Lauren v Attorney-General on behalf of Chief Executive of Ministry of Agriculture and Forestry

[2012] NZHC 352

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV2011-476-000507 [2012] NZHC 352

BETWEEN  ANTHONY JAMES LAUREN Applicant

ANDATTORNEY-GENERAL ON BEHALF OF CHIEF EXECUTIVE OF MINISTRY OF AGRICULTURE AND FORESTRY Respondent

Hearing:         21 February 2012 (Heard at Christchurch)

Counsel:         K B Campbell for Applicant

P McCarthy and N Willcocks for Respondent

Judgment:      6 March 2012

JUDGMENT OF WHATA J

[1] Kevin Byrnes inspected James Lauren’s farm in the purported exercise of powers under s 127 of the Animal Welfare Act 1999 (“the Act”). In the course of that inspection he obtained evidence that he says shows that Mr Lauren breached the Animal Welfare Act. He duly laid six informations against Mr Lauren for those alleged breaches. Problematically Mr Byrnes was never validly appointed as an animal inspector for the purposes of the Act. I therefore must resolve what should follow from that invalidity, including whether the prosecution should be stopped as an abuse of process.

Facts

[2]      In March and April 2009 A J and V A Lauren Farming Partnership purchased

630 calves and transported them to Mt Belle Farm, 331 Gards Road.  The farm at

Mt Belle is made up of a hill block and flats.  It is about 420 acres in size.  On the

LAUREN V ATTORNEY-GENERAL ON BEHALF OF CHIEF EXECUTIVE OF MINISTRY OF AGRICULTURE AND FORESTRY HC TIM CIV 2011-476-000507 [6 March 2012]

hill block approximately 70 dry cows were already located on the property and 69 bulls.

[3]      The calves were initially placed on the flats and then put up onto the hill block in early May 2009.  The calves were shifted onto the third hill paddock for approximately two weeks.  At the end of May the calves and cows were then shifted to the first hill paddock.   At about this time the calves were transferred into the ownership of the company, Tony Lauren Farming Limited.

[4]      There is a dispute between the parties about the management of Mt Belle Farm.   Mr Lauren says that he retained Mt Belle Contracting Limited and Simon Matthew Johnston to tend the stock on both the flats and the hill paddock.   On

23 July 2009 Mr Lauren went to the farm and discovered a number of dead animals on the hill block. The Ministry became involved shortly thereafter.

[5]       The Chief Executive says that Mr Johnston was told by Mr Lauren not to go to the hill paddocks, but that Mr Johnston became concerned and went up to the hill paddocks anyway.  Up there he saw “dead calves everywhere.”   A vet was called in who then called in the Ministry of Agriculture and Forestry.

[6]      There then followed over the period 25-30 July 2009 investigations by Kevin Byrnes and David Barbour, assisted by veterinarians.   In the course of the initial inspection 13 of the calves were killed and arrangements were made for the burial of

148 and the transportation of the remainder.

[7] As a consequence of those investigations, Mr Byrnes laid six informations all dated 10 May 2010 in the District Court at Oamaru alleging offences under ss 12(a) and 29(a) of the Act. Mr Byrnes states that:

(a)       He attended Mt Belle Farm on 25 July 2009;

(b)       He liaised with Dr O’Sullivan and was told about a large number of

dead and dying calves;

(c) He entered the property pursuant to s 127 of the Animal Welfare Act

1999;

(d)He met Mr Lauren and identified himself by showing his warrant of appointment and advised him that he was conducting an inspection pursuant to s 127 of the Act;

(e)       He cautioned Mr Lauren and advised him of his rights under the New

Zealand Bill of Rights Act 1990;

(f)       He  explained  the  workings  of  s  130  dealing  with  the  power  to mitigate the suffering of animals;

(g)He then continued his inspection of the property during which he ordered that a number of cows be euthanised;

(h)During the course of the inspection he took a number of photographs of animals that were dead or down;1

(i)He instructed Dr O’Sullivan to conduct a post mortem of a heifer (number 12931) and to take a bone marrow sample from a heifer (number 338).

(j)        He took notes during the post mortem examination; (k)         He took a written statement from Mr Lauren.

(l)On  the  following  three  days,  Sunday,  Monday  and  Tuesday,  he repeated the inspections which included assessing body condition scores (BCS), taking photographs, euthanasia  of suffering animals and other recordings as to the condition of the animals.

[8]      No  search  warrants  under  s  131  were  obtained  for  any of  the  activities undertaken by Mr Byrnes.

1      A downer animal is one that cannot stand on its own.

[9]      Mr Byrnes was assisted by David Barbour, another inspector.   Mr Barbour assisted Mr Byrnes with the investigation of the farm on 27 and 28 July.  Among other things he says he took photographs of the state of the pastures and of the calves,  as  well  as  video  footage  of  some  of  these  calves.    He  describes  their condition and refers to assessments undertaken in association with veterinarians in relation  to  the  condition  of  various  animals.     He  records  discussions  about euthanising the surviving calves, but that ultimately they were transported to another farm.

[10]     In his affidavit Mr Byrnes also details the various additional witnesses (13) that will be providing evidence about the offending, including in relation to the health of the calves.

[11]     I  am  unable  to  discern  whether  other  proposed  witnesses  who  assisted Mr Byrnes and Mr Barbour had authority independent of them to enter the property. As no independent authority was asserted, I will proceed on the basis that they did not have such authority.

The invalid appointments

[12]     The Ministry accepts that the appointments of the animal welfare inspectors were invalid.

[13]     While  that  is  so,  it  is  necessary  to  properly  describe  the  nature  of  the invalidity in order to resolve the consequences, if any, that flow from that invalidity. Helpfully,  Ms  Erin  Patricia Rose in  her brief  of evidence in  the District  Court proceeding succinctly described the invalidity in the following terms:

16.Kevin Byrnes was appointed to be an Inspector under the Animal Welfare Act 1999 on 25 November 2008 effective on 1 December of that year.

17.He was appointed under s.124(1) Animal Welfare Act 1999 and s59(1) State Sector Act 1988. I produce a copy of this Instrument of Appointment to the Court as an exhibit.

18.      The Director General has delegated this s59(1) power to a range of

MAF personnel.  The relevant delegation at the time was issued by

the Director-General on 9 October 2008 effective from 13 October

2008.  I refer to a copy of this delegation previously produced to the

Court as an exhibit.

19.The  appointing  person  was  David  Bayvel,  Director  of  Animal Welfare, purporting to act pursuant to his authority under s59(1) State Sector Act 1988.  He is a Level Three Manager.  However, at the top of page 7 of the Instrument of Delegation there is a condition which states, “All human resource delegations are subject to the condition that you can only exercise decisions over staff within your immediate accountability.”

20.David Bayvel is the Director of Animal Welfare matters.   He has delegated authority to make appointments but he does not meet the condition imposed above because line control of Kevin Byrnes is with the Director of the Enforcement Group.

(Emphasis in original)

[14]     She also explains that Mr Barbour’s instrument of appointment does  not mention the State Sector Act 1988 which contains the power to appoint.  She also confirms that Mr Byrnes and Mr Barbour were issued new instruments of appointment on 10 June 2011 and 16 June 2011.

Issues

[15]     With the invalidity of appointments accepted by the Chief Executive, the remaining issue is what relief, if any, I should grant.

Applicant’s position

[16]    Mr Campbell submits that the invalid appointments must mean that the subsequent inspection was unlawful.  It follows from this, he says, that there was no proper basis to lay the informations.  He also contends that they are flawed on their face by purporting to be laid by an “investigator” and with the apparent imprimatur of the Chief Executive.

[17]     Given these combined illegalities and irregularities, Mr Campbell strongly submits that the prosecution is an abuse of process.   He seeks, in the alternative, declarations that the search was illegal and unreasonable, an order preventing the

production  of  evidence,  an  injunction  preventing  the  Chief  Executive  from continuing the proceedings or an order staying the District Court proceedings.

[18]     Mr McCarthy admits that the appointments were invalid.   Mr McCarthy also accepts that questions about the legality of the investigation and associated searches arise for consideration.   But he says that the proper forum for considering these issues is the District Court.   Mr McCarthy expanded on this in oral argument by contending that it was not the role of this Court to make pre-emptive declarations of invalidity or illegality or related orders of prohibition as that would usurp the role and jurisdiction of the District Court as the first instance trier of fact and law.  He further  contended  that  there  would  be  no  utility  in  the  High  Court  making declarations about invalidity, as the District Court must, in any event, address those issues but with the benefit of hearing the evidence and assessing any unfairness arising from the invalidity of the appointments.

[19]     Finally, he submits that this case is nothing like the cases of abuse cited by the applicant that might give rise to intervention by this Court in a supervisory jurisdiction.

[20]     Both parties accepted that questions of admissibility of evidence under s 30 of the Evidence Act 2006 and the reasonableness (as distinct from the lawfulness) of any search for the purposes of the New Zealand Bill of Rights Act are matters for the District Court to determine, if the proceedings continue.

Approach to assessment

[21]     Given  the manner in  which argument  unfolded  I propose to  address  the question of relief in the following way:

(a)       Address whether there is a jurisdictional bar to me exercising my supervisory jurisdiction;

(b)       Assess the significance of the invalidity;

(c)      If there is no jurisdictional bar, assess whether I should grant relief.

Jurisdiction

[22]     It is plainly the function, and indeed the duty of this Court, to uphold the rule of law.2     As Lord Griffiths stated in Horse Ferry Road Magistrates’ Court ex p Bennett:3

The judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

[23]     There is little doubt that the District Court in performing its trial functions may enquire into the legality of delegated authority in determining whether or not an accused can be subject to prosecution.4   There will also be circumstances where the legislative framework precludes or fetters this Court’s supervisory jurisdiction.5   But it is a rather bold submission to suggest that the High Court must, as a matter of

jurisdiction,  pass  over  invalid  purported  exercises  of  statutory  powers  of  entry, search and seizure on the basis that it will be dealt with by the District Court.  It is not only discordant with authority,6  but conflates the respective functions of the Courts in giving vent to the rule of law.  The High Court must be vigilant to uphold observance of the rule of law for its own sake.7    That vigilance is not sourced in statute, but in the inherent jurisdiction of the Court.  While linked to the vindication of rights and freedoms, the inherent value of that vigilance is that it requires no extraneous reason to strike down an invalid exercise of State power.  The District Court’s  jurisdiction  to  examine  the  validity  of  the  delegation  to  Mr  Byrnes  is

collateral to the Court’s primary function: to maintain the integrity of its processes,

2      HWR Wade and CF Forsyth Administrative Law (10th ed, Oxford University Press, Oxford,

2009) at 17-20; Boddington v British Transport Police [1999] 2 AC 143; R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42; Auckland District Court v Attorney-General [1993] 2 NZLR 129; Hamed v R [2011] NZSC 101

3      Ex p Bennett [1994] 1 AC 42; and see Wade and Forsyth at 19-20

4      Boddington v British Transport Police [1999] 2 AC 143; cf R v Wicks [1998] AC 92

5      Rees v Firth [2011] NZCA 668

6      Auckland District Court v Attorney-General [1993] 2 NZLR 129

7      P Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington,

2007) at [6.2.2] and cases cited therein.

to regulate abuse and to secure a fair trial according to the law.  While the contrast may appear subtle, the different purposes and functions of the Courts must not be blurred, as they combine to secure acceptable and clear standards of legality and fairness.8

[24] Returning to the facts of this case, Mr Byrnes’ actions involve clear infringements on Mr Lauren’s rights and liberties at common law and affirmed by the New Zealand Bill of Rights Act. Mr Byrnes purportedly and erroneously carried out his inspection under the Animal Welfare Act. Accordingly, and subject only to the discretion afforded to me to refuse to make orders, in a case of invalidity such as the present I must intervene to the extent necessary and commensurate with my duty to uphold the rule of law. Anything less would be a failure on the part of this Court not only to vindicate Mr Lauren’s rights and liberties, but also to perform the core function of this Court.

[25]     A  more  constitutionally  palatable  submission  is  that  the  exercise  of supervisory jurisdiction may not be necessary and/or functionally appropriate given the circumstances of the particular case.9   Mr McCarthy also referred to the principle

of utility,10 submitting that granting relief now would serve no useful purposes given

that  the  invalidity  is  admitted  and  the  consequences  of  that  need  to  be  fully addressed in the context of the District Court’s assessment on the admissibility of evidence.  I accept that there is some force in this submission.  But that really goes to

the question of relief, not jurisdiction, if I get that far.

8      Ex p Bennett at 162; R v Secretary of State of the Home Department, ex p Pierson [1998] AC

539 at 591; Wade and Forsyth at 19-20.

9      Auckland District Court v Attorney General [1993] 2 NZLR 129, at 136

10     Waikato Regional Airport Ltd v Attorney General [2002] 3 NZLR 433 at 436

Significance of invalidity

Mr Barbour

[26] I commence firstly by observing that I do not consider that Mr Barbour was invalidly appointed. While the Ministry appears to be of the view that he was invalidly appointed, the nature of the invalidity must, in my view, be described as de minimis. Mr Barbour’s instrument of appointment does not expressly refer to the State Sector Act 1988. Rather it refers to s 124(1) of the Animal Welfare Act as the source of Mr Barbour’s authority for appointment. Section 124(1) reads:

124     Appointment of inspectors

(1)      There may from time to time be appointed under the State Sector Act

1988 suitable persons to be inspectors for the purposes of this Act.

...

[27]     Self-evidently, that section identifies the source of the appointment.   Any apparent irregularity is, in my view, ameliorated by the express reference to the State Sector Act.

Mr Byrnes

[28]     Mr Byrnes’ invalidity is of a different matter and character altogether.  Any

delegation from the Director-General was subject to:

The condition that the recipient of the delegated authority can only exercise decisions over staff within his or her management accountabilities.

(Emphasis added)

[29]     The ostensible purpose of this condition is to provide surety to the Director- General that persons exercising functions within the purview of delegated authority are directly accountable to the delegatee or sub-delegatee and thence to the Director- General.   Mr Bayvel instructed Mr Byrnes to undertake the Mt Belle Farm investigation.  Mr Byrnes was not within his direct management or accountability. In my view this is not a technical irregularity.  The powers conferred on inspectors

are wide-ranging and equivalent to the powers exercised by the police in the performance of their investigatory functions. Subject to certain conditions (not relevant for present purposes), s 127 confers a power on inspectors to:

(a)       Enter land without warrant;

(b)       With the assistance of a Constable stop a vehicle; (c)  Take possession of an animal by force if necessary; (d)      Hold animals;

(e)       Take any person onto land to assist with an inspection.

[30]     Section 130 confers a power to mitigate the suffering of any animal and require a person to take all such steps necessary or desirable to prevent or mitigate suffering.  A corollary of this is that any person who does not assist may be liable to a fine not exceeding $5,000.    It is notable also that an inspector may seek search warrants under s 131.   If search warrants are granted a broad range of ancillary

powers to give effect to those warrants are also conferred on an inspector.11   Section

138 also confers a power to destroy injured or sick animals.

[31]     Mr Byrnes’ actions are illustrative of the exercise of several of these powers

including:

(a)       His entry onto private land; (b) His search of the property;

(c)       Destruction of private property, namely the calves and cows;

(d)      Gathering of evidence for prosecutorial purposes.

11     s 133

[32]     Against this legislative backdrop, the maintenance of direct accountability assumes greater importance.  Indeed, it underscores the value of the condition, given the plainly invasive powers conferred on inspectors.  Accordingly, the invalidity of Mr Byrnes’ appointment is substantive and not merely technical.   I turn to the potential implications of this.

Invalid exercise of powers

[33] As Mr Byrnes never possessed the authority, as a lawfully authorised inspector, to undertake his investigation and subsequent acts under s 127, all of the acts purported under that section must be invalid from the outset. This is not a case where there has been, on review, a finding of error of law or an unreasonable exercise of discretion. The source of My Byrnes’ purported exercise of inspectorial powers did not exist.

Unlawful search?

[34]     But this does not mean that the entry onto Mt Belle Farm and subsequent search was unlawful and that to continue the proceedings is an abuse of process. Dealing first with the alleged illegality of the search, there are two elements to the applicant’s claim.  Firstly, Mr Byrnes did not have authority as an inspector to enter or search the property.  Secondly, Mr Byrnes did not have a search warrant under s

131.  In combination the applicant says that any search must therefore be unlawful. Mr Campbell then refers to Hamed v R12  to support the contention that there is a common law right not to be searched without clear statutory authority and therefore that the inspector acted unlawfully. Certainly, the following observation of Elias CJ resonates in this context:13

I consider that the police act unlawfully if they do not have specific statutory authority for intruding upon personal freedom. That conclusion is compelled in my view both by the common law and by the terms of the New Zealand Bill  of  Rights Act.    It  also  meets  rule  of  law  values  of  certainty  and predictability.

12     Hamed v R [2011] NZSC 101

13     At [38]

[35]     But as Hamed so aptly illustrates, the application of settled principle to the facts is what makes the law go round.  I also respectfully apprehend that the Chief Justice was not seeking to displace the implied licence exception to this principle, so recently affirmed in Tararo v R.14   Blanchard J also expresses the position, apposite here, that:15

Section 21 does not empower the state to make reasonable searches.  The lawfulness of a search must be established elsewhere, either by the existence of a valid warrant or by the invocation of a statutory provision empowering search without warrant, such as s 18(2) of the Misuse of Drugs Act 1975, or by pointing to an express or implied licence justifying what was done.

[36] In any event, my point is that while I have found that Mr Byrnes lacked statutory authority under the Animal Welfare Act 1999 to enter and then search the premises and destroy the stock, I cannot say on the evidence before me that the entry and subsequent acts were therefore unlawful. It could be that Mr Lauren acquiesced to the entry in the face of apparently overwhelming evidence of harm to the calves. How else did the Ministry officials find themselves at the farm? There is in fact argument from Mr Lauren that Mr Simon Johnston was Mr Lauren’s agent and farm manager. There is then a suggestion that Mr Johnston invited a veterinarian onto the site where the dying calves were first sighted. It is at that point that the Ministry of Agriculture and Forestry became involved at the request of the veterinarian. Arguably this may have opened the door to the investigation that followed. I am not suggesting that that is the case. As Blanchard J cautioned in Hamed, it will be for an inspector in this case to prove that a licence, if any, extended to his actions and the actions of those assisting him.  In summary, the mix of law and factual issues arising are not amenable to a declaration of consequential illegality at this stage.  To this extent  I  agree  with  Mr  McCarthy  that  the  proper  forum  for  the  evaluation  of

consequential legality (and reasonableness) is the District Court and the trial process.

14     Tararo v R [2010] NZSC 157; I acknowledge, however, that Elias CJ did not join with the views expressed in the judgment of Tipping J that any search entailed in the recording while on site would not have been unreasonable under s 21 of the New Zealand Bill of Rights Act 1990.

15     Hamed v R at [161]

Prohibition and abuse?

[37]     I do not consider that it is appropriate for me to prohibit the Chief Executive from continuing with the proceedings or to stay the proceedings on the basis of abuse  of  process.  Invalidity might  provide  a  reason  for  the  Chief  Executive  to discontinue proceedings in order to preserve the integrity of the inspectorial process. Public confidence in the work of inspectors depends on the integrity of those processes and inherent to that is the validity of appointments.

[38]     Balanced against that, the Chief Executive must have regard to the purpose of

Part 1 of the Animal Welfare Act, namely:

...  to ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals.

[39] These are matters that the Chief Executive must weigh and in my view, except in cases of clear misconduct, the decision to prosecute under the Animal Welfare Act is not amenable to relief under the supervisory jurisdiction of the Court. The invalidity in this case, while significant, is not in this category. Mr Campbell accepts that there is no evidence of bad faith or of a deliberate decision by Mr Byrnes to proceed knowing that he was not authorised to inspect.

[40]     I am fortified in this view by the threshold expressed by Richardson J in

Moevoa v Department of Labour for staying a prosecution:16

The yardstick is not simply fairness to the particular accused.   It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him.  That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement.   It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

[41]     It may be that the District Court properly informed of all of the facts reaches a conclusion that there has been an abuse of process.  This ameliorates any residual concern I have about vindicating the applicant’s right to be free from state intrusion

on his privacy.

16     Moevoa v Department of Labour [1980] 1 NZLR 464 at 482

[42]     For  completeness  Mr  Campbell  provided  a  survey of  cases  on  abuse  of process.17  These included instances of:18

(a)       Double jeopardy

(b)       Ulterior motive

(c)       Breach of promise

(d)      Delay such as to preclude a fair trial (e)          Pre-trial prosecutorial impropriety (f)    Entrapment

[43]     As this survey indicates, prohibition for abuse has a wide compass.   But it may be observed that simple invalidity or lack of authorisation was not relied upon in any of the cases cited.  Rather these cases illustrate there needs to be an element of impropriety undermining the moral integrity of the criminal process.19    McGrath J, delivering the judgment of the Court of Appeal in Fox v Attorney General  put it this way:20

Conduct amounting to abuse of process is not confined to that which will preclude a fair trial.  Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety.

[44]     With respect to the applicant’s careful case on this point, the invalidity, while significant, does not obviously carry the cloak of impropriety present in the cases

cited.

17     Drawn from an erudite analysis by ALT Choo, “Halting Criminal Prosecutions: The Abuse of

Process Doctrine Revisited” [1995] Criminal Law Review 864.

18     Connelly v DPP [1964] AC 1254; R v Wolverhampton JJ and Stafford Crown Court, ex p Uppal (1994) 159 JPR 86;  R v Croydon JJ, ex p Dean [1993] QB 769; Attorney-General’s Reference (No 1 of 1990) [1992] QB 630; R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1

AC 42

19     Choo supra at 865

20     Fox v Attorney-General [2002] 3 NZLR 62 at 71-2

Form of information

[45] I can deal with Mr Campbell’s contentions about the form of the informations succinctly. Mr Campbell complains that the Act requires the informations to be laid by a duly appointed animal welfare inspector, and Mr Byrnes was not. I see no substance or merit in this contention. As Mr McCarthy noted, any person may lay an information under s 13 of the Summary Proceedings Act 1957. Whatever the validity or invalidity of Mr Byrnes’ appointment, that section confers a general power on him, or any person for that matter, to lay an information in relation to a breach of the Animal Welfare Act. There is no inherent prejudice whatsoever to the applicant by Mr Byrnes referring to himself as an investigator. Indeed, any harm arising to the applicant flows from the invalidity per se rather than Mr Byrnes’ description on the information. I would add that even if I had found some form of substantive error, I would have left that matter for the District Court to resolve in the normal way when dealing with flawed informations.

Summary on significance

[46]     Accordingly:

(a)       The invalidity was substantively significant;

(b)Subject to my discretion to refuse to grant relief, declarations as to the invalidity of the appointment and subsequent purported exercises of power under section 127 et al should be made;

(c)      But  the  invalidity  was  not  otherwise  sufficient  by  itself  on  the evidence before me to make the balance of the orders sought by the applicant.

[47]      I now move to whether I should make the declarations of invalidity.

Relief

[48]     I  have  reached  a  view  that  declarations  concerning  the  invalidity  of Mr Byrnes’ appointment and consequently the invalidity of his purported reliance should be made for the following reasons.

[49]     First,  the  jurisdiction  to  refuse  relief  is  strictly  limited.21    There  is  a presumption that in the context of judicial review, if error or invalidity is found relief ought to be given.  I accept that the Court of Appeal in Rees v Firth recently said:22

... given the discretionary nature of public remedies, it may be that a more nuanced approach is necessary in the generality of cases.

[50]     Undoubtedly, if the illegality has caused no injustice the need for relief may be small.23    For my part, however, the underlying premise of judicial review is the maintenance of the rule of law and hence the need for strong reasons before refusing to grant relief.24

[51]     Second, the invalidity is significant and not merely technical non-compliance. As I have said, the delegation was subject to a condition of accountability.  That is an important check on the exercise of potentially invasive powers.

[52]     Third,  while  Mr Campbell’s  claims  of  abuse  were  not  made  out,  public confidence in the integrity of enforcement processes depends in no small way on this Court exposing invalidity when it arises.

[53]     Fourth, the declarations do not unduly pre-empt the consideration by the District Court of the unlawfulness and reasonableness of Mr Byrnes’ investigation. That  Court  remains  free  to  assess  whether,  notwithstanding  the  invalidity  of

appointment and the absence of authority under s 127, the various acts described at

21     See discussion in Joseph supra, at [26.4.1]

22 [2011] NZCA 668, at [48] referring to Gerard McCoy “Public Law Potpourri” [2009] NZLJ 352

23     Consider McCoy Supra and cases cited at 354.

24     Air Nelson Limited v Ministry of Transport [2008] NZCA 26; Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL)

paragraph [7] above amounted to lawful and reasonable entry and search.   The corollary of that is that the applicant retains a forum to vindicate his rights.

[54]     There is a small but not unimportant pleadings matter.  The applicant sought an injunction, specific relief relating to the search and admissibility of evidence or a stay of proceedings.  He then seeks any relief as the Court finds to be incidentally necessary.

[55]     While the prospect of a declaration was discussed in argument, I consider that an opportunity should be afforded to the respondent to consider the form of any declaration that might appropriately follow from this judgment.  I therefore direct the parties to file memoranda within seven days specifying the form of declaration to be given to give effect to my judgment

[56]     As  I indicated to counsel, any such declaration should be  careful not to trespass into the substantive evaluative exercise that needs to be undertaken by the District Court both as to the lawfulness of the conduct and the reasonableness of it.

[57]     Costs are reserved pending the receipt of the aforementioned memoranda.

Solicitors:

Deane & Associates, P O Box 242, Oamaru ([email protected])

Crown Law, Wellington, for Respondent ([email protected])

Copy to:

N Willocks ([email protected] )