McClintock v Attorney-General - [2016] NZCA 274

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/2016
[2016] NZCA 274

BETWEEN	JEFF MCCLINTOCK Appellant
AND	THE ATTORNEY-GENERAL First Respondent
AND	RED BEACH BOARD OF TRUSTEES Second Respondent

Hearing:	1 June 2016
Court:	Harrison, Miller and Winkelmann JJ
Counsel:	R K Francois for Appellant P T Rishworth QC and M J R Conway for First Respondent P A Robertson for Second Respondent
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…

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 McClintock v Attorney-General

Details

AGLC: McClintock v Attorney-General [2016] NZCA 274
Case: [2016] NZCA 274
Decision Date: 21 June 2016 at 10 am

CaseChat Overview and Summary

The New Zealand Court of Appeal, presided over by Harrison, Miller, and Winkelmann JJ, heard an appeal brought by Jeff McClintock against the Attorney-General and the Red Beach Board of Trustees. McClintock, an Auckland software developer, filed an application for judicial review against the Attorney-General and the Board, alleging breaches of various statutes including the New Zealand Bill of Rights Act 1990. His complaint centered around a programme called Values in Action, which he believed was religious instruction, being taught at Red Beach Primary School by representatives of the Life in Focus Trust. McClintock sought a range of remedies, including declarations of inconsistency between various provisions and sections 14 and 15 of the NZBORA. The High Court struck out McClintock's proceeding for failing to comply with timetable directions for trial, a decision McClintock now appeals.

The primary legal issues before the Court of Appeal were whether the High Court had jurisdiction to strike out McClintock's proceeding and whether the proceeding was ready for trial at the time of the strike-out. The Court examined the procedural history, finding that McClintock's counsel, Mr Francois, had been in continuous breach of timetabling orders, culminating in the failure to file and serve his submissions by the specified deadlines. Despite this, the Court found two main grounds on which the appeal must succeed. Firstly, the proceeding was not ready for trial when it was struck out; McClintock's statement of claim did not comply with the High Court Rules and failed to properly identify the issues for determination at trial. Secondly, the refusal to grant an adjournment was unjust as it primarily disadvantaged the Board, causing ongoing uncertainty and unwelcome publicity.

The Court of Appeal allowed the appeal, setting aside the High Court's order striking out McClintock's proceeding. The proceeding was reinstated and remitted for determination in the High Court but was stayed until certain conditions were met: McClintock must file a notice of discontinuance against the Board, file an amended statement of claim against the Attorney-General, and pay all outstanding costs orders in the High Court. No order for costs was made in the Court of Appeal due to McClintock's disentitling conduct in the High Court. The Court invited counsel to renew their negotiations, which had already shown progress towards reaching an agreed statement of facts.

Orders