Henry v The Minister of Justice
[2019] NZHC 1039
•13 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 1039
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: On the papers Appearances:
Applicant in person
V McCall and J Watson for the First and Second Respondents
Judgment:
13 May 2019
JUDGMENT OF GAULT J
(Request to transfer application to Court of Appeal)
This judgment was delivered by me on 13 May 2019 at 4:30 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 1039 [13 May 2019]
[1] On 26 April 2019 Mr Henry filed an application pursuant to rr 7.49 and 7.44 to rescind or vary my interlocutory judgment of 18 April 2019, which dismissed his application (made at the end of the substantive hearing of his application for judicial review) for an interim order pending judgment that no further steps be taken by the independent panel (the panel) advising the first respondent on the selection of the Race Relations Commissioner (RRC).1 The respondents oppose the application to rescind or vary that judgment.
[2] On 1 May 2019 Mr Henry filed a memorandum requesting that his application dated 26 April 2019 be transferred to the Court of Appeal on an urgent basis, pursuant to r 7.49(6)(b). The respondents oppose transfer.
[3] I convened a telephone conference on 9 May 2019 to address whether an oral hearing was required in respect of the transfer request or whether it could be dealt with on the papers. Both parties confirmed they wanted the transfer request to be dealt with on the papers filed.
Relevant High Court Rules
[4]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7.49 Order may be varied or rescinded if shown to be wrong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
1 Henry v The Minister of Justice [2019] NZHC 889.
(b)on the Judge's own initiative or on the application of a party, transfer the application to the Court of Appeal.
[5]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.
Submissions
[6] Mr Henry’s memorandum requesting transfer on an urgent basis referred to counsel for the respondents’ advice that expressions of interest (EOIs) submitted in the current selection process for the RRC were provided to the panel on 25 and 27 March 2019, even before completion of the hearing of the substantive judicial review application. Mr Henry is concerned that the right to natural justice that he seeks to protect by his (substantive) application will be denied by the panel’s involvement in the assessment of EOIs in the current selection process even if the Court ultimately decides in his favour. Mr Henry refers to an occasion when, despite a pending urgent appeal to the Privy Council from the Court of Appeal of Trinidad and Tobago for a stay of execution of a sentence of death, the appellant was executed even as their Lordships were being awakened in the middle of the night to hear the appeal. Mr Henry says he has no desire to find himself in comparable circumstances.
[7] Mr Henry submits r 7.49(6)(b) prescribes no conditions or pre-conditions for transfer. He notes the decision must be an exercise of the Court’s judicial discretion. Mr Henry submits the question is whether justice will be manifestly and undoubtedly seen to be done if the Court refuses to transfer in circumstances where he says this Court clearly erred.
[8] Ms McCall, for the respondents, prefaced her submissions on transfer to the Court of Appeal by submitting the jurisdiction under r 7.49 is a narrow one, designed to ensure interlocutory matters may be dealt with expeditiously and less expensively
in the High Court. She submits that r 7.49 will only be engaged in the following circumstances: 2
(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.
[9] In relation to transfer, Ms McCall submits that, by contrast with an appeal, something exceptional is required for the Court to transfer an application to rescind or vary an order of the High Court to the Court of Appeal under r 7.49(6)(b). The respondents refer to the criteria for transfer of proceedings set out in s 59 of the Senior Courts Act 2016 and its predecessor, s 64 of the Judicature Act 1908.
[10] In relation to transfer on the grounds of urgency, the respondents accept this application may need to be determined urgently. However, they say the determination would more expeditiously be made by this Court, having heard all the evidence and submissions in the case, and already being seized of the matter.
[11] The respondents also say the application does not raise matters of importance to the public generally, as opposed to the applicant specifically. They say the only issue that might constitute a matter of public importance is the allegation that the panel has a preference for a Maori candidate, but given this Court has already recognised that bias was not pleaded, they submit it is difficult to see how the Court of Appeal could come to that conclusion on the record before the Court.
2 Carter v The Coroner’s Court at Wellington [2015] NZHC 2998 at [11].
Decision
[12] I approach the transfer application without deciding whether the jurisdiction on an application to rescind or vary under r 7.49 is as narrow as the respondents submit, or the merits of the application to rescind or vary my interlocutory judgment.
[13] Mr Henry pointed out that he is not seeking to transfer the entire proceeding to the Court of Appeal, so s 59 of the Senior Courts Act 2016 has no direct application. He is also correct that r 7.49(6)(b) prescribes no conditions or pre-conditions for transfer. However, in the context of an application to vary or rescind an interlocutory order (as an alternative to appeal), I consider direct transfer to the Court of Appeal under r 7.49(6)(b) should also be the exception rather than routine. I consider the factors that are relevant in the s 59 transfer context may also be relevant under r 7.49(6)(b). This includes where there is an issue of public importance that needs to be determined urgently, which would be unlikely to be determined urgently if it is determined in the High Court first.
[14] Mr Henry relies on urgency as the ground for transfer. He emphasises that he has now discovered that the EOIs in the current round of the RRC selection process were sent to the panel even before completion of the hearing of the substantive judicial review proceeding. Mr Henry submits that unless my decision refusing interim relief is revisited urgently, his substantive remedy may be rendered nugatory.
[15] As I am already seized of the application to rescind or vary under r 7.49 (and indeed the substantive application for review), I am likely to be able to determine the application to rescind or vary more expeditiously than the Court of Appeal. The parties have already filed submissions, with Mr Henry’s submissions in reply (if any) due on 15 May 2019. The possibility of delay due to a subsequent appeal, if leave were granted, does not of itself justify direct transfer of the r 7.49 application. I note that in the s 59 context it is urgency coupled with an issue of considerable public importance that may be exceptional.
[16] In relation to the public importance of this matter, I note that Mr Henry’s position has always been that his 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.
So I do not characterise the application as one that relates only to the applicant specifically. There is undoubted public interest in a fair and proper selection process for the RRC. However, I consider that also is not a sufficient reason to transfer this r 7.49 application directly to the Court of Appeal.
[17] In any event, I consider the concern that the substantive application for judicial review may be rendered nugatory absent urgency in relation to revisiting interim relief, is misconceived. If Mr Henry ultimately succeeds in establishing that a substantive order affecting the panel should be granted, that relief will still be available even if the panel has proceeded with its consideration in the meantime. I do not expect the fact that interim relief was earlier declined will be relevant to the Court’s discretion whether to grant relief on the substantive application.
[18] I do not accept Mr Henry’s suggestion that transfer should occur so that justice will be seen to be done. Rule 7.49 explicitly provides for the application to be heard by the Judge who made the order.3 For justice to be done and be seen to be done, an application under r 7.49 need not be transferred directly to the Court of Appeal. The appropriate course is for me to hear and determine the r 7.49 application, at least in the first instance. I consider that this is not an appropriate case for transfer of the application directly to the Court of Appeal under r 7.49(6)(b).
Result
[19]The application for transfer to the Court of Appeal is declined.
[20] Given Mr Henry’s request for urgency, and as both parties have already filed submissions on the application to rescind or vary my interlocutory judgment of 18 April 2019, I direct both parties to confirm by memorandum within two working days of this judgment whether they seek an oral hearing or want the application dealt with on the papers.
[21] The respondents seek to be heard on costs. If costs cannot be agreed, any memorandum seeking costs may be filed within 10 working days of this judgment and
3 Rule 7.49(5).
any memorandum in response within a further five working days. I will then determine costs on the papers.
Gault J
4