McClintock v Attorney-General
[2015] NZHC 1280
•9 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-279 [2015] NZHC 1280
UNDER The New Zealand Bill of Rights Act 1990,
the Judicature Act 1908, Part 30 of the
High Court RulesBETWEEN
JEFF McCLINTOCK Applicant
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent
AND
RED BEACH BOARD OF TRUSTES Second Respondent
Hearing: 21 May 2015 Appearances:
Mr Francois for the Applicant
Ms Cooper for the First Respondent
Ms Aitken for the Second RespondentJudgment:
9 June 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 9 June 2015 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
McCLINTOCK v THE ATTORNEY-GENERAL OF NEW ZEALAND & ORS [2015] NZHC 1280 [9 June
2015]
Introduction
[1] The applicant, Mr McClintock, has commenced judicial review proceedings against the first and second respondents. He alleges his daughter was unfairly treated when she opted out of religious instruction classes offered during the school day at Red Beach School, a state primary school in Auckland. He alleges breaches of ss 75 and 79 of the Education Act 1989 (the Act), and the New Zealand Bill of Rights Act 1990 (NZBORA) on the grounds of discrimination; breaches of the rights to manifestation of religion and belief, freedom of thought, conscience and religion, and freedom of expression; and breach of the Care of Children Act 2004. Mr McClintock seeks declarations that the breaches have occurred and that the Act is inconsistent with NZBORA. He also claims compensation.
[2] The Churches Education Commission (CEC) seeks to be joined as an interested non-party and that it be heard on the grounds that CEC is a leader in the field of provision of Christian religious education programmes throughout New Zealand and will be directly affected should the declarations be made. The application is opposed by Mr McClintock. Affidavits from both Mr McClintock and CEC have been filed.
[3] The first respondent initially elected to abide the Court’s decision on the application for joinder but subsequently filed a memorandum suggesting CEC’s participation in the proceeding may have some value. The second respondent will abide the Court’s decision and did not wish to be heard.
Evidence from CEC
[4] Affidavit evidence filed on behalf of CEC explains that various charitable organisations have provided Christian religious education programmes to state primary schools in New Zealand since the 1890s.
[5] CEC is a non-denominational charitable trust which provides a Christian religious education programme to New Zealand state primary schools upon request by the Boards of Trustees of those schools.
[6] CEC's charitable purpose is to advance education and the Christian faith in
New Zealand, as recorded in its terms of trust.
[7] CEC currently has 16 church denominations in New Zealand as members, namely:
1. The Anglican Church of Aotearoa
2. Baptist Union of New Zealand.
3. Presbyterian Church of Aotearoa.
4. Assemblies of God.
5. Associating Churches and Ministries of New Zealand.
6. Christian Brethren.
7. Christian Churches of New Zealand.
8. Congregation Union of New Zealand.
9. Elim.
10. Lutheran Church of New Zealand.
11. New Life.
12. The Apostolic Church Movement in New Zealand.
13. The Christian Covenant Church of New Zealand.
14. The Methodist Church of New Zealand.
15. The Salvation Army.
16. The Wesleyan Methodist Church.
[8] Currently, CEC provides Christian religious education programmes to 667 state primary schools throughout New Zealand by 2582 Christian religious education teachers and involving 16 regional trust boards.
[9] CEC provides about 80 per cent of all the Christian religious education programmes in the various state primary schools which permit Christian religious education programmes to operate. It is not, however, a respondent in this litigation or a provider of services to the second respondent.
[10] CEC has a national staff of eight and an annual turnover of $450,000 to
$500,000. CEC is funded largely by donations.
Context
CEC’s position
[11] The nature and scope of Mr McClintock's claim is highly relevant to CEC because, says CEC, the proceeding is to be a vehicle for a broad ranging criticism of the provision of Christian religious education programmes in state schools nationwide.
[12] In support of that proposition, Mr Bassett, counsel for CEC, refers to
Mr McClintock’s affidavit of 1 April 2015 which states:
3. My complaint is about the Crown’s responsibility to protect my children from discrimination, bullying and proselytizing from groups who have no business in a public school.
4. My case is also about the imposition of the dominant religion in this country on minorities…
[…]
6. …I understand representatives from all these groups are prepared to comment on the coercive practices employed against their children in public schools in New Zealand.
[13] CEC says that Mr McClintock is implicitly challenging the rights of Boards of Trustees throughout New Zealand to exercise their discretion to allow voluntary religious education in state schools, alleging they are in breach of ss 14 and 15 of NZBORA (freedom of expression and manifestation of religion and belief).
[14] Mr Bassett submits CEC is affected in two ways. First, the precedent effect is that any successful declaration will directly affect the way in which CEC will operate in future. Secondly, if Mr McClintock succeeds, the result will amount to an implicit criticism of how religious education programmes are conducted nationwide, not limited to the second respondent. The claim implies that it is the Crown's responsibility to stop alleged “coercion” and the Crown has failed in this.
[15] CEC’s position is that, given it implicitly is the subject of the criticism which is of nationwide effect, it would be unjust and a breach of natural justice for the
Court not to hear from CEC. Conversely, the Court would not be able to rule on the issue if CEC were not heard.
[16] CEC says it can assist the Court with:
(a) the manner and practice of Christian religious education programmes in schools and how in practice the providers and programmes relate to the relevant provisions of the Act; and
(b)what occurs in the classroom and the relationship between providers and Boards of Trustees nationwide.
[17] To that extent, CEC is better placed to assist the Court than the Crown, in Mr
Bassett’s submission.
The applicant’s submissions
[18] Mr McClintock opposes the application on the grounds there is no allegation or claim by him against CEC and no remedy is sought in relation to it.
[19] Mr Francois, for Mr McClintock, draws a distinction between religious instruction and religious education in schools. He clarifies that the case is not about religious education (teaching about religion and its role), rather it is about religious instruction (being a deliberate inculcation of religious beliefs and the instilling and developing of religious beliefs in pupils). CEC accepts that it is involved in providing religious instruction.
[20] Mr Francois submits there is no basis to include CEC in the case and depart from the traditional privity of litigation, contrasting the case with Wilson v Attorney- General [Judicial Conduct] (No. 2)1 where the applicants established they had an interest to protect as the original complainants in the disciplinary process against
Wilson J.
1 Wilson v Attorney-General HC Wellington CIV-2010-485-1147, 27 July 2010.
[21] Mr McClintock says his complaint is with the legislation which he submits fails to protect his children from discrimination and coercion by the State.
[22] Even if Mr McClintock is successful in the substantive proceedings, in Mr Francois’ submission, the religious instruction programmes will remain in place in primary schools without impacting upon religious providers at all. Mr Francois refers to the fact that it has yet to be established in NZBORA jurisprudence that declarations of inconsistency are in fact available in the High Court. However, it is clear that they are not enforceable orders and neither bind Parliament nor interfere with the legislative process. Therefore, he says, CEC does not have an interest to protect because it will not lose anything as a result of the litigation.
[23] Mr Francois submits that the claims of illegality, ultra vires and breaches of statutory powers are unlikely to have a significant bearing on the development of the law. Rather, the claims are fact specific allegations and relate to the decisions of the second respondent. I note that CEC confirms it does not seek involvement in respect of the causes of action which impact only on Red Beach School.
[24] Mr Francois accepts that this proceeding may one day have some importance in terms of the development of the law in relation to NZBORA jurisprudence and declarations of inconsistency. However, in his submission, Crown Law is the most appropriate representative in these matters.
[25] Mr Francois is concerned that granting leave to intervene will expand the issues before the Court and elongate the hearing by opening the door for various other non party applicants to join the proceeding. For example, this might include the Secular Education Network, the New Zealand Society of Rationalists and Humanists, the New Zealand Buddhist Council, the Federation of Islamic Associations of New Zealand, the Church of Jesus Christ of Latter-day Saints in New Zealand, and the Catholic Church of Aotearoa New Zealand. There are, however, no such applications before the Court and any such application will be determined on its merits.
[26] Allowing CEC to intervene will, in Mr Francois’ submission, make the issues more complex and increase the costs borne by the Court, the applicant and the Crown. CEC's assistance, it is submitted, will not improve the quality of the information available to the Court and the interests of CEC can be adequately represented by the first and second respondents without the need to over complicate the legal issues or create unnecessary distractions.
[27] Mr McClintock is not legally aided and counsel is undertaking the case on a pro bono basis. Accordingly, in the interests of justice and the perception of balance and fairness, it is submitted that the Court would have to consider appointing an amicus curiae if CEC’s application succeeds.
[28] Finally, in Mr Francois’ submission, the first respondent is well equipped and able to deal with the case. Crown Law, representing the first respondent, has specialist public law knowledge and can adequately represent the interests of CEC, he says. Furthermore, CEC’s interests must warrant protection and, given the lack of entrenchment of NZBORA, any declarations would not therefore have the inevitably chilling effect referred to by CEC.
The first respondent
[29] The first respondent suggests that CEC’s participation may have some value
because:
(a) CEC’s and the Crown's interests are not wholly aligned. The case against the Crown is that s 78 of the Act compels or authorises conduct that is inconsistent with freedom of religion and other protected rights under NZBORA. Defending this claim does not necessarily require the Crown to take a firm position on the current operation of religious instruction in schools, as CEC may wish to.
(b)The Ministry of Education does not monitor or hold data on religious instruction in schools because it is an extra-curriculum activity. Accordingly, the Court may be assisted by CEC providing evidence about Christian religious education programmes in practice.
Intervention principles
[30] It is important to note at the outset that CEC does not seek to be added as a plaintiff or a defendant but as an interested party. The difference is significant. Whereas additional plaintiffs or defendants have a right to appeal, an interested party or intervener has no such right.2 The High Court Rules do not specifically provide for the addition of an interested party to a proceeding. However, this Court has recognised the existence of this jurisdiction both under the rules and in the exercise of the Court’s inherent jurisdiction.3
[31] The case law does not reveal a clear test for whether the court should add interested parties or interveners in civil cases. It appears, however, that the court may be influenced by broader considerations than on applications for joinder of plaintiffs or defendants. This corresponds to the more limited rights acquired by interested parties/interveners.
[32] I will begin by considering cases where parties have sought to be joined as interested parties to judicial review proceedings.
[33] Diagnostic Medlab Ltd v Auckland District Health Board concerned judicial review proceedings where 16 persons applied to be interveners.4 Lang J proposed to consider:5
…whether it is arguable the rights of the intended interveners will be directly affected by this proceeding. It is necessary, however, to emphasise that the fact that an applicant may have an interest in a proceeding is not sufficient to satisfy the test. The applicant must demonstrate that its rights will arguably be directly affected by it.
[34] Leave was granted to one entity only, whose rights and obligations were directly affected by the proceeding and who could not rely on the plaintiff to protect
2 Beneficial Owners of Whangaruru Whakaturia No 4 v Warin [2009] NZCA 60, at [27]. See also Fundacion Pimjo Asociacion Civil v Aguilar & Aguilar Ltd [2014] NZHC 2322 at [43] and Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177 at [15].
3 Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-
1795, 9 August 2011 at [18], citing r 1.6 and the former r 7.9 (which has now been replaced by rr
7.2 and 7.43A(2)).
4 Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724, 18
October 2006.
5 At [26].
its rights and obligations in the proceeding.6 The Court considered joining that party would improve the quality of information before the Court.
[35] In Wilson v Attorney-General, however, the Full Court of the High Court took a wider approach, allowing joinder of an interested party where that party was indirectly affected.7 Wilson concerned judicial review of decisions of the Judicial Conduct Commissioner and the Attorney-General. The Full Court considered that defendants to judicial review applications should be restricted to persons or bodies whose exercise of statutory power of decision is challenged. Although it had doubts as to whether the proposed interested parties in that case could add anything to the argument, the Full Court accepted that, as the two complainants to the
Commissioner, they had an interest beyond the interest every New Zealander has in the integrity of the judiciary. Saxmere had been directly affected by the conduct complained about. Sir Edmund Thomas was affected by the allegation that the Commissioner erred in taking account of information that was hearsay, confidential and privileged, as Sir Edmund was the source of that information. He was entitled to
be heard on it. The Court stated:8
[19] We express our agreement with this comment by Gendall J in Deadman v Luxton HC Wellington CP71/99, 4 May 1999 at 6, in the very different context of judicial review of decisions about fishing quota:
It may often be the case that there is more scope for rights of others to be affected in judicial review proceedings, than in other types of “plaintiff versus defendant” civil litigation, because frequently the challenge to the exercise of the statutory power or decision of a public body will have consequential effects upon others who obtained beneficial entitlements or expectations following upon the exercise of such power.
[20] Emerging from the cases is that joinder is appropriate where the party's interests are, or may be, directly or indirectly affected by the judicial review application. In such situations, it would be unjust to decide the issues in the absence of the party so affected, or potentially affected. As Hammond J pointed out in Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 (HC) at [14], ‘joinder is not an all or nothing thing’. Fairness to the plaintiff, who is having another party interposed in his proceeding, demands that the Court consider whether the joinder should be
6 Lang J followed the judgment of Ellen France J in Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 19 July 2002, who, at [22], adopted the “directly affected” test from Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52.
7 Wilson v Attorney-General, above n 1.
8 Above n 1.
for all or only limited purposes. The level of participation should be only what is necessary to protect the interests of the party being added.
[36] In civil proceedings outside of the judicial review context, the courts’ approach to interveners has depended largely on the facts and nature of the particular case.
[37] In X v X, the Auckland Women Lawyers' Association Inc (AWLA) sought leave to intervene on an appeal from a judgment of the Family Court in relationship property proceedings having previously been given intervener status on important issues involving relationship property litigation.9 AWLA emphasised that economic disparity issues are of general public importance and the particular issue in the case had not yet been determined at appellate level.
[38] Heath J commented that:10
The various cases in which intervener status has been granted can all be seen as ones where development of the law was likely. The proposed interveners each had special expertise to assist the Court on wider public policy issues to which counsel for the parties may not have referred.
[39] AWLA’s application for joinder was dismissed. Heath J held that the issues raised by AWLA would not necessarily need to be determined once the relevant factual findings were made; broader policy considerations did not arise in the same way as in other cases; there was no reason why the points raised by AWLA could not adequately be advanced by senior counsel instructed for Mrs X; and the ability for AWLA to present submissions which could only assist Mrs X would undoubtedly instil a perception of partiality in Mr X.
[40] The High Court decision of Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd concerned an alleged breach of patent by AFT by selling a drug and an injunction application.11 Pharmaceutical Management Agency (Pharmac) applied to be joined in the proceeding as an interested party. Pharmac contended it was directly affected by the issues, as the decision could affect the current and future
supply of the relevant drug.
9 X v X HC Auckland CIV-2006-404-903, 4 July 2006.
10 At [25].
11 Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd, above n 3.
[41] After reviewing the case law, Abbott AJ held that, in order for Pharmac to establish an appropriate interest, it must show that a legal right or liability against a party will be directly affected by the decision, and “not merely that the decision will have financial consequences for it”.12 He considered that “the Court should exercise its inherent jurisdiction to give a person interested party status in ordinary civil litigation only in exceptional circumstances.”13
[42] Finally, the Associate Judge discussed the “further significant factor” counting against the Court exercising its discretion, namely that Pharmac had not shown how its presence as an interested party would assist the Court or improve the quality of information before the Court.14
[43] I have also considered the recent High Court decision of Seales v Attorney- General.15 A relevant consideration for the Judge was whether the proceeding involved statutory interpretation or broad questions of policy; the latter being unlikely to support the joinder application.16
[44] The following propositions can be distilled from the authorities on the joinder of interveners/interested parties:
(a) An applicant must show that its legal rights or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.
(b) If the intending intervener’s presence before the Court will not
improve the quality of information before the Court, that will count heavily against its addition to the proceedings.
12 At [36].
13 At [39].
14 At [42].
15 Seales v Attorney-General [2015] NZHC 828.
16 At [48].
(c) A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.
(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will likely not be granted.
(e) In cases where development of the law is possible, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.
(f) The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.
(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener’s interests.
(h)The power to grant leave to intervene is discretionary and should be exercised with restraint to avoid the risk of expanding issues, elongating the hearing and increasing the costs of the litigation.
Analysis
[45] Applying those principles to this case, I am satisfied that the application should be granted.
[46] CEC’s interests will be directly affected should any of the declarations sought be granted. Mr Bassett perhaps overstated the position when he referred to the “chilling effect” of any declaration on Boards of Trustees’ decisions as to delivery of Christian education programmes in state schools. Although any declaration as to inconsistency under NZBORA cannot change the Act, it is disingenuous to suggest that Boards of Trustees will not take notice of any such declaration. School Boards
are Crown entities under the Crown Entities Act 2004 and would be expected to have regard to any such declaration.
[47] CEC’s presence before the Court will improve the quality of information. As identified by the first respondent, CEC can provide evidence to the Court which is relevant to the issues to be determined. Although it is possible that such evidence could be adduced through the first respondent, as his interests are not necessarily aligned with those of CEC, the evidence might not be provided.
[48] Likewise, CEC cannot rely on the first respondent to protect its rights and obligations.
[49] I have considered any potential prejudice to Mr McClintock. These are his proceedings seeking declarations which, in his own words, are about “the imposition of the dominant religion in this country on minorities”. He intends and seeks that the case has wider ramifications outside of the second respondent and his children. If a party embarks on such a course, he or she must expect that the issues raised by him or her will become subject to widespread debate and interest and that parties directly affected will seek to be heard. I am mindful of any cost implications as Mr McClintock is not legally aided and, at present, his counsel is acting on a pro- bono basis. For this reason, one of the conditions of granting the application is that CEC may not seek costs.
[50] Mr Francois considers that the case has the flavour of a David and Goliath battle with, in his submission, parties seeking to gang up against Mr McClintock creating a perception of imbalance and unfairness. He refers to the decision of X v X as analogous. That case is clearly distinguishable, however, as it involved two private individuals in a relationship property dispute. The distinct public law aspect to this case distinguishes it from the other cases relied on by Mr Francois.
[51] Mr Francois suggests that, if the application were granted, the Court may need to appoint an amicus curiae. I am not persuaded that at this stage, in any event,
the case falls within the realm identified by the Court of Appeal in D v C.17 That
17 D v C [Intervention] (2001) 15 PRNZ 474 (CA).
case considered issues of parental liability and involved two private individuals. The AWLA had sought to intervene to draw to the Court’s attention the wider social ramifications of the issues on appeal, in particular the impact on women and children, social aspects of child support and how child support issues are dealt with in other countries. The Court of Appeal suggested the potential for an amicus curiae to rectify any received imbalance. The concern was clearly appropriate in that case where the proceedings involved a dispute between two private individuals concerning their children. Again, this case is very different given that Mr McClintock has knowingly embarked upon an area involving public law.
[52] While this is not a case where CEC has special expertise to assist the Court on wider public policy issues, it does have specialist knowledge and experience which, in my assessment, will be of assistance to the Court.
[53] I am satisfied that in this case it would be unjust to adjudicate on the matter in dispute without CEC being heard. The degree of participation will be restricted to the minimum necessary to protect CEC’s interests.
Conditions
[54] The application is granted subject to the following conditions:
(a) CEC must be served with all pleadings and documents filed in this proceeding and a copy of any agreed bundle of documents for the substantive hearing.
(b)CEC is granted leave to file and serve a more detailed affidavit regarding CEC’s interests and its Christian religious education programme in schools. The affidavits are to be limited to evidence of:
(i)the manner and practice of Christian religious education programmes in schools and how in practice the providers and programmes relate to the relevant provisions of the Act; and
(ii)what occurs in the classroom and the relationship between providers and Boards of Trustees nationwide.
(c) CEC is granted leave to make written submissions in accordance with the timetable to be fixed by the Court.
(d)Any written submissions filed by CEC as an interested non-party are to be filed after the written submissions filed by Mr McClintock and the Respondents and shall not be repetitive of matters addressed by the first and second respondents.
(e) CEC is granted leave for CEC’s counsel to appear at the substantive hearing and the Judge can decide whether oral submissions will be allowed.
(f) As the parties did not address any conditions to be attached to the joinder, all parties have leave to apply for any further orders in respect of CEC’s joinder.
(g) CEC may not seek costs against any party.
Thomas J
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