New Zealand Animal Law Association v Attorney-General [2021] NZHC 2945 (2 November 2021)

Last Updated: 16 November 2021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-360 [2021] NZHC 2945

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER	of The Code of Welfare: Rodeos 2018
BETWEEN	THE NEW ZEALAND ANIMAL LAW ASSOCIATION First Applicant
	SAVE ANIMALS FROM EXPLOITATION Second Applicant
AND	THE ATTORNEY-GENERAL First Respondent
	THE NATIONAL ANIMAL WELFARE ADVISORY COMMITTEE Second Respondent
	THE NEW ZEALAND RODEO COWBOY ASSOCIATION INCORPORATED Third Respondent

Hearing:	1 November 2021
Appearances:	S M Bisley and B Woodhouse for the Applicants R A Elvin and H L C Bergin for the First Respondent R L Roff for the Second Respondent
Judgment:	2 November 2021

JUDGMENT OF COOKE J

(Application for a stay)

• [1] By application dated 23 September 2021 this first and second respondents seek orders adjourning these proceedings until 1 April 2022. The application is opposed by the applicants. In addition by application dated 13 September 2021 the

THE NEW ZEALAND ANIMAL LAW ASSOCIATION v THE ATTORNEY-GENERAL [2021] NZHC 2945

[2 November 2021]

New Zealand Rodeo Cowboys Association Inc seeks leave to be joined as a party or as an intervenor. The application for the Association to be joined as a party is consented to. Accordingly there is a direction that the New Zealand Rodeo Cowboys Association Inc is joined to these proceedings as third respondent.

The essential issue

• [2] In these proceedings the applicants challenge certain decisions relating to a Code of Welfare established under Part 5 of the Animal Welfare Act 1999 (the Act) concerning rodeos. The Minister issues such Codes of Welfare under Part 5 and the second respondent makes recommendations to the Minister concerning such Codes. The applicants allege that certain practices engaged in at rodeos cause unnecessary or unreasonable pain or distress to animals, and reckless ill-treatment of animals. Two grounds of review are advanced. The first is that there was a failure to follow a required statutory process in relation to the reissue of the 2018 Code of Welfare (the Code). The second is that the Code approved by the Minister is not for proper purpose, or was ultra vires the Act, because it permits the unnecessary or unreasonable pain or distress, or reckless ill-treatment of animals for entertainment purposes which is not consistent with the Act.

• [3] The essential basis for the adjournment application is that the respondents are commencing a process for consulting on, and then establishing a new Code of Welfare. It is anticipated that a new draft Code will be in existence by April next year and that the final Code will be in place in December. The respondents seek that the proceedings be adjourned until, at least, the draft Code is in existence.

Procedural basis for the application

• [4] There was a debate in the parties’ submissions on the appropriate procedural approach to the respondents’ application, including the particular High Court Rule that is relevant. The applicants suggested that the respondents should be seeking a stay under rr 15.1 or 15.2 of the High Court Rules, whereas the respondents argued that the application is properly made under r 10.2 which relates to the power to adjourn a trial.
• [5] This application is properly addressed under the Judicial Review Procedure Act 2016. As the Court of Appeal has explained, this legislation partly operates to an extent as a procedural code of its own for judicial review.¹ Section 13 of the Act contemplates case management conferences. It provides:

13 Case management conference

(1) A Judge may, at any time, direct that a case management conference (a conference) be held for—

(a) the parties; or

(b) the intended parties; or

(c) the lawyers for the parties or intended parties.

(2) The purpose of a conference is to ensure that—

(a) any application or intended application may be determined in a convenient and expeditious manner; and

(b) all matters in dispute may be effectively and completely determined.

(3) A Judge may make a direction under subsection (1) on the Judge’s own initiative or on the application of 1 or more parties or intended parties.

(4) A conference may be held on such terms as the Judge thinks fit.

(5) At a conference, the presiding Judge may make any of the orders and directions specified in section 14.

• [6] The High Court Rules applicable to general civil proceedings can be applied to judicial review proceedings, but subject to the Court’s control of the proceedings under ss 13 and 14. As I said of that approach in Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council:²

This approach seems to me to be the preferable one. It is consistent with the general approach to judicial review procedure, and with the view expressed in earlier Court of Appeal decisions that the former s 10 (now ss 13 and 14) was to some extent intended to be a procedural code for judicial review. It allows judicial review proceeding to be managed in the appropriate way given what

¹ See, for example, Minister of Energy v Petrocorp Exploration Ltd [1989] NZCA 95; [1989] 1 NZLR 348 (CA) at 353 and Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656–658 in relation to the preceding legislation.

² Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166, [2017] 20 ELRNZ 105, [2017] NZRMA 269 at [19] (footnotes omitted).

the case involves. The control is important to achieving the “simple, untechnical and prompt” approach to review. ...

• [7] It is an approach that has subsequently been adopted in other decisions.³ Most recently in Singh v Chief Executive of the Ministry of Business, Innovation and Employment Venning J said:⁴

The short point is that the intent of the legislation and rules is that judicial review is to be a relatively simple process. Procedural complexities which can bedevil an ordinary civil proceeding should be avoided. Unfortunately that objective has not been met in the present case. In my judgment, the general High Court Rules will apply, but subject to any necessary amendments to meet the need for simplicity of procedure in judicial review proceedings. ...

• [8] In the present case, amongst the directions that can be given at the conference are to fix the time and place of the hearing of the application, and the giving of any consequential directions that the Judge considers necessary.⁵ These powers are broad enough to contemplate directions which delay the hearing of the proceeding if that were thought to most appropriately meet the need for the most efficient determination of the proceedings.

• [9] In the present circumstances I see the application as one for a temporary stay which could be addressed under either r 15.1 or r 10.2 if this were an ordinary proceeding. It is unnecessary to engage in any more detailed assessment on the applicable High Court Rule, or to consider the authorities under those High Court Rules. The key question is whether the stay is appropriate in light of the objective of ensuring the simple, untechnical and prompt determination of these judicial review proceedings.

Assessment

• [10] The applicants here have a right to pursue judicial review. Such a right is reflected in s 27(2) of the New Zealand Bill of Rights Act 1990. But judicial review

³ Karmarkar v Moore [2020] NZHC 3480 at [9]; Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 444 at [15].

⁴ Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2471 at [29].

⁵ Judicial Review Procedure Act, s 14(2)(l) and (m).

proceedings can be struck out, or stayed. For example they can be struck out if they have become moot.⁶

• [11] Ms Elvin argued that the proposal to establish a new Code meant that the parties’ attention was better focused on the terms of the proposed new Code rather than the pursuit of these proceedings. It was accepted that it was appropriate to reconsider the content of the Code, including in light of more recent scientific evidence. Through the consultation processes for establishing a new Code the applicants’ points could be addressed. Ms Roff for the second respondent also emphasised the point made in the affidavit of Ms Verkerk that the contemporaneous pursuit of these proceedings could be counterproductive as the parties would be in an adversarial stance, and their energies distracted by the judicial review claims.

• [12] Ms Elvin stressed that the adjournment/stay was only until a draft Code is in existence. But I see some difficulty with that proposal. When only a draft Code is in existence the statutory process contemplated by s 70–75 will not yet be complete. The Minister’s decision under s 75 on the new Code would still not have been made. Whilst the draft Code might be susceptible to judicial review as a proposed decision, it seems to me that contemplating a challenge to the draft Code as well as the existing Code would be far from ideal. It would at least be complicated for there then to be a challenge to the procedures followed for the reissue of the existing Code, a challenge to the legality of the substantive provisions of the existing Code, and (presumably) a challenge to the substantive provisions of the proposed draft Code (which may or may not be adopted by the Minister). The logic of the respondents’ application really suggests the stay should be in existence until a new Code was approved by the Minister under s 75 of the Act. This is unlikely until at least December next year.

• [13] For these reasons I see the application to contemplate a substantial delay, and that it will likely render the existing challenges moot. It is effectively an application that the challenges in the current proceedings ought not be allowed to be pursued, and that only a fresh challenge to the new Code should be.

⁶ Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council, above n 2.

• [14] Such orders are not appropriate. It may well be that there is complexity arising from a challenge being advanced at the same time that a replacement Code is going through a statutory establishment processes. But the applicants must still be entitled to pursue their challenge to what is currently in place under the Act.

• [15] That is illustrated by considering the two grounds of challenge that are advanced.

• [16] The first ground of challenge is directed to an alleged failure to follow the statutory procedures required for the reissuing the Code in 2018. A claim addressed to essentially the same point was considered by the Court in New Zealand Animal Law Association v Attorney-General in relation to the code applicable to pig farming.⁷ Cull J upheld this argument, although she found that this was not a substantive irregularity justifying the code being set aside in its entirety.⁸ Mr Bisley contended that here the position was different because at the time of reissuing the Code the second respondent had reports that questioned the legitimacy of the practices that are challenged in these proceedings such that a failure to follow the statutory procedures (which included consultation) would be more significant.

• [17] It may be by the time that the Court hears this challenge this ground might have become moot. But this is not certain because the new Code may not yet be in place. If the applicants succeed these circumstances may affect the relief that the Court might grant, but it cannot be said that the challenge will have no significance.

• [18] The second ground of challenge attacks the legality of the provisions of the existing Code. In New Zealand Animal Law Association Cull J also addressed, and upheld, a challenge to substantive provisions of a code in relation to the practice and use of farrowing crates and mating stalls for pig sows. Mr Bisley argued that the position here was more straightforward because of the applicants’ contention that the Act does not contemplate undertaking activities that cause unnecessary or reasonable pain or distress to animals for entertainment purposes. That was not a feature arising

⁷ New Zealand Animal Law Association v Attorney-General [2020] NZHC 3009.

⁸ At [173].

from the challenge to that code. He contrasted that position with hunting, which had specific provisions in the Act which allowed the hunting to take place.

• [19] What impact a proposed new Code will have on this ground of challenge is even less clear. It will depend on what is in the new draft Code, and on the success or otherwise of the applicants’ challenge to the existing Code. Again, if the applicants succeed, complications may arise in relation to the formulation of relief, but that does not mean that the challenge has no significance.

• [20] I do not accept that these potential implications in relation to relief mean that the applicants should not be permitted to pursue the challenge to the existing Code. If the existing Code is potentially unlawful for the reasons the applicants advance, then the Court should hear and consider that challenge. The respondents do not have the right to require such a challenge to be made only to a substitute Code that they have not even yet formulated in draft, let alone put through the statutory procedures before it would become effective. Any new Code will not be effective until at least December next year even on their own assessment.

• [21] Mr Bisley also made the point from the applicants’ point of view that they have been raising the issues that are raised in this proceeding for some time and that it had now reached the point where they wanted to have the matters addressed by the Court. It is for the applicants to make an assessment on whether they wish to pursue the challenge to the existing Code when a new Code that may address some or all of their points is proposed. The applicants have decided they wish to pursue their claims, and I accept that they have a right to do so.

• [22] For these reasons I do not accept that these proceedings should effectively be stayed until new statutory powers of decision are exercised. Any such subsequent exercise of a statutory powers will involve separate decisions that might also be susceptible to review. But this is not a reason why the applicants should not be able to challenge the existing measures. Indeed if anything it might be a reason why the existing challenge should be dealt with more promptly.
• [23] The applications are accordingly declined. The applicants are entitled to costs on a 2B basis. If there is any dispute about the quantification of that costs award memoranda may be filed.

• [24] There should be a further case management conference to progress this proceeding. Preferably it should be in the week of 15 November. By that stage I would expect that the new third respondent will have filed its statement of defence and the procedural course for determination of these proceedings can be addressed. I encourage counsel for all parties to cooperate in establishing a timetable for approval by the Court. This will include addressing the provision of information necessary to fairly argue the case, the filing of evidence, and the time required for a hearing.

Cooke J

Solicitors:

Buddle Findlay, Wellington for the Applicants

Crown Law, Wellington for the First and Second Respondents

Tavendale and Partners, Christchurch for the New Zealand Cowboys Assn Inc