Nottingham v Attorney-General
[2022] NZHC 405
•9 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001793 CIV-2021-404-001980
CIV-2021-404-001981 [2022] NZHC 405
UNDER Judicial Review Procedure Act 2016, Habeas Corpus Act 2001 and Declaratory Judgments Act 1908 BETWEEN
DERMOT GREGORY NOTTINGHAM and ROBERT EARLE MCKINNEY
Applicants
AND
ATTORNEY-GENERAL
Respondent
Hearing: 3 March 2022 Appearances:
D Nottingham and R E McKinney in person
M L Clarke-Parker and C Sinclair for Respondent
Judgment:
9 March 2022
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 9 March 2022 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Wellington Copy to: D G Nottingham
R E McKinney
NOTTINGHAM v ATTORNEY-GENERAL [2022] NZHC 405 [9 March 2022]
[1] The plaintiffs, Dermot Gregory Nottingham and Robert Earlie McKinney, have filed three proceedings in the High Court at Auckland. The first is a statement of claim dated 16 September 2021 under the Judicial Review Procedure Act 2016.1 The second is a statement of claim dated 22 September 2021 under the Declaratory Judgments Act 1908.2 The third is an application dated 24 September 2021 for a writ of habeas corpus.3
[2] Each proceeding is a challenge to the Government’s actions taken in response to the COVID-19 pandemic. They have been case managed together.
[3] In a minute dated 3 November 2021, I expressed the view that the three proceedings were unable to be sensibly adjudicated in their present form such that a hearing for them could not reasonably be allocated at that stage. I said that considerable refinement of the pleadings was required together with the filing of evidence (including expert evidence) to support the allegations made in the pleadings. The plaintiffs have not amended the pleadings, nor have they filed any evidence. They maintain that the Government’s actions are self-evidently unlawful.
[4] The respondent Attorney-General accordingly filed an application, dated 12 November 2021, to strike out the three proceedings, and to the extent that any part of the proceedings is permitted to proceed, seeking an order requiring the plaintiffs to give security for costs.
[5] The plaintiffs filed a notice of opposition to the respondent’s strike-out application on 17 February 2022. Then, on 28 February 2022, the plaintiffs filed an urgent interlocutory application for an injunction and immediate declaratory orders in all three proceedings.
1 CIV-2021-404-1793.
2 CIV-2021-404-1981.
3 CIV-2021-404-1980.
Notice of opposition
[6] The notice of opposition to the Attorney-General’s application filed by the plaintiffs is said to contain “inbuilt submissions”. The plaintiffs annex four documents to their notice:
(a)Medsafe Safety Report #39 – Adverse events following immunisation with COVID-19 vaccines;
(b)Video of a young man who allegedly had a severe adverse reaction to vaccination;
(c)Report on role of Centre for Adverse Reactions Monitoring (CARM); and
(d)NZ Herald article dated 16 February 2022 entitled “Big Outbreak predicted as NZ modellers take swipe at earlier ‘50,000 by Waitangi Day’” and article entitled “Applying Siracusa: A Call for a General Comment on Public Health Emergencies” by Nina Sun, Deputy Director of Global Health at Dornsife School of Public Health at Drexel University.
[7]The notice (and submissions) concludes:
78]It is submitted that these documents annexed to this notice of opposition is sufficient summarily for this Court to intervene and rule that unless the Government recants on its modelling that has relied upon, and supplies evidence proving the vaccine is worthy of administration, and is not a massive killer of persons coerced into taking it for no good reason, all mandates must go and only those at risk should be protected by means of isolation and caution that occurs with seasonal influenza. There is no end in sight and the Government and its “experts” saying elimination was possible proves they are incompetent, and that there exists a legitimate alternate plan of protecting only the truly vulnerable, allowing those that are healthy and not at risk, or even at low to medium risk to make up their minds.
79]The modelling proves absolute that the Governments expects think that none of the current actions will prevent up to 3.3m getting covid. We all know that this is false and that Covid is not the killer it is alleged to be, nor the threat to the economy. The only threat to the
economy was the lack of wisdom of one very inexperienced and not to bright, and very narcissistic Jacinda Ardern.
[8] This summary highlights the major difficulty with the plaintiffs’ proceedings. The plaintiffs have chosen not to file any evidence (including expert evidence) and instead seek to rely on their interpretation of a very limited number of publicly available documents to submit that the Government’s actions are self-evidently unlawful. The plaintiffs submit that there is an onus on the Government to prove the vaccine is worthy of administration and not a “massive killer” of persons coerced into taking it for no good reason. If the Government cannot prove this, all mandates must go. However, it is the plaintiffs who have a duty to produce sufficient evidence to enable the respondent and the Court to engage with their arguments. They have an obligation to place the controversy before the Court in a justiciable form. When I asked Mr Nottingham which mandates he was referring to, he identified vaccine pass mandates, mask wearing mandates and employment mandates. He said vaccine pass and mask wearing mandates could be found on a Government website and he was not too sure of the number of employment mandates. No specific mandates have been identified in the proceedings nor have the plaintiffs produced any evidence relating specifically to mandates.
[9] In submitting that they are right until the Government proves them wrong, the plaintiffs rely on the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) as imposing an evidential burden on the Government, in particular, cl 64. The Siracusa Principles were formulated in 1984 by the American Association for the International Commission of Jurists (AAICJ), following a conference of experts held in Siracusa, Italy. The AAICJ is a non-governmental organisation founded in 1967 to uphold and strengthen the principles of human rights and the rule of law throughout the world. The Siracusa Principles were considered by the participants in the conference to reflect the present state of international law.
[10] Clause 39 of the Siracusa Principles provides that a state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 only when faced with a situation of
exceptional and actual or imminent danger, which threatens the life of the nation. Clause 64 on which the plaintiffs rely, in particular, provides:
In a public emergency the rule of law shall still prevail. Derogation is an authorised and limited prerogative in order to respond adequately to a threat to the life of the nation. The derogating state shall have the burden of justifying its actions under law.
[11] The Siracusa Principles do not, however, create enforceable and actionable obligations as they have not been incorporated into the domestic law of New Zealand. They may, however, provide guidance in the interpretation of New Zealand law or be relevant considerations for decision makers to take into account. As an example, in Quilter v Attorney-General,4 Thomas J stated that applying the Siracusa Principles to the case before him would mean that s 5 of the Bill of Rights would not be available to limit the right to freedom from discrimination contained in s 19.
[12] The plaintiffs rely on a submission by the Human Rights Commission on the COVID-19 Public Health Response Act 2020 in which the Commission stated that the Siracusa Principles provided:
authoritative legal guidance on government responses that restrict human rights for reasons of public health or national emergency under Article 4 of the ICCPR.”
The Commission does not, however, maintain that Siracusa Principles are part of the domestic law of New Zealand. Rather, as the Courts already recognise, they can be a useful interpretative aid for the application of the New Zealand Bill of Rights Act (NZBORA).
[13] The plaintiffs, however, argue that the Siracusa Principles are directly enforceable and that simply by filing these proceedings the Government is required to justify its actions taken in response to the COVID-19 pandemic. Otherwise, the Court is required to order the:
Striking down [of] the application of the COVID-19 (Public Health Response) Act 2020 and any other relevant Act inclusive of the Epidemic Preparedness Act 2006, Health Act 1956 as being applicable law to what has been a contrived reaction to a threat of COVID-19 that does not exist at the
4 Quilter v Attorney-General [1998] 1 NZLR 523 (CA) at 541.
prerequisite levels of a threat to the life of the nation, as is a prerequisite of the Siracusa Principle allowing for the otherwise absolutely unlawful abrogation of fundamental human rights guaranteed by international and local law, inclusive of the common law.
[14] The Siracusa Principles cannot displace an Act of Parliament nor be used to support a strained interpretation of an Act.
[15] That is not to say that there is no onus on the Government. In certain circumstances there is. In R v Hansen, Tipping J stated:5
Parliament has nevertheless given the New Zealand Courts a significant review role. That role arises by virtue of s 5, which requires that a limit on a right or freedom be demonstrably justified. Determination of this question necessarily falls to the Courts. Parliament must therefore be taken to have disclaimed any kind of presumptive justification simply because it has enacted the limit.
The onus is on those who claim the limit is reasonable and justified to satisfy the Court that this is demonstrably so.
[16] In Ministry of Health v Atkinson there was no issue that the Ministry had the onus of proving the exclusion of family members from payment for the provision of various support services to their children came within s 5 of the NZBORA.6
[17] The onus arises not from the Siracusa Principles directly, but from the terms of s 5 NZBORA itself:
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[18] The government bears the onus of justifying limits on rights, but this burden is only engaged once the plaintiff has proved such limits exist. Without this evidence, the enquiry cannot even begin. The government cannot be expected to justify actions which affect rights if the plaintiffs do not make clear which actions they are referring to, or their effects.
5 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [108]–[112].
6 Ministry of Health v Atkinson [2012] NZCA 184, [2013] 3 NZLR 546 at [163].
Judicial Review Proceeding
[19] The plaintiffs claim to bring the judicial review proceedings on a representative basis:7
The applicants represent those New Zealanders who do not want to be subjected to scientific experimentation as a result of a vaccine that has definitive risks of death and future unknown [as yet] substantial health risks, and could amount to a placebo to 85% of the population.
[20] There are then eight further categories of New Zealanders who the plaintiffs purport to represent. The plaintiffs have, however, not filed any evidence that the New Zealanders who they purport to represent have consented to be part of the suit, as required by r 4.24(a) of the High Court Rules. Nor have they made an application for an order under r 4.24(b) to bring the proceeding on a representative basis. Accordingly, the proceeding cannot be brought on a representative basis.
[21] The statement of claim in the judicial review proceeding is 99 paragraphs in length with 13 pages of footnotes. There are three causes of action specified. The first begins:
86 The Defendant Government locked down New Zealand initially because it relied on models that were done by persons of limited expertise, and insufficient information, and that the Prime Minister relied on telephone calls from, or to, unqualified friends, to lock down New Zealand removing fundamental human rights and expend billions of irrecoverable funds using a panicdemic rather than a pandemic.
[22]The second cause of action begins:
96The evidence obtained from the Singapore application of the appropriate death causation profiles indicate that Covid 19 is less fatal than the flu.
97That the Global statistics and the New Zealand statistics, are fraudulently exaggerated to support the unlawful conduct of the Governments involved.
[23]The third cause of action is a catch-all
7 CIV-2021-404-1793.
99Any other cause of action that – the Applicants representing their rights under the Siracusa Principles or – the Court, representing the separation of powers pursuant to the Siracusa Principles, can be applied to the conduct of the Defendant Government requiring the Court to Act to protect the people from the excesses of the Defendant Government.
[24] The thrust of these causes of action appears to be an assertion that the Government acted on insufficient or fraudulent information in taking action in response to the COVID-19 pandemic. It is difficult to see how, even if true, this gives rise to a claim enforceable by the plaintiffs in Court.
[25] The plaintiffs allege a breach of a wide range of constitutional legislation without specifying any particular provision. No material response can be provided.
[26] Orders are sought “striking down the application” of the COVID-19 (Public Health Response) Act 2020 and any other relevant Act inclusive of the Epidemic Preparedness Act 2006, and Health Act 1956 as being applicable law to what has been a contrived reaction to a threat of COVID-19 that does not exist at the prerequisite levels of a threat to the life of the nation, as is a prerequisite of the Siracusa Principles allowing for the otherwise absolutely unlawful abrogation of fundamental human rights guaranteed by international and local law inclusive of common law.
[27] A whole range of ancillary orders are sought, including an order that no New Zealander can be forced, coerced or intimidated by any means to be vaccinated if he/she chooses not to give consent, an order for repayment of loans made by the Government which were only necessitated by the Government’s unlawful conduct, an order for compensation of all those impacted to the full extent of the law, an order that the Prime Minister give a personalised written apology for the distress and suffering caused by the application of an impossible policy of elimination of COVID-19 when there did not factually exist grounds to do so and an order that the Government apologise to all New Zealanders for its abuses against them concerning the dishonesty around the COVID threat in order that the Government could pass legislation that it always intended to abuse, and did abuse.
[28] In seeking these orders, the plaintiffs misunderstand the extent of the Court’s power. It is unable to strike down primary legislation. It cannot order the repayment
of loans made by the Government. Nor can it order the Prime Minister to give a personalised written apology.
The Declaratory Orders Proceeding
[29] The statement of claim in the declaratory orders proceeding is 21 paragraphs in length with an additional 18 pages of annexures.8
[30] It is difficult to identify a cause of action in this judgment proceeding. The plaintiffs, first of all, complain about the administrative actions of this Court in “purposefully impeding the urgent progress of these proceedings”. They maintain that the Courts operate “as a puppet of the Defendant Government unlawful dystopian policy”. Then, after referring to a number of rights set out in the Universal Declaration on Human Rights and International Covenant on Civil and Political Rights, the plaintiffs state:
In relation to this proceeding Siracusa Principle 58 is the gravitas of the Plaintiffs desire that the Court clarifies the law involved relating to whether the Defendant Government can even threaten the use of mandatory medical experimentation such as vaccination for Covid 19 as a form of coercion, and whether the Defendant Government can allow any natural or legal person to act in a manner that directly or indirectly removes consent by a form of coercion.
[31] No specific vaccination mandate or executive decision is identified as a proper subject of the claim. That is because the proceeding was filed before any vaccination mandates were implemented. The plaintiffs instead refer to media reports of possible vaccination mandates:
[Health Minister] Little this morning told Newshub Nation a possible mandate of vaccinations was under active consideration.
[32] The plaintiffs also complain about the media, alleging that the NZ Herald, in particular:
is an actor in the misinformation and unlawful threats being spread in order to coerce otherwise unconsenting New Zealanders into believing that the law provides for the threatened actions when the law does not do so.
8 CIV-2021-404-1981.
The plaintiffs invite the Court to join the NZ Herald as a respondent pursuant to s 5 of the Declaratory Judgments Act 1908.
[33] The plaintiffs seek the following orders in the declaratory judgment proceeding:
(a)A declaration that s 10 of the NZBORA 1990 is a non-derogable right pursuant to the salient provisions of the ICCPR and the Siracusa Principles, and no [natural or legal] can act to, or threaten to act to, abrogate, or restrict, impair, impede or limit the application of that right to any New Zealander, and in turn a parent or guardian of a minor, by direct or indirect means, such as threats, or actions, that relate the loss, or restriction of any other legal rights as a result of enforcing their rights under section 10 of the NZBORA 1990.
(b)Any other declaratory orders covering any other statutes, regulations, orders in council, prerogatives, decrees, legislation, international law etc necessary to explain, and enforce the law in relation to section 10 of the NZBORA 1990.
[34] The orders sought are too broad and are not able to be related to any live factual issue. They are more in the nature of a hypothetical advisory opinion. Section 10 of the Declaratory Judgments Act provides that the jurisdiction to give a declaratory order is discretionary. The respondent has drawn my attention to case law which affirms that a declaration should be “fact-specific, efficacious and capable of practical application”,9 and relief will not generally be granted to answer purely abstract or hypothetical questions,10 either in anticipation of an actual controversy that cannot be reasonably contemplated at the time or where the controversy has passed.11 A ruling given upon a hypothesis is of little value in settling rights and obligations per se.12
9 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80].
10 Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [45]; and Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [141].
11 Turner v Pickering [1976] 1 NZLR 129 (SC) at 141–142; Wilson v Accident Compensation Corporation [2007] NZAR 453 (HC) at [56]; and Declaratory Judgments Act 1908, s 9.
12 R v Sloan [1990] 1 NZLR 474 (HC) at 482.
[35] I agree with the respondent that the discretion to grant relief in the form of declaratory orders should not be exercised here given the broad and vague terms of the orders sought, the lack of reference to any particular specified legal instrument affecting vaccines, the absence of any basis for involving s 10 of the NZBORA which relates to medical experimentation and the significance and complexity of the COVID- 19 vaccine programme. Abstract and broadly framed declaratory orders will settle nothing.
Habeas Corpus Proceeding
[36] The plaintiffs have previously sought relief by way of an application for habeas corpus as they do now in the third proceeding.13 The difficulty faced by the plaintiffs is that in their previous proceedings the Court of Appeal found that they were not detained in the sense intended by the Habeas Corpus Act.14 It therefore dismissed their appeal against the decision of the High Court dismissing their application for a writ of habeas corpus.
[37] Moore J has observed that the plaintiff’s use of the habeas corpus proceedings to advance general unrelated complaints was disingenuous and inapt. It seems that the plaintiffs’ use of the habeas corpus procedure and its requirement of urgency is an attempt to obtain a priority fixture for their other proceedings. The plaintiffs submit that the Court of Appeal was wrong, but I am bound by such decision. The application for a writ of habeas corpus must therefore fail.
Strike out principles
[38] Rule 15.1 of the High Court Rules enables the Court to strike out a proceeding. It provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
13 CIV-2021-404-1980.
14 Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 at [25].
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[39] The commentary in McGechan on Procedure summarises the principles as follows:15
(1) Principles
The established criteria for striking out was summarised by the Court of Appeal in A-G v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998]
NZFLR 145 (CA) at 267, and endorsed by the Supreme Court in Couch v A- G [2008] NZSC 45 at [33], per Elias CJ and Anderson J:
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”
(c)The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation. In Couch, at [33], Elias CJ and Anderson J said: “Particular care is required in areas where the law is confused or developing.” There is considerable authority that developments in negligence need to be based on proved rather than hypothetical facts.
Discussion
[40] When I first reviewed the three proceedings on 3 November 2021, I expressed the view that they were unable to be sensibly adjudicated in their present form. I remain of that view. As pleaded, there is no reasonably arguable cause of action. I am not, however, saying that a legal challenge to vaccine mandates cannot be undertaken
15 Andrew Beck and others (eds) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.02(1)].
or is incapable of success. There have been several legal challenges heard with one recent challenge being successful.16
[41] The recent successful challenge was to one vaccine mandate only – the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 by which the Minister for Workplace Relations and Safety determined that work carried out by certain Police and Defence Force personnel could only be undertaken by workers who had been vaccinated. The applicants in that case challenged the order on four main grounds:
(a)that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and
(b)that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and
(c)that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and
(d)that the Order is unlawful as it involves an unjustified limit on rights protected by the New Zealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion).
[42]Extensive affidavit evidence (including expert evidence) was filed:
[18]The claims are supported by a number of affidavits, including affidavits from each of the three applicants, 37 affidavits from other affected workers employed by the Police and NZDF, and expert evidence from Dr Nikolai Petrovsky. Dr Petrovsky is presently the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation. In this latter role he has developed a vaccine for COVID-19 which is presently in use in Iran. Finally the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa New Zealand.
[19]Affidavit evidence in response has been provided by the Hon Michael Wood (Minister for Workplace Relations and Safety), Deputy Police
16 Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291.
Commissioner Tania Kura, Brigadier Matthew Weston (Chief People Officer of NZDF), Dr George Town (Chief Science Adviser at the Ministry of Health), and Peter Old who is the Principle Defence Chaplain for NZDF.
[43] The key ground of challenge was that the Order was unlawful as it imposed unjustified limits on fundamental rights protected by the NZBORA. A great deal of detail was required in order to sensibly adjudicate the claim. As Cooke J noted:
[67] Against that background, determining whether the measures implemented by the Order are demonstrably justified seem to me to involve questions along the following lines:
(a)How many unvaccinated workers the Order addresses compared with the overall workforce. In particular how many workers have been pressured into vaccinating, or have been terminated/resigned as a consequence of the Order?
(b)Of that number, how many would have been pressured to vaccinate, or terminated/resigned in any event as a consequence of the existing internal policies applied by Police and NZDF. In other words what is the effect of the Order that was not already being achieved by existing vaccination policies?
(c)What is the risk of the continuity of services of Police and NZDF arising from this number of workers that are so addressed by the Order? This will include evidence of the additional risks of contracting and transmitting COVID-19 arising from being unvaccinated, in light of the number of workers so identified, and the overall workforce and its dynamics. It will also include an assessment of the impact on public trust in these services.
(d)Does the benefit so identified amount to a demonstrably justified limit on the rights bearing in mind the adverse impact on the persons whose rights are so limited?
[68] There may be alternative ways of framing the required inquiries, but an analysis along these lines appears to me to be appropriate. These questions go to the first step described by Tipping J in Hansen, namely to ascertain whether the limiting measure serves a sufficiently important purpose to justify the curtailment. These questions are also relevant to the subsequent steps, and particularly that the measure limits the rights no more than reasonably necessary, and in due proportion to the importance of the objective.
[44] The Judge then noted that even with the extensive affidavit evidence filed, there remained some difficulties. He stated:
[69] One of the difficulties with the present case is that there is little before the Court that allows an analysis along these lines to be undertaken. There was nothing in the parties’ written submissions of this kind. No doubt that can be partly explained by the fact that the Order as originally promulgated identified the incorrect purpose, and the parties’ submissions proceeded on the basis that the purpose of the Order was to address the spread of COVID-19. The parties submissions also tended to address these question of justified limitation at a more abstract level, rather than by reference to the actual evidence of the effect of the measure. As demonstrated by the questions above, in order for the Court to determine whether the purpose of ensuring the continuity of services that are essential for public safety, national defence, or crisis response and maintenance of trust in public services is achieved, the inquiry is necessarily a practical one.
[70]More importantly, whilst there is some evidence that allows the Court to assess these questions it is far from complete, and only addresses such questions indirectly. That can also be said of the advice given to the Minister when he made his decision, and also of his advice to Cabinet in relation to the proposed decision. The Crown can still show by the evidence filed that the measure was demonstrably justified, however.
[45] There is nothing in the present proceedings even approaching this level of detail. The plaintiffs say they can refine the proceedings to challenge just the vaccine mandates, but the proceedings were filed before any vaccine mandates were implemented, so none are presently specified. There is also no evidence filed in relation to any existing cause of action, none of which are reasonably arguable.
[46] The pleadings are, in reality, a polemic against the Government’s response to the COVID-19 pandemic. They reflect the current political debate about the efficacy and appropriateness of various actions taken or contemplated, but they are also lengthy, accusatory, sometimes unintelligible, and mostly irrelevant.
[47] The plaintiffs’ attitude to public health measures is demonstrated in their application for an injunction and immediate declaratory orders filed on 28 February 2022. In that document, the plaintiffs criticise the Government’s campaign to reduce the road toll to zero. They state:
To give an indication of how obtuse this government is it is creating policy that will no doubt run into hundreds of millions of dollars of wasted money on the “road to zero” campaign to stop all road deaths. Over the same two year period in Australia despite their nationwide lockdowns road deaths rose by 1.4%. If work safety, ACC injuries, drownings and all other such matters can never reach Zero – why has this stupid government decided to aim for a zero road toll. Dermot Nottingham’s father was killed at 33, and his sister at
16 by the actions of other drivers, and he is not concerned at the road toll being at the current level because the world cannot be protected from fate and stupidity. Dermot Nottingham has been subject to very serious injury in two motorcycle accidents [both of which were not his fault as cars drove in front of him], but again this is fate. Fate is man’s biggest killer, but not an enemy.
[48] In his oral submissions, Mr Nottingham reiterated his belief that the biggest killer of New Zealanders is fate - “Your number is up.”
[49] The habeas corpus proceeding is struck out as an abuse of process.17 The plaintiffs’ argument that COVID-19 restrictions are a form of detention falling within the habeas corpus regime has already been rejected by the Court of Appeal. The present proceeding is an attempt to relitigate an issue which has already been determined. It is bound to be unsuccessful.
[50] I gave serious consideration to staying the plaintiffs’ other two proceedings,18 and ordering security for costs to allow the plaintiffs to replead their claims. Mr Nottingham advised me that he now knew where to go with the proceedings and that he would redirect the proceedings to challenge the lawfulness of all mandates. The difficulty with repleading is that the proceedings were filed before any mandates were implemented. In effect, entirely new proceedings are required. The existing proceedings cannot, in my view, be sensibly repleaded.
[51] In the judicial review proceeding the plaintiffs plead that the facts [in the statement of claim] must be assumed to be true until the Government proves otherwise. Although in strike-out proceedings, pleaded facts, whether or not admitted, are assumed to be true, there is a limitation to this approach. The plaintiffs rely on the public health response in Singapore and advance figures in support of their case. The plaintiffs plead at paragraph 47 of their statement of claim in the judicial review proceeding:
The Singapore numbers that prove the Ardern “fools errand” fallacy of elimination, and proves the lie that the virus is far more deadlier than the seasonal flu.
17 CIV-2021-404-1980.
18 CIV-2021-404-1793; CIV-2021-404-1981.
The Singaporean numbers are a matter of public knowledge in New Zealand92 and around the Globe and have not been subject to any commentary as to falsity.
[52]Footnote 92 states: “If a person uses the internet intelligently”.
[53] The plaintiff then set out numbers of infections and deaths in Singapore without attributing a source and compares those numbers to global figures with what are said to be different classifications of deaths from Covid. None of this can be accepted without evidence. The statement “If a person uses the internet intelligently” does not provide a foundation for the figures. I therefore cannot assume such facts are true for the purposes of a strike-out application.
[54] I have therefore reluctantly concluded that the other two proceedings should also be struck out.19 As I recorded in my minute of 3 November 2021, I do not doubt the plaintiffs’ sincerity. They no doubt believe they are acting in the public interest in issuing these proceedings. However, the pleadings disclose no tenable cause of action. Furthermore, no evidence has been filed in support of what are essentially political arguments about the efficacy and appropriateness of the Governments actions taken in response to the COVID-19 pandemic. The proceedings are a polemic, not pleadings.
[55]Orders accordingly.
Woolford J
19 CIV-2021-404-1793; CIV-2021-404-1981.
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