A v MINISTER OF INTERNAL AFFAIRS

A v MINISTER OF INTERNAL AFFAIRS [4 May 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2017-485-032[2017] NZHC 887UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesIN THE MATTER OF an application for judicial review of thesuspension and cancellation of a passportBETWEEN AApplicantAND MINISTER OF INTERNAL AFFAIRSRespondentHearing: On the PapersAppearances: Application in personA L Martin and K G Stone for respondentJudgment: 4 May 2017Reissued: 12 May 2017JUDGMENT OF DOBSON J[1] A number of developments in this proceeding since my judgment of 13 April2017 have been dealt with by way of minutes issued by me in response to numerousmemoranda filed by the parties.[2] Issues raised by the applicant's request to pursue an appeal from that judgmentare now appropriately dealt with by way of further interlocutory judgment. I will alsoaddress directions on other matters relevant to progressing the proceeding.Leave to appeal?[3] Ms A signalled her intention to appeal my 13 April judgment in a memorandumdated 26 April 2017. The initial response on behalf of the respondent to that indicationin a memorandum of 28 April 2017 did not raise the point that leave would be requiredfor the applicant to pursue her contemplated appeal. The point was however made ina subsequent memorandum dated 2 May 2017.[4] Thereafter, the applicant by memorandum of 3 May 2017 made a request ingeneral terms for leave to appeal and, on the same day, the respondent filed a furthermemorandum indicating grounds of opposition.[5] The respondent has submitted that, under s 56 of the Senior Courts Act 2016,leave is required to appeal to the Court of Appeal from a judgment on an interlocutoryapplication in the High Court. I am not satisfied that that provision applies to thisproceeding. The Judicial Review Proceedings Act 2016, which together with theSenior Courts Act 2016 came into force on 1 March 2017 provides transitionalprovisions such that judicial review proceedings commenced prior to 1 March 2017continue to be governed by the provisions of the Judicature Amendment Act 1972.1Section 11 of the Judicature Amendment Act 1972 provides a right of appeal from bothfinal and interlocutory orders made in proceedings brought under that Act. The rulethat the specific prevails over the general requires that the Senior Courts Act 2016, s56 yields to the combined effect of the Judicial Review Proceedings Act 2016, s 23and the Judicature Amendment Act 1972, s 11.[6] Under ss 28 and 29 of the Passports Act 1992 (the Act), challenges by way ofappeal from decisions such as the cancellation of New Zealand passports are to befinally determined in the High Court unless leave is given for an appeal. Temporaryprovisions contained in sch 2, cl 8 of the Act extended special provisions applying toappeals against ministerial decisions concerning national security to applications forjudicial review of such decisions. However, these temporary provisions were confinedto extending the application of ss 29AA to 29AC of the Act to judicial review; theydid not similarly extend the provisions in ss 28 and 29.1 See s 23 of the Judicial Review Proceedings Act 2016.[7] I therefore take the view that Ms A does not require the leave of this Court topursue an appeal from my interlocutory judgment.[8] In the event that I am wrong in that analysis of the applicant's entitlement toappeal, I will briefly address the reasons why I would grant leave, if it was required.[9] The overriding consideration at this stage of this case is the critical importanceto the judicial review of the application or non-application of the special closed-courtprocedure in ss 29AA to 29AC of the Act. It would be contrary to the interests ofjustice to require Ms A to argue her judicial review, constrained as I have found shewould be by the operation of the closed-court procedure, if it subsequently transpiredthat I was wrong in ruling that the closed-court procedure did apply. That procedurerepresents a fundamental departure from the basic tenet that all parties to litigationhave access to, and a meaningful opportunity to comment on, all the informationtendered to the decision maker. A judicial review should only proceed on such anexceptional basis when reasonable challenges to the application of ss 29AA to 29AChave been exhausted.[10] In opposing leave, it is submitted for the respondent that a high threshold existsfor the granting of leave in such cases, and that an error of law or fact is generallyinsufficient. It is submitted that Ms A has not raised an arguable error of law in myinterlocutory judgment. I accept these as considerations, but in the circumstances ofthis case they come nowhere near outweighing the fundamental importance of theissue to the outcome of this judicial review, that is, the prospect that Ms A mightsucceed in her challenge to the application of the closed-court procedure.[11] The respondent also raises the point that leave should only be granted wherecircumstances warrant incurring further delay. That has some relevance, given Ms A'sinsistence up to now on a prompt determination of all stages of her proceedings. It isbalanced by the fair acknowledgement on behalf of the respondent that the respondentis not prejudiced by the extent of delay likely to be incurred if an interlocutory appealis promptly pursued.[12] The respondent also argues that there is no question of law of general or publicimportance that requires determination given that the application of the closed-courtprocedure to this judicial review invokes temporary provisions that have now beensuperceded by an Act containing the same provisions in permanent form. However, Iassess the fundamental importance of the interlocutory challenge to the future of MsA's judicial review to be sufficient of itself to also outweigh the lack of any general orprecedential importance in an appellate reconsideration of my reasoning. The scopeof application of such an exceptional proceeding, even within the confines of one or asmall number of cases, can claim a measure of public importance.[13] For those reasons, if leave is required, I would grant it.Stay of the proceedings[14] The recent memoranda from the parties and my minutes dealing with themhave also considered whether a stay of further steps in Ms A's judicial review isappropriate, pending the prompt determination of her appeal from my interlocutoryjudgment. If Ms A prevails in challenging the application of the closed-courtprocedure, then the remainder of the proceedings would progress very differently. Allsubsequent steps in preparation of her judicial review and the scope of substantiveargument would be fundamentally different. It is, therefore, an appropriate case inwhich to grant a stay. I have done so, subject to Ms A's obligation to promptly pursue,prepare and seek determination of her interlocutory appeal.Respondent's originating application[15] The respondent has recently commenced a separate proceeding by way oforiginating application to which the current applicant is the respondent. Over theapplicant's opposition, I have indicated by way of a minute my provisional view thatthe originating application ought to be progressed together with the applicant's judicialreview. My provisional view is that the two proceedings would be heard concurrentlyor consecutively. For reasons thus far not fully developed, the applicant claims thatsuch a course would prejudice her interests.[16] A final decision on how the originating application is to be managed anddetermined can await the lifting of the stay that is in place on Ms A's judicial reviewuntil delivery of the Court of Appeal's judgment on the interlocutory appeal.Restrictions on search of the court file[17] The registry has received requests from journalists for permission to search thecourt file and I have directed that those requests be declined. The stage in theproceedings has not yet been reached to which High Court Rule 3.9(2) applies.Assessing matters broadly in accordance with the criteria in High Court Rule 3.16, themost important consideration here is the interests of confidentiality and privacy of theapplicant who is potentially a vulnerable member of the community. I have to balancethat consideration against the principles of open justice, appreciating that, should herjudicial review succeed, there would be a very real risk that her proceeding would haveattracted substantial adverse publicity resulting in harm to her reputation thatvindication by success in the proceeding could not erase.[18] Any later requests for access to the file will be considered afresh in light of thesubstantive outcome.Dobson JSolicitors:Crown Law, Wellington for respondentCopy to:Ms A