Henry v Minister of Justice
[2019] NZHC 1234
•31 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1898
[2019] NZHC 1234
UNDER the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, and
the Human Rights Act 1993IN THE MATTER
of the process of selection for the post of New Zealand Race Relations Commissioner
BETWEEN
COLIN SAMUEL HENRY
Applicant
AND
THE MINISTER OF JUSTICE
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 17 May 2019 Appearances:
Applicant in person
V McCall and J Watson for the First and Second Respondents
Judgment:
31 May 2019
JUDGMENT OF GAULT J
(Application to rescind or vary interlocutory judgment)
This judgment was delivered by me on 31 May 2019 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors / Counsel:
Mr C S Henry, Auckland
Ms V McCall and Mr J Watson, Crown Law, Wellington
HENRY v THE MINISTER OF JUSTICE [2019] NZHC 1234 [31 May 2019]
[1] This is a further interlocutory application in a proceeding where Mr Henry seeks judicial review of the appointment process for the position of Race Relations Commissioner (RRC).
[2] At the end of the hearing of the substantive judicial review application on 27 March 2019, following the respondents’ confirmation that they intended to maintain the involvement of the independent panel (the panel) advising the Minister on the selection of the RRC, Mr Henry made an oral application for an interim order pending judgment that no further steps be taken by the panel.1
[3] By judgment dated 18 April 2019,2 I dismissed the application for an interim order.
[4] On 26 April 2019 Mr Henry applied, pursuant to rr 7.49 and 7.44, to rescind or vary my interlocutory judgment of 18 April 2019.3 By way of variation, Mr Henry seeks an order that in pursuing the RRC selection process the Minister ought not to involve the panel pending further order. The respondents oppose the application.
Background
[5] The factual background to this proceeding is set out in my judgment of 18 April 2019. I do not repeat it here.
Grounds for rescission or variation
[6] In the circumstances of this case, I set out the grounds, evidence and submissions in some detail.
[7] The grounds on which rescission or variation is sought by Mr Henry are as follows:
1 An earlier application for an interim order was dismissed by Fitzgerald J on 1 November 2018:
Henry v Minister of Justice [2018] NZHC 2831.
2 Henry v The Minister of Justice [2019] NZHC 889.
3 On 1 May 2019 Mr Henry filed a memorandum requesting that his application be transferred to the Court of Appeal, which was also opposed. On 13 May 2019 I declined to transfer the application to the Court of Appeal: Henry v The Minister of Justice [2019] NZHC 1039.
(a)The applicant considers that the decision is wrong.
(b)The decision was made following the applicant’s oral application. As such, the applicant was not positioned to provide “full argument” to assist the Court. The reply submissions provided by the applicant could properly address only those matters raised by the respondents in their opposition to the oral application.
(c)The Court has not had the benefit of oral argument by the parties.
(d)Additional points and/or facts have emerged which were not before the Court.
(e)It is just that the decision be rescinded or varied.
(f)The further grounds set out in the affidavit filed in support of his application.
[8]Mr Henry’s affidavit in support addressed the following:
(a)His reason for seeking judicial review, reflecting his position that the judgment was incorrect to identify one of his concerns about the panel as being its view that he should not be shortlisted for interview.
(b)Although he has submitted an expression of interest (EOI) in the current round, he has no expectation that he will be shortlisted.
(c)His application for the position of Deputy Chair of the Human Rights Review Tribunal, for which he was shortlisted but ultimately unsuccessful. That position was also re-advertised.
(d)That the media was sent “fake news” relating to a previous dispute in which he was involved 20 years ago.
(e)Another attempt to discredit him after his complaint about harassment at New Zealand Customs became public 19 years ago, and related allegations concerning his former lawyer and the Law Society.
(f)His concern about the rule of law and racism.
Grounds in opposition
[9] The grounds on which the respondents oppose rescission or variation are as follows:
(a)The Court’s decision is not wrong.
(b)The applicant had the opportunity to put whatever arguments he wished to the Court at the hearing on 27 March 2019.
(c)The applicant consented to a timetable that did not provide him an opportunity to make further submissions.
(d)The Court did not overlook any relevant point of evidence in dismissing the application for an interim order.
(e)The applicant has not raised any fresh, relevant evidence that the Court should have the opportunity to consider.
(f)There has been no change in circumstances since the hearing.
(g)No other special circumstance has arisen since the hearing.
Submissions
[10]In his written memorandum, Mr Henry submitted:
(a)The judgment was incorrect to state, at [44], that he still seeks to stop part of the process that was the subject of the earlier application,
drawing a distinction between the selection process and having the panel excluded from participation in the process.
(b)The judgment was incorrect to identify one of his concerns about the panel as being its view that he should not be shortlisted for interview.
(c)The judgment incorrectly addresses the jurisdiction in s 15 of the Judicial Review Procedure Act 2016, whereas the basis is r 7.44 of the High Court Rules. The order sought is not an interim order under s 15 but an order in the nature of an interlocutory injunction applying American Cyanamid v Ethicon Ltd.4 This involves principles not of preservation of the applicant’s position, but a weighing of the balance of convenience between the parties that determine whether or not to preserve the status quo. The balance of convenience lies in the applicant’s favour, requiring preservation of the status quo.
(d)The panel’s views about the quality of the EOIs received in the first selection effort are bound to have some effect on their assessment of EOIs received in the present selection process, from persons who submitted in the first. There is more than a mere risk of prejudice operating on the panel in their assessment of EOIs from previous applicants. Natural justice requires that the panel take no part in the current selection process.
(e)The decision finds that the applicant’s pleaded causes of action do not involve the panel and concludes that the chances of success in obtaining the order sought with respect to the panel are low, whereas American Cyanamid principles turn not on whether the prospects of success are high but on whether he has an arguable case.
(f)The issue of bias that emerged from Ms Winter’s affidavit can be considered even if not pleaded.
4 American Cyanamid v Ethicon Ltd [1975] AC 396 (HL).
(g)If the Court is eventually persuaded on the substantive issue that applicants who previously submitted EOIs and who do so in the current selection process have their EOIs assessed negatively by the same panel in breach of natural justice, there will be no effective remedy. On the other hand, if the injunction is granted, the Minister may choose to proceed with the selection process by another method which does not involve the panel, including by appointing a different panel.
(h)The cumulative evidence indicates that the panel has determined that the role of RRC is to be reserved for a Māori, but in any event the risk of prejudice is sufficient and should cause the Court to order the panel’s exclusion, at least until a final determination on the substantive judicial review application.
[11] Ms McCall, for the respondents, submitted that the primary purpose of r 7.49 is to enable the Court to review interlocutory applications which are not fully argued. The rule is intended to provide an alternative to an appeal so that interlocutory matters may be dealt with expeditiously and less expensively in the High Court. The rule is particularly appropriate where some additional point, not raised before, has emerged or there are facts, whether or not arising from a change of circumstances, which were not previously before the Court and should be considered.
[12] Ms McCall submitted that r 7.49 will only be engaged in the following circumstances:5
(a)where there was not full argument at the initial hearing;
(b)if some relevant point of evidence was overlooked;
(c)there has been a material change in circumstances; or
(d)some other special circumstance has arisen.
5 Citing Carter v Coroner's Court at Wellington [2015] NZHC 2998 at [11].
[13] She submitted the jurisdiction is a narrow one, designed to ensure interlocutory matters may be dealt with expeditiously and less expensively in the High Court.
[14] Ms McCall submitted that none of the grounds for an application to rescind or vary a judgment has been made out:
(a)The applicant had ample opportunity to put his case for interim relief. She referred to the extensive submissions recorded in the judgment.6 After the substantive hearing, timetabling directions for written submissions were made by consent. The minute indicated that a further telephone conference would be convened if necessary, but this was not requested.
(b)As to the “justice” of granting interim relief, the Court has already assessed that. Section 15 of the Judicial Review Procedure Act 2016 sets out the mechanism by which applications for interim relief in judicial review proceedings are to be dealt with, namely by way of an application for interim orders. The test for the making of interim orders requires first that the Court is satisfied the applicant has a position to preserve (which the respondents effectively conceded) and second, upon an assessment of all the circumstances of the case, the Court has a “wide discretion” as to whether an interim order ought to be granted. The width of that discretion allowed the Court to take into account the claims made, alongside the circumstances in which they are made. That is what the Court did. To say the Court ought to exercise its discretion under r 7.44 differently from the exercise of its discretion under s 15 makes little sense – the Court has already assessed the “justice” of granting interim relief in this case. It has found against the applicant.
(c)Mr Henry’s affidavit does not disclose any additional facts which were not before the Court.
6 At [27]-[34].
(d)The correct form of application for interim relief in judicial review proceedings is that provided for by s 15, and there is no basis for an interim injunction to be made in judicial review proceedings. However, if the applicant had intended to make an application for interim relief other than under s 15, he ought to have pointed out the error when he received the respondents’ memorandum. On a fair reading of the applicant’s 4 April 2019 reply memorandum, there is no basis for thinking that the wrong legal test was going to be applied. The only mention of r 7.44 was where the applicant refers to it applying “quite apart from, and in addition to, s 15”. The applicant also “accepts” principles and concessions referred to by the respondents in their memorandum without indicating that those principles did not apply in this case. The applicant ought not now be permitted to change tack and deny that he was seeking such an order, in favour of arguing that a different form of relief should have been considered. In any event, an argument that the Court applied the wrong legal test is a matter for appeal, not for an application to rescind or vary the Court’s order.
(e)The risk that the panel may have formed views which will colour their view if they remain involved was thoroughly canvassed in the judgment, with the Court ultimately holding that reference to bias, which was unpleaded, “cannot found the application for interim relief in relation to the panel”. The Court was correct in making such a finding and correct in stating that, even if the applicant is successful in his substantive judicial review application, the remedy he seeks on an interim basis is unlikely to be ordered on the substantive application.
(f)If the applicant’s submissions relating to his belief that the panel intends to appoint a Māori RRC is instead suggesting that there was evidence the Court overlooked in the judgment, the respondents say that the evidence on which he relies in reaching that conclusion was before the Court, and the applicant had the opportunity to draw it to the Court’s attention, but did not do so. The respondents say that this aspect of the applicant’s submissions is an attempt to put a new legal argument
before the Court based on evidence that was in the record prior to the 27 March 2019 hearing. That evidence was not overlooked. In order to vary or rescind an order under r 7.49, the Court must be satisfied that the original order was “wrong”.7 The judgment was not wrong – the Court’s conclusion that, in weighing up all the circumstances, the need to appoint an RRC outweighed the need to preserve the applicant’s position, was a permissible exercise of the Court’s discretion.
[15] Mr Henry filed an extensive written reply submission. I need not repeat the matters already addressed but record its summary:
The Decision should be rescinded as it is wrong, for the following reasons:
i.The Court took into account irrelevant considerations, in exercising its discretion, including:
a.That granting the order sought would prevent the Minister from taking any further action in, and thus delay, the RRC appointment process, when the Minister would be free to press ahead with the appointment process notwithstanding the grant of the order.
b.That one of the applicant’s concerns about the Panel was that it had not short-listed him for interview, when the applicant had made it clear from the beginning that the proceeding was actuated by no such concern.
ii.The Court failed to take into account relevant considerations, including:
a.The balance of convenience as between the parties, and its relation to preservation of the status quo.
b.The claim against the Panel in the 1st cause of action for orchestration of frustration of the applicant’s legitimate expectation.
c.The fact that the 4th cause of action, i.e., breach of the applicant’s right to justice, encompasses both bias and pre- determination.
d.That in any event, the applicant was under no obligation to plead a cause of action in bias to entitle the Court to issue the order sought.
iii.The Court approached the application on the ground that granting the order sought was to be determined under s. 15 of the Judicial Review
7 Rule 7.47(6)(a).
Procedure Act 2016 (the “Act”) when in fact the application sought none of the types of orders listed with specificity in the Section.
iv.As important as appointment of the RRC is, it is fundamentally more important that the Court ensure that the appointment process conforms to the rule of law, and protect the right to natural justice of all applicants, including those in the position of the present applicant.
[16] Mr Henry’s reply also emphasises that it was only after the hearing on 27 March 2019 that it came to light that the EOIs in the present selection process had been sent to the panel even before completion of the hearing. He submits this is a material change in circumstances.
[17] Mr Henry also sought a hearing, at which the parties made oral submissions. Mr Henry said he is not pleading bad faith but did highlight evidence from which he submitted it can be inferred that the panel has an ulterior motive when assessing overall justice. He referred to the re-advertising without real cause, failure to maintain records, calling a “damage control” meeting, shortlisting only two of 43 applicants (compared with four of fewer applicants for the other Human Rights Commissioners), current advertising in Te Reo, and the gratuitous belittling of Mr Henry following the damage control meeting. Mr Henry says the panel ought to have been open and transparent and informed the public that they were canvassing for Māori applicants to save non-Māori applicants wasting their time. He also referred to the principles against discrimination on the basis of race and ethnic or national origins in the Human Rights Act 1993.
High Court Rules relied on
[18]Rule 7.49 provides:
7.49 Order may be varied or rescinded if shown to be wrong
(1) A party affected by an interlocutory order (whether made on a Judge's own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
…
(4)The application does not operate as a stay unless a Judge so orders.
(5)Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.
(6)The Judge may,—
(a)if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b)on the Judge's own initiative or on the application of a party, transfer the application to the Court of Appeal.
[19]Rule 7.44 provides:
7.44 Power to grant interlocutory order or interlocutory relief
A Judge may make any interlocutory order or grant any interlocutory relief the Judge thinks just, even though the order or relief has not been specifically claimed and there is no claim for general or other relief.
Discussion
[20] The grounds relied on for saying my decision was ‘wrong’ raise questions of a kind that would generally be dealt with on appeal, if leave were granted.
[21] Rule 7.49 is an alternative to an appeal. In relation to a predecessor rule, the Court of Appeal in Graebar Holdings Ltd v Taylor said:8
As was said in Jollands Ltd v Whitley [1949] NZLR 290 in respect of R 421 of the Code of Civil Procedure (as it stood prior to amendment in 1954), a predecessor of R 264 of the High Court Rules, at p 292:
“The primary purpose of this rule is to enable the Court to review applications heard in Chambers which, owing to oversight, belief that the order will certainly be made in the form applied for, failure to appreciate the importance of the question involved, or similar reasons, are not fully argued in Chambers. The rule is intended to give an opportunity for reconsideration upon a fuller argument.”
Those are but examples. Rule 264 is intended to provide an alternative to an appeal to this Court so that interlocutory matters may be dealt with expeditiously and less expensively in the High Court. The rule is particularly appropriate where some additional point not raised before has emerged or there are facts, whether or not arising from a change of circumstances, which were not previously before the Court and should be considered.
8 Graebar Holdings Ltd v Taylor [1989] 2 NZLR 10 (CA) at 16.
[22] I accept Mr Henry’s submission that the primary purpose (of enabling fuller argument) is not the sole purpose. The essential jurisdictional threshold in r 7.49(6)(a) for the Judge to vary or rescind the order or decision is that the Judge be “satisfied that the order or decision is wrong”.9
[23] I accept that in the case of the oral application on 27 March 2019, there was limited opportunity for full argument. Subsequently, however, there was an adequate opportunity for submissions in writing and an oral hearing was not sought before my earlier decision. In any event, further submissions have been possible on this application, in writing and at an oral hearing, and I have taken those further submissions into account.
[24] Taking into account the further evidence and submissions on this application to vary, I do not consider that my decision was wrong – for the following reasons.
[25] Mr Henry did rely on s 15 of the Judicial Review Procedure Act 2016 in his earlier application. Rule 7.44 was briefly mentioned but I did not consider it added anything to the approach under s 15 in this case.10
[26] Although the interim relief sought is to restrain the further involvement of the panel, which has no statutory basis or function, I noted in my 18 April 2019 judgment that to overcome this I was prepared to assume that, as with the substantive relief sought, the interim relief could be reframed, declaring that the Minister ought to direct the panel not to take any further steps. Such relief was within the scope of s 15.
[27] If the relief sought were outside the scope of s 15, it does not follow that in this judicial review proceeding Mr Henry can instead seek an interim injunction adopting the approach in civil proceedings, applying American Cyanamid principles (or those in the leading New Zealand case of Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd).11 As Ms McCall submitted, s 15 sets out the mechanism by which
9 This is not to be conflated with the threshold for an application in r 7.49(1) that the party affected “consider that the order or decision is wrong”.
10 At [26].
11 American Cyanamid v Ethicon Ltd [1975] AC 396 (HL); and Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
applications for interim relief in judicial review proceedings are to be dealt with, namely by way of an application for interim order. The respective threshold tests of preserving the position of the applicant and serious question to be tried are different, reflecting the difference between judicial review and civil proceedings.
[28] The authorities cited do not support the extension of the interim injunction principles in civil proceedings to judicial review proceedings. Dunne v CanWest TVWorks Ltd involved the extension of public law principles to a private organisation whose decisions have public impact, not the application of American Cyanamid or Klissers in judicial review.12
[29] Payne v New Zealand National Party involved a pleading that was unclear as to whether the proceeding was an application for judicial review or not.13 Pankhurst J noted that s 8 of the Judicature Amendment Act 1972 (predecessor to s 15) provided for the grant of interim orders (rather than interim injunctions) in the judicial review context but doubted that it mattered much in that case whether relief was considered from the perspective of one or the other. He referred to the decision of the Court of Appeal in Carlton and United Breweries v Minister of Customs, which emphasised that in a judicial review context the strength or weaknesses of the claim, and all repercussions, public or private, of granting interim relief still fell for consideration.14 I agree. As I recorded in my earlier judgment, this was common ground.15 For the same reasons, I do not accept the submission that the earlier decision failed to assess the balance of convenience as it approached the application on the basis of s 15.
[30] In Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Ltd Gendall J observed in relation to s 8 that sometimes Courts adopt an approach similar to the application of principles when considering interim injunctions but, as the Court of Appeal made it clear in Carlton & United Breweries, the power under s 8 is not to be restricted by formulations found in American Cyanamid.16 Gendall J’s later reference to the possibility of an application for interim injunction in the Court’s equitable
12 Dunne v CanWest TVWorks Ltd [2005] NZAR 577 (HC).
13 Payne v New Zealand National Party HC Timaru CIV 2008-476-000125, 1 May 2008 at [22].
14 Carlton and United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA).
15 At [25].
16 Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Ltd HC Whangarei CIV-2010-488-000348, 13 September 2010 at [14].
jurisdiction reflects the fact that the case also involved a cause of action for breach of a settlement agreement.17 Finally, Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd was also part judicial review and part ordinary proceeding under the Fair Trading Act 1986.18
[31] I do not consider the judgment was incorrect to state that Mr Henry still seeks to stop part of the process that was the subject of the earlier application. Even if the panel is not seen as part of the process, this point leads nowhere as my conclusion in relation to the fact that this was a second application for interim relief was that Mr Henry was not inappropriately seeking to relitigate a matter that had already been dealt with by the Court.
[32] Mr Henry takes issue with my inclusion of the panel’s view that he should not be shortlisted for interview in my list of his apparent concerns about the conduct of the panel. This was in the context of assessing the position that needed preserving. Accepting that Mr Henry’s complaint is not about his omission from a shortlist or whether he was selected for the role, but about a fair and proper selection process, I do not consider that including this as an apparent concern when assessing the relevance of his criticisms to the need for interim relief gave rise to an error. At both hearings, Mr Henry was critical of the panel’s explanation for not shortlisting him, namely that he lacked governance experience. Mr Henry strongly denies Ms Winter’s account of their meeting. In any event, omitting this as an apparent concern does not alter my earlier conclusion that, assuming Mr Henry’s substantive claims are made out, there is little prospect the order sought affecting the panel would be granted.
[33] In relation to that conclusion, Mr Henry submits the decision was wrong in its assessment of the lack of recordkeeping. But I do not consider lack of recordkeeping, which forms part of the first cause of action (frustration of legitimate expectation) adds to the prospect of an order sought affecting the panel.
17 At [39].
18 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207, 24 September 2010 at [1].
[34] I accept that Mr Henry’s legitimate expectation claim includes the panel’s involvement in reviewing EOIs and the decision to re-advertise, which Mr Henry says was effectively a decision of the panel at least as the Minister’s agent. If that decision to re-advertise is found to frustrate Mr Henry’s legitimate expectation, the likely substantive relief would be a declaration in relation to the process. I do not consider it is necessary to exclude the panel going forward to preserve Mr Henry’s position in relation to his legitimate expectation claim. Mr Henry makes the point that once the Governor-General has appointed a new RRC, it would be more complicated for the Court to intervene. That may be so, but I am not being asked to grant interim relief to prevent appointment.
[35] The issue of bias and pre-determination was dealt with in my earlier decision. The concern that the panel is performing the same role in the current third invitation for EOIs was considered and found not to justify interim relief. Mr Henry’s suggestion of bad faith or ulterior motive on the part of the panel is based on existing facts, although the allegation is new and not pleaded. I do not overlook the fourth cause of action for breach of the New Zealand Bill of Rights Act 1990, particularly the right to natural justice protected by s 17, based on the allegations pleaded in the preceding causes of action. Rule 7.44 provides for an interlocutory order or relief that the Judge thinks just, even though that order or relief has not been specifically claimed and there is no claim for general or other relief, but it does not obviate the need for substantive claims to be pleaded. In any event, considering the facts again in light of this new allegation does not cause me to reach a different view in relation to interim relief.
[36] Of course, substantive prospects are only one factor to take into account in the Court’s discretion when considering interim relief. Assuming an interim order is reasonably necessary to preserve the position of the applicant, the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.19
19 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3], citing Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.
[37] For the reasons already given I also do not accept that unless the interim order is made, Mr Henry’s claim seeking an order that the panel play no further part in the RRC selection process will be rendered nugatory. This does not tip the balance in his favour.
[38] I accept that restraining the panel (or more correctly the Minister’s use of the panel) would not legally prevent the Minister from proceeding in a different way. But it does not follow that I was wrong in relation to the repercussions of granting relief when I concluded the process ought not to be delayed by an interim order.20 The Minister wishes to use the panel and there was no evidence that he would proceed without it. The evidence indicates that New Zealand is a signatory to United Nations protocols for the appointment of human rights commissioners (the Paris Principles), which require a transparent process. I do not accept Mr Henry’s submission that the restraint sought would impose no limitation on the RRC appointment process.
[39] Standing back, following further evidence and argument I do not consider my earlier decision was wrong. I also do not consider it is in the interests of justice to vary my decision by effectively reversing it as sought to grant interim relief pending my substantive judgment.
Result
[40]The application to rescind or vary is dismissed.
[41]In the unusual circumstances of this case, costs are reserved.
Gault J
20 At [55].
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