Royal Federation of New Zealand Justices' Associations Incorporated v Platt
[2024] NZHC 3080
•23 October 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-015
[2024] NZHC 3080
BETWEEN ROYAL FEDERATION OF NEW ZEALAND JUSTICES’
ASSOCIATIONS INCORPORATED
First ApplicantWHANGANUI JUSTICES OF THE
PEACE ASSOCIATION INCORPORATED
Second ApplicantATTORNEY-GENERAL
Third ApplicantAND
GRAEME STANLEY PLATT
Respondent
Hearing: 8 August 2024 Counsel (via AVL):
M J McKillop for Applicants Respondent in Person
E Carroll in Person (as intervener) G P Mason, Counsel to Assist
Judgment:
23 October 2024
JUDGMENT OF GRAU J
[Application for strike out of proceedings in the Human Rights Review Tribunal]
An application for strike out
[1] Mr Graeme Platt is a Justice of the Peace (JP). As a result of a direction by the Chief District Court Judge (CDCJ) that JPs were not to be rostered for court work following their 75th birthday, he can no longer continue to exercise the judicial aspects of his role. Mr Platt filed a statement of claim in the Human Rights Review Tribunal (HRRT) against the Royal Federation of New Zealand Justices’ Associations
ROYAL FEDERATION OF NEW ZEALAND JUSTICES’ ASSOCIATIONS INCORPORATED v PLATT [2024] NZHC 3080 [23 October 2024]
Incorporated (the Royal Federation), the Whanganui Justices of the Peace Association Incorporated (the Whanganui Association) and the CDCJ. Mr Platt challenges two decisions of the Whanganui Association and the CDCJ respectively, alleging he has been discriminated against on the grounds of age, contrary to s 21(1)(i) of the Human Rights Act 1993 (the HRA):
(a)First, in the failure of the Whanganui Association to nominate him for reappointment as an issuing officer, Mr Platt says because of his age.
(b)Second, the 2020 direction of the CDCJ that prevents him from continuing to preside in court after his 75th birthday.
[2] Ms Elizabeth Carroll has been granted permission to intervene in the strike out application.1 She is not a JP herself, but she has a friend who is a JP affected by the same issue. Ms Carroll also decided to complain to the HRRT about age discrimination.
[3] The applicants—the Royal Federation, the Whanganui Association, and the Attorney-General—applied to strike out Mr Platt’s claim as it relates to the direction of the CDCJ.2 Churchman J granted leave for the removal of the strike out application to the High Court for determination under s 122A of the HRA,3 and the HRRT duly ordered its removal.4
[4] The Royal Federation’s position is that Mr Platt’s proceeding challenging the CDCJ’s direction cannot be commenced under the process provided by pt 3 of the HRA because there is a jurisdictional bar in that Act, and it is inappropriate to proceed against a court of record other than via High Court proceedings.
[5] The contrary position put forward by Mr Platt, Ms Carroll, and counsel to assist, Mr Mason, is that the jurisdictional bar in the HRA does not apply to the CDCJ’s
1 Royal Federation of New Zealand Justices’ Associations Inc v Attorney-General HC Wellington CIV-2024-454-015, 25 July 2024 (Minute of Gwyn J).
2 The challenge to the Whanganui Association’s decision remains in the HRRT.
3 Royal Federation of New Zealand Justices’ Associations Inc v Attorney-General HC Wellington CIV-2024-454-015, 7 March 2024 (Minute of Churchman J).
4 Platt v Royal Federation of New Zealand Justices’ Associations Inc [2024] NZHRRT 17.
direction and it is not an abuse of process for a statutory specialist tribunal to review the human rights implications of the CDCJ’s direction.
What this decision is not about
[6] Mr Platt considers he is being discriminated against because of his age. Ms Carroll says likewise in respect of her friend (whom she declined to name). Both appeared at the hearing of the strike out application and made submissions which, for the most part, concerned the merits of the decisions they seek to challenge in the HRRT.
[7] This decision is not, however, about the merits of their claims of age discrimination. It is not a decision about whether or not the CDCJ (or the JP Associations) have acted contrary to the HRA. It is only concerned with whether the HRRT is able hear the claim as it relates to the direction of the CDCJ (as it can for the claims against the JP Associations). Nor is this decision about removing their ability to have their claim against the CDCJ heard. It is only about where that claim can properly be heard; that is, whether it can be heard in the HRRT or only in this Court.
Justices of the Peace
[8] JPs are appointed by the Governor-General under the Justices of the Peace Act 1957 to exercise certain powers and functions conferred by law. JPs may take oaths and declarations,5 and they may also exercise certain judicial functions, including making decisions on bail, presiding over trials of some criminal offences and acting as issuing officers in respect of applications for search warrants and production orders.6 These judicial functions and powers cannot be exercised by a JP unless they have completed certain training to the satisfaction of the CDCJ, after which they become “Judicial JPs” (JJPs). There are about 6,300 JPs in New Zealand, approximately 180 of whom are JJPs. Mr Platt, and Ms Carroll’s friend are JJPs.
5 Oaths and Declarations Act 1957, s 9(1)(b).
6 Criminal Procedure Act 2011, s 355; Summary Offences Act 1981, s 40(2); Search and Surveillance Act 2012, s 108(1).
[9] All JPs join a local JP association. The second applicant, the Whanganui Association, is one such local association. Local associations maintain a “court panel” of JJPs eligible to preside over District Court proceedings in their area. The local District Court’s sitting dates are filled by members on that panel. Less experienced “associate” JJPs preside over list courts with a second, more experienced “lead” JJP. Lead JJPs can sit alone in remand courts. Most JJPs are either retired or self- employed, given that sitting as a JJP requires considerable flexibility, and is unremunerated.
[10] The Royal Federation is the national body representing all 28 local JP associations across New Zealand.
[11] The Royal Federation publishes a manual used for the training of JJPs. Since 2012, the manual has stated that a JP should not sit “at the bench” after reaching the age of 75. This statement was, however, only a policy, and was only loosely applied and enforced by local JP associations. According to the Royal Federation, the loose application and enforcement of the policy created issues about the reliability of services, particularly in smaller areas. It also created a distinction between the enforced retirement age of Judges (at 70) and the unenforced retirement age of JJPs.
[12] In July 2020, the CDCJ decided to formalise the policy as a direction made pursuant to s 24(i) of the District Court Act 2016 (the Direction). Accordingly, the CDCJ directed that no JJP was to be rostered for court work following their 75th birthday, to take effect immediately.7
Strike out jurisdiction
[13] Because the strike out application was referred to this Court under s 122A of the HRA, s 122B(2)(a) provides that the High Court must determine the application and exercise any power that the HRRT could have exercised. The HRRT’s strike out power is found in s 115A of the HRA. Subsection (1) relevantly states:
7 The Direction was subsequently qualified to permit sitting by an older JJP in “exceptional cases”. It was also amended to permit older JJPs to continue presiding in certain areas where there were resource requirements.
(1)The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—
(a)discloses no reasonable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of process.
[14] The HRRT’s strike out power effectively mirrors the power usually exercised by the High Court under r 15.1 of the High Court Rules 2016 (the HCR), and the principles adopted by the High Court under r 15.1 can inform the approach to strike out applications under s 115A.8 The strike out power is subject to any other relevant provisions of the HRA. Any limitation on the HRRT’s jurisdiction or powers is a matter that this Court could consider in determining whether the statement of claim discloses no reasonable cause of action under subs (1)(a).9
[15] The guiding principles for strike out under r 15.1 of the HCR are well established. It is assumed that the facts pleaded in the statement of claim are true, provided they are not purely speculative. The jurisdiction to strike out is exercised sparingly and, before the Court will strike out a proceeding, the causes of action must be so clearly untenable that they cannot possibly succeed. Nevertheless, an order for strike out will not be precluded by a requirement for the Court to determine questions of law.10
Relevant law
Anti-discrimination
[16] As well as the principles applicable to strike out, there are other areas of the law relevant to this proceeding. The first is anti-discrimination.
8 Gwizo v Attorney-General [2022] NZHC 2717 at [42].
9 For example, where acceptance of a parties’ position would mean that party is exempt from the jurisdiction of the HRRT (see Williams v Police [2020] NZHRRT 26 at [6]; upheld in the Court of Appeal in Police v Williams [2022] NZCA 419, [2023] 2 NZLR 189 at [38]).
10 See Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; and
Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
[17] Complaints of discrimination by any of the three branches of Government are covered by two statutes: the New Zealand Bill of Rights Act 1990 (NZBORA) and the HRA.11 Section 19 of the NZBORA affirms the right to freedom from discrimination on the grounds set out in the HRA, and s 21(1)(i) of the HRA affirms that discrimination on the ground of age is a prohibited ground of discrimination.12 Part 1A and pt 2 of the HRA apply to “the legislative, executive, or judicial branch of the Government of New Zealand”.13 Part 1A of the HRA confirms that governmental acts (or omissions) inconsistent with the right to freedom from discrimination affirmed by s 19 of the NZBORA are in breach of (that part of) the HRA. While only some of the suite of the prohibited grounds of discrimination set out in pt 2 of the HRA apply to purportedly discriminatory acts by the Government; the rights relating to discrimination in relation to employment matters do apply.14
[18] Part 3 of the HRA contains a regime for complaints about discrimination. A person is able to take advantage of this regime by lodging a complaint with the Human Rights Commission (the Commission).15 Once the complaint is received by the Commission, s 79 applies, setting out how complaints are to be treated. While most complaints can be dealt with under the mediation service offered by the Commission, s 79(3) operates such that the Commission cannot take any action in respect of certain judicial decisions:
Despite every other provision of this section, if the complaint or part of it concerns a judgment or other order of a court, or an act or omission of a court affecting the conduct of any proceedings, the Commission must take no further action in relation to the complaint or relevant part of it.
[19] As is evident from the wording of this provision, s 79(3) effectively creates a jurisdictional bar to the Commission’s questioning of judicial decisions. This jurisdictional bar is carried across to the HRRT by virtue of s 92B(7), which provides:
Despite subsections (1) to (6) [which set out the civil proceedings that may be brought before the HRRT], no proceedings may be brought under this section in respect of a complaint or relevant part of a complaint to which section 79(3) applies.
11 See, in particular, s 3 of the NZBORA and pt 1A of the HRA.
12 To be precise, s 21(1)(i) prohibits different treatment on the basis of age from age 16 and over.
13 HRA, ss 20J(1) and 21A(2).
14 HRA, s 21A(1)(a).
15 HRA, s 76(2)(a).
[20] This is a so-called “no proceedings” provision, which is a common way of expressing an immunity from jurisdiction.16 Where an employee in the judicial branch has a complaint regarding employment discrimination, provided the complaint does not fall into the jurisdictional bars in ss 79(3) and 92B(7), s 79(4) allows that complaint to be dealt with by the Commission and the HRRT in the “normal” way.
Powers of the Chief District Court Judge
[21] The second relevant area of the law is the powers and duties of the CDCJ, most relevantly set out in s 24(3) of the District Court Act, which states:
(3)The Chief District Court Judge must ensure the orderly and efficient conduct of the court’s business and, for that purpose, may, among other things,—
(a)determine the sessions of the court; and
(b)assign Judges to those sessions; and
(c)assign Judges to particular divisions or jurisdictions; and
(d)assign Judges to the hearing of cases and other duties; and
(e)determine the places and schedules of sessions for individual Judges (including varying the places and schedules of sessions for Judges from time to time); and
(f)manage the workload of individual Judges; and
(g)delegate administrative duties to individual Judges; and
(h)oversee and promote the professional development, continuing education, and training of Judges; and
(i)make directions and set standards for best practice and procedure in the court.
[22] All courts, including the District Court, have inherent powers auxiliary to their jurisdiction enabling the development of procedures to facilitate that jurisdiction. Inherent powers “do not exist at large; they arise as necessary to enable a court to
16 A “no proceedings” provision can be contrasted with a “no liability” provision, the latter of which effectively states that the relevant person or entity is not bound by the relevant law and so is not subject to the relevant substantive obligation; see Law Commission Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997) at 83–84.
function effectively as a court of judicature”.17 Section 24(3) of the District Court Act is not an exclusive statement of the CDCJ’s powers.18
Positions of the parties
The applicants
[23] The applicants’ position as advanced by Mr McKillop is that there is no jurisdiction for Mr Platt to pursue his complaint under the HRA because judicial decision-making may not be questioned by the Commission or the HRRT by virtue of ss 79(3) and 92B(7) of the HRA.
[24] Mr McKillop submits that s 79(3) was inserted into the HRA by the Human Rights Amendment Act 2001 in order to prevent the application of a “sunset clause” in the HRA as enacted, which stated that nothing in the HRA was to apply to acts of the Government.19 The Human Rights Amendment Act was intended to define the way that the rights and duties in pt 2, and the procedure in pt 3, applied to the Crown. In this way, s 79(3) is intended to describe exercises of judicial power exhaustively.
[25] Mr McKillop argues that s 79(3) extends to any exercise of judicial power, whether express or inherent, including under s 24 of the District Court Act. He submits that the CDCJ’s Direction under s 24(i) was both an “other order of the court” and an “act or omission of a court affecting the conduct of any proceedings”, thus falling within the wording of s 79(3).
[26] Next, Mr McKillop argues that a broad reading of s 79 is both intended and necessary for public policy and comity purposes. The jurisdictional limits created by ss 79(3) and 92B(7) reflect a Parliamentary intention to maintain judicial comity between courts and tribunals by reinforcing that judicial review or appeals according to law are the only methods by which judicial decisions can be questioned.
17 District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [27].
18 At [35].
19 Formerly contained in ss 151 and 152 of the HRA (now repealed).
[27] As a result, Mr McKillop says that strike out is required under s 115A(1)(a). He also says that strike out would be available under the alternative ground of abuse of process in s 115A(1)(d) in that it would be wholly inappropriate for a dispute between judicial officers about the operation of a court to be determined via mediation before the Commission or adjudication by an inferior tribunal.
[28] Mr McKillop also pointed out that there is no issue about access to justice if Mr Platt’s claim is struck out because pt 2 of the HRA, and the employment discrimination protections contained within it, do not apply to the Direction anyway. That is because directions under s 24 by the CDCJ are not the directions of an “employer” in respect of an “employee”. While Mr Platt cannot challenge the Direction for inconsistency with the HRA, he can still challenge the Direction for inconsistency with s 19 of NZBORA, but, again, he must do so in the High Court.
[29] Mr McKillop emphasises that District Court Judges and JPs are not employees and do not have employers. They are appointed to public office by the Governor- General,20 and enjoy tenure in those offices until they resign, retire, or are removed in accordance with law.21 He says it is consistent with the rule of law and judicial independence that security of tenure is clear and an age-based limitation on tenure is imposed.
[30]The definition of “employer” in s 4 of the HRA is notably wide:
(a)the employer of an independent contractor; and
(b)the person for whom work is done by contract workers under a contract between that person and the person who supplies those contract workers; and
(c)the person for whom work is done by an unpaid worker
[31] Although JPs fit into the category of an “unpaid worker”, Mr McKillop says the CDCJ is not “the person for whom work is done”. JPs do not have an employer in the widest sense of the word: they are not accountable to the head of bench and, as above, are independently appointed by the Sovereign’s representative via warrant, and
20 Justices of the Peace Act 1947, s 3; District Court Act 2016, s 11.
21 Justices of the Peace Act, s 3A; District Court Act, s 16.
this independence is essential. Even if pt 2 of the HRA was to apply, Mr McKillop submits the Direction would constitute a “genuine occupational qualification” that is consistent with ss 22(1)(d) (which makes it unlawful to cause an employee to retire or resign) and s 30(1)(a) (which states that s 22(1)(d) will not apply to any position of employment where being of a particular age group is a “genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason”).
[32] At the hearing, Mr McKillop also raised the issue of judicial immunity as a further bar to the claim against the CDCJ. He filed supplementary submissions after the hearing, and Mr Platt, Ms Carroll and counsel to assist responded.
[33]Mr McKillop has identified two issues arising that relate to judicial immunity:
(a)First, whether the CDCJ’s Direction was a judicial act, which Mr McKillop answers in the affirmative. The result, he says, is that civil proceedings arising from the CDCJ’s direction are barred by the common law principle of judicial immunity.
(b)Second, whether the HRA modifies the common law of judicial immunity to permit discrimination claims in respect of judicial acts. Mr McKillop submits this issue is answered in the negative; judicial immunity is reflected in—rather than abrogated by—the HRA.
Mr Platt and Ms Carroll
[34] Both are of the view that their claim in relation to the CDCJ’s Direction should remain in the HRRT. In their view, the Direction was an administrative decision, not a judicial decision made in the context of legal proceedings before the court.
Counsel to assist
[35] Mr Mason submits that the substantive question in these proceedings is whether the Direction was properly issued. Given the jurisdictional issue raised, Mr Mason says it would have been better for the claim to be before the Court by way
of a claim for a declaration. Under s 6 of the HRA, the Commission, if it considers it may be desirable to obtain a declaratory judgment or order of the High Court, may institute proceedings under the Declaratory Judgments Act 1908. This means the claim does not need to be struck out as the Commission can institute proceedings under s 6.
[36] Mr Mason notes that the Direction refers to the Chief Judge’s powers to regulate the work of judicial officers. However, s 24 of the District Court Act refers only to “Judges” and “the court”, despite the term “judicial officers” being defined under the Act. Judicial officers are evidently not Judges.22 Section 7(2) of the District Court Act provides that “the court” consists of the CDCJ, the Principal Family Court Judge and Youth Court Judge, and other District Court Judges. It does not mention JPs or judicial officers. If JPs were judges for the purposes of the District Court Act, there would have been no need for the Direction, when the Act provides a retirement age for judges. In contrast, the Justices of the Peace Act does not provide any retirement age for JPs.
[37] Mr Mason also points out that s 6 of NZBORA requires an enactment be given a meaning consistent with the rights and freedoms contained in NZBORA. Therefore, s 24 of the District Court Act should be interpreted such that it confers no power to set a retirement age for the JPs. This is because s 19 of NZBORA enshrines the right to freedom from discrimination on the basis of age as contained in the HRA.
[38] Mr Mason also submits that the Direction is not a judgment, order, or act or omission in the course of proceedings such that the statutory bar in s 79(3) applies. Reading s 79(3) to include the Direction would effectively remove the judicial branch from the jurisdiction of the HRA when it is clear that it is covered. Mr Mason says the purpose of s 79 is to prevent complaints under the HRA about the conduct or outcome of court proceedings, which is not challenged here. He says that, otherwise, the HRA provides the HRRT the explicit statutory authority to consider the acts or the omissions of the judiciary (except in the context of the outcomes and hearing of cases).
22 In that they are not appointed in accordance with s 11(1) of the District Court Act.
He argues that the principle of comity does not allow the reading down of the HRA to privilege the courts.
[39] Mr Mason also submits that it does not matter if JPs’ work is covered by pt 2 of the HRRT. This is because, if it is considered that JPs are not employees, and this is not an employment discrimination claim, pt 1A of the HRA applies to bring the Government within the HRRT’s jurisdiction anyway. He notes that s 21A of the HRA—which details the provisions of pt 2 applying to the three branches of Government—explicitly provides that the prohibited grounds of age-based discrimination in s 21, and employment discrimination in s 22, apply. Mr Mason submits that, given the breadth of the definition of “employer”, JPs are employed by the Government or the judicial branch of it. The CDCJ was purporting to act on behalf of the Government, or the judicial branch, in issuing the Direction. But, again, this does not matter, as pt 1A would apply anyway.
[40] In response to the judicial immunity argument, Mr Mason submits that “this is not a case about judicial immunity at all”. While Mr Mason accepts that the Direction was an act taken by the CDCJ in the exercise of his powers, it was not something determined by a court following argument that is binding on parties to resolve a dispute or subject to an appeal such that judicial immunity clearly applies to it. The Direction was a “ministerial action” that is not covered by s 79(3) because it was an optional policy choice. Mr Mason says there is no encroachment on the functioning of the District Court, or its independence, if protocols not essential for the functioning of the Court are reviewable by the HRRT.
[41] Mr Mason submits that it would have been open to Parliament to exclude the judicial branch of Government from the HRA completely, but it did not do so. This indicates an intention to leave “administration at a policy level” open to enquiry. His essential point is that a common law immunity cannot override the HRRT’s wide statutory jurisdiction, and there is no common law or statutory basis for extending judicial immunity beyond actions of judges in determining cases.
Discussion
[42] Mr Platt’s claim raises a legitimate question about the consistency of the Direction with s 19 of the NZBORA. But the short point is the applicants are correct that the HRRT does not have the ability to supervise or monitor the judicial conduct of another inferior court or tribunal. Only the High Court can do so by the process of judicial review. The Court of Appeal has explained why this is so, in Auckland District Court v Attorney-General:23
The supervisory jurisdiction of the High Court has been secured since the 17th century. It is based on the fundamental premise that statutory (and some prerogative powers) can be validly exercised only within their true limits. It is the task of the High Court to determine those limits and it does so by the process of judicial review … It is in this sense that the High Court is described as a superior Court of general jurisdiction and other Courts and tribunals are described as “inferior” or as Courts or tribunals of limited jurisdiction: … As the superior Court of general jurisdiction, it is the High Court which is therefore responsible for determining the jurisdiction and legality of the decisions and conduct of the inferior Courts and tribunals. This supervisory or judicial control is of constitutional importance in maintaining the proper observance of the law, and is not to be lightly shed.
[43] It would therefore appear that ss 79(3) and 92B(7) of the HRA are intended to reflect this long-held common law position. While I acknowledge Mr Mason’s submission that the HRA is clearly intended to apply to the different branches of Government, including the judiciary, I doubt it is intended to extend the HRRT’s jurisdiction to considerations of the exercise of judicial power.
[44] At its heart, Mr Platt’s claim is a challenge to the CDCJ’s exercise of a statutory power of decision in issuing the Direction under s 24 of the District Court Act. This is a “classic” judicial review situation. I anticipate the HRA was drafted to cover the Government with the statutory bars so that judicial decision-making of all kinds is out of reach but so that matters such as employment claims by public service employees of government departments can be challenged.
[45] It is also possible to interpret the CDCJ’s Direction as an “order” falling within the statutory bar of s 79(3). It is a direction issued under a statutory power that is
23 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133 (emphasis added); affirmed in Attorney-General v Christchurch District Court [2017] NZHC 1873, [2017] NZAR 1256.
required to be followed. In addition, the Direction may also come within the definition of “act or omission of a court affecting the conduct of proceedings” for the simple reason that it may affect who will hear and determine particular matters in the District Court. It would be odd to construe the Direction as anything other than an “order” of the District Court for a certain procedure to be followed, within the ordinary meaning of that word.
[46] Placing the present issue into a broader context, the ability to challenge judicial decision-making (whether judgments or other decisions such as orders or directions) is regulated and limited in New Zealand. This is evident from the way litigation rules operate; for example, appeal rights can only be conferred by statute,24 Judges are immune from civil suit,25 and NZBORA damages cannot be awarded in respect of a Judge’s conduct.26 In the present case, where the goal is to reach a conclusive answer about whether the CDCJ even has the power to regulate the conduct of JPs, the High Court is best placed to hear the issue. This is because the High Court has the authority to determine the limits of the CDCJ’s jurisdiction (whereas the HRRT and District Court do not). An unreversed judgment of a superior court (such as the High Court) is conclusive as to all matters decided by it, and there can be recourse to this Court’s wide powers of relief.27
[47] It would therefore appear odd to read the HRA as conferring jurisdiction on the HRRT to decide on the lawfulness of the CDCJ’s conduct, particularly when both the HRRT and the District Court are considered as inferior jurisdictions; even more so when the District Court could be considered the superior jurisdiction of the two.28 It would mean that the HRRT could effectively overturn a direction of the CDCJ, when the limits of the CDCJ’s and the District Court’s jurisdiction can only be supervised by the High Court.
24 Minhas v Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [26].
25 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161] at [166]. It can also be considered improper for judges (or courts) to be named as parties to proceeding. See, for example, Attorney-General v Rabson [2021] NZHC 2607.
26 At [97].
27 See the discussion in Peter Twist and Chris Foote Laws of New Zealand Jurisdiction of Courts (online ed) at [15]–[17].
28 Given, for example the requirement that a District Court Judge approves an evidence order under s 126A HRA, and that costs, damages and interim orders made in the HRRT must be registered and certified in the District Court prior to enforcement, pursuant to s 121 of the HRA.
[48] Nor would it appear appropriate for the HRRT to have the ability to grant relief in a case that involves the conduct of the CDCJ, given relief ordered by the HRRT generally includes remedies such as restraining a defendant from continuing or repeating the breach or ordering a defendant to pay damages.29
Judicial immunity
[49] Distinct from the jurisdictional issue resulting from the HRRT’s position as an inferior tribunal, I also agree with the applicant that the Direction was a judicial act attracting the benefit of judicial immunity, meaning it can only be challenged by way of judicial review by the High Court.
[50]The Court of Appeal has recently said about judicial immunity that:30
… cases that do directly concern and discuss judicial immunity, such as Gazley and Chapman, all suggest a far wider test, namely that the immunity applies to all acts carried out by judges in their official capacity.
[51] The Direction in this case was clearly an act carried out by the CDCJ in his official capacity when the CDCJ is responsible for the orderly and efficient conduct of the District Court’s business. That business necessarily includes the work undertaken by JJPs as it is work of a judicial nature that occurs in the District Court.
[52] The decision of the High Court of Australia in Fingleton v R, cited by the applicants, is apposite.31 The Court in that case considered that a Chief Magistrate’s powers to organise court lists, allocate magistrates to particular locations, and to assign magistrates to particular work are “not merely matters of internal administration”, but matters that affect litigants and the public.32 Although some responsibilities would cover mundane issues of a kind that arise in the administration of any substantial organisation, those involving decisions which directly or indirectly determine how the business of the courts will be arranged and allocated “concern matters which go to the
29 HRA, s 92I.
30 Attorney-General v Putua [2024] NZCA 67, [2024] 2 NZLR 420 at [43]; citing Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA) at 678–682; and Attorney-General v Chapman, above n 25, at [161].
31 Fingleton v R [2005] HCA 34, (2005) 216 ALR 474.
32 At [52].
essence of judicial independence”.33 The Court also said if a Chief Magistrate could be called to account in civil or criminal proceedings for decisions about how Magistrate Courts arrange their business, “the capacity for the erosion of independence is obvious”.34
[53] I consider the Direction in this case is likewise a matter that affects litigants and the public and not a “mundane” administrative matter as, for example, a decision about allocation of office space or car parking would be. I agree the Direction was one that affected the conduct of proceedings before the District Court.
[54] Judicial immunity precludes proceedings for damages for judicial breaches of the NZBORA. In line with my finding that the HRRT does not have jurisdiction to regulate the conduct of the CDCJ, it appears judicial immunity is also preserved by a plain reading of s 79(3) of the HRA. As above, it would be odd if it was not. I do not accept the HRA has created an exception to judicial immunity in respect of s 19 of NZBORA.
Result
[55] The proceeding in the HRRT in relation to the CDCJ’s direction must be struck out.
[56] Mr Platt is able to advance his claim in this Court as a judicial review of the Direction of the CDCJ. As Mr McKillop pointed out, it is likely that the most appropriate “type” of claim to bring would be one pursuant to the NZBORA, challenging the Direction’s consistency with s 19 of that Act (and most likely seeking declaratory relief). It is likely that Ms Carroll is not, however, able to advance a judicial review as she is not herself a person affected by the Direction. But that can be remedied by the claim being advanced by her friend, who, as a JJP, is affected, thus she would have standing to bring it.
33 At [52].
34 At [52].
[57] There is no issue as to costs. The applicants have agreed they will not seek costs in relation to the determination of the strike out application.35
Grau J
Solicitors:
Langford Law, Wellington
cc: G S Platt, G P Mason
35 See Minute of Churchman J, above n 3, at [13].
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