New features on the public law landscape

We have been a particularly busy bunch over the last few months at Clifton Chambers and have been quiet on our website newsfeed as a result.

In the meantime, decisions from our Courts have touched materially on virtually every part of the public law landscape.  Here is a summary of some of them:

Jurisdiction

Faire J in A v. Hutchinson [2014] NZAR 387 made a (non-controversial in today’s public law environment) finding that decisions of a principal and board of trustees of a high school suspending a pupil are subject to judicial review.  This is one of two cases mentioned in this note in which the loss of a temper has led to proceedings in the High Court; here on the part of a student in the course of a disagreement with a teacher about his skateboard.  While the finding on jurisdiction is orthodox, the case is noteworthy for the refreshing simplicity with which the Judge explained judicial review principles.  At [67] he said:

“This is not an appeal.  The issue is whether the decisions were lawful, reached by fair process and were reasonable.  If so, they are valid.  If not, they are invalid.”

Here, the process was flawed by reason of there having been an insufficient investigation of the facts by the Principal before the decision to suspend was made.

In Cooke v. Valuers Registration Board [2014] NZHC 323, Duffy J found that the Board was exercising a statutory power when it decided not to prosecute a valuer following a complaint about him.  The Judge’s finding, that the breadth of the relevant statutory power was such that the Court would be unlikely to intervene in the absence of bad faith or an abuse of process, was underscored by the following words of Cooke J (as he then was) in CREEDNZ Inc v. Governor-General [1981] 1 NZLR 172 (CA) which speak to us as loudly today as they did over thirty years ago:

“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the Authority as a matter of legal obligation that the Court holds a decision invalid on … [that ground].  It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.”

Error of law

In a judicial review or appeal proceeding in which error of law is alleged it may be the case that the statutory provisions and scheme under consideration permit more than one permissible approach to their application.  Just as different, but equally permissible, views on the facts may be available, so too it might be that the interpretation of a provision or scheme will leave options open to a decision maker, each of which may be permissible. With this in mind, in Chorus Ltd v. Commerce Commission [2014] NZHC 690, Kós J found the Commerce Commission’s approach to fixing a price for unbundled bitstream access under a relevant set of provisions in the Telecommunications Act to be a permissible approach to the application of the statutory scheme.  See paragraphs [15] to [21] and [139] where the point is made that, if statutory language is not entirely prescriptive, a range of approaches may be open to a decision maker.

Natural justice

The Court of Appeal in A v. Attorney-General [2013] NZLR 630 considered natural justice issues arising out of a report to the State Services Commissioner over the potentially unauthorised disclosure of Cabinet papers which enabled an Opposition Member of Parliament to put certain questions in the House.

The case is valuable from a natural justice perspective for underlining the point that, while the subject of an exercise of power must have a fair opportunity to know of and to correct or contradict any relevant information the decision maker has, that does not necessarily mean that the decision maker must provide full copies of everything.  It may be enough that the nature of a particular document is disclosed, rather than its contents.  The Court made the point that disclosure is not to be used to allow a party to second guess an investigation or to undertake a fishing expedition.  The documents in question here were forensic reports of examinations that had been conducted of hard drives used by the appellant and which concluded an inability to identify whether or not the appellant had scanned and emailed the document in question.  A summary of the outcome of reports of this sort was enough to meet the investigator’s natural justice obligations.

And now for the second case in which an angry outburst took the parties to the High Court.  The plaintiff in Pritchard v. Evans [2014] NZAR 370 was a member and a trustee of a workingmen’s club.  He had ordered a takeaway meal which, when he opened it back at his house, proved to be lacking two eggs. He telephoned to complain and there was then a colourful verbal exchange between him and the person in charge of the club’s bistro.  The issue was significant enough for Mr Pritchard to return to the club to speak face to face with those who might have been responsible for his deficient meal.  To cut a long story short, the club’s inquiry committee considered this incident along with previous incidents with which the plaintiff was involved.  The plaintiff did not attend the Committee’s meeting and he was suspended at it.  However, the failure on the Committee’s part to disclose that it would be considering the earlier incidents as well led to its decision being set aside.  So, ultimately, the yolk was on the Committee.

Another example of the breadth of a natural justice obligation is provided by the decision of the Court of Appeal in Secretary for Internal Affairs v. Pub Charity [2013] NZCA 627 where, despite a number of arguments challenging a decision suspending the licence of a gaming machine operator not succeeding, the Gambling Commission’s decision was ultimately set aside for the most simple of errors.  After the hearing of the case at hand, the Commission had issued a decision in another case which it had then proceeded to rely upon in the instant case without providing the parties with an opportunity to comment the application of the decision.  That omission saw the case going back to the Commission for reconsideration.

Blanket policies

Rodney Hansen J’s decision in The Cancer Society of New Zealand Inc v. Ministry of Health [2013] NZHC 2538 provides an important reminder that decisions made under a particular policy or procedure will be set aside if that policy or procedure does not align sufficiently well with the statutory provisions to which it relates.  Here, a relatively complex method prescribed in departmental guidelines was used to determine whether a particular area of a casino was an “open area”.  The relevant statutory provision prohibited smoking in any part of a casino that is not an open area.  The guidelines used something called an “open air calculator” which had regard only to the airflow and air quality of the area.  Its application in this case enabled the smokers to be able to remain in the area in question. But the calculator’s approach was quite removed from the statutory words that were to be applied.  The area, quite simply, was not “open”. And so, despite the sophistication of the calculator, the statute been breached.

The effect of delay on granting a remedy

Whata J in Bayley v. Christchurch City Council [2013] 3 NZLR 679 found the Christchurch City Council to have breached in material ways its natural justice obligations in deciding upon the rebuilding of a wastewater disposal system following the Christchurch earthquakes.  The error was relatively glaring as was the ill-advised suggestion from the Council to certain residents that, if they did not support this scheme, they would need to provide for their own waste disposal.  However, by the time the proceeding was commenced, the Council had spent over a year implementing its decision.  It was generally know that the decision to implement the system was one of a multitude of inter-related decisions affecting the pace and form of the rebuild within the area in question.  While the threatened exercise of coercive powers was regarded as being a strong reason to set aside an unlawful decision, a “nuanced approach” was taken here in view of the delay. The decision was not set aside but the Council was required to take into account the plaintiff’s views and to then assess whether remediation was needed.  And with that, the process flaws were flushed out.

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