NOTTINGHAM v ATTORNEY-GENERAL [2020] NZCA 632

NOTTINGHAM v ATTORNEY-GENERAL [2020] NZCA 632 [9 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA525/2020[2020] NZCA 632BETWEEN DERMOT GREGORY NOTTINGHAMAND ROBERT EARLE MCKINNEYApplicantsAND ATTORNEY-GENERALRespondentCourt: Brown and Gilbert JJCounsel: Applicants in personV E Casey QC and V McCall for RespondentJudgment:(On the papers)9 December 2020 at 10.30 amJUDGMENT OF THE COURTThe application for an order to transfer the proceeding to this Court is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 8 May 2020 the applicants commenced a judicial review proceeding in theHigh Court at Auckland challenging among other things the legality of the orders madeunder the Health Act 1956 by the Director-General of Health on 25 March 2020,3 April 2020 and 27 April 2020 (Orders 1, 2 and 3 respectively) in the context of theCOVID-19 pandemic. The claim named as respondents the Attorney-General, theDirector-General of Health, the Prime Minister, the Director of Civil Defence andEmergency Management and the Commissioner of Police.[2] On 17 September 2020 the applicants filed in this Court the present applicationseeking an order pursuant to s 59 of the Senior Courts Act 2016 for the transfer of theirproceeding to the Court of Appeal, together with orders that the proceeding be heardby a Full Court urgently and that consideration be given to the appointment of anamicus with expertise in administrative and international law. The respondents opposethe application.Relevant background[3] The sequence of measures taken by the Government to implement its responseto the COVID-19 pandemic have been recited now in several judgments and we donot repeat them here. Mr Nottingham's first engagement with the Director-General'sresponse to the pandemic was his application for an order for habeas corpus. Hisapplication made in the High Court for an order transferring the habeas corpusapplication to this Court for hearing by a Full Court was declined by Peters J whoproperly recognised that consideration of such a transfer was a matter for this Court,not the High Court. The application for a writ of habeas corpus was declined.1[4] Mr Nottingham's appeal was dismissed.2 This Court explained that unresolvedquestions about the lawfulness of the notices issued under the Health Act were notappropriately addressed in the context of an application for habeas corpus andidentified an expedited application for judicial review in the High Court as the onlyappropriate procedure in the circumstances of that case.[5] At about this time Mr Borrowdale commenced an application for judicialreview against the Director-General of Health challenging Orders 1, 2 and 3. In ajudgment delivered on 19 August 2020 a Full Court of the High Court dismissed thesecond cause of action (lawfulness of all three Orders) and third cause of action(unlawful delegation of power in respect of Order 1). However the Court upheld the1 A v Ardern [2020] NZHC 796, [2020] 2 NZLR 197.2 Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207.first cause of action in part, namely that the restrictive measures imposed for the ninedays between 26 March and 3 April went beyond the terms of Order 1.3 An appealhas been filed in this Court which will be heard in 2021.[6] On 8 May 2020 the applicants filed their judicial review proceeding in theHigh Court at Auckland. Their application for a transfer of the proceeding from theHigh Court was filed in this Court on 17 September 2020. An amended applicationwas filed on 18 September 2020 which, in addition to the orders sought in the originalapplication, sought a direction that the applicants' claim be heard by this Court inconjunction with the Borrowdale appeal.The transfer jurisdiction[7] This Court's power to transfer a civil proceeding from the High Court isprovided in s 59 of the Senior Courts Act: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.3 Borrowdale v Director-General of Health [2020] NZHC 2090.(4) In deciding whether to make an order transferring the proceeding, theCourt 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:(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.[8] The section was recently considered in the judgment rejectingMr Borrowdale's request to transfer his High Court proceeding to this Court.4 TheCourt there stated:[9] Even if the circumstances attending a proceeding are exceptional, itdoes not of course follow that it should be removed from the High Court andtransferred to the Court of Appeal. This Court must still be persuaded that thatis, in all the circumstances, the better course to follow.[10] I accept that Mr Borrowdale's proceeding raises issues of considerablepublic importance. I accept also that those issues need to be determined withurgency. I am not however persuaded that the proceeding is unlikely to bedetermined urgently if it is heard at first instance in the High Court. And noram I persuaded that the better course is that the proceeding be heard at firstinstance in this Court.[11] As this Court observed last week during the hearing of the habeascorpus applications in [Nottingham] v Ardern, questions raised concerninglegality of the Director-General's various lockdown orders are complex. Theyare not merely questions of statutory interpretation, or law, but mixedquestions of law and fact. It may be assumed the Crown may need to call4 Borrowdale v Director-General of Health [2020] NZCA 156.evidence of process, context and history. It is not inconceivable there willneed to be cross-examination. These are forensic processes far more amenableto resolution in a trial court. It would not be right for this Court to make ordersnow which limit the parties' reasonable freedom of action in both proving anddefending this proceeding. The burden of the mandatory considerations in s59(4) lies firmly against removal and transfer.(Footnote omitted.)Discussion[9] As the application recognises, the applicants' proceeding raises not onlymatters similar to those the subject of the Borrowdale claim but also claims that aredifferent from that claim. The statement of claim, which is criticised by therespondents as prolix, addresses not only the lawfulness of Orders 1, 2 and 3 but alsothe subsequent Level 3 and 2.5 Orders applicable to the greater Auckland area and theLevel 2 Order in respect of the rest of New Zealand.[10] In addition to seeking relief quashing Orders 1, 2 and 3 and subsequent orders,the applicants seek declarations that the respondents acted knowingly or recklessly tomislead and to breach the rights of all New Zealanders, that New Zealanders havesuffered as a result, and that they have a right to compensation as redress. Theapplicants contend that the restrictions imposed by the Orders amounted toa contravention of various international instruments to which New Zealand is a party,referring in particular to the International Covenant on Civil and Political Rights andto the Declaration on the Right and Responsibility of Individuals, Groups and Organsof Society to Promote and Protect Universally Recognised Human Rights andFundamental Freedoms.5 The application states that the proceeding raises "incrediblyimportant questions of fact".[11] The Crown accepts that if the claim proceeds it will necessarily involve a factintensive inquiry with contested evidence, including potentially expert evidence. TheCrown submits that such evidence is unsuited to determination by an appellate court,5 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16December 1966, entered into force 23 March 1976); and Declaration on the Right andResponsibility of Individuals, Groups and Organs of Society to Promote and Protect UniversallyRecognised Human Rights and Fundamental Freedoms GA Res 53/133 (1999).noting that the applicants in their submissions confirm that their challenge is likely toinvolve contested evidence and cross-examination of Crown witnesses.[12] The applicants emphasise the urgency in having their claim determined,observing that the events in question go back to March this year. The respondents'rejoinder is that there is no urgent need for the proceeding to be determined as NewZealand is currently at Alert Level 1. Furthermore the restrictive orders of the initialAlert Levels 3 and 4 are spent. Any future orders will likely be made under theCOVID-19 Public Health Response Act 2020 which came into force on 13 May 2020.[13] We apprehend that another reason why the applicants advocate urgency is thatthey are critical of the way in which the Borrowdale claim was advanced, contendingthat an inappropriate or misguided concession was made by Mr Borrowdale. As theyput it in their submissions:32. This is a "perfect storm" case for the Court of Appeal to take over,and with good reasoning, decide the matter of proportionality, whichwas conceded by Mr Borrowdale, and determined by the High Courtwith apprehended bias — predetermination.[14] Indeed the first paragraph of the grounds in their application frankly states thattheir proceeding "can be construed as in part being an appeal of sorts against thefindings of the High Court in Borrowdale". It is presumably that motivation thatprompted the amendment of the current application to include a direction that theirproceeding be heard in conjunction with the Borrowdale appeal to this Court.[15] None of the matters to which we have referred or which are advanced in theapplicants' submissions in support or in reply (both original and amended) lead us tobe satisfied that the circumstances of this proceeding are exceptional so as to justifya transfer to this Court.[16] Quite apart from the evidential considerations, we accept the respondents'submission that interlocutory steps will likely be required concerning not only theissues for determination at the hearing but also the nature of the evidence required andthe manner in which it is to be adduced.[17] With reference to the mandatory consideration in s 59(4)(b), we consider thattransferring the proceeding from the High Court would deprive this Court of thebenefit of a reasoned judgment of the High Court, as well as depriving the parties ofthe benefit of both a determination at first instance and a review on appeal.Result[18] The application for an order to transfer the proceeding to this Court is declined.Solicitors:Crown Law Office, Wellington for Respondent