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Court of Appeal of New Zealand |
Last Updated: 27 March 2023
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BETWEEN |
NZDSOS INC AND NZTSOS INC Appellants |
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AND |
MINISTER FOR COVID-19 RESPONSE First Respondent |
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DIRECTOR-GENERAL OF HEALTH Second Respondent |
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ATTORNEY-GENERAL Third Respondent |
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Court: |
French and Collins JJ |
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Counsel: |
W C Pyke for NZTSOS Inc No appearance for NZDSOS Inc D Jones for Respondents |
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Judgment: (On the papers) |
21 March 2023 at 10.30 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
[1] NZTSOS Inc seeks to resurrect an appeal which it filed on 9 December 2021 and which was deemed abandoned on 10 March 2022 under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules). The deemed abandonment occurred as a result of NZTSOS Inc’s failure to seek a hearing and file the case on appeal.
[2] The application to revive the appeal is made under r 29A of the Rules. Rule 29A empowers the Court to extend the time for filing an appeal after the appeal period has expired. The application for an extension of time was filed on 20 December 2022.
[3] The application is opposed by the respondents.
Background
[4] NZTSOS Inc is a voluntary association of educators who have formed an incorporated society. “NZTSOS” stands for New Zealand Teachers Speaking Out With Science. The society was formed in October 2021 for the sole purpose of commencing a legal challenge to the COVID-19 Public Health Response (Vaccinations) Order 2021 (the Order) which required those in the education and health sectors to be vaccinated for Covid-19. The Order purported to have been made pursuant to the COVID-19 Public Health Response Act 2020 (the Act).
[5] NZTSOS issued judicial review proceedings in the High Court joining forces with another organisation also opposed to the vaccination mandates called NZDSOS Inc. “NZDSOS” stands for New Zealand Doctors Speaking Out With Science. The statement of claim pleaded two causes of action or grounds of judicial review:
(a) The Order was not legally valid because the Act did not empower it to be made, if interpreted consistently with the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990 (Bill of Rights) and the principle of legality (the first cause of action).(b) The Order was invalid because it was not a reasonable and justified limit on the right under s 5 of the Bill of Rights (the second cause of action).
[6] In the High Court, the two causes of action were the subject of separate hearings and separate judgments. The first cause of action was heard on 8 November 2021 together with a challenge on the same grounds brought by four midwives who were subject to the Order.
[7] In a decision issued on 12 November 2021 (the validity judgment), Palmer J declined the midwives’ application for judicial review and the first cause of action in the proceedings brought by NZTSOS and NZDSOS.[1] Having unsuccessfully sought to appeal the Judge’s decision directly to the Supreme Court,[2] NZDSOS and NZTSOS then filed an appeal in this Court on 9 December 2021. It was allocated a file number CA716/2021.
[8] The second cause of action was heard by a different High Court judge, Cooke J. It too was unsuccessful, Cooke J delivering his decision (the justification judgment) on 8 April 2022.[3]
[9] NZTSOS and NZDSOS filed an appeal against the justification judgment on 10 May 2022. It was allocated a file number CA218/2022. That appeal is set down for a one day hearing next month on 19 April 2023.
[10] As at the date NZTSOS filed its appeal against the justification judgment, its appeal against the validity judgment was already deemed abandoned due to its non-compliance with the Rules.
[11] It is apparent from the affidavit evidence filed in support of the current application that NZTSOS decided to focus on the appeal against the justification judgment in preference to the appeal against the validity judgment. It has since had a change of heart and says it is now also committed to the latter. It further suggests both appeals could be heard on 19 April 2023.
[12] Finally, in this recital of the background facts, we note that although NZDSOS has been notified of the current application which of course concerns an appeal to which it was a party, it has not taken any steps.
Should an extension of time be granted?
[13] There was some disagreement between the parties as to whether the application was governed by the principles articulated in Almond v Read[4] or whether because it involved a deemed abandonment, the main authority was Sexton v Craig.[5] As will become apparent, it has not been necessary for us to decide this because our conclusion would be the same regardless.
[14] Contrary to a submission by NZTSOS, we consider the delay in this case is inordinate. The judgment in question was delivered over a year ago. It has been more than 11 months since the appeal was deemed abandoned. Further, in the period that has elapsed, the Order has been revoked.
[15] It is well established that the longer the delay, the stronger the case for an extension needs to be.
[16] Significantly too, the lengthy delay and the non-compliance with the Rules is due to a deliberate decision made by NZTSOS not to proceed with the appeal. It is not a case of a slip up or inadvertence. NZTSOS has been legally represented throughout and must have been aware that its appeal was deemed abandoned back in March 2022. Despite that, as noted above, it still did not take any steps for many months. In Almond v Read, the Supreme Court stated that in a case of a deliberate choice followed by a change of mind, there is less justification for an extension than where the delay results from error or understandable inadvertence.[6]
[17] Another factor to be considered is whether the delay has caused the respondents any prejudice. The only identifiable prejudice is the prejudice of incurring additional costs as a result of having to come up to speed again with what is now an old file. We therefore accept the delay has not caused the respondents any significant prejudice.
[18] We would add that in our view the suggestion made on behalf of NZTSOS that the appeal could be “seamlessly accommodated” within the pending one-day April fixture is unrealistic. The suggestion also sits uneasily with its submission about the important and complex legal issues which the appeal against the validity decision is said to raise. Given the very limited availability of hearing time in the Court for the rest of this year, it is more likely the appeal if resurrected would not be heard until 2024.
[19] As regards the importance of the appeal, there is a strong argument to say that its importance has weakened with the passage of time. Although there will always be public interest in determining the lawfulness of orders that limited the rights of affected workers, things have moved on. As the respondents point out, the deadlines for vaccinations have passed. Impacted workers have made their decisions about vaccinations as have employers in relation to those employees who chose not to be vaccinated. The Order has been revoked. And the Government’s public health strategy has undergone significant change.
[20] NZTSOS contends however that although the Order has been revoked, there is still practical utility in the appeal because a declaration the Order was unlawful may be relevant to proceedings that its members are said to have before the Employment Relations Authority. We accept it might be relevant but in the notable absence of any details of those proceedings, their nature, the number of claims, and any ruling or determination from the Employment Relations Authority suggesting that the determination of the lawfulness of the Order would be dispositive, we are unable to attribute significant weight to that possibility.
[21] NZTSOS also submits that despite the revocation of the Order, the legal issues it proposes to raise in the appeal — in particular those relating to the intersection of the principle of legality and the Bill of Rights — are ones of general or public importance. We accept those issues are of general importance and that the points proposed to be raised are arguable as opposed to being “hopeless”[7], but against that is the consideration that it is generally better to determine such matters in the context of living legislation.
[22] Standing back and weighing up all these matters, we are not persuaded that the interests of justice require an extension of time to be granted. The application is accordingly declined.
Outcome
[23] The application made by NZTSOS Inc under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal is declined.
[24] As regards costs on the application, these were sought by the
respondents in the event the application was unsuccessful. There
is in our view
no reason why costs should not follow the event. We therefore order that NZTSOS
Inc must pay the respondents one
set of costs for a standard application on a
band A basis together with usual
disbursements.
Solicitors:
McKenna King Dempster,
Hamilton for Appellants
Crown Law Office, Wellington for Respondents
[1] Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65.
[2] NZDSOS Inc v Minister for COVID-19 Response [2021] NZSC 163.
[3] NZDSOS Inc v Minister for COVID-19 Response [2022] NZHC 716.
[4] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[5] Sexton v Craig [2007] NZCA 200.
[6] Almond v Read, above n 4, at [38(b)].
[7] The term used in Almond v Read, above n 4, at [39(c)].
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