Singh v Chief Executive of the Ministry of Business, Innovation and Employment

[2021] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000754

[2021] NZHC 2349

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review under Part 1 of the Judicial Review Procedure Act 2016

AND IN THE MATTER OF

a decision made under s 157 of the Immigration Act 2009

BETWEEN

MANPREET SINGH

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

Hearing:

(On the papers)

Counsel:

Rod Hooker for the Applicant

Shaun Connolly and Sonali Perera for the Respondent

Judgment:

9 September 2021

JUDGMENT OF MOORE J

This judgment was delivered by me on 9 September 2021 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2349 [9 September 2021]

Introduction

[1]    The applicant, Manpreet Singh, has filed an application to vacate the fixture set down for 29 September 2021 and for costs. The respondent opposes the fixture being vacated.

Background

[2]    In June 2020, Mr Singh was convicted for a drink driving offence. He was rendered liable to deportation under s 157(5) of the Immigration Act 2009. Immigration authorities served a deportation notice on him on 27 July 2020. This was reconsidered after Mr Singh applied for judicial review. On 16 August 2020, after considering the submissions advanced for Mr Singh by his counsel, a compliance officer employed by the Ministry of Business, Innovation and Employment (“the Ministry”) made a determination that Mr Singh had not provided good reason as to why deportation should not proceed.

[3]    Mr Singh seeks judicial review of that decision. On 21 April 2021, he filed a statement of claim in support of his application for judicial review. He alleges the decision of Immigration New Zealand (“INZ”) to cancel his work visa was made contrary to policy and is unreasonable.

[4]    As part of these proceedings, Mr Singh sought discovery orders for documents held by the Ministry which he believed would assist his case. On 8 July 2021, Lang J delivered his decision1 declining to make any discovery orders. On 7 July 2021,  Lang J had issued a Minute confirming the fixture date of 29 September 2021 and making various timetabling directions. He directed that affidavits in support of the application were to be filed by 7 August 2021, and those in opposition by 21 August 2021. Reply affidavits were to be filed by 28 August 2021. Submissions in support and in opposition were to be filed by 15 and 22 September 2021 respectively.

[5]    On 30 July 2021, Mr Singh applied to this Court for leave to appeal Lang J’s decision. Lang J declined the application on 3 September 2021.

1      Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 1695.

[6]    On 4 August 2021, between the filing the application for leave to appeal and the delivery of Lang J’s decision to refuse it, Mr Singh, by memorandum, filed his first request to vacate the 29 September 2021 fixture and associated timetabling orders. On

13  August  2021,  the  respondent  filed  its  memorandum  in  opposition.    On     17 August 2021, Lang J declined to vacate the fixture.

[7]    On 1 September 2021, Mr Singh then filed the present application. The following day, on 2 September 2021, the respondent filed submissions in opposition.

Parties’ positions

[8]The present application is made on the following grounds:

(a)it is not possible for issues to be properly pleaded and addressed, or for Mr Singh’s affidavit to be prepared without resolution of the discovery issues;

(b)the timetable for the judicial review hearing has been overtaken by the discovery application and proposed appeal;

(c)additional time is needed for the respondent to reply to the amended statement of claim; and

(d)the Auckland Level 4 lockdown prevents the applicant from properly preparing his affidavits and submissions.

[9]    The respondent opposes any order to vacate the fixture on the grounds that the amended statement of claim was filed out of time and that it is amendable to timetabling adjustments. The respondent does not accept that lockdown provides good reason to delay the fixture and the proper determination of the issues.

Discussion

[10]   I deal first with the question as to whether an amended statement of claim is able to be filed at this stage of the proceedings.

[11]   Rule 7.7 of the High Court Rules 2016 states that no amended pleading may be filed after the close of pleadings date without leave of a Judge. Rule 7.6(4A) states that where no pleadings date has been fixed, as is the case here, the close of pleadings date will be the later of either 60 working days before the allocated hearing or trial date, or the date on which the hearing or trial date is allocated. The trial date was allocated by Lang J on 7 July 2021, and coincidently, that date is also 60 working days before  the  allocated  hearing  date.   It  follows  the  close  of  pleadings  date  was  7 July 2021. Leave of a Judge was required before an amended statement of claim could be filed.

[12]   Mr Connolly, for the respondent, acknowledges that close of pleadings dates are not always fixed by Judges in judicial review proceedings, particularly those of this nature, and that there is sometimes more flexibility around the timing of new or amended pleadings despite the default dates set by r 7.6(4A). However, as he points out, scrutiny is warranted where the applicant seeks to vacate a fixture on the grounds that a new cause should be added and, consequentially, an amended statement of claim is filed.

[13]   For present purposes, the starting point must be that the date for close of pleadings has passed. The applicant now requires leave to file further pleadings. A grant of leave is discretionary. I will not exercise that discretion in the present circumstances. My reasons follow.

[14]   The proposed amended statement of claim asserts new facts and brings a new claim, which Mr Hooker, for Mr Singh, submits only became apparent to the applicant when the respondent filed its affidavits on 20 August 2021. It is said that the settlement agreement entered into between the parties in Singh v Chief Executive of the Ministry of Business, Innovation and Employment2 was breached. The settlement was that the decision of an immigration officer, around which that set of proceedings revolved, was to be set aside, with a new officer from a different branch engaged to consider the matter afresh and make a new decision. The applicant alleges that the new officer had

2      CIV-2020-404-001677.

access to INZ files concerning Mr Singh, including the settlement decision and associated legal correspondence. This was contrary to the terms of settlement.

[15]   On the other hand, the respondent submits that although the immigration officer technically had access to all of the material on the INZ file, they were directed to only consider that material which pre-dated the first decision-making officer, together with any updated submissions from Mr Singh’s counsel. Mr Connolly submits, and I agree, there is nothing to suggest the officer acted otherwise than in accordance with that direction.

[16]   Mr Hooker also submits the respondent will need time to prepare its statement of defence to the amended statement of claim and that it is thus just and equitable that the fixture be vacated. Given my earlier determination that the close of pleadings date has passed, and leave would not be granted, it is unnecessary for me to consider this ground. However, given the complete evidential vacuum to support the claim the officer acted contrary to the agreed directions, it is difficult to apprehend how the claim may be responded to other than in the form of a blanket denial. That would require little time or effort to plead.

[17]   I next turn to Mr Hooker’s submissions regarding discovery. Mr Singh applied for leave to appeal Lang J’s decision of 8 July 2021. Mr Singh’s key submission is that until his appeal is determined, and discovery resolved, the issues between the parties cannot properly  be  pleaded  or  addressed  in  submissions.  Furthermore,  Mr Singh’s affidavit cannot be prepared. On 3 September 2021, after Mr Singh had filed this application  to vacate the fixture, Lang J issued  his judgment declining   Mr Singh’s application for leave to appeal.

[18]   Mr Hooker submitted that if his client was not successful in obtaining leave to appeal to the Court of Appeal, he would still be able to apply for leave from the Court of Appeal. That is, of course, true. However, no such application has currently been made (to my knowledge), and I consider the likelihood of success to be slim and the merits of appeal to be weak.

[19]   When Lang J issued his decision of 8 July 2021, Mr Singh had not yet been given a copy of the Ministry’s file or its evidence in opposition. As Lang J observed, the application was premature. Regardless, Lang J went on to dismiss each set of requested materials, reviewing the merits of each:

(a)Mr Singh’s request for compliance officer training records was declined on the grounds that internal training records would not inform the issue before the Court given that a decision made in accordance with them may nevertheless be vulnerable to review, and a decision not made in accordance with them may still comply with natural justice;3

(b)the Character Waiver templates Mr Singh requested related to different factual and legal contexts, contained personal information triggering privacy issues and were not of sufficient relevance to warrant discovery orders;4

(c)the request for documents “relating to visa applicants who have sought a character waiver after having been convicted of drink driving offences” was deemed to be irrelevant considering the current proceeding does not relate to a visa application;5 and

(d)the request for the advice to staff members displayed on the Ministry’s website was declined on the basis it was already available and would be of little assistance.6

[20]   The Ministry provided Mr Singh with the file on 10 July 2021. Mr Hooker submits it contained 799 pages and was not indexed or paginated. He notes when provided with the file last year, it contained only 300 pages. He submits that information contained in the updated and much larger file should have been disclosed in prior proceedings. While that may be correct, whether or not the updated file should

3      Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 1695 at [12] and [13].

4      At [16]-[18].

5 At [21].

6 At [25].

have been provided for prior proceedings is not a matter of concern in respect of the current proceeding.

[21]   Lang J’s decision of 3 September 2021 further justifies his decision to decline discovery orders and sets out his reasons for refusing leave to appeal to the Court of Appeal. Respectfully, I agree with him where he states:7

“I do not see how it can seriously be argued that I applied the wrong test, or reached the wrong decision, when the ultimate reason for the application being declined was lack of relevance.”

[22]   Further, the Court cannot continuously delay the determination of proceedings on the chance an appeal may be lodged against an interlocutory decision and that it may be successful. The Court must be cognisant of the fact that it is not only the immediate parties who are affected by any adjournment, but also those other parties in other unrelated litigation who are waiting in the pipeline and competing with others for fixture dates.8 Any adjournment has a consequent “knock on effect” which is a particularly relevant consideration at this time when the strictures of the Level 4 lockdown and the likelihood of Auckland being at Level 3 for some time after that, means witness action fixtures, both civil and criminal, have had to be adjourned.

[23]   It is regrettable that the timetables for the discovery application, its associated appeal and the judicial review hearing have overlapped. However, the risk of this occurring was always present and must have been contemplated prior to making the original discovery application. As Lang J pointed out in his decision of 8 July 2021, discovery orders in judicial review proceedings are not commonly made because discovery is so often unnecessary. The success of the discovery application was thus never an assured outcome. The parties must have known that the fixture would likely be set and worked towards pending any appeal.

7      Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2308 at [5].

8      Body Corporate 348047 v Auckland Council citing McKay Builders Ltd (in liq) v McKay [2019] NZHC 1783, (2019) 20 NZCPR 499 at [6] citing Gray v Thom (1997) 20 PRNZ 373 (HC) at 379.

[24]   Finally, I address the adverse effects of lockdown as claimed by Mr Singh in his affidavit affirmed in support.

[25]   Mr Singh says he is an essential worker and it is not practical for him to leave work to consult with counsel. He does not explain why, assuming he was similarly employed before lockdown, it was then practical for him to meet with his lawyer. He claims that in the past he, with his brother and cousin, would meet counsel in his chambers when issues arose. They would discuss matters and following the meeting he would consult further with his relatives and then instruct his lawyer. Such visits are not permitted under lockdown. He says, without explaining why, he cannot now discuss these sorts of matters with counsel or family. He simply claims that using modern technology will not suffice.

[26]    While I am sympathetic to the inevitable added difficulties necessarily faced by Mr Singh in communicating with Mr Hooker, this is not a unique challenge or one which he faces alone. I am not satisfied that consultation and discussion with counsel and others cannot proceed effectively, albeit, not in the conventional or usual, pre- COVID fashion. Since early last year, counsel and the Courts have demonstrated an adaptability to modify the usual forms of communication while still continuing to operate effectively. The legal system is not alone in this. The wider community has learned how to engage remotely. Mr Singh does not suggest he does not have access to conventional communication tools such as a telephone or AVL technology. Zoom provides the ability for numerous parties to meet virtually. Why that sort of facility is not available to Mr Singh is left unexplained.

[27]   Finally, I agree with Mr Connelly that it is appropriate to adjust the timetabling directions.

Result

[28]The application to vacate the fixture is declined.

[29]   I direct the parties to consult with a view to reaching agreement by memorandum on any amendments which are needed to the present timetabling orders. Assuming I agree, I will then make orders accordingly.

Moore J

Solicitors:

Vallant Hooker & Partners, Auckland Crown Law Office, Wellington