MCGRATH v THE MINISTER OF JUSTICE [2014] NZHC 1522

MCGRATH v THE MINISTER OF JUSTICE [2014] NZHC 1522 [2 July 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2014-409-414[2014] NZHC 1522BETWEEN BERNARD KEVIN MCGRATHPlaintiffAND THE MINISTER OF JUSTICEDefendantHearing: 1 July 2014(By way of telephone conference)Appearances: P N Allan for PlaintiffP J Gunn for RespondentJudgment: 2 July 2014JUDGMENT OF MANDER JIntroduction[1] The plaintiff has applied to judicially review the decision of the Minister of Justice ("the Minister") declining to extend time for his counsel to make submissions on his behalf in respect of a referral to the Minister under s 48(4)(a)(ii) of theExtradition Act 1999 ("the Act") as to whether he is to be surrendered to Australia.[2] The plaintiff seeks an order requiring the Minister not to make a decision inrelation to the plaintiff's case until she has received the plaintiff's submissions or5.00 pm on 14 July 2014, whichever is the earlier. A further order is sought to theeffect that in making the decision in relation to the plaintiff's case the Minister must take account of any and all submissions filed on or behalf of the plaintiff prior to 14 July 2014.Background[3] On 11 June last year, Judge Farish granted an application on behalf of the Commonwealth of Australia to extradite the plaintiff to Australia to face 250 charges of alleged sexual offending. That decision was appealed on a question of law and resulted in Whata J referring the matter back to the District Court in order to consider whether the case be referred to the Minister pursuant to s 48(4)(a)(ii) of the Act.[4] After hearing argument on 17 December 2013, Judge Farish on 17 January 2014 indicated she would refer the matter to the Minister. Her Honour's reason andjudgment to that effect was released on 8 April 2014.[5] On 15 April, the Ministry of Justice ("the Ministry") wrote to the plaintiff'scounsel requesting that any submissions wished to be made on his behalf be forwarded to the Ministry no later than 28 April 2014. The Minister was concerned with the time restrictions imposed by s 57 of the Act which provides that a person who is not surrendered and conveyed out of New Zealand under a surrender order within two months may apply to a Judge of the High Court to be discharged. Upon receipt of a waiver of that timeframe by the plaintiff, the Ministry advised that submissions from the plaintiff should be received no later than 26 May 2014.[6] By letter of 23 May, the plaintiff's counsel wrote to the Ministry expressingconcern at what was described as the arbitrarily imposed deadline for the provision of submissions which had been set without consultation with him. No explanationwas provided as to why some 11 days had elapsed before replying to the Ministry'sadvice regarding the deadline for submissions. The plaintiff's counsel however set out in some detail the issues that he said arose in consideration of a reasonable timeframe in order to properly assist the Minister with her decision. Of note was the availability of senior counsel, Mr Hall QC, who had been involved in the extradition proceeding but was now tied up in the long running South Canterbury Financecriminal trial in Timaru. It was submitted that the plaintiff's case was complex andrare, that the plaintiff was not legally aided and that obtaining substitute senior counsel would inevitably involve further delay. It was submitted in therepresentation to the Ministry that a timeframe be agreed which coincided with the conclusion of the South Canterbury Finance trial. As at the date of the correspondence, 23 May 2014, that was thought to be some four weeks hence.[7] On 6 June 2014, the Ministry responded setting out the history of the matter and advising that the Minister had agreed to a further and final extension of time to provide submissions, until Monday 1 July 2014. The letter advised that a decisionwould be made on the plaintiff's extradition without the benefit of submissions ifsubmissions were not received by that date.[8] In the material made available to me there are copies of correspondence from the plaintiff himself, dated 16, 19, 23 and 25 June, addressed to the Ministry and the Minister raising various matters regarding the Australian investigation, and making representations in respect of the merits of his surrender to the Australian authorities. On 26 June 2014, the Ministry wrote to the plaintiff's counsel making reference tothis correspondence and advising that the matters raised by him did not justify a further extension of time beyond the deadline of 1 July 2014. Counsel for the Ministry drew attention to the relevant provisions of the Act pursuant to which theMinister's decision was required to be made. On 27 June 2014, there was a further letter from the plaintiff himself seeking an extension of time in order for him to make further enquiries regarding matters that he considered relevant to theMinister's decision and which with the assistance of legal counsel he sought to present to her.[9] On the morning of 30 June, the plaintiff's counsel emailed the Ministryadvising that Mr Hall would be engaged in the South Canterbury Finance case for one further week before a hiatus in the trial would provide him with an opportunityto consider the plaintiff's case and make submissions to the Ministry. An extension of two weeks was sought in order for the submissions to be completed. The initial reply to this request from the Ministry was favourable, indicating that the submissions would need to be provided by Monday 14 July 2014. At around 5.00 pm that same day however the Ministry contacted plaintiff's counsel to advise that the Minister was unwilling to provide an extension. Subsequently, that advice was communicated in writing.[10] On 1 July 2014, the plaintiff filed his application to judicially review theMinister's refusal to grant an extension for the preparation of submissions. The statement of claim cites alleged breaches of natural justice arising from the refusal to grant a final extension. The plaintiff claims that he has been denied the opportunity to make adequate submissions in relation to the referral decision and he has lost the opportunity to make representations to the Minister by the refusal to extend the timeframe for submissions.Telephone hearing[11] Having regard to the exigencies of time an urgent telephone conference was convened on the afternoon of 1 July. After hearing from counsel, I made an interim order declaring that the Minister ought not make any decision on the merits of the referral under s 48(4)(a)(ii) of the Act until close of business on 14 July 2014. The substantive application for judicial review was adjourned to be called in the duty Judge civil list on 16 July 2014.[12] Mr Gunn who appeared on behalf of the Minister in opposition to theplaintiff's application for relief emphasised that the plaintiff has had the benefit of anumber of extensions of time to file submissions in support of his position, and noted that Judge Farish had, as long ago as 17 January 2014, advised the plaintiff of her decision to make the referral to the Minister. In particular, Mr Gunn focussed on the correspondence from the Ministry of 6 June 2014 which made it clear that the Minister had agreed to a further and final extension of time to provide submissions, until Monday 1 July 2014, and that the plaintiff was on notice of the Minister'sintention to proceed to make a decision without the benefit of submissions if not received by that date. He submitted that the plaintiff had been provided ample opportunity to make submissions to the Minister and that the history of the correspondence shows that the plaintiff has been afforded a number of indulgences.[13] Mr Allan on behalf of the plaintiff submitted that Judge Farish's decision in writing was only released on 8 April 2014, and that the Minister's initial concernregarding the timeframe contained in s 57(2) was ameliorated by the plaintiff providing an unqualified waiver as to any rights that he may have had available tohim if the Minister's decision was not made within the prescribed two month period. As is apparent from the correspondence, Mr Allan expressed concern at the unilateral imposition of the deadline imposed of 26 May which did not have regard to the availability of Mr Hall. This turned on Mr Hall's continued commitment to the South Canterbury Finance trial which had run longer than previously anticipated. While not explaining the reason for not seeking a further extension until 30 June, Mr Allan expressed concern at the position the plaintiff had been placed upon receiving erroneous advice regarding an extension. He was able to provide some specificity as to when Mr Hall would be available to attend on the matter and the reason for a final extension of a fortnight.Decision[14] I was not prepared by way of a telephone conference to make anydetermination as to the merits of the plaintiff's application for judicial review. This would have required the making of final orders as sought by the plaintiff in his statement of claim. The question for me was whether it was appropriate for the purpose of preserving the position of the plaintiff to make an interim declaratory order pending final determination of the review application.[15] The plaintiff argued that in the absence of the Minister agreeing to an extension of the timeframe to receive submissions regarding the referral decision, he has effectively been estopped from being heard on the issue. He claims the Minister has an obligation to act in accordance with the principles of natural justice and that having regard to the significant impact of the Minister's decision on him, she has an obligation to receive the plaintiff's submissions. In considering whether to refuse or grant an extension, the plaintiff submits that the Minister has not properly considered the reasons for setting the deadline, and by declining to allow an extension has rendered it impossible for the plaintiff to be adequately heard in relation to the referral decision. This it is submitted will necessarily affect the legitimacy and validity of any decision the Minister ultimately makes.[16] I acknowledge that the Minister has afforded the plaintiff a number of extensions to allow him to make submissions and that, whether taken from JudgeFarish's indication of her decision to refer the matter to the Minister in January or therelease of her formal decision in April 2014, the matter has been delayed for some two months since the setting of the initial timeframe for submissions of 28 April 2014. Against that, the initial need for urgency was removed by the plaintiff providing a waiver of his rights under s 57(2). The further reason apparently accepted, at least in partial justification, for the further extension to 1 July was the unavailability of Mr Hall pending the completion of the South Canterbury Finance trial. That, as is often the way with such complex trials, has run on further than first anticipated. The reason for the further extension is grounded on the delayed but relatively speaking impending, if not reasonably imminent, availability of Mr Hall to attend to this matter.[17] I am not in a position without further research and assistance from counsel, to make a determination whether the Minister's refusal would in the circumstancespotentially give rise to a breach of natural justice. The reasonableness of the opportunity provided to the plaintiff to date would need to be assessed against the required urgency of a decision being made within the next two weeks, the administrative needs of the Minister and her office, and the plaintiff having available to him the assistance of senior counsel who has to date represented him in the extradition proceedings. Whether any ultimate decision would be made by the Minister in the absence of receiving submissions from the plaintiff is also moot.[18] I am mindful that making an interim order in the exercise of the residual discretion available to me under s 8(2) of the Judicature Amendment Act 1972 means I am effectively providing the plaintiff with what he seeks, a two week extension toprepare and present the plaintiff's submissions to the Minister. I, however, take theview that such a result is unavoidable in the circumstances.[19] I am satisfied that having regard to the present circumstances, the apparent strength and weaknesses of the claim of the plaintiff for review, and the public and private repercussions of granting relief, that the position of the plaintiff should be preserved. To avoid potential unfair prejudice by reason of the unavoidable delay in obtaining a final hearing of the judicial review application it is necessary that interim protection be granted.[20] Accordingly, I make an interim order declaring the Minister ought not make adecision in relation to the plaintiff's case before close of business on 14 July 2014 oruntil receipt of the plaintiff's submissions, whichever be earlier. The substantive application for judicial review is adjourned to Wednesday 16 July 2014.Solicitors:Phillip Allan Barrister, ChristchurchCrown Law Office, Wellington