Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
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].
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
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
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2016/592.html