AR (INDIA) v ATTORNEY-GENERAL [2020] NZCA 467

AR (INDIA) v ATTORNEY-GENERAL [2020] NZCA 467 [2 October 2020]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA135/2020[2020] NZCA 467BETWEEN AR (INDIA)AppellantAND ATTORNEY-GENERALRespondentCounsel: M S P Pang for AppellantS M Earl and J A Herring for RespondentJudgment:(On the papers)2 October 2020 at 10.30 amJUDGMENT OF CLIFFORD JLeave for Mr Pidgeon to represent the appellant in this Court is granted.____________________________________________________________________REASONSIssue[1] This is an interlocutory application by the appellant, AR, for leave to appointRichard Pidgeon as his counsel on appeal. Leave is sought for Mr Pidgeon'sappointment as he gave affidavit evidence in support of AR in the High Court.2Context[2] AR is an Indian national who seeks refugee status from ImmigrationNew Zealand. As relevant, AR has been granted a series of limited visas, up until13 March 2018. He takes issue with the wording of one of them, granted on 6 January2017 for a term of three months. The visa was printed in his Indian passport andincluded a condition disclosing the fact he had applied for refugee status.[3] The fact a person has claimed refugee status must be kept confidential pursuantto s 151 of the Immigration Act 2009. AR commenced proceedings in the High Courtfor breach of s 8 of the New Zealand Bill of Rights Act 1990 (BORA), the right not tobe deprived of life, and s 23(5), the right of everyone deprived of liberty to be treatedwith humanity and respect.1 His core argument was that Immigration New Zealand'serrors reduced AR's quality of life. The Attorney-General applied to strike out theproceeding.[4] On 25 February 2020, Associate Judge Bell delivered an oral judgment strikingout the claim.2 AR appeals the decision to this Court.[5] In the present interlocutory application AR seeks leave of this Court to appointMr Pidgeon as his counsel on appeal. The reason he seeks leave is that Mr Pidgeongave affidavit evidence in the High Court in relation to the decision under appeal.Appearing as counsel could violate his professional duties under the Lawyers andConveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (LCCCR), inparticular r 13.5.1:Independence in litigation13.5 A lawyer engaged in litigation for a client must maintain his or herindependence at all times.13.5.1 A lawyer must not act in a proceeding if the lawyer may berequired to give evidence of a contentious nature (whether inperson or by affidavit) in the matter.1 A claim for misfeasance in public office was dropped.2 AR (India) v Attorney-General [2020] NZHC 421.3[6] Mr Pidgeon has filed an affidavit in this Court in which he undertakes(a) to exclude the affidavit he made in the High Court proceedings from argument, and(b) not to act as counsel in the High Court proceedings if the appeal is allowed.Submissions[7] AR submits this Court should give leave for Mr Pidgeon to act as counselbecause Mr Pidgeon is a barrister whom AR has previously retained, iswell-acquainted with the file and would ordinarily appear on AR's behalf. He is alsoexperienced in human rights and refugee matters and has acted as counsel in severalmatters involving the interpretation of s 8 of the BORA. The present claim is a novelargument on the section. He relies on the Court's inherent power to regulate its ownproceedings and the principle that a party's right to counsel of their choice should notlightly be interfered with.3[8] The Attorney-General abides the Court's decision. In doing so he explains:It is submitted that, in the ordinary course, a lawyer who gave, or is to give,contentious evidence at trial is unlikely to be able to act on a related appeal inlight of the requirement for counsel to be independent.It is acknowledged, however, that the disputed fact and therefore the evidenceof Mr Pidgeon is unlikely to assume any relevance to the issue on appeal,which relates solely to the question of whether there has been a breach ofMr AR's right under s 8 of the New Zealand Bill of Rights Act, as a result ofthe narration in the visa and/or subsequent stamping. It is not anticipated thatthe Court will need to consider who carried out the second "stamping" of thevisa label, or when it occurred. That fact may not have particular significanceto the High Court trial, either, if the appeal is successful. The issue was ofgreater relevance to the first cause of action, which has been abandoned(misfeasance in public office).Analysis[9] I am satisfied that leave should be granted for Mr Pidgeon to appear as counsel.[10] Rule 13.5.1 of the LCCCR prohibits a lawyer from acting where evidence theyhave given or are to give is contentious. As the Attorney-General explains, whilstMr Pidgeon's affidavit evidence was originally contentious it is not of relevance to the3 Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [23].4appeal, or the substantive claim were it to go back to the High Court. Mr Pidgeon has,moreover, made appropriate undertakings to address any risk to his independencearising from that evidence.[11] It appears this case raises a novel BORA argument and thus specialist counselis needed. Mr Pidgeon has the necessary expertise, as well as knowledge of theappellant's background.[12] Leave is granted accordingly, on the basis of Mr Pidgeon's undertakings.Solicitors:Integritas Law Firm, Auckland for AppellantMeredith Connell, Auckland for Respondent