Jackson v Te Rangi
[2015] NZHC 1149
•27 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-004604 [2015] NZHC 1149
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
a decision under Clause 6 of Schedule 2 of the Local (Auckland Council) Act 2009
BETWEEN
WILLIAM WAKATERE JACKSON Applicant
AND
TAME TE RANGI; DAVID TAIPARI; THOMAS DE THIERRY;
MICHAEL BAKER; JOHN LINSTEAD; TED NGATAKI, GARY THOMPSON; TERRENCE LESLIE HOHNECK;
TE WARENA TAUA; NICOLA MACDONALD; LIANNE NGAMANE;
WILLIAM PETERS; KAREN WILSON; JOSIE SMITH; NAIDA GLAVISH; GRANT PAKIHANA HAWKE; AND HAYDEN EDMONDS
First Respondents
Respondents continued over
Hearing: 21 May 2015 Counsel:
P F Majury and P R H Mason for the Applicants
[First Respondents in Judicial Review Proceeding]T K T A R Williams and I F F Peters for the Respondent, W W Jackson
Judgment:
27 May 2015
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 27 May 2015 at 1.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
JACKSON v TE RANGI and ORS [2015] NZHC 1149 [27 May 2015]
THE INDEPENDENT MAORI STATUTORY BOARD
Second Respondent
TONY KAKE Third Respondent
MINISTER OF MAORI AFFAIRS Fourth Respondent
Solicitors: Atkins Holm Majurey, Auckland
Wackrow Williams and Davies Limited, Auckland
Copies To: Buddle Findlay, Wellington
Crown Law, Wellington
[1] On 21 November 2014, I delivered a judgment in this proceeding in which I found that the appointment of the third respondent, Tony Kake, as a mataawaka representative to the Independent Māori Statutory Board (“IMSB”)1 was made contrary to proper procedural process and, therefore, unlawful.2 I allowed the application for judicial review; set aside the decision appointing Mr Kake; and
directed that the decision appointing a mataawaka representative to the IMSB be made again in accordance with the law as I had found it to be.
[2] The first respondents in this proceeding are the persons who were members of the selection body responsible for appointing Mr Kake.3 Some of those persons have appealed that judgment.4 They now apply for a stay of execution of the orders that I made. The applicant in this proceeding, William Jackson, opposes the stay application.
[3] The relief that I granted was two-fold:
(a) I set aside Mr Kake’s appointment; and
(b)I directed that the decision appointing a mataawaka representative to the IMSB was to be made in accordance with the law as I had found it to be.
[4] I consider that it is better to look at the relief in two discrete parts.
[5] It was common ground that in bringing the appeal, the first respondents have acted in good faith and taken all steps to prosecute the appeal in a timely fashion. They have done all that they can, and all that remains to be done is for the Court of Appeal to allocate a hearing date. The first respondents have made informal enquiries of the Court of Appeal Registry and have been advised that the hearing is likely to be in the latter part of this year. Notice of the hearing date is expected at
any time.
1 Established, under pt 7 of the Local Government (Auckland Council) Act 2009.
2 Jackson v Te Rangi [2014] NZHC 2918.
3 The selection body is established under cl 2 of sch 2 of the Local Government
(Auckland Council) Act 2009.
4 From hereon I shall refer to those persons as “the first respondents”.
[6] Whilst Mr Jackson may have brought the judicial review proceeding because he was concerned that another was appointed in preference to himself, it cannot be assumed that Mr Jackson would be appointed on any fresh consideration. Nor can it be assumed that Mr Kake would be appointed. There were other candidates for the role, and the first respondent might choose to appoint one of the other candidates. It would be a waste of time and resources for a fresh appointment to be made when later this year, the Court of Appeal might take a different view of the law and allow the appeal.
[7] Although Mr Jackson opposed the granting of a stay of execution, during the hearing his counsel, Mr Williams, helpfully and responsibly acknowledged the wisdom of delaying the reconsideration of the appointment process until the Court of Appeal has determined the appeal. Accordingly, Mr Williams did not strongly press for another outcome. However, he did maintain his strong opposition to Mr Kake being permitted to resume his role as a mataawaka representative until the appeal was determined.
[8] I am satisfied that it would not be reasonable in the period between now and the determination of the appeal for the first respondents to go through the statutory process for appointing a mataawaka representative to the IMSB. So, for the reasons expressed below, I have decided that I should use the authority available to me under r 12 of the Court of Appeal (Civil) Rules 2005 to defer any appointment of a mataawaka representative until the appeal has been determined. However, I do not consider that I should go further than that. It follows that I will not grant relief that has the effect of re-instating Mr Kake as a mataawaka representative to the IMSB.
Discussion
Jurisdiction
[9] Neither party focused on the question of jurisdiction. Instead, they proceeded on the basis that there was jurisdiction to grant the application. However, the jurisdictional question is more complicated than that. It must be faced, though I do not see it as determinative of the application.
[10] Rule 12 of the Court of Appeal (Civil) Rules 2005 governs stays pending appeal. It provides:
12 Stay of proceedings and execution
(1) None of the matters referred to in subclause (2) operate as—
(a) a stay of a proceeding in which a decision was given; or
(b) a stay of execution of that decision. (2) The matters are—
(a) an application for leave to appeal; or
(b) the giving of that leave; or
(c) an appeal.
(3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,
(a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b) grant any interim relief.
(4) An order or a grant under subclause (3) may—
(a) relate to execution of the whole or part of the decision or to a particular form of execution:
(b) be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.
(5) If the court appealed from refuses to make an order under subclause (3), the Court may, on application, make an order under that subclause.
(6) If the court appealed from makes an order under subclause (3), the
Court may, on application, vary or rescind that order.
(7) The Court may, at any time, vary or rescind an order made by it under this rule.
[11] Rule 12 is mostly applied to appeals in private law civil proceedings. Judicial review proceedings raise matters of public law and this will necessarily affect how r 12 is applied.
[12] Where the relief in a judgment is in the form of a declaration of invalidity or a non-executory order, there is no jurisdiction to grant a stay under r 12(3)(a).5 This is because once such a declaration has been made, there is no judgment to be executed. In Willowford Family Trust v Christchurch City Council, Pankhurst J said:6
It is one thing to stay a proceeding which is extant, or to stay an order which is executory in nature, but the present declaration became operative when it was made. To contemplate the revival at this point of a bylaw which I have found to be invalid impresses me as conceptually wrong.
Later in the judgment, Panckhurst J said “[o]nce a Court has determined a particular provision is invalid, it is antithetical to that determination to contemplate recognition of the provision as lawful, even in the short term”.7
[13] The same view was taken in Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery. The Canterbury Regional Council had appealed the High Court decision which set aside chapters which had been inserted into the Regional Policy Statement and revoked changes to the Statement. Chisholm J considered that there was no jurisdiction to grant a stay in circumstances where the court was effectively being asked to reinstate an instrument or decision that it had
found to be unlawful. He said:8
There is no execution of a judgment that the Court can stay or prevent. The judgment was non-executory. A stay must have prospective application, applying to matters or things that must be done or attended to in the future. Here, a stay, were one available, would need to have retrospective application back in time. The respondents are seeking something in the nature of a mandatory injunction.
[14] In Area One Consortium,9 the applicants in a judicial review proceeding had sought interim relief under s 8 of the Judicature Amendment Act 1972 to prevent the Minister of Fisheries from allocating fishing quota for the coming fishing year.
Anderson J refused the application for interim relief. The applicants then appealed
5 See Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791 (HC); and Huang v Minister of Immigration CA236/06, 18 December 2006.
6 At [22].
7 At [23].
8 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1909 at [8].
9 Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200 (HC).
his decision and sought an order in the nature of a stay to prevent the Minister, pending the determination of the appeal, from allocating quota. It was accepted by all concerned that if the Minister proceeded to allocate quota in line with his decision, the applicant’s appeal rights would be rendered nugatory. Anderson J refused to rely on r 35 of the Court of Appeal Rules 1955 as:10
… the decisions made under my judgment were non-executory and therefore orders seeking to preserve the position of the applicants must be founded on another jurisdictional base”.
As the judicial review had not been substantially determined, Anderson J was able to preserve the applicant’s position pending the appeal by using interim relief under s 8 of the Judicature Amendment Act 1972 to restrain the Minister from allocating quota before the appeal had been determined.
[15] New Zealand Recreational Fishing Council Inc v Minister of Fisheries is an example of a Court granting a stay of execution under r 12 following a judicial review in which the Court had found impugned decisions to be invalid. On 11 July
2007, Harrison J granted a stay pending appeal in circumstances where it was common ground before the Judge that there was jurisdiction to grant a stay of execution and a decision was required as a matter of urgency. Earlier, on 3 July
2007, Harrison J had found the allocations of total allowable catch and total allowable commercial catch for the 2004 and 2005 fishing years were wrong in law and so they were declared to be invalid.11 The catch limits for those years were spent so there was no point in quashing those allocations. However, Harrison J had directed that future decisions on catch limits should be made in accordance with the law as he had found it to be. New catch limits had to be set before 1 October 200712 and as Harrison J’s decision was under appeal, the Minister considered that there was some uncertainty as to how he should go about setting those limits. The stay was
sought by commercial fishing interests and supported by the Minister.13
10 At 201; r 35 of the Court of Appeal Rules 1955 was an earlier and narrower version of r 12.
Rule 35 did not allow for interim relief. Anderson J’s approach was approved by the Court of
Appeal in Diver v Loktronic Industries Ltd [2012] NZCA 272, (2012) 21 PRNZ 254 at [9].
11 New Zealand Recreational Fishing Council Ltd v Minister of Fisheries HC Auckland CIV-2005-
404-4495, 11 July 2007 [Recreational Fishers].
12 Catch limit allocations for fishing quota are determined and take effect at the commencement of each fishing year. Each fishing year runs from 1 October to 30 September of the following year.
13 The Minister had not appealed Harrison J’s decision.
[16] Recreational Fishers is the only case that I could find where in judicial review proceedings this Court has granted a stay of execution. However, the practical effect of the stay was not to undo the declarations of invalidity. Instead, its effect was to prevent the Minister from taking prospective action in reliance on those declarations. Thus, the same outcome could have been achieved with a grant of
interim relief under r 12(3)(b).14 If the decision is viewed in this way, it is not at
odds with the other cases to which I have referred. I consider that the decision to grant a stay of execution rather than interim relief turned on the particular circumstances that Harrison J faced: (a) the parties had proceeded on the basis the Judge had jurisdiction to grant a stay of execution; (b) it followed that no one directed the Judge’s attention to the relevant authorities;15 and (c) the Judge heard and determined the application as a matter of urgency.
[17] Thus, I am satisfied that there is a well established rule that a court has no jurisdiction to grant a stay of execution in relation to a judgment or part of a judgment that is non-executory.
[18] On the other hand, it is generally accepted that the authority under r 12(3)(b) to grant “any interim relief” applies to both executory and non-executory judgments.16
[19] So, when it comes to interim relief, little, if anything, will turn on whether a judgment is executory or not. Its classification will simply be something to be added to the mix of factors that are taken into consideration when deciding whether to grant interim relief or not.
Is the subject judgment executory or not?
[20] Where a Court has found that an applicant for judicial review is entitled to an order declaring that a decision made in the exercise of a statutory power of decision
14 See discussion at [18] and [19] below.
15 Namely: Willowford Family Trust v Christchurch City Council, above n 5; Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission, above n 9; and Huang v Minister of Immigration, above n 5, at [2].
16 See Huang v Minister of Immigration, above n 5; and see the discussion in Diver v Loktronic
Industries Ltd, above n 10, at [9]-[11].
is invalid, s 4(2) of the Judicature Amendment Act 1972 permits the Court to set the decision aside instead of making a declaration of invalidity. The judgment I delivered found the appointment of Mr Kake was unlawful and invalid, which would be enough to entitle him to a declaration of invalidity. I consider that the order that was made in the judgment setting aside Mr Kake’s appointment is analogous to an order or declaration that his appointment was invalid. This order “became operative once it was made”. It has no ongoing effect. So there is nothing capable of being stayed. It follows that this part of the judgment is non-executory, which means that there is no jurisdiction to grant a stay of execution.
[21] Whilst I accept that I have jurisdiction to grant interim relief under r 12(3)(b) in relation to non-executory judgments, I do not think that it would be appropriate to do so here. Interim relief that led to Mr Kake’s re-instatement would have the effect of a mandatory injunction, which, in the context of a finding of invalidity, is something that was rejected by Chisholm J in Independent Fisheries. For the reasons given by Chisholm J,17 I agree with this view. I also find the reasoning in
Willowford,18 that it is conceptually wrong for a Court to contemplate reviving a
public law instrument or decision that has been found to be invalid, to be applicable to the present circumstances. Thus, I consider that this part of the first respondents’ application fails on the merits as well as for want of jurisdiction.
Balance of the judgment
[22] In many cases involving a successful judicial review, it is up to the decision- maker as to whether a fresh decision is made or not. With many statutory powers of decision, a decision-maker has the authority to choose not to make a decision, and so there are occasions where no fresh decision follows the setting aside of a decision. Unless the Court has made an order in the nature of mandamus, the effect of an order referring a decision back for reconsideration serves to authorise the making of a new
decision, but it does not compel that outcome.19 However, when other forms of
17 See Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery, above n 8, at
[9].
18 Willowford Family Trust v Christchurch City Council, above n 5, at [22].
19 The only directive that the decision-maker must comply with is to make the fresh decision in accordance with the law as the Court has found it to be. However, this of itself does not mandate that a fresh decision be made.
compulsion are present, as was the case in Recreational Fishers, the decision-maker will have no option but to make a fresh decision. The question here, therefore, is whether the first respondents are under any compulsion to make a fresh decision before the appeal is determined. If they are not, there will be no need for interim relief as they will be free to delay making an appointment until after the appeal is determined.
Relevant legislation
[23] The appointment of members to the IMSB is governed by sch 2 of the Local
Government (Auckland Council) Act 2009. The relevant clauses are:
1 Board's membership
(1) The board consists of 9 members appointed under clauses 5 to 8. (2) The membership is composed of—
(a) 2 mataawaka representatives; and
(b) 7 mana whenua group representatives.
6 Selection body chooses mataawaka representatives for board
(1) The selection body must choose the board's 2 mataawaka representatives.
(2) The selection body must choose the mataawaka representatives by following a process that, at a minimum,—
(a) includes public notification of the process that the body proposes to use for choosing the representatives; and
(b) provides an opportunity for nominations to be received; and
(c) requires the body to take into account the views of mataawaka when choosing the representatives.
(3) The selection body must apply clause 5 when choosing the 2 mataawaka representatives.
9 Cessation of Membership
…
(4) If a member of the board dies or resigns or is removed under clause 10, the selection body must appoint a replacement member in the manner described in whichever of clause 6 or 7 applies.
(5) However, if the member dies or resigns or is removed under clause 10 less than 12 months before polling day for the next election of the Auckland Council, the remaining members of the board may choose not to have a replacement member appointed before polling day.
10 Removal of members
(1) A majority of the board may, at any time for just cause,—
(a) remove a member appointed by the selection body:
(b) remove a member appointed as a member of an Auckland
Council committee under section 85.
(2) In subclause (1), just cause includes misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective duties of the board or the individual duties of members (depending on the seriousness of the breach).
(3) The removal must be made by written notice to the member (with a
copy to the Minister of Māori Affairs and the Auckland Council).
(4) The notice must—
(a) state the date on which the removal takes effect, which must not be earlier than the date on which the notice is received; and
(b) state the reasons for the removal.
(5) The board may remove a member with as little formality and technicality, and as much expedition, as is permitted by—
(a) the principles of natural justice; and
(b) a proper consideration of the matter; and
(c) the requirements of this Act.
[24] Under the Act, therefore, the first respondents are required to choose two mataawaka members to the IMSB. The setting aside of the decision appointing Mr Kake as representative to the IMSB means that there is only one mataawaka representative. By virtue of the statutory context, this means that the first respondents are required to appoint another representative. In a broad sense, therefore, referring the matter back to the first respondents for further decision might
be seen as having prospective effect,20 which would mean that this aspect of the
judgment could be classified as executory. On the other hand, when viewed more
20 In the sense that the Body will have to take steps to appoint a new mataawaka representative.
narrowly, this is an occasion where the compulsion to make a fresh decision comes solely from the Act, and all that the judgment has done is to create the circumstance where that compulsion comes into effect. On this view, there is no prospective effect and so there is nothing about the judgment that can be classified as executory.
[25] As matters stand, I do not consider that I need to be overly concerned with whether the balance of the judgment is executory or not, and therefore whether I can grant a stay of execution or not. Rule 12(3)(b) provides jurisdiction for me to grant interim relief that will achieve the outcome that the first respondents seek here, even if the balance of the judgment is also non-executory.
[26] Given the general acknowledgment that it makes sense for the first respondent to be able to delay making a new appointment until the appeal is determined, it seems to me that I should use whatever authority is available to me under r 12 to achieve that outcome.
[27] The statutory provisions in the Act requiring the first respondents to appoint a mataawaka representative are of general application; they are not directed at the specific circumstances before me. Ordinarily, a Court might hesitate to order that a party not comply with primary legislation. However, r 12 forms part of a body of rules made pursuant to the Judicature Act 1908. The rule is made specifically to deal with the variety of circumstances that can arise when a decision of this Court is being appealed. The form of r 12 suggests an intention to give the Court wide discretionary powers to deal with the many various situations that can arise between delivery of a first instance judgment and the determination of an appeal against it.
[28] In Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd, it was said that interim relief under r 12(3)(b) must protect the position that will be ruled on in the appeal.21 Here, if no relief is granted, it is hard to see how it could have a legal impact on the outcome of the appeal, so in that sense the relief is not necessary.22
However, public offices such as those created by the Act enjoy public funding and
21 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207,
23 February 2011.
22 Any new appointee would be on notice that the judgment is under appeal and so be aware that the original appointee might be re-instated. Thus it is hard to see how the third party’s appointment could hinder the appellant’s prospects in the appeal.
consume public resources. It would be contrary to the public interest if a fresh appointment were to be made between now and the determination of the appeal when there is the potential for it to be reversed by the appeal. Everyone recognises this. The balance of convenience strongly favours granting interim relief and there is nothing that tells against it. The Court of Appeal in Diver v Loktronic Industries Ltd
recognised that s 12(3)(b) warrants a wide purposive approach.23 I consider that the
present circumstance is one that was intended to fall within the rule’s scope.
[29] It follows that the first respondents should be granted interim relief under r 12(3)(b) restraining them from appointing a replacement mataawaka representative for Mr Kake until the appeal is determined. In this way, the statutory obligation to make a fresh appointment can be held in abeyance.
General comment
[30] During the hearing, the first respondents sought to impress upon me the need for something more than representation by one mataawaka representative. Mr Jackson made a similar submission, though this was made to advance his prospects of appointment by the first respondents. At present, the IMSB comprises seven mana whenua representatives and only one mataawaka representative. I can understand that the first respondents might seek to obtain more in the way of representation of mataawaka views. Before the judgment was delivered, as a result of an understanding reached between the parties, Mr Kake had stood down from participation on Auckland Council committees but he was attending meetings of the IMSB, participating in the discussions and voting on issues. The first respondents had sought a continuation of this state of affairs until the appeal was determined. Mr Kake was prepared to act in this way without financial payment. The findings that I have made exclude any form of interim relief that would permit Mr Kake to have even the limited role that the first respondents have sought for him.
[31] However, the decision to set Mr Kake’s appointment aside is no reflection on
the merits of his appointment. Any criticism of his appointment goes to the process that was followed and has no bearing on his suitability for the role. There was some
23 Diver v Loktronic Industries Ltd, above n 10, at [10] and [11].
discussion at the hearing as to whether Mr Kake might be able to carry out an advisory role with the IMSB. Provided the Act allows for the IMSB to obtain advice from third parties, I see nothing that would preclude Mr Kake from carrying out this type of role.
Result
[32] The first respondents are granted interim relief restraining them from making an appointment of a mataawaka representative to fill the office formerly occupied by Mr Kake. The relief is to continue until the appeal against the judgment setting aside Mr Kake’s appointment as mataawaka representative is determined by the Court of Appeal or until further order of this Court, whichever is the sooner.
[33] The balance of the first respondents’ application for a stay of execution is
dismissed.
[34] Leave is reserved to the parties to file memoranda as to costs.
Duffy J
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