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McClintock v Attorney-General [2016] NZHC 592 (6 April 2016)

Last Updated: 27 April 2016


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CIV-2015-404-000279 [2016] NZHC 592

UNDER
The New Zealand Bill of Rights Act 1990,
the Judicature Act 1908, Part 30 of the
High Court Rules
BETWEEN
JEFF MCCLINTOCK Applicant
AND
THE ATTORNEY-GENERAL First Respondent
RED BEACH BOARD OF TRUSTEES Second Respondent
CHURCHES EDUCATION COMMISSION
Interested non-party


Hearing:
6 April 2016
Appearances:
R K Francois for Applicant
P T Rishworth QC for First Respondent
A A Ayton for Second Respondent
No appearance for Churches Education Commission
J Hancock for Human Rights Commission - intended interested non-party
G Little and L Wong for Mr Hines and Ms Jacob - intended interested non-parties
Judgment:
6 April 2016




ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:

R K Francois, Auckland

P T Rishworth QC, Wellington

G F Little, Auckland

L L Wong, Auckland

Heaney & Partners, Auckland

Gaze Burt, Auckland

Copy to:

Human Rights Commission


MCCLINTOCK v THE ATTORNEY-GENERAL & ANOR [2016] NZHC 592 [6 April 2016]

Introduction

[1] Mr McClintock has filed an application for judicial review. He alleges that his daughter was unfairly treated when she opted out of religious instruction classes offered at Red Beach School, a state primary school on the Hibiscus Coast, north of Auckland. Mr McClintock alleges breach of s 75 of the Education Act 1989 by the Board of Trustees of Red Beach School. He also alleges that the trustees have breached s 79 of the Education Act 1964. He raises the New Zealand Bill of Rights Act 1990. He says that there has been discrimination and breaches of claimed rights to manifestation of religion and belief, freedom of thought, conscience and religion, and freedom of expression. He also alleges breach of the Care of Children Act 2004. Mr McClintock seeks declarations that the breaches have occurred and that s 78 of the Education Act is inconsistent with ss 13, 14, 15, 19 and 28 of the New Zealand Bill of Rights Act and with s 16 of the Care of Children Act. He also claims compensation under the New Zealand Bill of Rights Act.

[2] Mr McClintock named the Attorney-General and the Board of Trustees of Red Beach School as the respondents to his proceedings, and all of the causes of action raised by him are founded on the alleged conduct of the Board of Trustees of Red Beach School in dealing with his daughter.

[3] On 9 June 2015, Thomas J allowed the Churches in Education Commission (the “CEC”), to be joined as an interested non-party.1 It sought to be heard on the ground that it is a leader in the field of the provision of Christian religious education programmes throughout New Zealand. It argued that it would be directly affected should the declarations sought by Mr McClintock be made. Thomas J permitted it to be joined subject to various conditions. Inter alia she limited the scope of the evidence it is allowed to adduce.

[4] The substantive proceedings are set down for hearing over four days as from

26 April 2016. That date was allocated some considerable time ago. The exchange of evidence has been, at least partially, completed. Mr Francois for Mr McClintock

did tell me that there is additional evidence his client wishes to file. The timetable

1 McClintock v Attorney-General [2015] NZHC 1280.

for the filing of evidence has expired and any application to file additional evidence would now require leave. Mr McClintock was due to file his submissions by 5pm yesterday - 5 April 2016. He did not do so. It is not clear when he intends to remedy this breach. Clearly it will have to be very soon, unless he wishes to face an application for an unless order, because the other parties and CEC are required to file and exchange their respective submissions in the near future.

Mr Hines and Ms Jacob

[5] On 26 February 2016, a Mr Hines filed an interlocutory application seeking:

(a) that he and a Ms Jacob should be joined as parties to the proceedings, or, in the alternative;

(b) that they should be joined, on behalf of an entity known as the Secular

Education Network (“SEN”), as interveners in the proceedings.


[6] Mr McClintock supported the application.

[7] The application was opposed by the first respondent, the Attorney-General.

[8] This morning, Mr Little, appearing on behalf of Mr Hines and Ms Jacob, withdrew the application seeking that his clients be joined as parties. That left outstanding their application to be joined as interveners, or additional interested non- parties.

[9] Mr Rishworth QC, appearing on behalf of the Attorney-General, had indicated from the outset that the Attorney-General would not oppose leave being granted to Mr Hines and Ms Jacob to be joined as interested non-parties, with appropriate conditions as to their level of involvement at the hearing.

[10] The second respondent, the Board of Trustees of Red Beach School, did not file a notice of opposition, but Ms Ayton, on the Board’s behalf, appeared. She supported Mr Rishworth’s stance and submissions.

[11] In effect, the issue before me turned not on whether Mr Hines and Ms Jacob should be joined as interveners or interested non-parties, but rather, on what conditions should attach to their joinder. The principle dispute was whether or not they should be permitted to file further evidence.

The Human Rights Commission

[12] On 14 March 2016, the Human Rights Commission filed an interlocutory application seeking leave to appear as an additional intervener. No notices of opposition were filed and the existing parties and CEC have consented to the Commission joining as a further interested non-party on agreed terms. I formalise that agreement and set out the agreed terms later in this judgment. I note that the agreed terms provide that the Commission cannot produce evidence at the hearing.

Stance taken by Mr Hines and Ms Jacob

[13] Mr Hines filed two affidavits in support of his application. He is a member of the Council of the New Zealand Association of Rationalists and Humanists, which in turn set up SEN in March 2012, with the aim of promoting the removal of religious instruction from state primary schools in New Zealand.

[14] Mr Hines describes himself as a “Christian atheist”. This apparent contradiction is explained by the fact that Mr Hines was formerly a Methodist minister. Given his background, he was appointed by SEN to liaise with religious groups on its behalf. He became a member of SEN’s executive in 2013.

[15] Ms Jacob also filed two affidavits. She is an atheist.

[16] Ms Jacob and Mr Hines are co-leaders of a group known as the Human Rights Appeal Team, which Mr Hines describes as a “semi independent campaign” which SEN set up to press for changes to the laws which make provision for religious instruction in state schools.

[17] SEN runs a website and conducts a Facebook group which offers a forum for those who seek to express views on the provision of religious instruction in state schools.

[18] In July 2014, Mr Hines and Ms Jacob, through the Human Rights Appeal Team, lodged a complaint with the Human Rights Commission. They were seeking a review of the laws relevant to the provision of religious instruction in state schools. In February 2015, SEN/the Appeal Team became involved in consultation with the Ministry of Education. That consultation is still ongoing. Mr Hines stated in his affidavit that in August 2015 SEN filed a complaint with the Human Rights Review Tribunal, which was rejected in late December 2015. He said that in January 2016 he and Ms Jacob engaged counsel who advised them to apply to join Mr McClintock’s proceeding.

[19] In their affidavits, Mr Hine and Ms Jacob summarised the evidence which they propose to call in the event that they are allowed to do so. Mr Hines stated that the evidence is intended to cover the following:

(a) Evangelistic Christian organisations working in New Zealand primary and secondary schools, the extent of their work, their teaching materials, the alleged “secrecy” about their methods, and their alleged “obstruction” of Mr Hines and Ms Jacob’s efforts to gather evidence;

(b) Schools which endorse these organisations, the schools’ alleged “secrecy” about their involvement, and their alleged “obstruction” of Mr Hines and Ms Jacob’s evidence gathering;

(c) The Ministry of Education’s alleged inability and/or unwillingness to

monitor the position;

(d) The alleged inadequacy of redress available through the Human

Rights Commission or through the Ministry of Education; and

(e) Religious and non-religious groups who are said to be harmed by the provision of religious education in state schools.

[20] Mr Hines summarised in some detail the material he says should form part of the evidence. He asserted that the proposed evidence will assist the Court in considering how Christian religious instruction programmes are currently provided in schools, and that it will detail what occurs in the classroom and comment on the relationship between religious instruction providers, boards of trustees, parents and children. He said that the evidence will extend to the (alleged) discrimination, on a national level, against parents and children of minority religions or who are of non- religious conviction. Mr Hines stated that many supporters of SEN’s Human Rights Appeal Team have intimated their willingness to give evidence, including:

(a) a parent who has counselled lesbian and gay children;

(b) a parent involved in a complaint about the provision of free food or treats as an incentive to children to attend religious instruction classes;

(c) a parent with a child attending a school in Oamaru that, in 2015, was using a syllabus known as the “Beginning with God” syllabus, which was (allegedly) rejected by the CEC as being “too evangelistic” in

2012;

(d) a parent who was (allegedly) told to drop his/her children off at school at a later time so that the school would not need to provide an alternative programme for the children;

(e) Jewish, Buddhist and Muslim leaders who are (apparently) concerned at the proselytising of their children by religious instruction providers;

(f) a review carried out by a Professor Paul Morris of the six major religious instruction syllabuses used in New Zealand schools;

(g) a public opinion survey which seeks to quantify the concerns of different religious and non-religious groups about religious instruction and religious observance in schools; and

(h) a survey of state primary and secondary schools which identifies those that conduct religious instruction and observance and also identifies the syllabus used in each school.

[21] Ms Jacob stated that she wishes to call evidence about her own experiences, and those of her children, at Harewood School in Christchurch. She proposes to adduce in evidence screenshots taken from various sites on the internet which are said to be relevant, including excerpts from teachers’ manuals, copies of minutes of the Board of Trustees of Harewood School, advertisements placed by the Anglican Parish for youth workers to work at Harewood School, a chart of schools in the Harewood area showing those offering religious instruction and those not doing so, information received from the Ministry of Education, complaints lodged with the Ombudsman, information obtained under the Official Information Act, letters to and from Members of Parliament, communications between the Board, the Principal of Christchurch East School and the Commissioner appointed to run that school, articles produced by senior managers at the Ministry of Education, various letters of complaint obtained pursuant to applications made under the Official Information Act, memoranda from the Ministry’s legal services branch to its Christchurch and Invercargill offices, various internal Ministry memos, memos regarding mediations between parents and other school boards including the school board at Avondale School in Christchurch, screenshots of a Baptist news service interview, a letter to CEC from the Ministry, screenshots from CEC member Church websites, a screenshot from SEN’s Facebook page, excerpts from a thesis regarding chaplains in state schools, articles from Australian newspapers regarding fundamentalist preaching, a school newsletter from Paparoa Street School in Christchurch, and screenshots from a Bible based adventure programme run for boys. She advised that she wishes to call evidence in relation to religious instruction offered at Loburn School in Loburn, Mt Albert Grammar School and Dominion Road School, both in Auckland, and Goldfield School in Cromwell. She also referred to material she hopes to obtain in relation to an unnamed high school in a South Island rural town.

She further indicated that she may wish to put in evidence a summary of research on the impact of religious education in schools written by a registered clinical psychologist, a Mr Mark Ottley.

[22] It is clear from the affidavits that much of this proposed evidence is not yet ready to be filed, although this morning, immediately prior to the commencement of the hearing, I did receive an affidavit sworn by Professor Morris. He is a professor of religious studies and the affidavit annexes four reports he prepared between 15

June 2015 and 20 March 2016 which seek to evaluate the suitability of a number of religious instruction syllabuses used in New Zealand state schools. No other affidavits have been filed. Ms Jacob acknowledged that most of the prospective witnesses that she has been working with have been unable to prepare their proposed affidavits at short notice. She said that she expects that they will be able to do so in due course. There is however, no indication as to how long it may take Mr Hines and Ms Jacob to prepare the balance of their evidence.

Legal Framework

[23] As I have noted Mr Hines and Ms Jacob sought first to be admitted as parties to the proceeding. That aspect of the application was withdrawn and I need take it no further.

[24] In the alternative, Mr Hines and Ms Jacob, on behalf of SEN, sought to be added to the proceeding as interveners or interested non-parties.

[25] The High Court Rules do not specifically provide for the addition of an interested non-party to a proceeding. However, the Court has accepted that it can add an interested non-party to proceedings under rr 7.2 and 7.43A(1)(d) and (e). Further it can do so in the exercise of its inherent jurisdiction.2

[26] The difference between a party properly so called, and an intervener or interested non-party, is significant. Additional plaintiffs or defendants have a right to



2 Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-

1795, 9 August 2011 at [18]; McClintock v Attorney, above n 1, at [30].

appeal; an interested non-party or intervener has no such right.3 As Thomas J noted in considering CEC’s application to become an interested non-party, the case law does not reveal a clear test for whether the Court should add interested non-parties or interveners in civil cases. Thomas J considered that the Court may be influenced by broader considerations than on applications for joinder as plaintiffs or defendants, and that this corresponds to the more limited rights acquired by interested non- parties/interveners.4

[27] Interveners can be joined as interested non-parties in judicial review proceedings.5 Indeed there is more scope for the rights of others to be affected in judicial review proceedings, because frequently the challenge to the exercise of the statutory powers or decision of a public body will have consequential effects on others. In such situations, it can be unjust to decide the issues in the absence of the persons actually or potentially affected.6

[28] The relevant law was considered by Thomas J when she was considering CEC’s application to be joined as an interested non-party. She distilled the following propositions from the decided cases:7

(a) An applicant must show that its legal rights or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.

(b) If the intending intervener's presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.

(c) A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.





3 Beneficial Owners of Whangaruru Whakaturia No. 4 v Warin [2009] NZCA 60, [2009] NZAR

523 at [27].

4 McClintock v Attorney-General, above n 1, at [31].

5 McClintock v Attorney-General, above n 1, at [33]-[43]; Westhaven Shellfish Ltd v Chief

Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14].

  1. Deadman v Luxton HC Wellington CP71/99, 4 May 1999 at 6; Wilson v Attorney-General (2010) PRNZ 943 (HC) at [19]-[20].

7 McClintock v The Attorney-General, above n 1, at [44].

(d) If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will likely not be granted.

(e) In cases where development of the law is possible, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.

(f) The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.

(g) Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener's interests.

(h) The power to grant leave to intervene is discretionary and should be exercised with restraint to avoid the risk of expanding issues, elongating the hearing and increasing the costs of the litigation.

[29] I agree with this analysis. So did counsel. Although the propositions identified by Thomas J address whether or not persons should be joined as interested non-parties, I have also found it helpful to bear them in mind in considering what level of involvement Mr Hines and Ms Jacob should have as additional interested non-parties.

Analysis

[30] Mr McClintock’s statement of claim focuses on the alleged experiences of his daughter, who attended Red Beach Primary School, from 6 September 2010. Each of the causes of action raised refers back to his daughter’s alleged experiences and to the alleged responses/actions of the Board of Trustees of Red Beach School. There are five of causes of action which seek declarations that s 78 of the Education Act is in breach of various sections in the New Zealand Bill of Rights Act. These causes of action allege and seek declarations that the actions of the Board of Trustees of Red Beach School amount to breaches of the rights claimed.

[31] Given that the focus of the proceeding is on the experiences of Mr McClintock’s daughter, and the response of the Board of Trustees of Red Beach School, it cannot be said that either Mr Hines or Ms Jacob’s legal rights or liabilities

in relation to the subject matter of the proceeding could be directly affected by it. Neither of them have any experience of, or involvement in, the factual matters pleaded. Mr Hines and Ms Jacob are undoubtedly sincere in their views and I accept that they have a strong general interest in the subject matter of Mr McClintock’s proceeding, but that interest does not mean that they are affected, either directly or indirectly, by the proceeding, or by any orders that may be made in it.

[32] Mr Hines in his second affidavit dated 30 March 2016 effectively accepted this. He posed the question whether or not he is “a victim”. In answering this question he referred not to his own experiences, but to those of other groups or entities he claimed are suffering under the present legislative regime. He stated that, as a Christian atheist, he is:

... in a target zone for prejudice [himself]. But [he is] not as vulnerable as others, because [he] has a liberal Christian support team and an atheist support team, which is not the worst place to be. It is often stimulating! These and people from non-Christian religions are some of our strongest workers against discrimination. They are not afraid to stand up for civil rights for themselves and others.

It is noteworthy that Mr Hines did not suggest that he will be affected either directly or indirectly by the ultimate decision in the proceeding.

[33] To the extent that Mr Hines and Ms Jacob’s general interest – which is essentially in attaining SEN’s goals – may be engaged by the proceeding, they can rely on Mr McClintock to protect that interest. It is clear from the affidavits filed that SEN, and Mr Hines in particular, have been assisting Mr McClintock since the proceeding was first filed. Mr McClintock’s affidavit dated 9 March 2016 confirms that he is associated with SEN. Mr McClintock stated that he handed out fliers in or around 2012 which contained a section “Who are the Secular Education Network”, and which were clearly identified with the SEN’s logo, plus his name and contact details. Mr Hines’ affidavit dated 27 February 2016 stated that Mr McClintock’s proceeding is a “SEN project”. In his further affidavit dated 30 March 2016, he states that SEN selected Mr McClintock as the most suitable candidate for a challenge to the practices of a specific school. In a further affidavit dated 29 January

2016, Mr McClintock stated that Mr Hines had been assisting with his case, including with the preparation of evidence. For example, it appears that Mr

McClintock asked SEN to obtain an expert analysis of the syllabus of the “Values in Action” programme which was run at Red Beach School. That analysis has been adduced by Mr McClintock in evidence. Further, Mr McClintock gave Mr Hines a copy of the figures for the denominations of the CEC volunteers in late 2015 and asked for his assistance when preparing reply evidence.

[34] While Mr Francois asserted that Mr McClintock cannot respond to various matters raised by CEC in the evidence it has filed, (assuming that evidence to be relevant), I note that there was nothing to stop Mr McClintock from adducing reply evidence from Mr Hines and/or Ms Jacob if he wished to do so.

[35] Ms Jacob’s children attended Harewood School in Christchurch from November 2009 to December 2012. During this period Harewood School offered a programme of religious instruction. She asserted in her affidavits that her son suffered from prejudice and bullying as a result of opting out of the programme. She said that as a result her children were transferred to an out of zone school which did not offer religious instruction.

[36] With respect to Ms Jacob, the experiences of her children at Harewood School are irrelevant to the issues raised by Mr McClintock in his statement of claim. As I have noted, Mr McClintock has focused on the experiences of his daughter, and the actions of the Board of Trustees of Red Beach School.

[37] Evidence from Ms Jacob and other parents about the operation of ss 78 and

79 of the Act generally, and in other schools throughout New Zealand, cannot assist the Court, or improve the quality of the information before it relevant to the matters raised in the proceeding. Such evidence could only comprise untested anecdotes, because the schools themselves, and their respective boards of trustees, would not be before the Court. The evidence would likely be irrelevant in terms of s 7 of the Evidence Act 2002, and as a result inadmissible.

[38] Unless appropriate conditions are imposed, joining Mr Hines and Ms Jacob as interested non-parties could potentially greatly expand the issues in the proceeding. They seek to adduce evidence, and to submit, on the place of religion in

public schools generally (and not just at Red Beach Primary School, or even in primary schools generally), including issues relating to religious observance (such as prayers) outside the religious instruction context, school chaplains, youth workers, Christian run school camps, religious education within the general school curriculum and religious instruction or observance in secondary schools. Such issues do not arise on Mr McClintock’s statement of claim.

[39] Unless conditions are imposed, there is a significant risk that the Board of Trustees of Red Beach School in particular would be prejudiced. As I have noted, the proceedings could be expanded considerably if Mr Hines and Ms Jacob were to be permitted to file additional evidence. Ms Ayton explained that the Board of Trustees is due to be re-elected in June of this year. The existing members of the Board are not standing for re-election. New members elected will have to be briefed in relation to the proceedings. The present Board is understandably anxious to resolve the issues raised by the proceeding, insofar as they affect it, as quickly as is reasonably practicable.

[40] I accept that this is a case where development of the law is possible. There is nothing before me however, which suggests that either Mr Hines, or Ms Jacob, have any special expertise which is likely to assist the Court on the wider public policy issues which may arise. They will have views on the matters raised by Mr McClintock in this proceeding, but the holding of views, no matter how sincere those views may be, does not equate to expertise.

[41] I accept that Professor Morris, whose affidavit was filed in Court late yesterday afternoon, and seen by me and counsel this morning, is an expert. He is a Professor of Religious Studies. His evidence (assuming it is relevant to the issues raised) goes some way towards meeting the evidence of CEC. It is noteworthy however, that neither Mr Rishworth nor Ms Ayton opposed Professor Morris’ affidavit being received by the Court, as long as they are given the right to file further affidavit evidence in reply. To my mind, this addresses, at least in part, the concern expressed by Mr Francois – namely that Mr McClintock cannot himself respond to the evidence which CEC has been permitted to file.

[42] Another factor relevant to the issue of whether or not Mr Hines and Ms Jacob should be permitted to file further evidence, is the fact that they have delayed in seeking to join the proceeding. If they were now to be permitted to file the further evidence they wish to adduce, it would inevitably delay the resolution of this matter.

[43] Mr Hines and Ms Jacob have not explained adequately why their application could not have been brought at a very much earlier date. Mr Hines says that they were not aware, until “recently”, that Mr McClintock is seeking a declaration of inconsistency in relation to the Education Act, as well as claiming against Red Beach School. Mr Rishworth described his assertion as “delphic”. I consider that Mr Hines’ assertion does not stand close scrutiny. Mr McClintock has only filed one statement of claim. It was filed as long ago as February 2015. He has sought declarations of inconsistency from the outset. It is clear from the affidavits filed that SEN, and Mr Hines in particular, were involved from the outset. Even if he and Ms Jacob were not aware of the scope of the proceeding at the outset, they should have appreciated that Mr McClintock’s claim involved a challenge to the legislation, at the latest from June 2015 when CEC was joined as an interested non-party. CEC had no involvement with whatever happened at Red Beach School. It is not the provider of religious instruction at that school.

[44] As I have noted, the proceeding is set down for a four day hearing commencing on 26 April 2016. A timetable is in place. Mr McClintock did seek an adjournment, but his application was declined, because, at the time, the next available fixture date was not until late 2016.8 I suspect that that window has now closed and that, realistically, an alternative date may not now be available until very much later in the year or perhaps early 2017.

[45] Permitting Mr Hines and Ms Jacob to file further evidence now would inevitably result in an application for an adjournment which the Court would have difficulty in resisting, given that the evidence would first have to be prepared, then filed, and that other parties would thereafter have to be given the opportunity to

respond to it. To delay the proceedings would not be in the best interests of the

  1. McClintock v Attorney-General HC Auckland CIV-2015-404-000279, 16 March 2016 (Minute of Peters J) at [6].

existing parties. While Mr McClintock is not concerned at any delay, the Board is, and it is entitled to a prompt hearing to resolve the allegations against it and the matters in dispute.

[46] Both the Attorney-General and the Board of Trustees accept that Mr Hines and Ms Jacob have an interest in the declarations of inconsistency sought by Mr McClintock. If they had made application at, or about, the same time as CEC made application, then the Court may well have been prepared to allow them to adduce evidence relevant to the issues to be determined. However, it is now rather too late for that, and I am not persuaded, at this 11th hour, that it is appropriate to allow Mr Hines and Ms Jacob to file additional evidence.

Orders Made – Mr Hines and Ms Jacob

[47] By consent, I direct that Mr Hines and Ms Jacob be joined to the proceeding as additional interested non-parties/interveners.

[48] To minimise disruption to the existing timetable, I impose the following conditions on their joinder:

(a) Mr Hines and Ms Jacob may adduce in evidence the affidavit of

Professor Morris dated 31 March 2016;

(b) Mr Hines and Ms Jacob may not produce any further evidence in the proceeding;

(c) Mr Hines and Ms Jacob are not entitled to cross-examine any witnesses;

(d) Mr Hines and Ms Jacob are to jointly file written submissions confined to the issues squarely arising from Mr McClintock’s statement of claim dated 15 February 2015. The submissions are not to be repetitive of matters addressed by Mr McClintock in his submissions. The submissions are to be confined to 6,000 words or

less. They are to be filed and served on or before 3pm on 21 April

2016;

(e) Mr Hines and Ms Jacob are entitled to attend the substantive hearing.

If they elect to do so, they are to be in a position to make oral submissions through counsel to assist the Court if called upon to do so;

(f) The presiding Judge will determine at the hearing whether Mr Hines and Ms Jacob can make oral submissions through their counsel; and

(g) Mr Hines and Ms Jacob have no right to seek costs against any party.

[49] To protect the interests of the first and second respondents in regard to the late filing of Professor Morris’ affidavit, I direct that any affidavits they wish to file in reply to Professor Morris’ affidavit are to be filed and served by 5pm on 18 April

2016.

Orders Made - Human Rights Commission

[50] The parties consent to the Human Rights Commission becoming an additional intervener or interested non-party in the proceeding.

[51] I order accordingly.

[52] I impose the following conditions, once again to ensure that there is minimal disruption to the current timetable:

(a) the Commission is not to produce evidence in the proceeding; (b) the Commission is not entitled to cross-examine any witness;

(c) the Commission is to file written submissions on the human rights related issues raised by the proceeding. Those written submissions

are to be confined to 6,000 words or less. They are to be filed and served on or before 3pm on 21 April 2016;

(d) the Commission is to attend the substantive hearing, and it is to be in a position to make oral submissions to assist the Court if called upon to do so;

(e) the presiding Judge will determine at the substantive hearing whether the Commission may make oral submissions; and

(f) The Commission has no right to seek costs against any party.

Costs

[53] By consent, I direct that costs are reserved. They can be dealt with by the trial Judge at the substantive hearing.













Wylie J


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