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McClintock v Attorney-General

McClintock v Attorney-General

Case [2015] NZHC 1280 9 June 2015

Judicial Review

Natural Justice & Procedural Fairness

Constitutional Validity

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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 Rules

BETWEEN

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 Respondent

Judgment:

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…

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 [2015] NZHC 1280
Case: [2015] NZHC 1280
Decision Date: 9 June 2015

CaseChat Overview and Summary

The case of McClintock v Attorney-General and Red Beach Board of Trustees involved judicial review proceedings brought by Mr McClintock, who alleged that his daughter was unfairly treated when she opted out of religious instruction classes at Red Beach School. Mr McClintock sought declarations of inconsistency of the Education Act 1989 with the New Zealand Bill of Rights Act 1990, as well as compensation. The Churches Education Commission (CEC) sought to be joined as an interested non-party, arguing that it would be directly affected by any declarations regarding the provision of Christian religious education programmes in state primary schools. The Court considered whether CEC's interests would be directly affected by the proceedings, whether CEC's presence would improve the quality of information before the Court, and whether there would be any prejudice to Mr McClintock. The Court held that CEC's application should be granted as its interests would be directly affected, its presence would improve the quality of information, and there would be no prejudice to Mr McClintock. The Court also noted that CEC would not seek costs against any party.

The legal issues in the case included whether the Court should grant leave to join an interested non-party in judicial review proceedings, and if so, what conditions should be attached to the joinder. The Court considered the relevant principles and case law, and held that CEC's application should be granted subject to certain conditions. These conditions included that CEC must be served with all pleadings and documents, that it could file and serve a more detailed affidavit regarding its interests and Christian religious education programme in schools, and that it could make written submissions in accordance with the timetable to be fixed by the Court. The Court also held that CEC could appear at the substantive hearing, but that any oral submissions would be at the discretion of the Judge.

The Court's reasoning was based on the proposition that an applicant must show that its legal rights or liabilities in relation to the subject matter will be directly affected. The Court held that CEC's interests would be directly affected should any of the declarations sought be granted, and that CEC's presence before the Court would improve the quality of information. The Court also noted that CEC could not rely on the first respondent to protect its rights and obligations, and that there would be no prejudice to Mr McClintock. The Court considered any potential cost implications and held that CEC may not seek costs against any party. The Court also held that the degree of participation granted to CEC should be the minimum necessary to protect its interests, and that 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.

Orders