CHOPRA AND ANOR V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV-2009-404-000911 [2009] NZHC 580 (20 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CIV-2009-404-000911

                 UNDER                        the Judicature Amendment Act 1972

                 IN THE MATTER OF             an
application for judicial review and civil
                                              action

                 BETWEEN        
             KAMAL CHOPRA
                                              First Plaintiff

                                       
      KERRE CHOPRA
                                              Second Plaintiff

                 AND                         
THE CHIEF EXECUTIVE OF THE
                                              DEPARTMENT OF LABOUR
                                  
           Defendant


Hearing:         4 May 2009

Appearances: F C Deliu for the Plaintiffs
             V Casey for the Defendant

Judgment:        20 May 2009


                               JUDGMENT OF DUFFY J



                         This judgment was
delivered by Justice Duffy
                           on 20 May 2009 at 10.00 am, pursuant to
                                 r
11.5 of the High Court Rules

                          Registrar/Deputy Registrar
                          Date:




Solicitors:
  Equity Law P O Box 8333 Symonds Street Auckland 1150 for the Plaintiffs
              Crown Law P O Box 2859 Wellington 6140 for
the Defendant

Copy To:      A J McClymont P O Box 8272 Symonds Street Auckland 1150
CHOPRA AND ANOR V CHIEF EXECUTIVE OF THE DEPARTMENT
OF LABOUR HC AK CIV-2009-
404-000911 20 May 2009
[1]    The plaintiffs have commenced a proceeding against the Chief Executive of
the Department of Labour in which they make allegations based on judicial review
grounds and the civil torts of breach of statutory
duty and unlawful interference with
contractual relations. There is also an allegation of a breach of the New Zealand
Bill of Rights
Act 1990.


[2]    The application before me for determination is an application by the plaintiffs
for leave to cross-examine an
officer of the defendant in relation to the judicial
review grounds. In the course of the hearing, it became clear to me that the
parties
had not fully resolved whether the judicial review part of the proceeding would be
heard in advance of the tort and Bill
of Rights claims.                Cross-examination is
available as of right in tort claims. It was, therefore, necessary to resolve
whether or
not the hearing of this proceeding should be split with the judicial review hearing
being heard in advance of the tort
and public law claims. I set timetable directions
for the parties to file memoranda to advise the Court of the stance they each took.
I
have now received memoranda which show that both parties, albeit for different
reasons, want the judicial review heard in advance
of the other claims.


[3]    The plaintiffs now seek an urgent hearing of the judicial review. A decision
is also required on the
application for leave to cross-examine.                There is some
urgency to the latter decision, as it must precede the substantive
hearing.


[4]    I have carefully considered the application for leave to cross-examine. I
cannot see how it can satisfy the legal
tests for when leave to cross-examine will be
granted. Cross-examination in judicial review is rare. This is made clear by Geary
v
Psychologists Board CA618/08 9 April 2009 and Commerce Commission & Anor v
Powerco Limited v Anor CA123/06 9 November 2006.   
                   I cannot express the
application of the principles to be derived from the leading cases any better than the
statement
of principle by Joseph Williams J in Cheema v The Minister of
Immigration HC AK CIV-2008-404-7469 11 March 2009 at [2]:

       As
a matter of first principle, I need to be satisfied that there is some issue of
       evidence or credibility which (if made out
in favour of the applicant) would
       satisfy a requirement of one or more of his causes of action. Cross-
       examination of a witness in judicial review is a relatively rare
step and it
         requires there to be a genuine fight over some question of fact where
         existence of that fact is likely
to prove decisive one way or the other.

[5]      In the present case, there is no genuine fight over a question of fact where the
existence of the fact is likely to prove decisive one way or another. In this case, the
fight is over a question of law: namely,
the proper interpretation and application of
ss 7, 14, 20 and 41 of the Immigration Act 1987, including the relationship between
those provisions. The plaintiffs accept that the immigration officer sought to be
cross-examined was not exercising a statutory discretion.
It follows that what this
person understood the relevant statutory provisions to mean or what advice he
received from Head Office
as to their meaning is irrelevant. When it comes to
exercising statutory mandatory powers (which the applicant accepts are what is
of
concern here), as a matter of law such powers are either exercised correctly and,
therefore, validly, or they are not. Everything
turns on the interpretation of their
meaning and effect. The understanding the immigration officer concerned has of
their effect
is only relevant to the extent that it will affect whether or not he has
properly applied those provisions to the applicant's case.
This can be understood
from examining the officer's actions. It follows that there is no room whatsoever for
contemplating that he
be cross-examined as to his understanding of the law.


Result


[6]      The application for leave to cross-examine is dismissed.


[7]      Leave is reserved to the parties to file memoranda on costs.




                                                    
               Duffy J