the whole purpose is unfair and drawn out.

[114]   The comments about not being able to debate matters with the BRC and attending hearings, are not matters where there has been any breach of s 27 NZBORA, therefore they cannot support an award of damages.

[115]   Much of the content of the applicant’s affidavit of 13 September 2018 has nothing to do with the use of pseudonyms. It is replete with criticisms of, or insults directed toward, staff of the respondent. Several paragraphs are devoted to the actions of a named staff member who the applicant claims put some documentation relevant to him in a paper shredder. This is wholly unrelated to the use of pseudonyms. There is nothing in the affidavit that would indicate that the impact on the applicant’s dignity or feelings from the use of pseudonyms by BRC members (as opposed to the many other grievances the applicant has about the respondent and its staff) was of such severity that public law damages are merited.

[116]   The leading case on damages for breaches of NZBORA is the Supreme Court decision in Taunoa v Attorney-General.41

41     Above n 39.

[117]In that case, the leading judgment is that of Blanchard J. He noted:42

… Bill of Rights damages do not fill the same function as common law damages or equitable compensation and that they should not be allowed to fill perceived gaps in the coverage of the general law.

[118]Blanchard J went on to say:43

… making amends to a victim is generally a secondary or subsidiary function of NZBORA damages and that the more important task is to bring the infringing conduct to an end and ensure future compliance.

[119]   The Court said that the award of public law damages is normally more to mark society’s disapproval of official conduct than it is to compensate for hurt to personal feelings.

[120]These principles have been widely applied subsequently.44

[121]   In order to assess whether the breach of s 27 in the present case could be categorised as “egregious”,45 or such as to “shock the public conscience”,46 it is helpful to consider the practical consequences of the use of pseudonyms in this case.

[122]   In ROD 195844, the use of pseudonyms had no material effect on the applicant. He was effectively successful and did not need to appeal the matter to the SSAA.

[123]   In relation to ROD 195941, following the hearing before the BRC, the applicant had the benefit of a full merits-based hearing before the SSAA which referred the matter back to the BRC. In relation to the second appeal, the applicant again had a full merits-based hearing before the SSAA which dismissed the appeal. He was also subsequently provided with the names of the members of the BRC who had used pseudonyms. Any disadvantage in the use of pseudonyms by the BRC was covered by the full-merits appeal before the SSAA.

42 At [259].

43     Above n 39.

44     See for example the decision of the Court of Appeal in Combined Beneficiaries Union Inc v Auckland City COGS Committee [2009] 2 NZLR 56 at [59]-[65].

45     See Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [81].

46     See Combined Beneficiaries Union Inc v Auckland City COGS Committee, above n 41 at [70].

[124]   In relation to ROD 204289, the applicant was successful before the BRC and was not disadvantaged in any way by not, at the time, knowing the names of all of the members of the BRC.

[125]   There is nothing in the circumstances of the breach of s 27 that could properly be classified as “egregious”. Neither is there anything in the consequences of the breach for the applicant that could be said to shock the public conscience.

[126]   Unlike cases such as Attorney-General v Upton,47 it cannot be said that the outcome of any of the reviews undertaken by the BRC where pseudonyms were used, would have been different if the applicant had known the real names of the Committee members. That is because either the applicant obtained a successful outcome from the BRC, or he had the benefit of having his review considered on the merits by the SSAA where no question of the use of pseudonyms arose.

Costs

[127]   The applicant sought costs and submitted, “The costs sought are exactly what (the applicant’s) legal aid costs will be.” This was estimated as being “far less than schedule costs”.

[128]   The respondent wished to be heard on the question of costs so I will not determine the matter now.

[129]   However, my provisional view is that this is a case where, but for the decision of the Court in the Chief Executive of the Ministry of Social Development v L, the Court would have made a declaration that the use of pseudonyms by members of the BRC was a breach of s 27 NZBORA.

[130]   I suspect that, had the outcome in Chief Executive of the Ministry of Social Development v L been known prior to the commencement of these proceedings, they may not have been issued.

47     Above n 38.

[131]   My provisional view is therefore that a costs award of the nature sought by the applicant would be appropriate.

[132]   Should the respondent wish to make submissions on costs, then they are to be filed and served within 10 days, with the respondent having 10 days to reply.

Churchman J

Solicitors:

Liberty Chambers, Wellington for the Applicant Crown Law Office, Wellington for the Respondent