Henry v Minister of Justice
[2018] NZHC 2831
•1 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1898 [2018] NZHC 2831
UNDER the Judicial Review Procedure Act 2016
the New Zealand Bill of Rights Act 1990
IN THE MATTER
of the Human Rights Act 1993
Process of selection for the post of New
Zealand Race Relations CommissionerBETWEEN
COLIN STANLEY HENRY Applicant
AND
THE MINISTER OF JUSTICE First Respondent
HER MAJESTY’S ATTORNEY-GENERAL Second Respondent
Hearing: 10 October 2018 Counsel:
Appearance:
V McCall and J Watson for respondents
CS Henry, applicant in person
Judgment:
1 November 2018
JUDGMENT OF FITZGERALD J [Application for interim orders]
This judgment was delivered by me on 1 November 2018 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington
To: CS Henry, Auckland
Henry v The Minister of Justice [2018] NZHC 2831 [1 November 2018]
Introduction
[1] Mr Henry, an enrolled barrister and solicitor, submitted an expression of interest for the position of Race Relations Commissioner. The advertisement for the role sought expressions “by 20 June 2018” and Mr Henry submitted his on time. Further expressions of interest were sought by a second advertisement published on
25 July 2018. But on 30 August 2018, Mr Henry was notified that he had not been selected for the shortlist of candidates to proceed to the interview stage.
[2] Mr Henry now seeks judicial review of the selection process. Mr Henry does not seek substantive relief appointing him to the position. He acknowledges that would be plainly inappropriate. He submits, however, that there have been several procedural flaws in the appointment process to date. At the heart of his claim is the suggestion that the first advertisement, and other representations made by or on behalf of the first respondent, gave rise to legitimate expectations which the first respondent breached through the continuation of the appointment process.
[3] To preserve his position pending hearing and determination of his substantive application for judicial review, Mr Henry seeks interim orders. If granted, they would prevent any further steps being taken in the appointment process pending determination of Mr Henry’s claim. This judgment determines whether interim relief should be granted.
Factual background
[4] On 24 May 2018, it was reported that the Minister of Justice had agreed to the appointment of an independent panel to assess expressions of interest received for, and make recommendations to the Minister relating to three vacant Human Rights Commission positions, including that of Race Relations Commissioner.
[5] On 26 May 2018, an advertisement appeared in various newspapers and on the Ministry of Justice website, seeking expressions of interest for appointment to the roles of Chief Commissioner, Equal Employment Opportunities Commissioner and Race Relations Commissioner (First Advertisement). It recorded that appointments would be based on merit. The First Advertisement concluded:
Expressions of interest are sought by 20 June 2018.
[6] Mr Henry submitted his application and cover letter to the Ministry of Justice on 12 June 2018. As noted earlier, Mr Henry’s application was accordingly submitted in a timely fashion. Receipt was acknowledged by the Ministry of Justice on 19 June
2018.
[7] Mr Jeffery Orr, Chief Legal Counsel of the Ministry of Justice, provided an affidavit in support of the respondents’ opposition to Mr Henry’s application for interim orders. Mr Orr says 34 expressions of interest were received for the Race Relations Commissioner position following the First Advertisement.
[8] Mr Orr explains that on 27 June 2018, the Minister appointed a three-member panel to consider the expressions of interest. The composition of the panel was announced by a Ministry press release on 16 July 2018.
[9] According to Mr Orr, the members of the panel met on 11, 16 and 17 July 2018 to consider the expressions of interest received to that point and to discuss shortlisting candidates. Two potential candidates were identified for the shortlist for the position of Race Relations Commissioner.
[10] The panel was of the view, Mr Orr records, that there was an insufficient pool of potential appointees for the position of Race Relations Commissioner. Following the panel’s recommendation, a second advertisement for this position was placed in newspapers and on the Ministry website, on 25 July 2018 (Second Advertisement). It had a closing date for expressions of interest of 3 August 2018. The Second Advertisement also stated: “individuals who have already expressed interest in this position remain under consideration and do not need to resubmit their expression of interest”.
[11] Shortly before the Second Advertisement was published, on 24 July 2018,
Mr Henry received an email from a Mr Philp Gini, Senior Adviser, Statutory
Appointments at the Ministry of Justice. Mr Gini stated in his email:
This is to advise that there will be a brief delay in finalising the shortlist for the Race Relations Commissioner position.
At the request of the independent assessment panel established by the Minister of Justice to advise on shortlisting and selections options for this position, and with the agreement of the Minister, there will be a second public advertisement for the Race Relations Commissioner placed on Wednesday 25 July 2018.
The closing date for expressions of interest will be 3 August 2018.
This is in no way a reflection on the candidates who have expressed interest but the panel felt that the pool of candidates for this particular position was not as large as expected.
You remain under consideration. I expect to have an update on a shortlist around the second week of August.
[12] It appears Mr Gini’s email was “generic”, i.e. sent to all persons who had lodged an expression of interest in response to the First Advertisement.
[13] By email dated 21 August 2018, Mr Henry contacted Mr Gini asking for an update on the process. Mr Henry noted:
It is now the end of the third week in August. Should I therefore conclude that once again the reason I have heard nothing is because I have not been put on the shortlist? I should really appreciate knowing so that I can plan appropriately.
[14] Mr Gini replied to Mr Henry the following day, stating:
Work on the Race Relations Commissioner appointment is temporarily paused because one of the panel members is out of the country for the next few weeks.
[15] This was a reference to the fact that one member of the panel members had left for an overseas trip on 13 August 2018.
[16] Mr Orr states that nine expressions of interest were received in response to the Second Advertisement. He notes that the panel agreed that the second round of advertising did not identify any new potential appointees and the panel Chair determined on 14 August 2018 to proceed to interview the two candidates shortlisted from the first round of advertising.
[17] The final communication in the chronology is the Ministry’s letter to Mr Henry dated 30 August 2018. This informed Mr Henry that he had not been shortlisted to proceed further in the Race Relations Commissioner recruitment process.
[18] Mr Henry’s proceedings and application for interim orders were filed on
4 September 2018. The two remaining panel members conducted interviews with the two shortlisted candidates on 13 September 2018. Ms McCall, counsel for the respondents, confirmed at the hearing before me that no further steps in the recruitment process will take place pending determination of Mr Henry’s application for interim orders.
Mr Henry’s claims
[19] Mr Henry’s amended statement of claim1 pleads four causes of action.
Frustration of legitimate expectation
[20] The first is frustration of Mr Henry’s legitimate expectations. There are several aspects to this claim.
[21] First, Mr Henry says the First Advertisement created a legitimate expectation in him, as well as any other person who submitted a timely expression of interest in response to the First Advertisement, that those expressions of interest would be considered and, by implication, submissions made outside of that date would not be.
Mr Henry elaborated on this in his written and oral submissions at the hearing, namely that the legitimate expectation created was that the position would not be re-advertised without first concluding consideration and determination of timely expressions of interest submitted in response to the First Advertisement. As a result of those expectations, Mr Henry claims he also had an expectation that “the persons with whom he would be competing for appointment to the position would be limited to the other persons who submitted” on time.
[22] Mr Henry also says that in announcing the establishment of a panel to advise him on candidates for the position of Race Relations Commissioner, the first respondent created the legitimate expectation in Mr Henry (and any other person who responded to the First Advertisement) that his (or her) expression of interest would be considered by the full panel. Mr Henry says the correspondence he received from
1 An amended statement of claim dated 15 October 2018 was filed after the hearing of Mr Henry’s application for interim orders but before this judgment. See [31] below.
Ministry of Justice staff indicated that, given one member of the panel was out of the jurisdiction at a time when he had been told that candidates who had responded to the First Advertisement remained under consideration, it followed that his application was not considered by the full panel.
[23] The third aspect of this cause of action relates to what Mr Henry says were misrepresentations made on behalf of the first respondent by Ministry of Justice staff when communicating with him and in the Second Advertisement. The crux of
Mr Henry’s complaint is that Mr Orr says in his affidavit the full panel considered the applications that had been submitted in response to the First Advertisement on 11, 16 and 17 July, and from that consideration, arrived at a shortlist of two candidates to go forward to the interview stage. Mr Henry says Mr Gini’s email correspondence with him on 24 July 2018 that “you remain under consideration” was accordingly incorrect and misleading. Mr Henry says a similar conclusion is reached in relation to the Second Advertisement, which stated that “individuals who have already expressed in this position remain under consideration and do not need to resubmit their expression of interest”. Mr Henry’s claim alleges that Mr Gini’s email and the content of the Second Advertisement falsely created a legitimate expectation that he remained under consideration when in fact he did not.
[24] I interpolate to note that I asked Mr Henry how he says he was prejudiced or otherwise unfairly treated as a result of any such misrepresentations or inconsistencies.
Mr Henry submitted that his detrimental reliance on those representations was to believe he was still in the running and therefore he was “left in limbo”. He said he accordingly forewent other opportunities.
[25] Finally, in announcing the appointment of the selection panel, the media release stated support for the United Nations Principles Relating to the Status of National Institutions, which “require a transparent selection and appointment process”, according to the media release. Mr Henry claims this created a legitimate expectation the panel would conduct a transparent process, which it breached by not making a record of its discussions about candidates. He claims this denied him the opportunity to know the reasons he was not shortlisted.
[26] Mr Henry says that by adopting the flawed process outlined above, the first respondent deprived him of the opportunity to demonstrate, in an interview, whether he would be the best candidate for appointment as Race Relations Commissioner and has therefore “impinged on the applicant’s professional chances and his ability to earn a livelihood”.
[27] On this cause of action, Mr Henry seeks the following relief:
(a) A declaration that the first respondent acted unlawfully by:
(i)re-advertising the position of Race Relations Commissioner and considering expressions of interest submitted in response to that readvertising, without first concluding consideration of expressions of interest submitted in response to the first advertisement;
(ii) falsely informing responders to the First Advertisement that they “remain under consideration”;
(iii) failing to ensure that all expressions of interest were placed before the full selection panel; and
(iv) failing to conduct an open and transparent process.
(b)An order in the nature of an order of prohibition or stay, restraining the first respondent from proceeding any further with the process of selecting a candidate for recommendation for the position of Race Relations Commissioner until he has fully considered and determined suitability for the position of only those candidates, including the
applicant, who submitted expressions of interest to meet the deadline set out in the First Advertisement;
(c)An order in the nature of an order of mandamus, directing the first respondent, if he chooses to select candidates for the position by
establishing a panel for that purpose, to ensure that the applicant’s expression of interest is considered by the full panel;
(d) Damages; and
(e) Costs of and incidental to this proceeding.
Failure to act reasonably, rationally and/or fairly
[28] Under this cause of action, Mr Henry says the establishment and composition of the panel was announced only after the deadline for submissions of expressions of interest in response to the First Advertisement, but before expiration of the deadline for responding to the Second Advertisement. He says that in revealing comprehensive information about the selection panel members at that time, the first respondent conferred on persons responding to the Second Advertisement the advantage of that knowledge, of which respondents to the First Advertisement had been deprived.
[29] Mr Henry also pleads that by including in the Second Advertisement advice that responders to the First Advertisement “remained under consideration”, the first respondent “unfairly used” responders “to hedge his bets” in the event responders to the Second Advertisement did not provide greater satisfaction to the panel. The advice deceived him and other responders to the First Advertisement, he says, as other than the two shortlisted candidates, they did not in fact remain under consideration.
[30] In those circumstances, Mr Henry says the first respondent acted irrationally, unreasonably and unfairly towards him and other persons who responded in a timely fashion to the First Advertisement. He seeks a declaration to that effect. He seeks the same orders as under the first cause of action, and costs, but does not seek damages under this prayer for relief.
Breach of statutory duty
[31] As noted above,2 subsequent to the hearing but prior to this judgment,
Mr Henry filed an amended statement of claim. It added a new third cause of action,
2 See above n 1.
breach of statutory duty. Mr Henry alleges that pursuant to s 11(1A) of the Human Rights Act 1993 and s 29(2)(b) of the Crown Entities Act 2004, in recommending to the Governor General persons for appointment as Race Relations Commissioner, the first respondent has a statutory duty to “take into account the desirability of promoting diversity in the membership of Crown entities”.3 Mr Henry alleges that the first respondent had a duty to ensure the panel he established took that desirability into account also. But, he says, the panel made its selections without the first respondent ensuring that duty was met, such that the first respondent breached his statutory duty.
[32] Under this new third cause of action, Mr Henry seeks:
(a) A declaration that the first respondent has breached his statutory duty;
and
(b)An order in the nature of an order of mandamus requiring the first respondent, if he elects to establish a panel to advise him on candidates for recommendation for appointment as Race Relations Commissioner, to ensure that such panel, in making that recommendation, “take into account the desirability of promoting diversity in the membership of Crown entities”.
Breach of New Zealand Bill of Rights Act 1990
[33] This cause of action is consequent on any one or more of the preceding causes of action succeeding, as Mr Henry confirmed in his oral submissions at the hearing.
Mr Henry says that in acting unfairly and unlawfully towards him as alleged under the preceding causes of action, the first respondent breached Mr Henry’s right to natural justice protected by s 27 of the New Zealand Bill of Rights Act 1990. He seeks a
declaration to that effect, compensation for the breach of those rights and costs.
3 Crown Entities Act 2004, s 29(2)(b); though I note this sub-paragraph is “subject to subsection
(1)”, which requires a merits based assessment.
Legal principles
Approach to interim orders
[34] Mr Henry seeks interim orders pursuant to s 15 of the Judicial Review
Procedure Act 2016, which relevantly provides as follows:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2) The interim orders referred to in subsection (1) are interim orders— (a) prohibiting a respondent from taking any further action that
is, or would be, consequential on the exercise of the statutory power:
…
(3) However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b) the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
…
(4) An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[35] Both Mr Henry and Ms McCall refer to the Court of Appeal’s judgment in
Carlton & United Breweries Ltd v Minister of Customs as providing authoritative
guidance on the approach to interim orders in judicial review proceedings.4 In that case, Richardson J stated:5
Section 8 of the Judicature Amendment Act 1972 does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme, and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of an interim order. Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.
[36] In a separate judgment, Cooke P stated:6
Of course I am not suggesting that there should be any general rule that a prima facie case is necessary before interim relief can be granted under s 8. In general the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief - which must mean reasonably necessary. If that condition is satisfied, as the Chief Justice was entitled to find that it was here, the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.
[37] Mr Henry also refers to authorities which confirm there is no burden on the applicant for an interim order to show that the substantive review proceeding will succeed.7 Mr Henry submits the inquiry is whether there is “a real contest between the parties and a reasonable chance of an applicant succeeding in that contest”.8
Legal principles concerning procedural legitimate expectation
[38] A leading High Court decision which examined the concept of legitimate expectation in some detail is Randerson J’s judgment in New Zealand Assoc for
4 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA). Although this considered s 8 of the Judicature Amendment Act 1972, the predecessor to the Judicial Review Procedure Act 2016, neither Mr Henry nor Ms McCall suggested any different approach should apply under s 15.
5 At 430.
6 At 430.
7 See 480; and Manawatu Polytechnic v Attorney-General HC Wellington CP324/97, 15 December
1997.
8 Mahuta v Attorney-General HC Wellington CP67/99, 31 March 1999 at 6.
Migration and Investments Inc v Attorney-General.9 The principles to be taken from Randerson J’s judgment have largely been carried through into subsequent decisions, including decisions of the Court of Appeal.
[39] Randerson J surveyed earlier authorities, including the Privy Council’s 1983 decision in Attorney-General of Hong Kong v Ng Yuen Shiu10 and, in the New Zealand context, the Privy Council’s decision in New Zealand Māori Council v Attorney- General.11 He noted the boundaries of the doctrine of legitimate expectation were not then settled and that it was far from straightforward to apply in practise. Randerson J noted the Privy Council’s observation in Attorney-General of Hong Kong that:12
… when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. … The principle [is] that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty.
(Emphasis added)
[40] The Privy Council in New Zealand Māori Council considered a qualification that a successful challenge to an assurance of that type would depend in part on whether there was any “satisfactory reason” not to comply with it.13
[41] The Court of Appeal revisited the issue of legitimate expectation in Comptroller of Customs v Terminals (NZ) Ltd.14 In that case, the respondents alleged a legitimate expectation that certain duties would not be applied to their product, based on alleged oral assurances given to them by the Comptroller. The Court largely reiterated the principles as set out in New Zealand Assoc for Migration and Investments Inc v Attorney-General.15 In doing so, it did not distinguish between a procedural and substantive legitimate expectation. It set out a three-stage inquiry:
9 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC).
10 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC).
11 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC).
12 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC) at 638.
13 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.
14 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137. The
Supreme Court heard, and dismissed, an appeal against the judgment but on different grounds to the legitimate expectation issue: Terminals (NZ) Ltd v Comptroller of Customs [2013] NZSC 139,
[2014] 1 NZLR 121.
15 Randerson J by that time was a member of the Court of Appeal and delivered the judgment of the
Court in Comptroller of Customs v Terminals (NZ) Ltd.
(a)First, “to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy.”16 This was said to be “a question of fact to be determined by reference to all the surrounding circumstances.”17
(b)Second, “to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate.”18 The Court stated that this “involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.”19
(c)Third, and stated to be often the most difficult part of the inquiry, “is to decide what remedy, if any, should be provided if a legitimate expectation is established.”20 The Court will also need to consider there was a “satisfactory reason” for the authority in question not to comply with the expectation.21
[42] The Court of Appeal also considered legitimate expectation in its more recent judgment in B v Waitemata District Health Board.22 The Court stated:
[55] A public authority may, by practice or express promise, commit itself to a particular course of action, procedure, or possibility of a substantive outcome. The extent to which this has occurred must be considered by reference to all the surrounding circumstances.
(Emphasis added)
[43] Under his first cause of action, Mr Henry relies on an implied promise or representation arising from the (express) statement in the First Advertisement of a closing date for submissions of expressions of interest. The implied “promise” or representation is that all expressions of interest lodged in response to that advertisement would be determined, on a conclusive basis, before any further
expressions of interest were sought.
16 At [125].
17 At [125].
18 At [126].
19 At [126].
20 At [127].
21 At [122], with reference to the Privy Council’s decision in New Zealand Māori Council v Attorney- General [1994] 1 NZLR 513 (PC) at 525.
22 B v Waitemata District Health Board [2016] NZCA 184, [2016] 3 NZLR 569.
[44] In Comptroller of Customs v Terminals (NZ) Ltd, however, the Court stated that “where a legitimate expectation is established, the Court may require the decision- maker to follow a process that he or she has expressly or impliedly undertaken to follow”.23
[45] I accordingly proceed for the purposes of this application that a promise relied on for the purposes of a legitimate expectation may be express or implied. That such a promise may be implied is more consistent, in my view, with recognition that a practice may also found a legitimate expectation.
Analysis
Preliminary points
[46] Ms McCall submits that Mr Henry’s pleading is not clear what decision or decisions he seeks to impugn for the purposes of his application for judicial review. She submits there are three potential decisions, being:
(a)the decision by the first respondent to appoint a panel to consider applications and make a recommendation to the Minister;
(b) the decision to readvertise the position on 25 July 2018; and
(c)the decision by the panel not to recommend Mr Henry for the shortlist for the position of Race Relations Commissioner.
[47] Other than the last of the above three decisions, and with reference to the Court of Appeal’s decision in Singh v Chief Executive of the Ministry of Business, Innovation and Employment, Ms McCall submits the decisions are too preliminary to be amenable to judicial review.24 Mr Henry confirmed at the hearing, however, that he does not seek to challenge or impugn either the decision to appoint a panel or the panel’s decision not to recommend him for the shortlist for the position of Race Relations Commissioner. Indeed, what I discern to be Mr Henry’s primary cause of action,
23 Comptroller of Customers v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [155].
24 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA
220, [2014] 3 NZLR 23.
breach of legitimate expectation, does not rely on or reference a particular decision. Rather than impugning a decision, such a cause of action focuses on an assurance or undertaking that the relevant authority will proceed in a particular manner which is then said to have been breached.
[48] Certainly the fact the position was readvertised on 25 July 2018 is of some importance to Mr Henry’s claim, though the decision-making in that regard is not itself a central plank of his legitimate expectation cause of action. For completeness, however, I record that I do not consider the decision to readvertise was too preliminary to be amendable to judicial review in the sense set out by the Court of Appeal in Singh. It is arguable that the decision to readvertise could have been influential in the ultimate appointment decision, given it could have elicited additional candidates considered suitable for the position. Further, and as Mr Henry noted, there were no clear opportunities in the balance of the statutory process to correct any apparent error in relation to the decision to readvertise.
[49] The second preliminary point is that interim orders must be necessary to preserve the applicants’ position pending the substantive proceedings being concluded. Mr Henry says that the position he seeks to preserve is the opportunity to be considered a candidate for the post of Race Relations Commissioner. He says that absent interim orders, and once the post is actually filled, that position will have been irretrievably lost.
[50] In her written submissions, Ms McCall submitted that Mr Henry does not in fact have a position to preserve. Prior to consideration by the full panel, Mr Henry was not shortlisted for the position and after consideration by the full panel, he remained in the same position. In her oral submissions, however, Ms McCall confirmed that the respondents do not press this point strongly, at least at this interim stage. I consider that an appropriate concession. At least when considering interim orders, I am satisfied it is arguable Mr Henry has a “position” to preserve.
Is there a real contest between the parties, and a reasonable chance of Mr Henry succeeding in that contest, on the legitimate expectation claim?
[51] I have reached the clear conclusion that for the purposes of Mr Henry’s application for interim orders, the answer to the above question must be “no”. I say this for the following reasons.
[52] First, I do not consider it arguable the First Advertisement conveyed a clear assurance, undertaking, promise or representation, either express or implied, that irrespective of any future events, existing expressions of interest would be fully and finally considered before additional expressions of interest were sought.
[53] I tested with Mr Henry the validity of any such promise or assurance by envisaging a scenario in which only, say, two expressions of interest had been received in response to the First Advertisement. Mr Henry noted that on the facts before the Court, 34 responses had actually been received. While that is correct, when the First Advertisement was placed, the number of expressions of interest that might be submitted was not known by either the Ministry, Mr Henry or any other person. In a scenario in which only two expressions of interest were submitted, on Mr Henry’s approach, the first respondent would have had to fully considered those two expressions of interest and taken a final decision on them — to reject them both or to take either one or both candidates through to the interview stage, before considering going back to the market and seeking further expressions of interest. In my view, the content of the First Advertisement, and in particular, the mere setting of a closing date for expressions of interest, cannot have conveyed such an outcome.
[54] In addition, there was nothing in my view unfair or procedurally improper in the process advancing in the manner it did, so long as Mr Henry’s application was considered by the panel on its merits. There is no suggestion or evidence to suggest this did not occur.
[55] Even if I had concluded it was arguable Mr Henry had a legitimate expectation as pleaded, I would have found that in context of this case, there was a satisfactory reason for the second round of advertising. The suggestion to go back to the market and seek further candidates was recommended to the first respondent by the
independent panel. There is no evidence or suggestion that it was improper for the panel to view the number of candidates from the first round of advertising as insufficient, or and that it would assist the panel to call for more expressions of interest. Plainly for such a significant role, it was important for the panel to be satisfied the market had been appropriately and fully canvassed.
[56] I have also considered the likelihood of the substantive relief Mr Henry seeks being granted. Putting aside the above difficulties with the claim of legitimate expectation, I am doubtful an order would be made preventing selection of a candidate for the position of Race Relations Commissioner until the first respondent has fully considered and determined the suitability of those candidates who submitted expressions of interest in response to the First Advertisement. The evidence demonstrates that Mr Henry’s application, and all others lodged in response to the First Advertisement were considered by the full panel and it made a decision that his application (and 31 others) ought not to proceed to the shortlisting stage.
[57] Nor am I persuaded Mr Henry has an arguable case on the second aspect of the first cause of action, namely a legitimate expectation that his application would be considered by the full panel. Accepting for present purposes that the announcement of the panel conveyed an implied promise or assurance that each application would be considered by the full panel, I am not satisfied Mr Henry has demonstrated it is arguable that his application was not considered by the full panel. Indeed, the evidence filed on this application shows that it was that consideration which led the panel to recommend a second round of advertising. Accordingly, any such legitimate expectation on Mr Henry’s part was met.
[58] Mr Henry submits Mr Orr’s evidence that all three members of the panel met on 11, 16 and 17 July 2018 when two potential candidates were identified for the shortlist is inconsistent with the terms of the Second Advertisement and Mr Gini’s email of 24 July 2018 (to the effect that the first-round candidates “remained under consideration”). I agree with Mr Henry that there is an inconsistency.
[59] There is, however, no basis to suspect Mr Orr has been untruthful in his affidavit when he says the full panel met over the three-day period in July 2018 to
consider expressions of interest received to that date. Accepting for present purposes that the content of the Second Advertisement and Mr Gini’s email conveyed an incorrect position to Mr Henry, it is not clear how this advances his case, at least on an application for interim orders. I pressed Mr Henry at the hearing about the prejudice or unfairness he says he suffered as a result. Mr Henry said the communications left him “in limbo” and he forewent other opportunities. However, there is no evidence of other opportunities available to Mr Henry which he forewent as a result of being “in limbo” from the time of Mr Gini’s email on 24 July 2018. Confirmation was given to Mr Henry on 30 August 2018 that he had not been shortlisted for the role. And, even if Mr Henry did forego another opportunity during that time, the claim would sound in damages, to the extent Mr Henry could show he suffered loss as a result. A claim of that type will remain open to Mr Henry irrespective of interim orders being granted or not.
[60] I have therefore concluded that Mr Henry’s first cause of action has little prospects of success. Exercising the broad discretion mandated by the Court of Appeal in Carlton, I balance this against the effects of granting interim orders.25 As
Ms McCall notes, the orders would have the effect delaying the appointment of a Race Relations Commissioner for several months and potentially longer. Granting interim orders could also be expected to have a significant impact on those candidates who have been shortlisted and interviewed, who would then be “left in limbo” on the potential appointment for a far greater period than Mr Henry. This is particularly so given when Mr Henry says he was left “in limbo”, he had no particular knowledge or insight as to where he stood in the process. The two candidates who have been shortlisted and have since been interviewed know there is a real prospect of being be appointed to the role.
[61] For these reasons, and when measured against what I consider to be a weak case, I consider the discretionary evaluation falls firmly in favour of declining to grant relief.
25 In effect, interim declarations; see Judicial Review Procedure Act, s 15(3)(b)(i).
Mr Henry’s remaining causes of action
[62] To recap, there are two limbs to Mr Henry’s second cause of action:
(a)First, the candidates who responded to the Second Advertisement had an advantage over those who responded to the First Advertisement. They knew the identity of the three panel members when the first round of candidates did not.
(b)Second, by including in the Second Advertisement advice that the persons who had responded to the First Advertisement “remained under consideration”, the first respondent “unfairly used them to hedge his bets in the event that responders to the readvertisement did not provide greater satisfaction to the panel established by him”.
[63] Both these matters can be addressed relatively briefly.
[64] I accept it would have been preferable for all candidates considered for the position to have received the same information. But none of the candidates who responded to the Second Advertisement were shortlisted for the interview stage, which remained the two candidates shortlisted from the first round of expressions of interest.
[65] Accordingly, there was no consequence or effect from any alleged unfairness said to exist by Mr Henry. His expression of interest was considered by the full panel against 33 other candidates who were in possession of the same information as him.
[66] Similarly, I do not see anything inherently “unfair” in the first respondent, on recommendation from the independent panel, wanting to secure additional expressions of interest in relation to what is undoubtedly a very important role. Plainly the panel desired to reach out to the market a second time to ensure all potentially qualified candidates were elicited. There is nothing inherently unfair in this, whether it is characterised as “hedging bets” or otherwise.
[67] I heard no argument or submissions on the third cause of action, breach of statutory duty. At least on the basis of the evidence filed in support of Mr Henry’s
application for interim orders, there is nothing to suggest or demonstrate that either the first respondent or the panel itself failed to take into account the desirability of promoting diversity in the membership of Crown entities. Given this cause of action was not “in play”, however, at the time the application for interim orders was heard, I say nothing further in relation to it.
[68] The final cause of action, breach of the New Zealand Bill of Rights Act, is dependent on one of the preceding causes of action being successful. Given I have concluded that the preceding causes of action have low prospects of success, this cause of action does not support the granting of interim orders.26
Conclusion
[69] I have concluded that Mr Henry has low prospects of being successful in his pleaded claims for judicial review.27 I have also formed the view that even if the Court were to accept some aspects of his claim, it is unlikely the substantive relief he seeks would be granted. Weighed against the implications of making interim orders now, I conclude that the factual and legal position tips heavily against Mr Henry’s application.
Result
[70] Mr Henry’s application for interim orders is dismissed.
Costs
[71] The respondents seek costs on the application. On the evidence presently before me, there would not appear to be any reason why costs should not follow the event in the ordinary way. Were that the case, costs on a scale 2B basis would be appropriate.
I would encourage the parties to agree costs. Should orders be required, any party seeking costs may file within 10 working days of the date of this judgment. Any memorandum in response may then be filed within a further five working days. I will
26 As noted, I make no observation in relation to the third cause of action, which was not before the
Court on the hearing of the application for interim orders.
27 See my comments at fn 26 above.
thereafter determine costs on the papers. No costs memoranda may exceed five pages
in length.
Fitzgerald J
5
3
1