KAMEL MOHAMED v GUARDIANS OF NEW ZEALAND SUPERANNUATION [2020] NZHC 1324

KAMEL MOHAMED v GUARDIANS OF NEW ZEALAND SUPERANNUATION [2020] NZHC 1324 [12June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-361[2020] NZHC 1324UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review ofdecisions of the Guardians of New ZealandSuperannuationBETWEEN FADEL KAMEL MOHAMEDApplicantAND GUARDIANS OF NEW ZEALANDSUPERANNUATIONRespondentHearing: 10 June 2020Appearances: D R Kalderimis and N K Swan for the proposed intervener, theFertiliser Association of New ZealandJ L W Wass and M C McCarthy for the applicantV L Heine and J W Upson for the respondentJudgment: 12 June 2020JUDGMENT OF PALMER JThis judgment was delivered by me on Friday 12 June 2020 at 3.30 pm.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:J L W Wass, Barrister, WellingtonV L Heine, Barrister, WellingtonTe Aro Law, WellingtonRussell McVeagh, WellingtonChapman Tripp, WellingtonSummary[1] Mr Fadel Kamel Mohamed, a representative of the Polisario Front for Australiaand New Zealand, challenges policies and decisions of the Guardians of New ZealandSuperannuation (NZ Superannuation). The Fertiliser Association of New Zealand (theAssociation) applies to intervene. Mr Kamel Mohamed opposes the application.[2] A Court's assessment of an application to intervene involves weighing thelikelihood the intervener will assist the Court against the risk of prejudice or unfairnessto the parties. It is guided by the overall interests of justice. A variety of considerationsare relevant. The threshold is the same in public law and private law cases, but is morelikely to be satisfied in public law cases. There is no reason why a first instance court,like an appellate court, should deprive itself of the benefit of a different perspectiveon a difficult issue where that outweighs any prejudice of its presence. If there is anappreciable prospect of material adverse findings being made about a proposedintervener, then the principles of natural justice will require the Court to hear theintervener.[3] Here, the Association has a material interest, through its members, in aNew Zealand judicial decision that touches on the lawfulness of official New Zealanddecisions taken in relation to Western Sahara. I consider it would likely assist theCourt to understand the Association's perspective, as long as the Association keeps tothe narrow parameters of its proposed terms of intervention. I grant the application onconditions.The proceedings and application[4] Mr Kamel Mohamed is a representative of the Polisario Front for Australia andNew Zealand, the liberation movement representing the Sahrawi people of WesternSahara. He applies for judicial review of decisions by NZ Superannuation concerninginvestments in businesses involved in the Western Sahara. The claim is thatNZ Superannuation's Responsible Investment Framework is unlawful, its continuedinvestments breach its statutory requirements, it has failed to adhere to the Frameworkand it has "abdicated its responsibility" under its statute.[5] Underlying the claim is a question at international law about whether Moroccois in illegal occupation of Western Sahara. The statement of claim alleges it is and thatthe importation of phosphate by Ravensdown Ltd (Ravensdown) and Ballance Agri-Nutrients Ltd (Ballance) creates an incentive for Morocco to remain in occupation ofWestern Sahara. The hearing is set down for two days at the Auckland High Courtcommencing on 27 October 2020.[6] The Association applies to intervene in the proceedings. Its members includecooperatives Ravensdown and Ballance which are the sole New Zealand importers ofWestern Saharan phosphate. NZ Superannuation abides the decision of the Court.Mr Kamel Mohamed opposes the application.Law of interveningCase law[7] In summarising the law regarding intervention in judicial review cases, I statedin Alpha Dairy NZ Ltd v Auckland Council:1The High Court has inherent jurisdiction to grant leave to an interested partyto intervene in a proceeding by providing evidence, written submissionsand/or oral submissions on specified terms but has no right of appeal. Insummary, in deciding whether to grant leave to intervene, the Court weighsthe likelihood the intervener will assist the Court against the risk of prejudiceor unfairness to the parties.2 The decision is guided by the overall interests ofjustice.[8] I also referred to principles for intervention distilled from the case law byThomas J in Capital and Merchant Finance Ltd v Perpetual Trust Ltd:3(a) An applicant must show that its legal rights against or liabilities inrelation to the subject matter will be directly affected. Commercial,financial, or reputational interests in the outcome will only besufficient in exceptional circumstances.(b) If the intending intervener's presence before the Court will notimprove the quality of information before the Court, that will countheavily against its addition to the proceedings.1 Alpha Dairy NZ Ltd v Auckland Council [2019] NZHC 2263 at [4].2 DN v Family Court at Auckland [2019] NZHC 2028, [2019] NZFLR 150 at [11].3 At [5], citing Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust [2014] NZHC3205, [2015] NZAR 228 at [41].(c) A relevant consideration is the extent to which the proposed intervenercan rely on one of the parties to protect its rights and obligations.(d) If either party would be prejudiced by the intervention, or if theintervention would create an impression of partiality, the applicationwill not be granted.(e) In cases where development of the law is likely, the application ismore likely to be granted if the proposed intervener has specialexpertise to assist the Court on wider public policy issues.(f) The underlying issue is whether it would be unjust to adjudicate onthe matter in dispute without the intervener being heard. Several ofthe factors mentioned above tie into this issue.(g) Where intervention is justified, the degree of participation granted tothe intervener should be the minimum necessary to protect theintervener's interests.[9] And I referred to a paragraph in a judgment of a full court of the High Court inTaylor v Key (No 1):4The jurisdiction may be exercised when the Court is satisfied that interventionis likely to improve the quality of information before the Court on issues widerthan those that the parties may wish to address. Intervention has been allowedwhere the party seeking leave has an interest in the outcome of the case thatwill be directly or indirectly affected or even where that party has a distinctlyarguable case that they will be affected. In such cases, this Court has held itwould be unjust to decide the issues in the absence of the party so affected, orpotentially affected.[10] In Seales v Attorney-General, Collins J identified and applied the followingprinciples in granting three applications for intervention in a case seeking declarationsregarding assisted dying:5[45] First, the power to grant leave to intervene is discretionary and should beexercised with restraint to avoid the risk of expanding issues, elongating thehearing and increasing the costs of the litigation.[46] Second, in a proceeding involving issues of general and wide publicimportance, leave to intervene may be granted when the Court is satisfied thatit would be assisted by the intervener.[47] Third, it may be appropriate to grant leave to intervene where theproceeding is likely to result in the development of the law.4 Taylor v Key (No 1) [2014] NZHC 3306, [2015] NZAR 730 at [9].5 Seales v Attorney-General [2015] NZHC 828.[48] Fourth, leave should not be granted when the proceeding is essentiallyone that involves statutory interpretation and is unlikely to involve broadquestions of policy.Submissions[11] Mr Kalderimis, for the Association, submits that Capital and MerchantFinance Ltd concerned a commercial context where the proposed interested party hadno legal rights or liabilities that were directly affected, only a contingent interest whichwas exactly aligned with one of the parties.6 He submits that the test for interveningin a judicial review case does not require the same direct effect on legal rights andliabilities as it does in a commercial case.[12] Mr Wass, for Mr Kamel Mohamed, submits that the basic test for interventioninvolves the Court balancing the assistance to be provided with the potential prejudicecaused by the intervener. He submits that judicial review cases have the potential toimpact a wider range of parties and are more likely to give rise to issues requiringdevelopment of the law, so the potential for intervention is greater. But, he submits,the test remains the same in relation to whether intervention is necessary to assist theCourt, including by reference to the principles identified in Capital and MerchantFinance Ltd.[13] Ms Heine, for NZ Superannuation, submits leave to intervene is granted wherethat may assist the Court by providing it with broader evidence and perspectives,especially in cases with a significant policy dimension. She submits intervention mayalso be appropriate to give a person whose rights or interests are directly affected anopportunity to be heard. She submits the "directly affected" requirement has beenapplied in the case law, no cases expressly reject it and it remains a valid requirement.My assessment of the threshold for intervention[14] I continue to consider that the overall assessment by the Court involvesweighing the likelihood the intervener will assist the Court against the risk of prejudiceor unfairness to the parties. That is guided by the overall interests of justice. Counseldid not disagree. The principles identified in Capital and Merchant Finance Ltd,6 Capital and Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd, above n 3, at [68].Taylor v Key (No 1) and Seales v Attorney-General are relevant to that overallassessment. I agree with Mr Wass's submission that the threshold for interventiondoes not differ depending on whether a case involves issues of private or public law.Public and private law, though convenient labels, are more of a continuum than adistinction. But if the distinction is used, I consider intervention is more likely in apublic law case only because it is more likely an intervener will assist the Court in apublic law case than a private law case.[15] In a private law case, an intervener is most likely to assist the Court when ithas legal rights or liabilities, or other material interests, that are affected by the legalissues at stake. Such interests can mean the intervener has a perspective that isdifferent to those of the parties and which it would assist the Court to hear inconsidering the implications of its decision. In a commercial context, those interestsare most likely to be financial. In Sanofi-Adventis Deutschland GMBH v AFTPharmceuticals Ltd, an application for intervention was declined where it was notunjust for patent rights to be determined in the absence of the applicant, who had notshown how its presence would assist the Court.7 In Alpha Dairy NZ Ltd, the intervenerhad an interest in the planning regime, could improve the information before the Courtand had a different perspective than the parties.8 And in Commercial Management Ltdv Commissioner of Inland Revenue, the Commissioner of Inland Revenue's interest inprotecting the integrity of the tax system, and likely considerable assistance to theCourt, justified intervention.9 Occasionally, a private law case with significantpotential to develop that law might be fertile ground for interveners to argue they havea perspective, different to that of the parties, which the Court should hear.The development of the law almost always involves policy considerations.[16] In a public law case, for-profit or non-profit organisations may have materialinterests in an issue of public policy that is affected by the legal issues at stake. Suchinterests can mean the intervener has a perspective that is different to those of theparties and which it would assist the Court to hear in considering the implications ofits decision. As a full Court of the High Court said in Wilson v Attorney-General,7 Sanofi-Adventis Deutschland GMBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-1795, 9 August 2011, at [39] and [42].8 Alpha Dairy NZ Ltd v Auckland Council, above n 1, at [10].9 Commercial Management Ltd v Commissioner of Inland Revenue [2020] NZHC 891 at [45]."where the party's interest are, or may be, directly or indirectly affected by the judicialreview application . . . it would be unjust to decide the issues in the absence of theparty so affected, or potentially affected".10 The "directness" of an intervener'sinterest is likely to be less important in a public law context. The more significant andmulti-faceted the public policy implications of a decision, the more likely it is that amultiplicity of perspectives, rather than binary argument, will assist the Court. Thathas been so in cases raising issues of assisted dying, teaching Christianity in publicschools, earthquake recovery, the Crown's overlapping Treaty claims policy and thevalidity of the Total Allowable Catch for fish stocks.11[17] The considerations relevant to the appropriate threshold for intervention inpublic and private law cases are similar to those relevant to the law of standing, whichI described as relaxed in relation to judicial review cases in Smith v Attorney-General:12A party who has a personal interest at stake, or whose personal rights andinterests are affected, has standing to bring a proceeding. If not, he or she maybe permitted to pursue a claim if that is warranted by the public interest in theadministration of justice and the vindication of the rule of law.[18] The threshold for intervention is the same in public and private law cases, butit is more likely to be satisfied in a public law case involving significant public policyimplications. In practice, it may have been that appellate courts in New Zealand havebeen more likely to grant leave to intervene than first instance courts. But there is noreason in principle why a first instance court should deprive itself of the benefit of adifferent perspective on a difficult issue where that benefit outweighs any prejudice ofits presence.[19] Finally, I note that in either a public law or private law context, if there is anappreciable prospect of material adverse findings being made about a proposed10 Wilson v Attorney-Genera (No 2) HC Wellington CIV-2010-485-1147, 27 July 2010, at [20].11 See: Aotearoa Water Action Inc [2019] NZHC 3187]; at [5]; Seales v Attorney-General, above n5 ; McClintock v Attorney-General of New Zealand [2015] NZHC 1280; Independent FisheriesLtd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177; Ngāti Whātua ŌrakeiTrust v Attorney-General [2019] NZHC 2363; Royal Forest and Bird Protection Society of NewZealand Inc v Minister of Fisheries [2020] NZHC 741.12 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094.intervener, then the principles of natural justice will require the Court to hear theintervener. Not to do so would be an error of law.Submissions[20] Mr Kalderimis, for the Association, submits its members' activities are centralto the complaints against NZ Superannuation so there is a real risk that the outcomecould affect Association members' legal rights and create commercial and reputationalconsequences for them. The claim alleges that Morocco's occupation of WesternSahara is unlawful at international law. Mr Kalderimis submits such a finding wouldcreate a platform to bring proceedings against the Association or its members.He points to public statements by Mr Kamel Mohamed and the Polisario Front aboutpossible legal action against Ravensdown and Ballance, as has occurred in othercountries such as South Africa.13 He submits the claim makes specific criticismsdirectly implicating and naming the Association's members. He submits carefulsubmissions will be required in order not to indirectly implead the sovereign immunityof Morocco and he submits the Association's submissions will assist the Court. TheAssociation seeks the ability to make oral and written submissions on issues relevantto the wider public international law issues and to file limited evidence in reply to anyadduced by the parties relating to Association members' importing, manufacturing,distribution or monitoring activities.[21] Mr Wass, for Mr Kamel Mohamed, submits the Association's involvement inthe proceedings is unnecessary and would be prejudicial to the parties in potentiallyexpanding the scope of the issues or side-tracking the Court. He submitsNZ Superannuation will address questions of public international law or, because theAssociation is not impartial and has no special relevant expertise, an amicus curiaecould be appointed. He submits the case is not about development of the law andMr Kamel Mohamed has confirmed he is not bringing this proceeding for a subsequentattack on the Association's members. He submits the Association cannot demonstrateon the pleadings that its members' interests justify intervention. But Mr Kamel13 Saharawi Arab Democratic Republic v Owners and Charterers of the MV "NM Cherry Blossom"[2017] ZAECPEHC; 2017 (5) SA 105 (ECP); [2018] 1 All SA 593 (ECP) (15 June 2017).Mohamed would consent to the parties' evidence being served on the Association soit can apply again if it considers is members' interests are criticised unfairly.[22] Ms Heine, for NZ Superannuation, submits that it abides the decision of theCourt, given the narrow form of intervention sought. But she offers several points formy consideration. She submits NZ Superannuation holds equity investments in10 companies with business interests in Western Sahara and owns, throughsubsidiaries, dairy farms which have shares in Ravensdown and Balance because oftheir cooperative structure. She submits the public international law issues in theproceedings should be left to NZ Superannuation to advance and it will be rare thatthe legal content of submissions will justify intervention.14 If any additional assistanceis required, Ms Heine submits an amicus could be appointed, but that has not beenshown to be necessary yet. She submits there may be a basis for intervening if theapplicant's evidence trespasses on the Association's members' conduct but we do notknow that yet. She submits the reputational harm from the implied criticism of theAssociation's members is insufficient to warrant intervention.Should I grant leave to the Fertiliser Association to intervene?[23] Viewed narrowly, the legal issues at stake in this case require assessment ofpolicies and decisions of NZ Superannuation and interpretation of New Zealandlegislation. The issues are of a public law nature. It is not clear to me, at this stage,that the Court will be required to make findings about international law. That maybecome clearer once the evidence and/or submissions are filed and served. But it doesseem that issues of international law and international relations underlie and constitutea significant aspect of the context of the case.15 The South African Cherry Blossomjudgment, to which Mr Kalderimis points, illustrates the complexity such backgroundcan involve.16[24] The Association itself does not have any particular expertise in internationallaw or international relations, though its counsel does. But the Association does have14 Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [18].15 The applicant alleges that Morocco's occupation of Western Sahara is illegal under internationallaw at paragraphs [12], [63], [70] and [76] of the statement of claim.16 Saharawi Arab Democratic Republic v Owners and Charterers of the MV "NM Cherry Blossom",above n 13.a material interest, through its members, in a New Zealand judicial decision thattouches on the lawfulness of official New Zealand decisions taken in relation toWestern Sahara. As a consequence, the Association's perspective of the issues canreasonably be expected to be different from that of the parties. I consider it wouldlikely assist the Court to understand the Association's perspective of the evidence andissues in the case, as long as the Association keeps to the narrow parameters of itsproposed terms of intervention. If it does, the prejudice to the parties from theAssociation's participation in the case is likely to be minimal. There is also apossibility that evidence filed by the parties may implicate the actions of theAssociation's members. If so, as counsel for the parties both recognised, that is likelyto entitle the Association to respond.Result[25] I grant leave to the Association to intervene, on the basis that:(a) By 4 pm Friday 4 September 2020, the Association will file and serveany evidence, strictly in reply to any evidence filed by Mr KamelMohamed or NZ Superannuation, that relates only to Associationmembers' importing, manufacturing, distribution or monitoringactivities in relation to Western Sahara.(b) By 5 pm Tuesday 15 September 2020, the Association will file andserve its written submissions, on wider public international law issues,of no more than 20 pages.(c) At the hearing commencing 10 am Tuesday 27 October 2020, it willbe up to the Judge to decide whether, and for long, the Association maypresent any oral submissions.(d) The parties have leave to request any consequential variations to thetimetable.(e) The Association cannot claim or be subject to any award of costs forthe substantive proceedings.(f) The costs of this application will lie where they fell.Palmer J