CHOPRA AND ANOR V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV-2009-404-000911

CHOPRA AND ANOR V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV-2009- 404-000911 20 May 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-000911UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an application for judicial review and civil action BETWEEN KAMAL CHOPRA First Plaintiff KERRE CHOPRA Second Plaintiff AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Defendant Hearing: 4 May 2009 Appearances: F C Deliu for the Plaintiffs V Casey for the Defendant Judgment: 20 May 2009JUDGMENT OF DUFFY JThis judgment was delivered by Justice Duffy on 20 May 2009 at 10.00 am, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date:Solicitors: Equity Law P O Box 8333 Symonds Street Auckland 1150 for the Plaintiffs Crown Law P O Box 2859 Wellington 6140 for the Defendant Copy To: A J McClymont P O Box 8272 Symonds Street Auckland 1150[1] The plaintiffs have commenced a proceeding against the Chief Executive of the Department of Labour in which they make allegations based on judicial review grounds and the civil torts of breach of statutory duty and unlawful interference with contractual relations. There is also an allegation of a breach of the New Zealand Bill of Rights Act 1990. [2] The application before me for determination is an application by the plaintiffs for leave to cross-examine an officer of the defendant in relation to the judicial review grounds. In the course of the hearing, it became clear to me that the parties had not fully resolved whether the judicial review part of the proceeding would be heard in advance of the tort and Bill of Rights claims. Cross-examination is available as of right in tort claims. It was, therefore, necessary to resolve whether or not the hearing of this proceeding should be split with the judicial review hearing being heard in advance of the tort and public law claims. I set timetable directions for the parties to file memoranda to advise the Court of the stance they each took. I have now received memoranda which show that both parties, albeit for different reasons, want the judicial review heard in advance of the other claims. [3] The plaintiffs now seek an urgent hearing of the judicial review. A decision is also required on the application for leave to cross-examine. There is some urgency to the latter decision, as it must precede the substantive hearing. [4] I have carefully considered the application for leave to cross-examine. I cannot see how it can satisfy the legal tests for when leave to cross-examine will be granted. Cross-examination in judicial review is rare. This is made clear by Geary v Psychologists Board CA618/08 9 April 2009 and Commerce Commission & Anor v Powerco Limited v Anor CA123/06 9 November 2006. I cannot express the application of the principles to be derived from the leading cases any better than the statement of principle by Joseph Williams J in Cheema v The Minister of Immigration HC AK CIV-2008-404-7469 11 March 2009 at [2]:As a matter of first principle, I need to be satisfied that there is some issue of evidence or credibility which (if made out in favour of the applicant) would satisfy a requirement of one or more of his causes of action. Cross- examination of a witness in judicial review is a relatively rare step and itrequires there to be a genuine fight over some question of fact where existence of that fact is likely to prove decisive one way or the other.[5] In the present case, there is no genuine fight over a question of fact where the existence of the fact is likely to prove decisive one way or another. In this case, the fight is over a question of law: namely, the proper interpretation and application of ss 7, 14, 20 and 41 of the Immigration Act 1987, including the relationship between those provisions. The plaintiffs accept that the immigration officer sought to be cross-examined was not exercising a statutory discretion. It follows that what this person understood the relevant statutory provisions to mean or what advice he received from Head Office as to their meaning is irrelevant. When it comes to exercising statutory mandatory powers (which the applicant accepts are what is of concern here), as a matter of law such powers are either exercised correctly and, therefore, validly, or they are not. Everything turns on the interpretation of their meaning and effect. The understanding the immigration officer concerned has of their effect is only relevant to the extent that it will affect whether or not he has properly applied those provisions to the applicant's case. This can be understood from examining the officer's actions. It follows that there is no room whatsoever for contemplating that he be cross-examined as to his understanding of the law.Result[6] The application for leave to cross-examine is dismissed. [7] Leave is reserved to the parties to file memoranda on costs. Duffy J