BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZCA 156

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZCA 156 [8 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA239/2020[2020] NZCA 156BETWEEN ANDREW BORROWDALEApplicantAND DIRECTOR-GENERAL OF HEALTHRespondentCourt: Kós PCounsel: Applicant in personV E Casey QC and A M Powell for RespondentJudgment:(On the papers)8 May 2020 at 2.45 pmJUDGMENT OF KÓS PThe application for transfer of the proceeding to the Court of Appeal, under s 59of the Senior Courts Act 2016, is declined.____________________________________________________________________REASONS[1] Mr Borrowdale has issued a proceeding for judicial review againstthe Director-General of Health in the High Court at Wellington. He alleges threelockdown orders made by the Director-General are ultra vires. That is, he says theyexceed the powers vested in medical officers of health to make quarantine, isolation,non-association and closure orders under s 70 of the Health Act 1956. He allegesthe orders are unlawful, ineffective and should be quashed by the High Court.[2] The three orders challenged (and the basis of challenge in each case) are asfollows. First, there is the initial "Level 4" non-association and closure order of25 March 2020, made purportedly pursuant to s 70(1)(m) of the Health Act.This required premises in all districts of New Zealand to be closed, other than certainessential businesses defined in an appendix. Mr Borrowdale alleges the orderexceeded the power within s 70(1)(m)(i) of the Health Act enabling closure of"all premises within the district of any stated kind or description" by failing to referto premises of a stated kind or description, and in purporting to define premisesnegatively by reference to all premises (other than those essential). Mr Borrowdalemakes a related argument in relation to the prohibition on congregation in outdoorplaces of amusement or recreation. He further alleges that the order's definition of"essential businesses" amounted to an unlawful delegation to unnamed officials todecide which premises should be closed, and that the definition of "congregate"purports to vary the primary legislation.[3] Secondly, Mr Borrowdale challenges the further "Level 4" isolation andquarantine order of 3 April 2020, made purportedly pursuant to s 70(1)(f) ofthe Health Act. This required all persons in all districts of New Zealand to be isolatedor quarantined by remaining at their current place of residence, other than for certain"essential personal movement". Mr Borrowdale alleges the order is ultra viress 70(1)(f) because that provision does not empower orders of a general nature.Rather, he says it only empowers a medical officer of health to require particularindividuals to be isolated, quarantined or disinfected. Mr Borrowdale further allegesthat the Director-General exceeded his powers by purporting to act nationally inexercising the functions of medical officers of health in their health districts, withoutconsidering the needs of each health district separately.[4] Thirdly, Mr Borrowdale challenges the "Level 3" order of 24 April 2020, madepurportedly pursuant to s 70(1)(f) and (m) of the Health Act.1 He says the third orderis ultra vires for the same reasons as the second order.1 Health Act (COVID-19 Alert Level 3) Order 2020.[5] It should be noted that the first and second orders were revoked by thethird order and are no longer in force.2 Any urgency therefore relates to the operativeeffect of the third ("Level 3") order only.Application for transfer of proceedings to the Court of Appeal[6] Yesterday Mr Borrowdale applied for removal of the proceeding fromthe High Court and its transfer to this Court, under s 59 of the Senior Courts Act 2016.That section provides:59 Transfer of civil proceeding from High Court to Court of Appeal(1) A party to a civil proceeding in the High Court may apply for an ordertransferring the proceeding to the Court of Appeal.(2) In determining whether to make an order transferring the proceeding,the Court of Appeal must be satisfied that the circumstances of theproceeding are exceptional.(3) Without limiting subsection (2), the circumstances may beexceptional if—(a) the party to the proceeding intends to submit that a relevantdecision of the Court of Appeal should be overruled:(b) the proceeding raises an issue of considerable publicimportance that—(i) needs to be determined urgently; and(ii) is unlikely to be determined urgently if the proceedingis heard and determined by both the High Court andthe Court of Appeal:(c) the proceeding does not raise a question of fact or a significantquestion of fact, but raises a question of law that is the subjectof conflicting decisions of the Court of Appeal.(4) In deciding whether to make an order transferring the proceeding,the Court of Appeal must have regard to the following matters:(a) the primary purpose of the Court of Appeal as an appellatecourt:(b) the desirability of obtaining a determination of the proceedingin the High Court and a review of that determination onappeal:2 Cl 13.(c) whether a full court of the High Court could effectivelydetermine the question in issue:(d) whether the proceeding raises a question of fact or asignificant question of fact:(e) whether the parties have agreed to the transfer of theproceeding:(f) any other matter to which regard should be had in the publicinterest.(5) It is not a sufficient ground that the parties agree to the transfer.(6) The Court of Appeal has the jurisdiction of the High Court to hear anddetermine a proceeding transferred under this section.(7) The Court of Appeal may transfer back to the High Court a proceedingthat has been transferred to the Court of Appeal.[7] Mr Borrowdale relies on s 59(3)(b). He submits that this proceeding raisesissues of considerable public importance. The orders affect the whole population in avariety of ways, "by confining virtually the whole of the population of New Zealandto their homes and requiring businesses to close". Mr Borrowdale submits the orderscontinue in force and are likely to be replaced by similar orders using the same powersunder scrutiny in the proceeding. Potentially these the orders may be spent by the timehis application has run its full course through both the High Court and Court of Appeal.He submits that he is unlikely to have resources sufficient to take a protractedproceeding through potentially three levels of court, with cumulative exposure tocosts. He submits, "[t]here is a real possibility that, if the matter proceeds inthe High Court without removal, it may not reach the Court of Appeal at all."[8] For the Director-General, Ms Casey QC and Mr Powell oppose removal andtransfer to this Court. They submit that it is of critical importance that the resolutionof this proceeding be progressed in a manner that allows for a fully informed andconsidered determination of the issues before the Court. They submit that urgencyshould not displace the respondent's right to properly prepare his defence and to beheard fairly, nor the public interest in achieving an appropriate outcome, both in termsof the legality of the orders and the remedies sought by the applicant. They note thatthe proceeding is being case managed under urgency in the High Court. They submitthat transferring the proceeding would deprive this Court of the benefit of a reasonedjudgment of the High Court, regarding both legality of the orders and any appropriateremedies.Discussion[9] Even if the circumstances attending a proceeding are exceptional, it does notof course follow that it should be removed from the High Court and transferred tothe Court of Appeal. This Court must still be persuaded that that is, in allthe circumstances, the better course to follow.[10] I accept that Mr Borrowdale's proceeding raises issues of considerable publicimportance. I accept also that those issues need to be determined with urgency. I amnot however persuaded that the proceeding is unlikely to be determined urgently if itis heard at first instance in the High Court. And nor am I persuaded that the bettercourse is that the proceeding be heard at first instance in this Court.[11] As this Court observed last week during the hearing of the habeas corpusapplications in A v Ardern, questions raised concerning legality ofthe Director-General's various lockdown orders are complex.3 They are not merelyquestions of statutory interpretation, or law, but mixed questions of law and fact.It may be assumed the Crown may need to call evidence of process, context andhistory. It is not inconceivable there will need to be cross-examination. These areforensic processes far more amenable to resolution in a trial court. It would not beright for this Court to make orders now which limit the parties' reasonable freedom ofaction in both proving and defending this proceeding. The burden of the mandatoryconsiderations in s 59(4) lies firmly against removal and transfer.[12] History is instructive. The constitutional proceeding most analogous to thepresent one is Fitzgerald v Muldoon in 1976.4 It concerned the prime ministerialsuspension of the New Zealand superannuation scheme. It was determined entirely inthe High Court. The proceeding was filed on 22 March 1976. It was given a priorityfixture on 19 May 1976. Trial began on 31 May 1976. Six witnesses were called and3 A v Ardern [2020] NZCA 144.4 Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC) . See "Constitutional Collision: Fitzgerald vMuldoon v Wild" (2014) 13 Otago L Rev 243.cross-examined. Wild CJ delivered judgment, against the government, on11 June 1976. There was no appeal. The government instead went to Parliament andobtained retrospective legislation. I accept the issues in the present proceeding reachfurther into the liberties and pockets of the New Zealand public than was the case in1976. But that is an argument for according even greater urgency to the timetablingof trial, rather than trying the case instead in a court whose primary constitutionalresponsibility is the correction of error on appeal.[13] I am not persuaded, in these circumstances, that the proceeding is unlikely tobe determined urgently if heard first in the High Court. Mr Borrowdale's submissionas to his finite resources at least anticipates there may need to be one appeal(presumably from this Court to the Supreme Court). Any appeal inevitably raisesthe prospect of protraction and added cost. But, as in Fitzgerald v Muldoon, whatmatters most is that a court of competent jurisdiction makes a fully considered decisionon the evidence and the law. That decision will either invalidate or upholdthe Director-General's orders. If the former, the government then has two choices:appeal or seek assistance from the House. If the latter, Mr Borrowdale also has two,but rather different, choices.[14] The question this application begs is whether this Court should now limitthe available judicial steps to two (Court of Appeal, and perhaps Supreme Court)rather than three (High Court, Court of Appeal and perhaps Supreme Court).And behind that lies another question, which is whether we should thereby denyparties' ordinary constitutional entitlement to a first appeal as of right (any appeal tothe Supreme Court being by leave only). While leave might be anticipated, that is stilla step this Court should be reluctant to take, especially where the issues are ones ofsuch fundamental importance as these.Result[15] The application for transfer of the proceeding to the Court of Appeal, unders 59 of the Senior Courts Act 2016, is declined.Solicitors:Crown Law Office, Wellington for Respondent