EGAN V THE COMMISSIONER OF POLICE HC WN CIV-2012-485-000123

EGAN V THE COMMISSIONER OF POLICE HC WN CIV-2012-485-000123 [20 March 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-000123[2013] NZHC 550UNDER Part 30 of the High Court RulesBETWEEN GRANT JAMES EGANPlaintiffAND THE COMMISSIONER OF POLICEDefendantHearing: 18 March 2013Counsel: W W Peters for PlaintiffS V McKechnie for DefendantJudgment: 20 March 2013In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.30 pm on the 20th day of March 2013.RESERVED JUDGMENT OF COLLINS J[1] The Commissioner of Police (the Commissioner) applies to strike out an application for judicial review brought by Senior Constable Egan (Mr Egan).[2] The Commissioner's strike-out application requires me to focus upon the following three questions:(1) Is Mr Egan's application for judicial review clearly untenable?(2) Is Mr Egan's dispute with the Commissioner really an "employment relations problem"1 and therefore within the exclusive jurisdiction of the Employment Relations Authority?2(3) Does Mr Egan have the requisite standing to bring his application for judicial review?Background[3] Mr Egan is a senior constable in the dog section, Northland Unit of the New Zealand Police. He is based in Whangarei. The officer in charge of this dog section is Sergeant Kahotea. Sergeant Kahotea was appointed to this role on a temporary basis in January 2006. His appointment was dependent upon him completing requirements for a permanent promotion to the rank of sergeant. He was initially given two years to complete his promotion requirements, but extensions were granted to this timetable.[4] In 2008 New Zealand Police introduced a new Human Resources computer programme (PeopleSoft). This new programme identified a number of irregularities in the records held by New Zealand Police in relation to approximately 200 officers who had been promoted but whose records did not demonstrate they had completed requirements for promotion to their current or previous lower rank.3[5] To address the problem of officers holding ranks they may not have been qualified to hold, the police executive management adopted a policy in March 2010 called the Recognition of Current Competencies (RCC) policy. No issue is taken with the fact this policy was adopted by the police executive management team. It is accepted this decision is deemed to have been made by the Commissioner, and the consequential appointments were made by the Commissioner pursuant to s 18 of the Policing Act 2008 (the Act). Section 18(1) of the Act enables the Commissioner to appoint people whom "the Commissioner thinks necessary for the efficient exercise1 Employment Relations Act 2000, s 5.2 Sections 161 and 194A.3 For example, some senior sergeants' records suggested they had not completed the requirementsfor their previous ranks as sergeants.and performance of the powers, functions, and duties of the police". Section 18(3)of the Act enables the Commissioner to assign a police employee to any level of position the Commissioner considers appropriate.[6] In August 2011, Sergeant Kahotea was confirmed as a sergeant. That appointment was made under the RCC policy.[7] Prior to Sergeant Kahotea's promotion being confirmed, Mr Egan challengedthe unfairness of Sergeant Kahotea being granted extensions of time to complete his promotion requirements. Mr Egan gave notice of a personal grievance on 1 April 2011 in which he claimed he was disadvantaged in his employment by the Commissioner. Mr Egan said he should have been able to apply for the position of Officer in Charge of the Dog Section in the place of Sergeant Kahotea. Mr Eganalleged he had not received "fair and proper treatment" in his employment and that he had "been denied opportunities for promotion". That grievance was referred for mediation. Mr Egan has since discontinued his personal grievance against the Commissioner.[8] In January 2012 Mr Egan commenced his judicial review proceeding in which he challenges the lawfulness of the RCC policy. He pleads the RCC policy is:(1) ultra vires the principles set out in s 8 of the Act and/or;(2) unreasonable in an administrative law sense.Strike-out principles[9] The principles which govern the decision I have to make are well established.4 They are:(1) The facts pleaded in Mr Egan's statement of claim are assumed to betrue.4 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267 and Couch v Attorney-General[2008] NZSC 45, [2008] 3 NZLR 725 at [35].(2) His proceeding must be clearly untenable before it can be struck out.(3) The jurisdiction to strike out is used sparingly and only in clear cases.(4) The jurisdiction to strike out is not displaced by the need to decide difficult questions of law.Is Mr Egan's application for judicial review clearly untenable?The ultra vires pleading[10] The first limb of Mr Egan's claim for judicial review is that the RCC policy is ultra vires. He pleads that the wide discretion contained in the RCC process is contrary to the principles set out in s 8 of the Act. In particular, Mr Egan relies upon the legislative statement that the Act is based upon the following two principles:(1) "principled, effective, and efficient policing services are a cornerstoneof a free and democratic society under the rule of law";5 and(2) "effective policing relies on a wide measure of public support and confidence".6[11] Mr Egan also pleads that appointing officers such as Sergeant Kahotea to therank of sergeant pursuant to the RCC policy was contrary to the "criteria for promotion" issued as a general instruction by the Commissioner under s 28 of theAct.[12] Section 28 of the Act authorises the Commissioner to issue general instructions for police employees. General instructions are subject to the provisions of the Act.7 However, general instructions prevail over the provisions of any manualor circular issued under the Commissioner's authority.85 Policing Act 2008, s 8(a).6 Section 8(b).7 Section 28(2).8 Section 28(4).[13] Mr Egan pleads that at all relevant times the following general instruction was in force:Criteria for Promotion A071No staff member can be promoted to a higher rank unless the member has passed any necessary qualifying exams or standards for that rank and successfully completed any qualifying course prescribed for that rank by the Commissioner. This provision does not apply to a promotion made to a temporary rank.[14] In my assessment, the RCC policy is clearly not contrary to the principles in s 8 of the Act which Mr Egan relies upon. Nor is the RCC policy contrary to the"criteria for promotion" general instruction. It is convenient to first explain why theRCC policy does not conflict with the criteria for promotion general instruction.[15] A careful examination of the RCC policy reveals that it emerged because the"Promotions Monitoring and Tracking System" in PeopleSoft identified a number ofofficers whose records did not demonstrate they had completed the qualifications required for their current rank, or a previous lower rank. The reasons for an officer'srecords not showing they had completed the promotion criteria were varied and included:(1) the age of personnel records;(2) failure to load or correctly load data into the PeopleSoft programme;(3) agreements between rank holders and their superiors over the completion of rank requirements;(4) completing the requirements for a particular rank before completing the requirements of a lower rank; and(5) failure by individuals to complete promotional requirements.[16] The RCC policy records that it only applies to persons who have held a rank for two years and who had demonstrated competency at that level. This criterion ismet by the officer in question being assessed on an annual basis. The policy does not apply to persons about whom there are performance questions.[17] In my judgement the RCC policy complements rather than conflicts with the"criteria for promotion" general instruction because the RCC policy simply identifiesa way for an officer to demonstrate that they have passed "the necessary standardsfor that rank ..." referred to in "the criteria for promotion" general instruction. I do not accept the submission that the short lifespan of the RCC policy demonstrates that it is an inappropriate standard to measure performance. The RCC policy was a response to administrative deficiencies and, once they were rectified, it was no longer necessary to continue with the policy.[18] I accept the submission from Mr Peters, counsel for Mr Egan, that the Commissioner must exercise the wide discretion contained in s 18, consistently with the statutory purpose. However, the RCC policy is entirely consistent with the principles in s 8 relied upon by Mr Egan. It is, in my assessment, clearly a principled, effective and efficient response to an administrative challenge faced by the Commissioner and his advisors. It is a policy that could not possibly undermine public support and confidence in the police because police officers in the position of Sergeant Kahotea have only been confirmed as sergeants after they have demonstrated their competence to hold that rank over a period of at least two years.[19] Furthermore, the alternatives available to the Commissioner at the time the RCC policy was adopted would have risked breaching the principles relied upon by Mr Egan. The alternatives available to the Commissioner included requiring officers to re-qualify, even though they may well have previously satisfied all the criteria for promotion but had the misfortune to have been the victims of poor record-keeping. As the authors of the RCC policy correctly noted, requiring officers to re-qualify for their rank when they have previously done all that was required of them to earn theirpromotion risked alienating those officers. That would not be a "principled,effective and efficient" policy.[20] In my judgement, the RCC policy is not ultra vires. Indeed, it is plainly intra vires in that it provides a mechanism for the Commissioner to discharge his powersto appoint police employees to various ranks as permitted by s 18 of the Act (refer [5] above). By authorising the confirmation of Sergeant Kahotea's rank as sergeantpursuant to the RCC policy, the Commissioner merely discharged his powers under s 18 of the Act consistently with that section.The unreasonableness pleading[21] Mr Egan also pleads that the RCC policy was unreasonable because:(1) It undermined the objective of having police officers properly qualified for their respective roles; and/or(2) It produced inconsistent outcomes for police employees; and/or(3) It was inconsistent with the principles of the Act; and/or(4) It failed to properly balance the interests of the public with administrative convenience.[22] In his submissions, Mr Peters explained "there is no question that the[Commissioner] can amend police appointments process policies from time to time". Mr Peters then submitted "those decisions must, however, support the principles and purposes of the Act. When they deviate from such principles and purposes to the extent that they are unlawful or unreasonable then ... they are not immune from review".[23] In support of this aspect of his submission, Mr Peters referred to the seminal judgment of Lord Reid in Padfield v Minister of Agriculture, Fisheries & Food, where his Lordship said:9Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court. ... if the [decision- maker], by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and9 Padfield v Minister of Agriculture, Fisheries & Food [1968] UKHL 1, [1968] AC 997 at 1,030.objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court.[24] As I understand it, the gravamen of Mr Peters' submission is that the RCCpolicy was unreasonable because it offended the principles set out in s 8(a) and (b) of the Act.[25] I have previously concluded that the RCC policy did not offend the two principles of the Act relied upon by Mr Egan. Accordingly, I cannot see how it is possible for Mr Egan to tenably argue that the RCC policy was unreasonable in an administrative law sense.[26] In my view, the RCC was the antithesis of unreasonableness. It was a policythat was entirely consistent with the Commissioner's powers of appointment andpromotion. It was also a policy that was entirely consistent with the Commissioner having responsibilities as an employer10 in a "command and control" organisationresponsible for keeping peace; maintaining public safety; enforcing the law; preventing crime; providing community support and reassurance; assisting with maintenance of national security; and discharging emergency management functions.11[27] In this context Mr Egan faces a high threshold to establish that the RCC policy was unreasonable.12 But even if the threshold for establishing unreasonableness is set at a low level,13 in my judgement Mr Egan's claim fails by asignificant margin to establish the RCC policy was unreasonable.[28] I have therefore reached the conclusion that Mr Egan's application forjudicial review is clearly untenable. The RCC policy was not ultra vires orunreasonable. Accordingly, Mr Egan's application for judicial review must be struck out.10 Policing Act 2008, s 18(3).11 Section 9(a)-(f) and (h).12 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR776 at [366].13 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [211].Is Mr Egan's dispute with the Commissioner within the exclusive jurisdiction ofthe Employment Relations Authority?[29] Although I am not required to do so, I will provide my answers to the second and third questions posed in [2] above.[30] Ms McKechnie, counsel for the Commissioner, submitted that Mr Egan's proceeding against the Commissioner constituted an "employment relationship problem" as defined in s 5 of the Employment Relations Act 2000 and that as aconsequence the Employment Relations Authority has the exclusive jurisdiction todetermine the matters giving rise to Mr Egan's proceeding.[31] There are three steps to the submissions advanced by Ms McKechnie.[32] The first step is the uncontested point that Mr Egan is an employee of the Commissioner.[33] The second step involves the definition of "employment relationship problem" in s 5 of the Employment Relations Act 2000 which provides that anemployment relations problem "includes a personal grievance, a dispute, and anyother problem relating to or arising out of an employment relationship ...".14[34] Ms McKechnie submitted Mr Egan's proceeding falls within the definition ofan employment relationship problem because:(1) Mr Egan was directly affected by the process he seeks to review when Sergeant Kahotea was confirmed as a sergeant;(2) In his personal grievance action Mr Egan said he was disadvantagedby the Commissioner's decision relating to Sergeant Kahotea'sappointment; and14 Refer Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP72/01, 14 August2001 and BDM Grange Ltd v Parker [2006] 1 NZLR 353 (HC).(3) Mr Egan may directly benefit in his employment if the RCC policyand Sergeant Kahotea's appointment is declared to be unlawful.[35] The third step in Ms McKechnie's line of reasoning is that if it is accepted thedispute Mr Egan has with the Commissioner is an employment relationship problem, then the Employment Relations Authority has exclusive jurisdiction to hear and determine it. Ms McKechnie points to s 161(1) of the Employment Relations Act2000 which provides that the Employment Relations Authority "... has exclusivejurisdiction to make determinations about employment relationship problemsgenerally ...". Ms McKechnie also draws attention to s 194A of the EmploymentRelations Act 2000 which provides that where an employer exercises a statutorypower of decision then the employee "must use the employment relationshipproblem-solving provisions ... " of the Employment Relations Act 2000.15Furthermore, the employee must "... not bring an application for review in relation to the problem in ... the High Court".16[36] I have considerable sympathy for the position advocated by Ms McKechnie.However, in my view, it is arguable that Mr Egan's claim is sufficiently distanced from being a "employment relationship problem". Accordingly, if this were the only basis for striking out Mr Egan's proceeding then I would rule that his proceedingwould, by the slimmest margin, survive the Commissioner's strike-out application. My reasons for reaching this conclusion are:(1) Mr Egan appears to have abandoned his personal grievance; and(2) The scope of "employment relation problem" was considered in Pain Management Systems (NZ) Ltd v McCallum.17 Panckhurst J drew a distinction between a claim where the opportunity to breach the right or interest at stake arose in the context of employment, and a claim which has, at is essence, the employment relationship between the15 Employment Relations Act 2000, s 194A(2)(a).16 Section 194A(2)(b).17 Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP72/01, 14 August 2001.parties. Only the latter falls within the exclusive jurisdiction of the Employment Court.18This restrictive definition of "employment relationship problem" wasfollowed in BDM Grange Ltd v Parker,19 where the High Court statedthat for a cause of action to "relate to" an employment relationshipproblem, the essential character of the claim must be found entirely within the employment relationship itself. It is not sufficient that the employment relationship provides the factual setting for the cause of action, if the duty arises independently of that employer-employee relationship.20I consider that distinction is equally applicable in this case, as Mr Egan's employment within the dog section provides the factualbasis for his assertion that the Commissioner acted outside his powers. However, the duty he claims has been breached is a duty owed to the general public, and not one that arises because of the employer-employee relationship between Mr Egan and the Commissioner. In that sense, Mr Egan arguably could have brought this proceeding in his capacity as a conscientious member of the public with no interest in his employment opportunities. Therefore itis possible his dispute with the Commissioner is not an "employment relationship problem".Standing[37] Mr Peters correctly submitted that issues of standing in judicial reviews have moderated to the point where it is now very difficult to challenge the standing of an applicant for judicial review. This point was made in the following way in O'Neill vOtago Area Health Board by Tipping J, when he said:2118 At [22].19 BDM Grange Ltd v Parker [2006] 1 NZLR 353 (HC).20 At [66].21 O'Neill v Otago Area Health Board HC Dunedin CP50/91, 10 April 1992 at 3-4.I respectfully agree with the liberalising trend. It is appropriate in a modern parliamentary democracy under the rule of law. Citizens with honest concerns about the legality of activities reasonably in the public arena ... should not lightly be shut out from having their concerns considered by the Courts. In my judgment the correct approach to standing in such cases can be put as follows. Any person who shows an honest interest in a public issue may invoke the processes of the Court to have the substantive matter of concern considered. It will usually be necessary to examine the substantive issue or issues before a decision on standing can be made. If the Plaintiff fails on the substantive issues the question of standing will be academic. If the Plaintiff would otherwise succeed it will be an unusual case in which either as a matter of standing or as a matter of discretion the Plaintiff will fail. It is my view that the only circumstance in which a Plaintiff should be shut out in limine for want of standing is where the Defendant can show that the Plaintiff lacks good faith or that the complaint is clearly frivolous, vexatious or otherwise untenable.[38] Similarly, in Murray v Whakatane District Council,22 Elias J said:23In general, questions of standing will normally require examination of the substantive issue to establish the legal and factual context. This flexible approach promotes the application of law in the performance of public functions. Any person able to point to a breach of the law by a public authority has access to the courts to raise the concern.[39] On the basis of these authorities, I would have found it extremely difficult tohave struck out Mr Egan's proceeding if standing was the only basis upon which the strike-out application was based.Conclusion[40] Mr Egan's application for judicial review is clearly untenable.[41] The proceeding is struck out.[42] The Commissioner is entitled to costs on a scale 2B basis.22 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC).23 At 307.____________________D B Collins JSolicitors:Wayne Peters Lawyers, Whangarei for PlaintiffCrown Law Office, Wellington for Defendant