McClintock v Attorney-General
[2016] NZCA 274
•21 June 2016 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA175/2016 [2016] NZCA 274 |
| BETWEEN | JEFF MCCLINTOCK |
| AND | THE ATTORNEY-GENERAL |
| AND | RED BEACH BOARD OF TRUSTEES |
| Hearing: | 1 June 2016 |
Court: | Harrison, Miller and Winkelmann JJ |
Counsel: | R K Francois for Appellant |
Judgment: | 21 June 2016 at 10 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe order made in the High Court striking out the proceeding filed by the appellant against the first and second respondents is set aside.
CThe proceeding is reinstated and remitted for determination in the High Court but is stayed until satisfaction of these conditions:
(1)The appellant files a notice of discontinuance against the second respondent in full and final settlement of his claims against the second respondent.
(2)The appellant files an amended statement of claim against the first respondent in compliance with the requirements of the High Court Rules.
(3)The appellant pays all outstanding costs orders in the High Court.
CThere will be no order for costs in this Court in view of the appellant’s disentitling conduct in the High Court.
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REASONS OF THE COURT
(Given by Harrison J)
Introduction
Jeff McClintock appeals against orders made in the High Court at Auckland striking out his proceeding against the Attorney-General and the Red Beach Board of Trustees for failing to comply with timetable directions for trial.[1]
Background
[1]McClintock v Attorney-General HC Auckland CIV-2015-404-279, 19 April 2016.
Mr McClintock is an Auckland software developer. He and his partner have a daughter who attends Red Beach Primary School on the Hibiscus Coast north of Auckland. The school’s board of trustees (the Board) has allowed representatives of the Life in Focus Trust (LIFT) to teach a programme in classrooms for 30 minutes once weekly. The programme is called Values in Action.
Mr McClintock’s essential complaint is that the Board has attempted to conceal the true nature of the programme which he says is one of religious instruction. He accepts that attendance at the LIFT classes is optional. But he complains that his daughter is being treated unfairly as a result of his decision to withdraw her from the classes.
In February 2015 Mr McClintock filed an application for judicial review in the High Court at Auckland against the Attorney-General and the Board. His statement of claim alleges that each entity has breached obligations owed under the New Zealand Bill of Rights Act 1990 (the NZBORA), the Education Act 1964, the Education Act 1989 and the Care of Children Act 2004. He sought a range of remedies including declarations against the Attorney-General of inconsistency between various provisions and ss 14 and 15 of the NZBORA. The Attorney‑General and the Board have filed statements of defence.
On 9 June 2015 and 6 April 2016 orders were made joining the Churches in Education Commission (CEC) and David Hines and Tanya Jacob, representatives of the Secular Education Network (SEN), respectively as interested non-parties and intervenors.[2] The Human Rights Commission has also been joined as an interested non-party.
[2]McClintock v Attorney-General [2015] NZHC 1280; McClintock v Attorney-General [2016] NZHC 592.
On 12 August 2015 the proceeding was set down for trial for four days commencing on 26 April 2016. Timetabling orders were made in preparation for the trial, principally directing exchanges of affidavits and synopses of submissions. Mr McClintock’s counsel was directed to file his synopsis of submissions by 15 March 2016. He was later granted an extension until 5 April 2016. Of direct importance to this appeal is Wylie J’s observation made in his judgment on 6 April 2016:[3]
… Mr McClintock was due to file his submissions by 5 pm yesterday — 5 April 2016. He did not do so. It is not clear when he intends to remedy this breach. Clearly it will have to be very soon, unless he wishes to face an application for an unless order, because the other parties and CEC are required to file and exchange their respective submissions in the near future.
[3] McClintock v Attorney-General [2016] NZHC 592 at [4].
On 12 April the Attorney-General filed an application for an urgent case management conference and an unless order because Mr McClintock’s counsel, Mr Francois, remained in default of the direction to file submissions by 5 April.
On 13 April Peters J made an order varying the existing timetable, further extending time for Mr Francois to file and serve his submissions from 5 April to 15 April.
On 15 April Wylie J convened a telephone conference. Mr Francois advised the Judge that Mr McClintock and the Board were making progress towards concluding a statement of agreed facts which would enable Mr McClintock to discontinue the proceeding against the Board. The Judge refused an application to adjourn the fixture and directed that the existing timetable was to remain in place.
On 18 April Peters J convened a further telephone conference with counsel. She directed that the proceeding would be struck out unless Mr Francois filed and served his submissions by 9.30 am, 19 April.
On 19 April Peters J without a request from counsel made an order striking out the proceeding in view of Mr Francois’ continued breach of the timetabling orders.
Decision
There is no doubt that there was jurisdiction for Peters J to strike out Mr McClintock’s proceeding. Mr Francois was guilty of continual delays and unexplained breaches of successive orders made in the High Court. The first was made on 12 August 2015 directing Mr Francois to file submissions by 15 March 2016. It was twice extended at Mr Francois’ request. His defaults were serious and unexplained. The Court has an interest in ensuring that justice is administered without unnecessary costs and delays. We do not accept Mr Francois’ excuse tendered before us that he was preoccupied with seeking to negotiate a settlement with the Board.
Nevertheless, we are satisfied that the appeal must succeed on two grounds. First, the proceeding was not ready for trial when it was struck out. It should not have been set down for hearing in August 2015 without an amended statement of claim by Mr McClintock which complied with the High Court Rules. It is unclear why the defendants did not insist on this step. Mr McClintock’s existing statement of claim is a discursive mixture of assertions, submissions and evidence. It fails to identify the issues properly arising for determination at trial. In a case like this a properly pleaded statement of claim is essential. Without it, the proceeding could not have been heard and decided within a correct legal framework. Counsels’ submissions would not have been an adequate substitute.
Second, Wylie J refused Mr McClintock’s application for an adjournment of trial because another fixture would be unavailable until 2017. It is now clear that an adjournment would have operated primarily to the Board’s disadvantage. Mr Robertson advises that the litigation has had an ongoing adverse effect for the Board. The allegations made by Mr McClintock have attracted unwelcome publicity and caused uncertainty. The Board wants prompt finality. However, that uncertainty will not be removed by the order striking out Mr McClintock’s claim because he is free to file a fresh proceeding with the prospect of starting the same process over again. We record counsel’s advice that if the litigation continued it would proceed as a question of statutory interpretation between Mr McClintock and the Attorney‑General on an agreed statement of facts without requiring any further participation by the Board.
At the conclusion of the hearing before us we invited counsel to renew their negotiations and attempts to settle an agreed statement of facts. Messrs Francois and Robertson reported that progress had been made and they expected to reach an agreed position promptly. In that event only Mr McClintock’s proceeding against the Attorney-General would remain for substantive determination. Providing that Mr McClintock’s claim is properly repleaded, Mr Rishworth QC for the Attorney-General advised that the hearing should be capable of conclusion within a day.
Result
The appeal is allowed.
The order made in the High Court striking out the proceeding filed by Mr McClintock in the High Court against the Attorney-General and the Board is set aside.
The proceeding is reinstated and remitted for determination in the High Court but is stayed until satisfaction of these conditions:
(1)Mr McClintock files a notice of discontinuance against the Board in full and final settlement of his claims against the Board.
(2)Mr McClintock files an amended statement of claim against the Attorney-General in compliance with the requirements of the High Court Rules.
(3)Mr McClintock pays all outstanding costs orders in the High Court.
There will be no order for costs in this Court in view of Mr McClintock’s disentitling conduct in the High Court.
Solicitors:
Warren Simpson, Papakura for Appellant
Crown Law Office, Wellington for First Respondent
Heaney & Partners, Auckland for Second Respondent
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