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Idea Services Ltd v Attorney-General

Idea Services Ltd v Attorney-General

Case [2022] NZCA 470 4 October 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA105/2022
[2022] NZCA 470

BETWEEN	IDEA SERVICES LTD Appellant
AND	ATTORNEY-GENERAL in respect of the Minister for Workplace Relations and Safety First Respondent ATTORNEY-GENERAL in respect of the Chief Executive of the Ministry of Business, Innovation and Employment Second Respondent E TŪ INCORPORATED Third Respondent

Hearing:	10 August 2022
Court:	Courtney, Katz and Simon France JJ
Counsel:	A S Butler and P A McBride for Appellant K G Stephen and R I Thornley for First and Second Respondents No appearance for Third Respondent
Judgment:	4 October 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is allowed.
CA declaration is made that cl 8 of the Immediate Modification Order was invalid because it modified a statutory provision that did not fall within the scope of s 15 of the Epidemic Preparedness Act 2006.
D The first and second respondents must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

On 24 March 2020, in response to COVID-19, an epidemic notice was issued by the Prime Minister under s 5 of the Epidemic Preparedness Act 2006. These notices can only be for three months, but can be renewed. That is what has happened every three months since the initial notice.[1]
[1]Epidemic Preparedness Act 2006, s 5(3)(a). The most recent notice is 12 September 2022, with an expiry date of 20 October 2022.
Section 15(1) of the Epidemic Preparedness Act provides:
15Immediate modification of statutory requirements and restrictions to enable compliance during epidemic
(1)While an epidemic notice is in force, the Governor-General may, by Order in Council made on the recommendation of the Minister of the Crown responsible for the administration of an enactment, modify any requirement or restriction imposed by the enactment.
(Emphasis added.)
A notice made under this provision is known as an Immediate Modification Order (IMO). On 16 April 2020, an IMO came into effect which amended aspects of the collective bargaining provisions of the Employment Relations Act 2000.[2] The IMO continued in force until, on 4 April 2022, a revocation order was made, effective 6 May 2022.[3]
[2]Epidemic Preparedness (Employment Relations Act 2000—Collective Bargaining) Immediate Modification Order 2020, cls 2 and 8.
[3]Epidemic Preparedness (Employment Relations Act 2000—Collective Bargaining) Immediate Modification Order Revocation Order 2022, cls 2 and 3.
At issue in this proceeding is the lawfulness of the now revoked IMO. The appellant sought declarations that cl 8 of the IMO was invalid from the outset because the conditions necessary for it to be validly issued did not exist.[4]
[4]The appellant’s statement of claim was directed only at cl 8 of the IMO which, as we later explain, was directed at s 53(3) of the Employment Relations Act 2000. Other provisions of that Act affected by different clauses of the IMO are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Idea Services Ltd v Attorney-General

Details

AGLC: Idea Services Ltd v Attorney-General [2022] NZCA 470
Case: [2022] NZCA 470
Decision Date: 4 October 2022 at 11.30 am

CaseChat Overview and Summary

Idea Services Ltd brought this appeal against the Attorney-General, as Minister for Workplace Relations and Safety, and the Chief Executive of the Ministry of Business, Innovation and Employment, concerning the validity of an Immediate Modification Order (IMO) made under the Epidemic Preparedness Act 2006. The IMO, which was revoked on 6 May 2022, had the effect of extending the life of collective agreements. The appeal was dismissed by Isac J in the High Court, although a declaration was made that the IMO should have contained a review requirement. The Court of Appeal allowed the appeal and declared that the IMO was invalid. The Court of Appeal held that the IMO was outside the scope of the Epidemic Preparedness Act as it purported to modify a statutory provision that was not a requirement or restriction within the meaning of the Act. The Court found that the appellant’s challenge to the IMO’s validity was not dependent on its subjective view as to the reasonableness of the decision to make the IMO, but rather on the statutory authority to make the IMO. The Court held that there was no power to make the IMO and it was accordingly invalid. The Court also rejected the submission that the IMO was only intended to last for three months. The Court held that the IMO was intended to last until the original epidemic notice expired or was revoked. The Court also rejected the argument that the IMO was invalid because the Minister had not properly exercised the power to make it. The Court held that the Minister was entitled to be satisfied that the IMO went no further than was reasonably necessary. The Court concluded that the IMO was invalid because it was made without statutory power and the Court was required to declare that to be so. The Court declined the appellant’s application to file further evidence concerning its awareness of the issues raised by the IMO. The Court held that it was too late to allow the application because the IMO was always invalid.

Orders