Nottingham v Attorney-General
[2020] NZCA 632
•9 December 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA525/2020 [2020] NZCA 632 |
| BETWEEN | DERMOT GREGORY NOTTINGHAM AND ROBERT EARLE MCKINNEY |
| AND | ATTORNEY-GENERAL |
| Court: | Brown and Gilbert JJ |
Counsel: | Applicants in person |
Judgment: | 9 December 2020 at 10.30 am |
JUDGMENT OF THE COURT
The application for an order to transfer the proceeding to this Court is declined.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
On 8 May 2020 the applicants commenced a judicial review proceeding in the High Court at Auckland challenging among other things the legality of the orders made under the Health Act 1956 by the Director-General of Health on 25 March 2020, 3 April 2020 and 27 April 2020 (Orders 1, 2 and 3 respectively) in the context of the COVID-19 pandemic. The claim named as respondents the Attorney-General, the Director-General of Health, the Prime Minister, the Director of Civil Defence and Emergency Management and the Commissioner of Police.
On 17 September 2020 the applicants filed in this Court the present application seeking an order pursuant to s 59 of the Senior Courts Act 2016 for the transfer of their proceeding to the Court of Appeal, together with orders that the proceeding be heard by a Full Court urgently and that consideration be given to the appointment of an amicus with expertise in administrative and international law. The respondents oppose the application.
Relevant background
The sequence of measures taken by the Government to implement its response to the COVID-19 pandemic have been recited now in several judgments and we do not repeat them here. Mr Nottingham’s first engagement with the Director-General’s response to the pandemic was his application for an order for habeas corpus. His application made in the High Court for an order transferring the habeas corpus application to this Court for hearing by a Full Court was declined by Peters J who properly recognised that consideration of such a transfer was a matter for this Court, not the High Court. The application for a writ of habeas corpus was declined.[1]
[1]A v Ardern [2020] NZHC 796, [2020] 2 NZLR 197.
Mr Nottingham’s appeal was dismissed.[2] This Court explained that unresolved questions about the lawfulness of the notices issued under the Health Act were not appropriately addressed in the context of an application for habeas corpus and identified an expedited application for judicial review in the High Court as the only appropriate procedure in the circumstances of that case.
[2]Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207.
At about this time Mr Borrowdale commenced an application for judicial review against the Director-General of Health challenging Orders 1, 2 and 3. In a judgment delivered on 19 August 2020 a Full Court of the High Court dismissed the second cause of action (lawfulness of all three Orders) and third cause of action (unlawful delegation of power in respect of Order 1). However the Court upheld the first cause of action in part, namely that the restrictive measures imposed for the nine days between 26 March and 3 April went beyond the terms of Order 1.[3] An appeal has been filed in this Court which will be heard in 2021.
[3]Borrowdale v Director-General of Health [2020] NZHC 2090.
On 8 May 2020 the applicants filed their judicial review proceeding in the High Court at Auckland. Their application for a transfer of the proceeding from the High Court was filed in this Court on 17 September 2020. An amended application was filed on 18 September 2020 which, in addition to the orders sought in the original application, sought a direction that the applicants’ claim be heard by this Court in conjunction with the Borrowdale appeal.
The transfer jurisdiction
This Court’s power to transfer a civil proceeding from the High Court is provided in s 59 of the Senior Courts Act:
59 Transfer of civil proceeding from High Court to Court of Appeal
(1) A party to a civil proceeding in the High Court may apply for an order transferring the proceeding to the Court of Appeal.
(2) In determining whether to make an order transferring the proceeding, the Court of Appeal must be satisfied that the circumstances of the proceeding are exceptional.
(3) Without limiting subsection (2), the circumstances may be exceptional if—
(a) the party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled:
(b) the proceeding raises an issue of considerable public importance that—
(i) needs to be determined urgently; and
(ii) is unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:
(c) the proceeding does not raise a question of fact or a significant question of fact, but raises a question of law that is the subject of conflicting decisions of the Court of Appeal.
(4) In deciding whether to make an order transferring the proceeding, the Court of Appeal must have regard to the following matters:
(a) the primary purpose of the Court of Appeal as an appellate court:
(b) the desirability of obtaining a determination of the proceeding in the High Court and a review of that determination on appeal:
(c) whether a full court of the High Court could effectively determine the question in issue:
(d) whether the proceeding raises a question of fact or a significant question of fact:
(e) whether the parties have agreed to the transfer of the proceeding:
(f) any other matter to which regard should be had in the public interest.
(5) It is not a sufficient ground that the parties agree to the transfer.
(6) The Court of Appeal has the jurisdiction of the High Court to hear and determine a proceeding transferred under this section.
(7) The Court of Appeal may transfer back to the High Court a proceeding that has been transferred to the Court of Appeal.
The section was recently considered in the judgment rejecting Mr Borrowdale’s request to transfer his High Court proceeding to this Court.[4] The Court there stated:
[9] Even if the circumstances attending a proceeding are exceptional, it does not of course follow that it should be removed from the High Court and transferred to the Court of Appeal. This Court must still be persuaded that that is, in all the circumstances, the better course to follow.
[10] I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.
[11] As this Court observed last week during the hearing of the habeas corpus applications in [Nottingham] v Ardern, questions raised concerning legality of the Director‑General’s various lockdown orders are complex. They are not merely questions of statutory interpretation, or law, but mixed questions of law and fact. It may be assumed the Crown may need to call evidence of process, context and history. It is not inconceivable there will need to be cross-examination. These are forensic processes far more amenable to resolution in a trial court. It would not be right for this Court to make orders now which limit the parties’ reasonable freedom of action in both proving and defending this proceeding. The burden of the mandatory considerations in s 59(4) lies firmly against removal and transfer.
(Footnote omitted.)
Discussion
[4]Borrowdale v Director-General of Health [2020] NZCA 156.
As the application recognises, the applicants’ proceeding raises not only matters similar to those the subject of the Borrowdale claim but also claims that are different from that claim. The statement of claim, which is criticised by the respondents as prolix, addresses not only the lawfulness of Orders 1, 2 and 3 but also the subsequent Level 3 and 2.5 Orders applicable to the greater Auckland area and the Level 2 Order in respect of the rest of New Zealand.
In addition to seeking relief quashing Orders 1, 2 and 3 and subsequent orders, the applicants seek declarations that the respondents acted knowingly or recklessly to mislead and to breach the rights of all New Zealanders, that New Zealanders have suffered as a result, and that they have a right to compensation as redress. The applicants contend that the restrictions imposed by the Orders amounted to a contravention of various international instruments to which New Zealand is a party, referring in particular to the International Covenant on Civil and Political Rights and to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms.[5] The application states that the proceeding raises “incredibly important questions of fact”.
[5]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); and Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms GA Res 53/133 (1999).
The Crown accepts that if the claim proceeds it will necessarily involve a fact intensive inquiry with contested evidence, including potentially expert evidence. The Crown submits that such evidence is unsuited to determination by an appellate court, noting that the applicants in their submissions confirm that their challenge is likely to involve contested evidence and cross-examination of Crown witnesses.
The applicants emphasise the urgency in having their claim determined, observing that the events in question go back to March this year. The respondents’ rejoinder is that there is no urgent need for the proceeding to be determined as New Zealand is currently at Alert Level 1. Furthermore the restrictive orders of the initial Alert Levels 3 and 4 are spent. Any future orders will likely be made under the COVID‑19 Public Health Response Act 2020 which came into force on 13 May 2020.
We apprehend that another reason why the applicants advocate urgency is that they are critical of the way in which the Borrowdale claim was advanced, contending that an inappropriate or misguided concession was made by Mr Borrowdale. As they put it in their submissions:
32.This is a “perfect storm” case for the Court of Appeal to take over, and with good reasoning, decide the matter of proportionality, which was conceded by Mr Borrowdale, and determined by the High Court with apprehended bias — predetermination.
Indeed the first paragraph of the grounds in their application frankly states that their proceeding “can be construed as in part being an appeal of sorts against the findings of the High Court in Borrowdale”. It is presumably that motivation that prompted the amendment of the current application to include a direction that their proceeding be heard in conjunction with the Borrowdale appeal to this Court.
None of the matters to which we have referred or which are advanced in the applicants’ submissions in support or in reply (both original and amended) lead us to be satisfied that the circumstances of this proceeding are exceptional so as to justify a transfer to this Court.
Quite apart from the evidential considerations, we accept the respondents’ submission that interlocutory steps will likely be required concerning not only the issues for determination at the hearing but also the nature of the evidence required and the manner in which it is to be adduced.
With reference to the mandatory consideration in s 59(4)(b), we consider that transferring the proceeding from the High Court would deprive this Court of the benefit of a reasoned judgment of the High Court, as well as depriving the parties of the benefit of both a determination at first instance and a review on appeal.
Result
The application for an order to transfer the proceeding to this Court is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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