LAUREN V ATTORNEY-GENERAL ON BEHALF OF CHIEF EXECUTIVE OF MINISTRY OF AGRICULTURE AND FORESTRY HC TIM CIV 2011-476-000507

LAUREN V ATTORNEY-GENERAL ON BEHALF OF CHIEF EXECUTIVE OF MINISTRY OF AGRICULTURE AND FORESTRY HC TIM CIV 2011-476-000507 [20 March 2012]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYCIV 2011-476-000507[2012] NZHC 459BETWEEN ANTHONY JAMES LAURENApplicantAND ATTORNEY-GENERAL ON BEHALF OFCHIEF EXECUTIVE OF MINISTRY OFAGRICULTURE AND FORESTRYRespondentHearing: 21 February 2012(Heard at Christchurch)Counsel: K B Campbell for ApplicantP McCarthy and N Willcocks for RespondentJudgment: 20 March 2012FINAL JUDGMENT OF WHATA J[1] In my judgment dated 6 March 2012 I resolved to make a declaration concerning the invalidity of purported exercise of powers by Mr Byrnes under the Animal Welfare Act. I invited the parties to submit on the form of any such declaration. I have now received a memorandum from counsel, though somewhat circuitously.[2] The respondent suggests the following declaration:1. Mr Byrnes was not validly appointed as an animal welfare inspector at the material times.[3] The respondent also suggests that I make other related declarations concerning the effect of the declaration. Counsel also, correctly in my view, notes that such ancillary declarations are not necessary.[4] The applicant seeks the following declarations:"Kevin Peter Burns was invalidly appointed as an animal welfare inspectorby the Ministry of Agriculture and Forestry contrary to the requirements for the statutory appointment process. In particular, his appointment as an animal welfare inspector failed because he was appointed to the position by a person (David Bayvell) who was specifically prohibited from making such an appointment by the very „Instrument of Delegation‟ relating to suchappointments under the State Sector Act 1988.The High Court declares that the appointment of Kevin Peter Byrnes as an animal welfare inspector under the Animal Welfare Act 1999 relying on the State Sector Act 1988 was invalid, illegal and of no effect. He was not an animal welfare inspector for any of the purposes of the Animal Welfare Act 1999 in relation to the investigation and prosecution of the ApplicantAnthony James Lauren. He was acting „unlawfully‟ when he purported touse his powers under the Animal Welfare Act 1999."[5] I accept that the respondent's declaration aptly captures the invalidity ofMr Byrnes' appointment. I also consider, however, that his purported exercise ofinspectorial powers under the Animal Welfare Act should also be declared to be invalid.[6] I therefore make the following additional declaration:2. Any purported exercise of powers by Mr Byrnes under the Animal Welfare Act was invalid.[7] I do not propose to detail the particulars of that exercise of powers. That will be a matter for trial, as will any issue of consequential (un)lawfulness. In this regardthe applicant's proposed declarations go too far. As I found in my judgment, I am notprepared to make any declarations as to illegality of the actions, beyond declarations of invalidity. Issues as to lawfulness of entry and search are matters for the District Court to resolve.[8] Accordingly, I make the following declarations:1. Mr Byrnes was not validly appointed as an animal welfare inspector at the material times.2. Any purported exercise of powers by Mr Byrnes under the Animal Welfare Act was invalid.[9] The only remaining issue is one of costs. I invite the parties to file submissions on costs within 14 days of this judgment.Solicitors:Deane & Associates, P O Box 242, Oamaru (kelvinc@deanelaw.co.nz)Crown Law, Wellington, for Respondent (peter.mccarthy@crownlaw.govt.nz )Copy to:N Willcocks (nyssa@gressons.co.nz )