Nottingham v Attorney-General - [2020] NZCA 632

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 Applicants
AND	ATTORNEY-GENERAL Respondent

Court:	Brown and Gilbert JJ
Counsel:	Applicants in person V E Casey QC and V McCall for Respondent
Judgment: (On the papers)	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.

____________________________________________________________________

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…

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 Nottingham v Attorney-General

Details

AGLC: Nottingham v Attorney-General [2020] NZCA 632
Case: [2020] NZCA 632
Decision Date: 9 December 2020 at 10.30 am

CaseChat Overview and Summary

In the case of Nottingham v Attorney-General, the applicants, Dermot Gregory Nottingham and Robert Earle McKinney, sought to transfer their judicial review proceeding from the High Court to the Court of Appeal, arguing for an urgent hearing and the appointment of an amicus. The proceeding challenged the legality of health orders issued during the COVID-19 pandemic. The Court of Appeal was tasked with determining whether the circumstances of the proceeding warranted a transfer, considering factors such as the urgency of the issues, the nature of the evidence, and the role of the Court of Appeal as an appellate court.

The Court examined the applicants' claims, which mirrored aspects of a previous judicial review by Borrowdale but also included distinct allegations. The applicants argued that the orders violated international human rights instruments and sought compensation for the alleged breaches. The Crown countered that the proceeding involved complex fact-intensive inquiries better suited to the High Court, and that the applicants' urgency argument was partly based on dissatisfaction with the Borrowdale case. The Court found that the proceeding did not meet the exceptional circumstances required for transfer, as it involved significant factual disputes and the potential need for interlocutory steps. The Court of Appeal also noted that transferring the proceeding would deny the parties the benefits of a reasoned High Court judgment and the opportunity for appellate review.

The Court of Appeal declined the application for transfer, affirming that the proceeding should remain in the High Court. The Court highlighted the importance of the High Court's role in handling fact-based inquiries and preliminary matters, and reiterated that the transfer jurisdiction should be exercised sparingly. The applicants' desire for urgency and their criticism of the Borrowdale case did not alter the Court's conclusion that the proceeding did not meet the stringent criteria for transfer. Consequently, the application was dismissed, and the proceeding remained in the High Court.

Orders