BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2021] NZCA 33

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2021] NZCA 33 [1 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA520/2020[2021] NZCA 33BETWEEN ANDREW BORROWDALEAppellantAND DIRECTOR-GENERAL OF HEALTHFirst RespondentATTORNEY-GENERALSecond RespondentCourt: Brown and Gilbert JJCounsel: J A Farmer QC and L C A Farmer for AppellantV E Casey QC and V McCall for RespondentsT C Stephens, J B Orpin-Dowell and M R G van Alphen Fyfe forNew Zealand Law Society as IntervenerJudgment:(On the papers)1 March 2021 at 10.30 amJUDGMENT OF THE COURTA The application by the New Zealand Law Society for leave to intervene isgranted.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Borrowdale is appealing the judgment of the Full Court of the High Courton his challenge to the legality of the New Zealand Government's COVID-19restrictions.1 The New Zealand Law Society (NZLS) was granted leave to intervenein, and it participated in, the hearing in the High Court.2 NZLS now makes a similarapplication for leave to intervene in the appeal.Relevant principles[2] This Court may grant an application for leave to intervene under r 48 of theCourt of Appeal (Civil) Rules 2005. The relevant principles for granting leave tointervene were summarised in Ngāti Whātua Ōrākei Trust v Attorney-General asfollows:3(a) The power is broad in nature but should be exercised with restraint toavoid the risk of expanding issues, elongation of hearings andincreasing the costs of litigation.(b) In an appeal involving issues of general and wide importance the courtmay grant leave when satisfied that it would be assisted bysubmissions from the intervener.(c) The fact that the case raises issues of principles transcending theparticular facts is not in itself sufficient to extend rights of hearingbeyond the parties.(d) The Court will take into account the relevant expertise or the uniqueposition of an intended intervener as well as the impact of theintervention on appeal.(Footnotes omitted.)The application[3] The grounds on which NZLS seeks leave to intervene are as follows:(a) The issues raised on the appeal are of general and wide publicimportance and concern the operation of the rule of law and the1 Borrowdale v Director-General of Health [2020] NZHC 2090 [Full Court judgment].2 Borrowdale v Director-General of Health [2020] NZHC 1379 [High Court leave judgment].3 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183, [2017] NZAR 627 at [11].administration of justice in the context of the New ZealandGovernment's response to the pandemic.(b) NZLS has a statutory function under the Lawyers and ConveyancersAct 2006 to: (a) assist and promote, for the purpose of upholding therule of law and facilitating the administration of justice, the reform ofthe law;4 and (b) to represent its members.5 NZLS thus has particularexpertise to bring to the issues in this appeal.(c) NZLS was granted leave to intervene in the High Court and presenteda different perspective that sat somewhere between the appellant andthe respondents. It contends that this Court may be materially assistedby that perspective.(d) One of Mr Borrowdale's grounds of appeal relates to a submissionadvanced by NZLS in the High Court This is found at [1(f)] ofMr Borrowdale's notice of appeal and reads:The High Court erred in law in granting leave to the Intervener torefer to historical documents that had not been properly adduced inevidence and by permitting discovery to proceed on an informal basiswithout proper disclosure by the Respondents.According to NZLS, the "historical documents" referred to arematerials recording orders made under the Public Health Act 1908 andthe Health Act 1920.6 These were part of a survey of the relevantlegislative history.[4] NZLS proposes that if leave to intervene is granted it will have no claim tocosts and would not enlarge the issues raised by the appeal. Any impact on timing orcost would be minimal, as demonstrated by its involvement in the High Court whichcomprised only short and focused submissions.4 Section 65(e).5 Section 66.6 See Full Court judgment, above n 1, at [54]–[60].The parties' positions[5] Mr Borrowdale opposes the application while the respondents abide theCourt's decision.[6] In an initial memorandum of 30 October 2020 counsel for the appellant,Mr Farmer QC, contrasted the nature of Mr Borrowdale's representation in theHigh Court and on appeal. Observing that at the date of the leave judgment in theHigh Court7 Mr Borrowdale was not represented by counsel (although he didsubsequently obtain representation for the High Court hearing), he submitted thatthrough their counsel the Crown and Mr Borrowdale can be expected to present fullyand adequately all relevant arguments on the appeal issues. Hence there is no need tocall on the expertise of the various national committees of NZLS which it was saidwould involve largely if not entirely an exercise in duplication.[7] In a subsequent memorandum of 8 January 2021 Mr Farmer QC submitted thatMr Borrowdale, in common with NZLS, is motivated by rule of law concerns and willcertainly draw on the NZLS submissions made in the High Court that are consistentwith those concerns. With reference to ground of appeal 1(f),8 he advised the appellantis prepared to abandon that ground if the Court viewed that as a reason for grantingintervener status to NZLS.Discussion[8] While Mr Borrowdale's case will undoubtedly be assisted by the presence ofMr Farmer QC as counsel, it is pertinent to note that Thomas J never suggested thatNZLS was filling a lacuna created by (at that point) Mr Borrowdale's lack of counsel.On the contrary the Judge considered that Mr Borrowdale was well equipped toadvance his argument and would call on assistance as and when required.9[9] The relevant question on the present application is whether this Courtconsiders, as Thomas J concluded in the context of the High Court proceeding, that7 High Court leave judgment, above n 2.8 At [3(d)] above.9 High Court leave judgment, above n 2, at [42].suitably focussed submissions from NZLS would be of assistance in its considerationof the appeal.[10] The appeal involves matters of general and wide importance. We consider thatthe Court may be assisted by having the benefit of the perspective of a neutral partywhich has the statutory functions of NZLS and the range of legal expertise it is able tocall upon from among its members.[11] We anticipate that the role which NZLS would play on appeal would besimilarly limited to that adopted in the High Court. Consequently we believe there islittle risk of the participation of NZLS resulting in an expansion of the issues, anelongation of the hearing or significantly increased costs.[12] While the present application is a little more finely balanced than when theequivalent application was made in the High Court, we consider that, as in theHigh Court, this Court is likely to receive assistance from submissions made by NZLS.Result[13] The application by the New Zealand Law Society for leave to intervene isgranted.[14] There is no order as to costs.Solicitors:Crown Law Office, Wellington for RespondentsNew Zealand Law Society, Wellington for Intervener