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High Court of New Zealand Decisions |
Last Updated: 23 April 2019
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2018-404-1898
[2019] NZHC 889 |
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UNDER
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the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act
1990, and
the Human Rights Act 1993
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IN THE MATTER
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of the process of selection for the post of New Zealand Race Relations
Commissioner
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BETWEEN
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COLIN SAMUEL HENRY
Applicant
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AND
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THE MINISTER OF JUSTICE
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
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Hearing:
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27 March 2019
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Appearances:
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Applicant in person
V McCall and J Watson for the First and Second Respondents
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Judgment:
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18 April 2019
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JUDGMENT OF GAULT J
(Further application for interim order)
This judgment was delivered by me on 18 April 2019 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
..........................................
Parties / Solicitors / Counsel:
Mr C S Henry, Auckland
Ms V McCall and Mr J Watson, Crown Law, Wellington
HENRY v THE MINISTER OF JUSTICE [2019] NZHC 889 [18 April 2019]
[1] The applicant, Mr Henry, seeks judicial review of the appointment process for the position of Race Relations Commissioner (RRC).
[2] The first respondent (the Minister) is the Minister responsible for recommending appointment of the RRC to the Governor-General. The Attorney- General is named as second respondent.
[3] At the commencement of the proceeding in September 2018, Mr Henry also applied for interim orders preventing further steps being taken in the appointment process pending determination of his judicial review claim. That application for interim orders was dismissed by Fitzgerald J on 1 November 2018.1
[4] The hearing of the substantive judicial review application took place on 27 March 2019. At the end of that hearing, Mr Henry made an oral application for a further interim order pending judgment that no further steps be taken by the independent panel (the panel) advising the Minister on the selection of the new RRC.
[5] Counsel for the respondents, Ms McCall, did not require a written application. In accordance with my timetabling directions, I have received counsel for the respondents’ memorandum of submissions in opposition to the oral application and the applicant’s reply memorandum. The time required to do justice to the substantive submissions makes it appropriate to determine the application for interim orders in the meantime.
Factual background
[6] Mr Henry practised law in the United States and the Caribbean before moving to New Zealand in 1994. In New Zealand he has practised both in a law firm and subsequently as a barrister.
[7] On 24 May 2018 the Minister agreed to a public advertising process to find replacements for the RRC and other Human Rights Commissioners whose positions
1 Henry v Minister of Justice [2018] NZHC 2831.
had expired or were about to expire, and to the appointment of the panel to assess expressions of interest (EOIs) and conduct interviews of candidates for the positions.
[8] On 26 May 2018 the Minister published an advertisement seeking EOIs for the RRC role, together with two other Human Rights Commissioners. The advertisement referred potential applicants to a position description online. EOIs were sought by 20 June 2018.
[9] Mr Henry considered that he was well qualified to apply for the RRC role. Mr Henry submitted an EOI on 12 June 2018, within the specified timeframe. The Ministry of Justice (Ministry) acknowledged receipt on 19 June 2019.
[10] On 27 June 2018 the Minister appointed the panel members.
[11] The panel members met on 11, 16 and 17 July 2018 to consider the EOIs and discuss shortlisting candidates. Two potential candidates were identified for the shortlist for the position of RRC following those meetings. The panel considered Mr Henry’s EOI on or about 11 July 2018.
[12] On 13 July 2018 Mr Henry made an enquiry to the Ministry as to progress. The reply from the Ministry said that no decisions on shortlisting had been made, referring to the need for the selection process to comply with UN conventions, which require the responsible Minister to be advised by an independent panel. The Ministry said the panel had been established but had not completing shortlisting.
[13] On 16 July 2018 the Minister announced that he had established the panel to advise on the selection of the new Commissioners, stating the panel would run its own completely independent process and make recommendations directly to him.
[14] On 24 July 2018 the Ministry emailed all candidates, including Mr Henry, to advise that there would be a brief delay in finalising the shortlist. The email said that at the request of the independent panel, and with the agreement of the Minister, there would be a second public advertisement placed on 25 July 2018. The closing date for EOIs would be 3 August 2018. The email also said:
This is in no way a reflection on the candidates who have expressed interest but the panel felt that the pool of candidates for this particular position was not as large as expected.
You remain under consideration. I expect to have an update on a shortlist around the second week of August.
[15] On 25 July 2018 the second advertisement sought further expressions of interest for the RRC role, while indicating that those who had already expressed interest remained under consideration. The online position description did not change. EOIs were sought by 3 August 2018.
[16] In the event, the panel agreed that that the second round of advertising did not identify any new potential appointees, and the panel chair determined on 14 August 2018 to proceed to interview the two candidates from the first round of advertising.
[17] On 21 August 2018, having not heard further, Mr Henry enquired again. The Ministry’s reply on 22 August 2018 said that work on the RRC appointment was temporarily paused because one of the panel members was out of the country for the next few weeks.
[18] On 30 August 2018 Mr Henry was notified that he had not been shortlisted to proceed to the interview stage for the position.
[19] Mr Henry sought to learn the reasons for not being shortlisted and attended a meeting with two members of the panel on 13 September 2018. The two members of the panel also interviewed the two candidates that day.
[20] After the application for interim orders had been dismissed, the panel reported to the Minister on 8 November 2018, recommending one candidate as a viable appointment option. However, on 12 November 2018 the preferred candidate withdrew.
[21] I was told a third advertisement has since been published and all earlier candidates who submitted EOIs have been told they may re-submit applications. Counsel for the respondents advised that the Minister intends to continue to take advice from the panel in the selection process.
Mr Henry’s substantive grounds of review
[22] Mr Henry’s amended statement of claim contained four causes of action:
(a) frustration of legitimate expectations;
(b) failure to act reasonably, rationally, and/or fairly;
(c) breach of statutory duty; and
(d) breach of the New Zealand Bill of Rights Act 1990.
[23] These pleaded causes of action were summarised in the judgment of Fitzgerald J and I need not repeat that summary.
Approach to interim orders
[24] Section 15 of the Judicial Review Procedure Act 2016 relevantly provides:
15 Interim orders
(1) At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2) The interim orders referred to in subsection (1) are interim orders—
(a) prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b) prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c) declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
(3) However, if the Crown is a respondent,—
(a) the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b) the court may, instead, make an interim order—
(i) declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii) declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
[25] It is common ground that if the Court is satisfied that an interim order is reasonably necessary to preserve the position of the applicant, the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.2
[26] Mr Henry also relied on r 7.44,3 which is a general power to make any interlocutory order or grant any interlocutory relief the Judge thinks just, even if the order or relief has not been specifically claimed and there is no claim for general or other relief. I do not consider that adds anything to the approach under s 15 in this case.
Mr Henry’s submissions
[27] Mr Henry submits that among the orders sought in the proceeding is one requiring the Minister to dissolve the panel and, if the Minister elects to proceed with the selection of candidates by way of taking advice from a panel, he appoint a new panel to provide such advice. He submits it is necessary to make an interim order that no further steps be taken by the panel to preserve his position pending substantive determination of the proceeding. He submits that if the panel conducts the new process, a substantive finding by the Court that the failed selection process was unfairly conducted and that the panel should not participate in the renewed process, will be nugatory.
3 High Court Rules 2016.
[28] The principal ground on which Mr Henry seeks such an order is the avoidance of bias, pre-judgment and/or prejudice, actual or apparent. He is concerned that in the previous selection process the panel reviewed, assessed and formed views about the candidates who submitted EOIs, eventually selecting two out of 43 to advance to the interview stage. Mr Henry submits it is almost certain to defeat the purpose of encouraging former applicants to re-submit EOIs if those EOIs are to be reviewed and assessed by the same panel. Although the panel members kept no records of their earlier assessment, he submits there is a strong likelihood they may be influenced by even partial recollection of views which they formed about various of the EOIs received in the failed process.
[29] Mr Henry is particularly concerned as he met in person with two members of the panel after he had been notified that he had not been shortlisted to proceed to the interview stage for the RRC position. This meeting was the subject of an affidavit from Pauline Winter, the chair of the panel, dated 8 March 2019, which Mr Henry submits contains false and negative information concerning him.
[30] Mr Henry says that insofar as the current application raises any issue of bias, that issue could not have been raised earlier as it only presented itself following receipt of that affidavit of 8 March 2019. He submits that, similarly, the issue of prejudice has arisen only now that the RRC position has been advertised for a third time coupled with the respondents’ indication that EOIs submitted in response will be assessed by the panel.
[31] He submits that in addition to failing to keep records, the panel also failed to generate any reliable evidence that, in selecting persons for interview, it took into account the desirability of promoting diversity in the membership of Crown entities, mandated by s 29(2)(b) of the Crown Entities Act 2004. He submits the panel was also complicit in the overall procedural unfairness of which he complains and which triggered his judicial review application.
[32] As to the application being a second application for interim orders, Mr Henry submits that the relief sought in this further application for interim orders is not the same relief as that sought in his earlier application. The earlier application sought a
declaration that the respondents ought not to take any further action, whether by themselves or by their servants and/or agents, towards appointing an RRC until determination of the substantive judicial review application. Mr Henry submits that the interim relief now being sought is significantly narrower than, and different from, that sought earlier in that it seeks a declaration only that no further steps be taken by the panel in relation to the appointment of the RRC.
[33] Mr Henry does not accept responsibility for any delay to date in the process of appointment of the RRC. In relation to concern about further delay, Mr Henry submits that will be minimal given the substantive application has already been heard.
[34] Mr Henry relied on Smith v Taupo District Council,4 where Nicholson J considered it was reasonably necessary to grant an interim order that no steps be taken to implement a resource consent to preserve the status quo pending substantive determination.
Respondents’ submissions
[35] The respondents accept that it is arguable that Mr Henry has a “position” to preserve, as they did in relation to his earlier application for interim orders.5
[36] The respondents say this application is made on substantially the same basis as the previous application, namely the pleaded causes of action, and the fact that re-advertising and consideration of applications has commenced for a third time does not alter the merits of the claim.
[37] The respondents also say Mr Henry should not be permitted to raise a fresh allegation of bias at the end of his reply submission at the substantive hearing, in order to provide a new basis for interim relief. That allegation has not been pleaded or addressed in written submissions. Bias could have been raised but was not at the time of the first application. Even if it can be raised now, the respondents say there is no evidence on which the Court could be satisfied it is made out.
4 Smith v Taupo District Council HC Rotorua CP 36/01, 23 November 2001.
5 Henry v Minister of Justice [2018] NZHC 2831 at [50].
[38] The respondents say the importance to New Zealand of the appointment of the RRC is such that the process ought not be delayed further. This importance has been highlighted by the shootings in Christchurch.
Decision
[39] Necessity to preserve the applicant’s position is the statutory threshold before the discretion can be exercised to grant relief. It is common ground, given the respondents’ concession it is arguable Mr Henry has a “position” to preserve, that the Court must make an assessment of the circumstances of the case in order to determine whether the discretion ought to be exercised. This indicates the respondents accept for the purposes of interim relief that an interim order is “necessary” to preserve Mr Henry’s “position”. I proceed on that basis.
[40] I consider the relevant circumstances of this case under the headings of second application for interim relief, the apparent strengths or weaknesses of the claim for review, and the repercussions of granting interim relief.
Second application for interim relief
[41] A second application for interim relief is unusual. While interlocutory rulings will not ordinarily give rise to issue estoppel, it is generally undesirable for an issue decided by an interlocutory ruling to be re-litigated in the same proceeding. That is addressed by r 7.52.6 Leave is required and is only to be given in special circumstances.
[42] Attempting to re-litigate a matter that has already been dealt with may amount to an abuse of process. In New Zealand Maori Council v Attorney-General, Doogue J considered that an application for an interim order declaring the Crown ought not to take steps proceeding with the auction of radio spectrum management rights was an attempt to re-litigate a matter that had already been dealt with, rejecting an argument that the situation was different because the auction had commenced.7 Doogue J said
6 Stephenson v Jones [2014] NZHC 1604 at [7].
there was no possible basis upon which he could consider or grant relief regardless of issues of res judicata and abuse of process. Delay was also a factor.
[43] A second application based on material which was not, but could have been, deployed in the first application would also be unlikely to get leave, as there is a public interest in discouraging this.8
[44] Mr Henry characterises this application as narrower than his earlier application dealt with by Fitzgerald J. That is true, but Mr Henry still seeks to stop part of the process that was the subject of the earlier application.
[45] The change in circumstances Mr Henry raises is the affidavit of Ms Winter dated 8 March 2019, with which he takes issue, and the third advertisement coupled with the panel’s ongoing role. Mr Henry could not have deployed this at the first application for interim relief in October 2018. In that regard, even though this is a second application for interim relief and Mr Henry knew when he made the earlier application that he had not been shortlisted by the panel (or at least two members of it as he initially believed), I accept that Mr Henry is not inappropriately seeking to re-litigate a matter that has already been dealt with by the Court. I deal in the next section with the relevance of this change in circumstances to Mr Henry’s substantive claim.
Apparent strengths or weaknesses of the claim for review
[46] The apparent strengths or weaknesses of the substantive application for judicial review are often relevant to the exercise of the discretion to grant interim relief. This second application for interim relief is unusual in that it arose at the substantive hearing and the parties have already made their substantive submissions. As indicated, the time required to do justice to the substantive submissions makes it appropriate to determine the application for interim orders in the meantime. In these unusual circumstances, I will only address Mr Henry’s pleaded grounds of review insofar as they are relevant to the interim relief now sought and more generally assume that the pleaded grounds of review are arguable.
8 Woodhouse v Consignia Plc [2002] EWCA Civ 275, [2002] 1 WLR 2558 at [55].
[47] Even so, I must determine the application for an interim order on the basis of the “position” of the applicant that needs preserving. The interim order sought is only necessary to preserve Mr Henry’s position insofar as the substantive relief contended for affects the panel. Mr Henry says the relevant relief sought in the proceeding (in the first and second causes of action) is an order requiring the Minister to dissolve the panel and, if the Minister elects to proceed with the selection of candidates by way of taking advice from a panel, he appoint a new panel to provide such advice.
[48] Mr Henry’s first cause of action alleging frustration of legitimate expectations is essentially based on statements made by or on behalf of the Minister in advertising and correspondence. Success in that regard would not likely lead to the relief sought affecting the panel.
[49] Mr Henry’s second cause of action alleging failure to act reasonably, rationally and/or fairly is essentially based on the timing and content of statements made by or on behalf of the Minister in advertising and announcements. Again, success in that regard would not likely lead to the relief sought affecting the panel.
[50] Mr Henry’s concerns about the conduct of the panel appear to be:
(a) its view that Mr Henry should not be shortlisted for interview;
(b) its request to the Minister to conduct a second public advertisement;
(c) its lack of recordkeeping, said to be relevant to the need for a transparent process given the reference to UN conventions and the Minister’s duty to take into account the desirability of promoting diversity in the membership of Crown entities pursuant to s 29(2)(b) of the Crown Entities Act 2004; and
(d) Ms Winter’s affidavit.
[51] These concerns do not really feature in his pleaded first or second causes of action. Accordingly, assuming Mr Henry’s claims are made out, at this stage it seems there is little prospect the order sought affecting the panel would be granted.
[52] I note there is an issue with the terms of the interim order sought, namely that no further steps be taken by the panel. The panel members are not party to the proceeding. To overcome this, I have assumed that, as with the substantive relief sought, the interim relief could be reframed towards the Minister declaring that he ought to direct the panel not to take any further steps.
[53] I turn to the principal ground on which Mr Henry seeks an interim order, namely the avoidance of bias, pre-judgment and/or prejudice, actual or apparent. Mr Henry submitted this is based on the views on candidates (including him) already formed by the panel, and his particular concern following Ms Winter’s affidavit (which I have acknowledged is something of a change in circumstances from the earlier application for interim relief).
[54] At the hearing, Mr Henry submitted that the panel should not be permitted to proceed, both because it ought not to carry over the earlier allegedly flawed process and because he said that Ms Winter’s recent affidavit contains false and negative information concerning him. The latter point drew the submission from the respondents that there is no allegation of bias in Mr Henry’s pleading. Mr Henry acknowledged that in reply at the hearing, and his subsequent memorandum refers to the avoidance of bias. He maintains, however, that it would not be fair for the panel to proceed. He suggested at the hearing a new panel may well reduce the likelihood of a subsequent challenge. That may be, but I must determine the proceeding based on the pleaded claims, which do not include any allegation of bias on the part of the panel or otherwise. I consider that reference to bias, which is unpleaded, cannot found the application for interim relief in relation to the panel.
Repercussions of granting interim relief
[55] I accept the respondents’ submission that the appointment of the RRC is of importance to New Zealand, and that this public interest has been highlighted by recent events. I consider that the process ought not be delayed by an interim order.
[56] Smith v Taupo District Council,9 relied on by Mr Henry, is a very different case without any of the public repercussions of the sort involved here.
Conclusion
[57] Weighing up the circumstances, I consider the low prospect of the order sought affecting the panel, and the repercussions for the important appointment process, outweigh the need to preserve Mr Henry’s position. I conclude that no interim order should be made.
Result
[58] The application for an interim order is dismissed.
Costs
[59] The respondents indicated that, if successful, they seek to be heard on costs. If costs cannot be agreed, any memorandum seeking costs may be filed within 10 working days of this judgment and any memorandum in response within a further five working days. I will then determine costs on the papers.
Gault J
9 Smith v Taupo District Council HC Rotorua CP 36/01, 23 November 2001.
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