H v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 3137 [30 November 2018]

H v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 3137[30 November 2018]ORDER PROHIBITING PUBLICATION OF NAMES OF THE APPLICANT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-214[2018] NZHC 3137BETWEEN HApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIAL DEVELOPMENTRespondentHearing: 28 November 2018Counsel: S J Fraser for the ApplicantB M McKenna and L M Jackson for the RespondentJudgment: 30 November 2018JUDGMENT OF CHURCHMAN JTable of ContentsIntroduction ......................................................................................................... [1]Factual background ............................................................................................ [9]The applicant [9]The RCU [13]The BRC hearings [24]The judicial review causes of action ................................................................ [31]Freedom of expression [37]Peaceful assembly [51]Remedies ............................................................................................................ [74]Declaration [76]Mandamus/mandatory injunction [100]Damages [107]Costs [127]Introduction[1] The nature and limits of the rights of freedom of expression and peacefulassembly in a democratic society have been debated since as long ago as the year399 BC when Socrates was tried by 500 his fellow Athenians for corrupting youthwith his teachings.[2] In his defence, Socrates did not assert that the rights involved were individualrights which triumphed over his obligations as a citizen but the essence of his case wasthat he had entitlement to speak his mind and his students had a right to peacefullyassemble to listen to him.1[3] Some 2000 years later, the rights we now know as freedom of expression andfreedom of association were articulated by James Madison in the year 1791, in theFirst Amendment to the Constitution of the United States of America. The text of thefirst amendment reads:Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof; or abridging the freedom of speech, or ofthe press; or the right of the people peaceably to assemble, and to petition theGovernment for a redress of grievances.[4] In New Zealand, these rights were incorporated into the New Zealand Bill ofRights Act 1990 (NZBORA). Section 14 of that Act says:Freedom of expressionEveryone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.[5] Section 16 of NZBORA says:Freedom of peaceful assemblyEveryone has the right to freedom of peaceful assembly.[6] The principal issues for determination in the present application for judicialreview are whether the applicant's NZBORA rights to freedom of expression and1 See Socrates and the Athenians: The Gapfly and the Freedoms of Speech and AssociationP A Keane Keynote Address to the Hellenic Australian Lawyers' Association, South AustralianChapter, 2018 John William Perry AO QC Oration, Adelaide Pavilion, 24 August 2018.peaceful assembly have been breached. The pleadings also assert a breach of the rightto natural justice set out in s 27 of NZBORA.[7] However, in light of the High Court's recent judgment in Chief Executive ofthe Ministry of Social Development v L,2 the respondent has conceded that theapplicant's right to natural justice has been breached and, accordingly, it is notnecessary for this Court to address that issue further.[8] A further issue in this case is the availability of the remedies sought by theapplicant and whether the Court should exercise its discretion to grant some or all ofthe remedies.Factual backgroundThe applicant[9] The applicant is, and has for some years, been in receipt of a benefit. He hasat times made claims for various supplemental benefits. This has bought him intocontact with the staff of Work and Income New Zealand (WINZ).[10] The manner in which the applicant interacted with WINZ staff caused concernfor the respondent. Those concerns are articulated in an internal email dated14 October 2014. The concerns listed included:(a) the applicant challenged virtually every decision;(b) the applicant had recently been contacting WINZ wanting to speak tothe person in overall authority;(c) that during his contacts the applicant taunted whoever was on the phoneand then raised complaints about matters such as service anddemeanour;2 Chief Executive of the Ministry of Social Development v L [2018] NZHC 2528.(d) the applicant was someone skilled in the use of technology and this fact,coupled with the applicant's 184 convictions for fraud, raised a concernthat he was attempting to infiltrate WINZ's systems;(e) that staff had found the applicant's calls "unusual, threatening andmenacing", and that he recorded all conversations;(f) the applicant appeared to have a strategy to confuse and annoy people;(g) the applicant followed up conversations with comments posted to ablog he maintained with comments being critical of the integrity andperformance of senior public servants; and(h) that on a good day the applicant he could upset and confuse five or morestaff at various levels within MSD.[11] The conclusion in the email was:Going forward, it is my recommendation that all of the parties known to beengaging with [the applicant] should be called together to understand and tocontain his activities which ultimately are highly likely to result in fraud. Ialso recommend that he be managed hence forth by the Remote Client Unit.[12] There was some support for some of the concerns listed in the email of14 October 2014 in the applicant's own description of himself. In his affidavit dated13 September 2018, the applicant described himself as being: " a specialist in IT butam unable to find employment at the moment due to my criminal convictions."The RCU[13] As a consequence of the internal email of 14 October 2014, the applicant wastransferred to be a client of the RCU as of 15 October 2014. The RCU had beenestablished in 2004 by the respondent to provide services to clients who, due tounacceptable behaviour or exceptional reasons, could no longer access servicesthrough their local WINZ service centre.[14] The Court in the case of Chief Executive of the Ministry of Social Developmentv L3 noted that at any given time some 80 beneficiaries (out of a total of approximately1.1 million) were required to interact with the respondent by means of the RCU.[15] The affidavit filed by Jennifer Mary Allan, on behalf of the respondent, dated18 October 2018, confirmed that the applicant ceased to be a RCU client as of22 January 2018. She said that this meant that the applicant was able to return toaccessing WINZ services and assistance through normal channels but would bemanaged as a "low trust client" by a senior case manager on site.[16] At the relevant times, the respondent had a policy in relation to the RCU that:Staff members who work within the Unit must use pseudonyms in order toprotect their identity and safety.[17] Clients assigned to the RCU could make contact via telephone, fax, email orpost.[18] The respondent had also established a body called the Benefits ReviewCommittee (BRC). The BRC was a statutory decision-maker established unders 10A(2) of the Social Security Act 1964 (SSA) to review Ministry decisions orrecommendations in relation to benefits.[19] A BRC was comprised of two Ministry staff members and one person outsidethe Ministry who represented the interests of the community. Section 10A(7) of theAct provided that a BRC could not include any person who was involved in thedecision under review.[20] The BRC was empowered to confirm, vary, or revoke the impugned decision.[21] In exercising its powers, a BRC was effectively acting in the Chief Executive'sstead.43 Above n 2.4 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008]1 NZLR 13 at [19].[22] Section 10A(9) of the Act required a BRC to provide its decision in writing,together with reasons for that decision. An applicant unsatisfied with the decision hada right of appeal, by way of rehearing to the Social Security Appeal Authority (SSAA,or the Authority).5[23] Clients in the RCU were entitled to use the BRC and, between May 2016 andOctober 2015, the applicant appealed some six decisions to the BRC.The BRC hearings[24] As the manner in which these appeals were heard and the outcome of thedecisions are relevant, I will set out the details of each appeal:(a) On 29 May 2015, the BRC heard Review of Decision (ROD) 195844.The appeal related to the Ministry's decision of 23 February 2015 toapprove an advance benefit payment to the applicant of $1,000 for rentand bond instead of the $1,500 requested.Pseudonyms were used by the two Ministry staff on the BRC but notthe community representative.The hearing proceeded on the papers with the applicant's advocatefiling a written submission on his behalf. There were no appearancesat the hearing but the BRC had spent over 40 minutes trying tounsuccessfully contact the applicant's advocate.The Ministry's decision to pay the applicant $1,000 for rent and bondwas upheld but the BRC recommended that the Ministry pay theapplicant a $500 advance payment of benefit for overdue rent. Thiswas promptly paid.5 Sections 12J(1), 12M(1) Social Security Act 1994.(b) On 12 June 2015, the BRC heard ROD 195941. This related to adecision to pay a special benefit at a rate of $82.50 per week instead ofthe rate of $125 per week sought by the applicant.Pseudonyms were used for all BRC panel members.The hearing was on the papers. The Ministry's decision was upheld.The applicant appealed the BRC's decision to the Authority.In a decision of 18 December 2015, the Authority criticised the BRC'suse of pseudonyms in relation to ROD 195941 and referred the matterback to the BRC.(c) ROD 195941 was reheard by the BRC on 4 March 2016.Pseudonyms were used by the Ministry staff on the BRC but not thecommunity representative. The panel members' real names weresubsequently disclosed to the applicant.The hearing was conducted by teleconference with the applicant havingbeen given the option of attending via teleconference or having hisadvocate do.The BRC upheld the Ministry's decision.The applicant appealed the BRC decision to the Authority.(d) The Authority required the Chief Executive of the Ministry to providean explanation for the conduct of the further hearing and the use ofpseudonyms.The Ministry responded by explaining that the use of pseudonyms hadbeen an error and apologised unreservedly. As well as the names of theBRC members subsequently being released to the applicant, statementsfrom the Ministry staff involved confirming they had not been involvedin the decisions being reviewed were also provided.On 18 July 2016, the Authority issued a decision saying that itconsidered the explanation offered by the Ministry regardingpseudonyms to be highly unsatisfactory. However, the Authority chosenot to refer the matter back to the BRC, considered the merits of thedecision and upheld the Ministry's decision.(e) On 16 October 2015, the BRC heard ROD 204289. This related to adecision to decline an advance benefit payment of $887 for car tyresand wheel alignment.Pseudonyms were used for all panel members (this decision pre-datedthe July 2016 Authority decision in relation to the appeal ofROD 195941).The applicant and his advocate appeared by teleconference.The BRC overturned the Ministry's decision of 16 September 2015.The Ministry paid the applicant $783, being the actual cost of car tyresand wheel alignment on 2 November 2015.(f) On 11 December 2015, the BRC heard ROD 205240. This related tothe declining of an application for advance payment of a benefit tocover vehicle registration costs.No pseudonyms were used.The applicant and his advocate both appeared via teleconference.The BRC overturned the Ministry's decision.(g) On 4 February 2016, the BRC heard ROD 209913. The appeal relatedto a decision to decline to include travel costs in his disability allowancerelating to the applicant's attendance at his support group.No pseudonyms were used.The applicant and his advocate appeared by teleconference.The BRC upheld the Ministry's decision.The applicant appealed to the Authority, and the Authority dismissedthe appeal.(h) ROD 205208 was lodged by the applicant on 8 October 2015. As theMinistry changed its decision following internal review, no hearing bythe BRC was necessary.[25] By way of summary, of the six appeals that were heard by the BRC (inclusiveof the rehearing of ROD 195941), four were completed on the basis that some or allof the members of the BRC used pseudonyms. Two of those four hearings proceededon the papers and the other two proceeded with the applicant either having the optionof participating in the teleconference or the applicant and his advocate actuallyparticipating in the teleconference.[26] In two of these hearings before the BRC, the applicant achieved what hewanted and those matters went no further.[27] Two of these four matters were referred to the SSAA. The SSAA referredROD 195941 back to the BRC where it was reheard with the applicant appealing thedecision on the rehearing. The SSC conducted a merits-based appeal and dismissedthe appeal.[28] Of the two BRC hearings where there was no use of pseudonyms, in each case,the applicant and his advocate participated in the hearing by way of teleconference.[29] In the first one, the applicant was successful and the matter did not proceedfurther. In the second one, the applicant appealed and had a merits-based appeal beforethe SSAA, which was dismissed.[30] In all instances, the applicant either achieved an outcome that he was satisfiedwith (in terms of payment of the additional benefits he sought) or, in respect of the twomatters where he was unsatisfied with the BRC's decision (ROD 195941 andROD 209913), had the benefit of a full merits-based appeal before the SSAA whichupheld the substantive BRC decision in each case.The judicial review causes of action[31] The applicant has pleaded three separate causes of action. They are:(a) a breach of natural justice – s 27(1) NZBORA;(b) a breach of freedom of expression – s 14 NZBORA; and(c) a breach of freedom of assembly – s 16 NZBORA.[32] The first two causes of action relate specifically to the failure of the BRC todisclose the real names of the members. The third cause of action challenges themanner in which the BRC conducted its hearings, in particular its failure to permit oralhearings which the applicant was able to attend in person.[33] The statement of claim pleads a novel version of the right of freedom ofassembly: "The plaintiff was entitled to assemble peacefully before the BRC to presenthis case."[34] The applicant's claim that the principles of natural justice (and therefore s 27NZBORA) were breached by the use of pseudonyms, on four occasions by BRCcommittees, is not in dispute.[35] The respondent has specifically accepted that in light of the High Court's recentjudgment in Chief Executive of the Ministry of Social Development v L,6 that theapplicant's right to natural justice was breached by the use of pseudonyms by membersof the BRC. The real matter in issue relates to the relief that the Court should grant inrespect of the admitted breach. The Court is also required to consider the claims ofbreaches of ss 14 and 16 NZBORA which were not matters covered by the decision inChief Executive of the Ministry of Social Development v L.[36] I will address the arguments relating to breaches of the s 14 NZBORA right offreedom of expression and s 16 NZBORA freedom of peaceful assembly beforeconsidering questions relating to relief.Freedom of expression[37] The applicant relied on the right of freedom of expression set out in s 14NZBORA as including the freedom to seek and receive information and opinions ofany kind in any form. It was submitted that the applicant was entitled to seek andreceive information about the identities of the members of the BRC.[38] The written submissions filed in respect of this matter also referred to theplacement of the applicant in the RCU.[39] The affidavit of the applicant dated 13 September 2018 also addressed thequestion of the applicant's placement in the RCU with him stating that it was"humiliating and frustrating" and made him "miserable" and "feel excluded". Theapplicant in his affidavit went so far as to suggest that the RCU was "illegal".[40] As Mr Fraser, on behalf of the applicant, was obliged to concede, the Court, inthis case, has not been asked to review the decision to place respondent in the RCU,or the operation of that unit. Therefore, whatever the applicant's views as to thejustification for him being placed in the unit, or whether the respondent was entitledto have such a unit, they are irrelevant to any issue before the Court.6 Above n 2.[41] The only case referred to by Mr Fraser in support of his claim that the use ofpseudonyms by the BRC breached the applicant's right of freedom of expression isthe decision of the High Court in Stemson v Police.7 However, this case is of noassistance in establishing the proposition that the use of pseudonyms will infringe theright of freedom of expression.[42] The case was a criminal appeal of a conviction for disorderly behaviour unders 4(1)(a) of the Summary Offences Act 1981. Mr Stemson was convicted for hisconduct in a WINZ office following an erroneous refusal to provide him an applicationform. Baragwanath J overturned the conviction after considering fresh evidence thatMr Stemson was entitled to receive the form which had not been provided to him. Thespecific s 14 right identified by the Court as being held by Mr Stemson was:8 under s 14 of the New Zealand Bill of Rights Act 1990, to express to WINZboth his call for the Grant and for the application leading to it and hisdispleasure at WINZ's failure to deliver them.[43] The Court went on to state that s 14 embraced the common law right of lawfulprocess. That finding was significant in the context of a conviction for behaving in adisorderly manner at the WINZ office.[44] Mr Fraser submitted that the decision in Stemson v Police was authority for theproposition that it is the duty of WINZ to facilitate, not impede, applications for abenefit. However, Stemson v Police was simply the application of the principledeveloped in cases like Hall v Director-General of Social Welfare9 and Chief ExecutiveDepartment of Work and Income v Scoble10 that the Ministry was obliged to be"proactive in seeing to welfare, and not defensive or bureaucratic".11 The obligationon the respondent to facilitate applications for a benefit had been recognised wellbefore Stemson v Police.[45] The Court's comments in Stemson v Police were made in the context of theparticular facts of the case including the failure by WINZ staff to provide Mr Stemson7 Stemson v Police [2002] NZAR 278.8 At [42].9 Hall v Director-General of Social Welfare [1997] NZFLR 902 (HC).10 Chief Executive Department of Work and Income v Scoble [2001] NZAR 1011 (HC).11 Above n 9 at 912.with the form he needed and his behaviour in response to that, which had resulted inthe disorderly behaviour conviction. The Court said:12No one has the right, without permission, to enter a private office; still less toraise one's voice, make demands, and disturb the office staff and those havingbusiness with them. But as the charge recognises, a WINZ office is not aprivate but a public place. That is where New Zealanders with a legitimateclaim to a benefit have the legal right to enter and to receive the help they needto apply for their entitlement. The duty of WINZ is to facilitate, not to impede,that course.[46] The respondent in the present case noted the dearth of New Zealand authorityon the scope of the right to seek and receive information contained in s 14 NZBORA.The fact that there is no relevant New Zealand authority does not mean that the Court,in an appropriate case, should not attempt to clarify the scope of the rights articulatedin s 14.[47] The issue is whether this is an appropriate case.[48] Mr Fraser referred the Court to a decision of the European Court of HumanRights which he submitted provided some guidance in relation to the right to seek andreceive information.13 That case involved the interpretation of Article 10 of theConvention for the Protection of Human Rights and Fundamental Freedoms. Therelevant part of Article 10 expresses a right in this way:Everyone has the right to freedom of expression. This right shall includefreedom to hold opinions and to receive and impart information and ideaswithout interference by public authority and regardless of frontiers.[49] In that case, the applicant (a non-governmental human rights organisation), hadsought information about the identity of public defenders in Hungary and the numberof appointments given to such defence counsel in specific locations. The respondentclaimed that the information sought was not public interest data (and thereforedisclosable) and claimed that because defence counsel were not members of a bodyperforming State, municipal or public duties, their names constituted private datawhich was not disclosable. The European Court of Human Rights held that, because12 At [66].13 Magyar Helsinki Bizottsag v Hungary Application No. 18030/11, European Court of HumanRights, Strasbourg, 8 November 2016.the data was readily available and fell within the definition of public interest data,Article 10 had been breached. Given the difference in facts and its focus on thedistinction between public and private data, it is not compelling authority for theproposition Mr Fraser relies on it for.[50] However, it is not necessary for the Court to expand the scope of the conceptof freedom of expression in this way in order to vindicate the applicant's rights. Thatis because the use of pseudonyms by the BRC has already been held by the High Courtto be a breach of s 27 NZBORA. Finding that s 14 NZBORA was also breached wouldadd nothing beyond the breach of s 27 already admitted. Any decision on theexpansion of the scope of the traditional boundaries of s 14 is best left to a case whereit is essential to resolution of the issues before the Court.Peaceful assembly[51] In his written submissions, the applicant correctly noted that the freedom ofpeaceful assembly affirmed by s 16 NZBORA is not limited to gatherings for thepurpose of protest.14 He claims that, in this case:It is the right of individuals to gather for a common purpose or pursue commongoals – in this case to determine eligibility to a benefit under the SocialSecurity Act 1964.[52] As was the case in relation to the claimed right of freedom of expression, thesubmissions of the applicant go beyond the process adopted by the BRC and extendto the applicant's concern about his placement in the RCU. The written submissionssay that the applicant's: right to peacefully assemble was for the common purpose of determininghis eligibility to a benefit. It was breached when he was placed in the RCU,and more specifically, when he was denied to (sic) right to participate in hishearings on 29 May 2015 and 12 June 2015.[53] The limitation in the written submissions to the two particular dates is anarrowing of the claim as pleaded in the amended statement of claim which did notidentify the particular BRC hearings relied on and implied that it was all six hearings.14 Morse v Police [2011] NZSC 45 at [110].[54] The matter was further complicated during the course of oral argument whenMr Fraser conceded that the BRC was entitled to hold hearings on the papers and hiscomplaint was in relation to the hearings which proceeded by way of teleconference.He submitted that, instead of a hearing by teleconference, the applicant's right ofpeaceful assembly entitled him to be present in person at such a hearing.[55] Mr Fraser's concession that the BRC was entitled to hold a hearing on thepapers is inconsistent with his written submissions. In relation to the two identifiedhearings (29 May 2015 and 12 June 2015), the written submission stated:The purpose of these Committee hearings was to make decisions about [theapplicant's] eligibility to benefits under the Social Security Act. [Theapplicant] was not permitted to attend, even by teleconference. This breachedhis right to peacefully assemble.[56] To the extent that sense can be made of the applicant's conflicting submissionson this point, it seems that the applicant is contending that the freedom of assemblyset out in s 16 entitles him to a particular type of hearing. That is a novel proposition.It does well beyond and substantive content of s 16 NZBORA previously recognisedby any New Zealand court. The authors of the New Zealand Bill of Rights Act:A Commentary state:15The freedoms of association and peaceful assembly generally do not imposepositive duties on the State. Rather, the guarantees impose negativeconstraints on the State's ability to interfere with the freedom of the individualto associate and assemble with other individuals which the State has not tobreach (freedom from State interference). (citation omitted)[57] The BRC is created by statute.16 The heading of s 10A is "Review of decisionsof Chief Executive made under delegation by other decision-makers." A BRC istherefore only concerned with decisions where the decision-making power has beendelegated by the Chief Executive to someone else. Beyond requiring that a personseeking a review must apply in writing within three months after receiving notificationof the relevant decision, s 10A leaves the procedure to be followed by the BRC up tothem. It permits a majority decision.17 It provides that no officer of the Department15 New Zealand Bill of Rights Act: A Commentary, 2nd ed, Andrew Butler and Petra Butler,LexisNexis, Wellington 2015 at 15.5.3.16 Section 10A Social Security Act 1964.17 Section 10A(6).shall act as a member of the BRC if that officer was involved and the decision beingreviewed.18 There is a requirement that the BRC give written notification of itsdecision including decisions and advice as to the right of appeal to the SSAA.19[58] The two BRC hearings identified in the written submissions of Mr Fraser –29 May 2015 (ROD 195844) and 12 June 2015 (ROD 195941) were dealt with on thepapers. The applicant's advocate had filed submissions, as had the respondent, andthe decisions both record that no formal hearing was held.[59] It was not submitted that the applicant had made a request for a different typeof hearing in relation to either case. Neither was it submitted that there was anyparticular characteristic of the matters in issue that meant that a papers hearing wasinappropriate. No injustice can be pointed to as a result of the matter having proceededon the papers.[60] The BRC is a low-level tribunal, essentially making administrative decisionson statutory entitlements. There is nothing in the purpose of the SSA, nor s 10A itself,that would indicate Parliament intended that any particular degree of formality ofhearing was required.[61] Mr Fraser referred to the fact that in relation to the 29 May 2015 hearing, theevidence was that the BRC had attempted to contact the applicant's advocate over aperiod of some 40 minutes. He submitted that an inference could be drawn that theysaw it was necessary to have oral input from the applicant's advocate.[62] The relevant passage in the decision records:No appearances were made at the hearing.The Committee would like to note that they attempted to contact BenefitRights Service over a period of 40 minutes but were unsuccessful.[63] The decision then goes on to clearly set out the arguments advanced on behalfof the applicant, and those for the respondent. There is no indication in the decision18 Section 10A(7).19 Section 10A(9).why the BRC attempted to contact the applicant's advocate. Neither is there anyindication that they did not understand the written submissions provided to them, orthat they believed that they needed to hear from the applicant's advocate in person.There was no injustice or prejudice to the applicant in the process that followed. Theoutcome was one that the applicant was satisfied with and did not appeal.[64] It is not tenable to maintain that a hearing of a BRC involves an assembly ofthe type referred to by s 16 NZBORA and can realistically be described as a gathering"for a common purpose" or to "pursue common goals". The submissions of theapplicant in claiming this status for a hearing conducted by a low level administrativebody go well beyond the types of assembly which have traditionally been identifiedas falling within the ambit of s 16.[65] Those cases where the right of peaceful assembly or freedom of associationhave been discussed, have tended to focus on the importance of those rights as part ofthe democratic process.20[66] The authors of the New Zealand Bill of Rights Act: A Commentary state:21Freedom of peaceful assembly and freedom of association are importantbuilding blocks of a free and democratic State. These rights ensure thatcitizens can participate in the shaping of public opinion. In democracies basedon representation by a Parliament, rather than by referenda, the opportunity ofcitizens to voice their opinions collectively and form associations to supporteach other in their views (not only in political parties) and organise assembliesis important for the democratic process.[67] They go on to note that as well as assembling for overtly political purposes, itis important for democracies that other forms of group assemblies are also permitted:22 like parties, coffee mornings or parades, since this part of community lifeis the first stepping stone for connecting with other members of thecommunity, forming opinions and taking part in the day-to-day running of aState.20 See the Supreme Court decision in Awatere-Huata v Prebble [2005] 1 NZLR 289 at [28], Elias CJand [79] (Keith J). See also the decision of the Supreme Court of Canada in Re Public ServiceEmployee Relations Act (Alta) [1987] 1 SCR 313 at 334 per Dickson CJ.21 Above n 15 at 15.5.1.22 Above n 15 at 15.5.1.[68] A hearing before an administrative body set up by statute does not have thequality of the type of assembly for a common purpose or pursuit of a common goalthat has characterised those cases where the right has been identified.[69] They lack the "public opinion making" or aspect of participation in communitylife that has been identified as a feature of such assemblies.23 The attempt to invokes 16 NZBORA in this case is therefore misconceived.[70] Even if the BRC had been a judicial body, the applicant would not have had alegal right to an oral hearing whether pursuant to NZBORA or any other principle oflaw.24[71] In certain circumstances, requirements of fairness may oblige judicial bodiesto hold an oral hearing.25[72] The Courts have distinguished public decision-makers from courts of law.26[73] The sorts of factors which the Courts have held might require a judicial bodyto hold a hearing where the parties appear in person would be where considerations ofcredibility, personal characteristics or resolution of two conflicting versions of eventsare present.27 None of these factors exist in the present case.Remedies[74] Having not found any breach of ss 14 and 16 NZBORA, it is now necessary todetermine what remedy should flow from the acknowledged breach of s 27. I willaddress this in two parts.[75] Firstly, the application sought public law remedies such as declaration, an orderin the nature of mandamus, and a mandatory injunction requiring for each previous23 Above n 21.24 R v Parole Board, ex parte West [2005] UK HL 1, [2005] 1 WLR 350 at [50].25 P Joseph: Constitutional and Administrative Law in New Zealand I(4th ed, Brookers Ltd,Wellington 2014 at 25.4.4).26 See Evans v Bradford [1982] 1 NZLR 638 and White v New Zealand Stock Exchange (No 2) [2002]NZAR 342.27 Fraser v State Services Commission [1984] 1 NZLR 116 at 126.sittings of the BRC that names of members sitting be disclosed to the applicant.Secondly, the claim sought public law damages for breach of NZBORA.Declaration[76] The applicant seeks a declaration that the use of pseudonyms by members ofthe BRC breached the natural justice rights confirmed by s 27 NZBORA. Where ajudicial review is sought of a decision of the Crown or an officer of the Crown, adeclaration is the usual remedy.28[77] Like the other extraordinary remedies, the grant of a declaration isdiscretionary in proceedings for judicial review,29 and at common law.30[78] There are some well recognised restrictions around when the Court willexercise its discretion to make a declaration. In the case of Department of InternalAffairs v Whitehouse Tavern Trust Board, the Court said:31It is well established that a Court will generally not make a declaration underthe Judicature Amendment Act unless there is a dispute between the parties,the dispute arises from specific facts which are already in existence, thedispute is alive and its determination will be of some practical consequence tothe parties or the public. The requirement that the declaration have utilitymeans that it should be fact-specific, efficacious and capable of practicalapplication. (footnote omitted)[79] Some of the other factors evaluated by the Court when considering whether adeclaration is appropriate include whether the applicant has otherwise achieved thesubstantive result sought, whether it would serve a useful purpose, or whether thepassage of time means that it could not have any practical effect.32[80] Mr Fraser, for the applicant, in response to the arguments raised byMs McKenna for the respondent as to the utility of the declaration sought, referred to28 See M v Home Office [1994] 1 AC 377, [1993] 3 All ER 537 HL.29 Sections 16, 18, 19 Judicial Review Procedure Act 2016.30 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1057 at [1] and [112].31 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZAR 1708 at [80].32 See Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].the possibility that the issue of a declaration might repair unfair damage to theapplicant's reputation.33[81] However, in the present case, no issue of damage to the reputation of theapplicant arises. The policy of BRC members using pseudonyms was not specific tothe applicant but a generic one applied to all similar WINZ clients and, as a result ofthe order that I have made anonymising the applicant's name in these proceedings, no-one will know of his involvement with the BRC.[82] However, even absent these two factors, I do not accept that the mere fact thatthe applicant has been the subject of a broad policy applied by the respondent iscapable of damaging his reputation. The applicant's affidavit did not explain how hebelieved that his reputation had been damaged.[83] The most significant factor in relation to the utility of a declaration is that theHigh Court has recently and unequivocally in the Chief Executive of the Ministry ofSocial Development v L, declared that the respondent's practice of anonymising thenames of BRC members was unlawful and in breach of the respondent's obligationsunder s 27(1) NZBORA.[84] Collins J in that case concluded that express statutory authority was requiredbefore the rights protected by s 27(1) NZBORA could be compromised byanonymisation of the names of BRC members. He concluded that s 10A SSA did notprovide such express statutory authorisation.[85] The arguments as to the prejudicial effect of the anonymisation of BRCmembers' names that were advanced in Chief Executive of the Ministry of SocialDevelopment v L, were the same as those advanced in the present case. The Court inthat case said:34For present purposes, the engagement of the right to natural justice concernsMs L's desire to know the identities of members of the Committee hearing herreview. That is so she can make an informed decision about whether or not tochallenge the appointment of a particular member or members on the basis of33 Relying on O'Regan v Lousich [1995] 2 NZLR 620.34 Above n 2 at [39].actual or perceived bias, because of her long history of interaction withemployees of the Ministry and Committees, or because a Committee membermay be disqualified by reason of their prior involvement with the decision thatis the subject of the review.[86] There does not appear to be any aspect of the application for a declaration inthe present case that is not already covered by the decision in the Chief Executive ofthe Ministry of Social Development v L. On that basis, there is no need for adeclaration.[87] In his written submissions, Mr Fraser addressed the need for the remediessought and effectively acknowledged the declaratory nature of the decision in ChiefExecutive of the Ministry of Social Development v L by saying:A rehearing is not appropriate because the matters have been determined. Adeclaration, although requested, is an inadequate remedy. This is because"declarations" have already been made by the Authority and effectively by theHigh Court already and have been disregarded on an ongoing basis. There isa case that these ongoing breaches of s 27(1) undermine the rule of law.[88] The suggestion that the respondent had disregarded the decision of the HighCourt in Chief Executive of the Ministry of Social Development v L was hotly contestedby the respondent.[89] Ms Allan, in her affidavit, explained that the failure to follow the guidance ofthe SSAA in relation to the first appeal of ROD 195941 was an error for whichresponsibility was accepted and an apology made.[90] Ms McKenna, in her oral submissions, indicated that, following a number ofdecisions which were equivocal on the practice of the use of pseudonyms by membersof the BRC, the first case where the SSAA unequivocally indicated that this practicewas not appropriate was the SSAA's decision in the case of L that was overturned byCollins J.[91] Ms Allan's supplementary affidavit of 26 November 2018 addressed whatactions the respondent had taken to implement the decision of the High Court in L.She deposed that following the High Court judgment, the respondent immediatelyceased the practice of BRC members using pseudonyms. She also provided details ofa new Remote Services Unit established by the respondent to provide services toclients who present a health and safety risk to staff.[92] I am satisfied that Mr Fraser's submissions to the effect that the respondent hasignored or failed to implement the decision in L are unjustified.[93] The fact that the respondent has not immediately issued new policies but hassought to consult with staff before finalising them is not an indication of any lack ofacceptance of the guidance given by the Court or lack of good faith on the part of therespondent.[94] As Collins J set out in L's case35The respondent has obligations under the Health and Safety at Work Act 2015to provide and maintain safe systems of work for its employees and theseobligations require the respondent to eliminate or minimise risks to both thephysical and mental health of its staff.[95] At [29], Collins J refers to the incident on 1 September 2014 when a Mr Tullyentered the respondent's premises in Ashburton and shot at four of its employees,killing two of them. This led to a prosecution of the respondent for breaching itsobligations under the Health and Safety Employment Act 1992.36[96] It is therefore hardly surprising that, in circumstances where there are realpotential consequences for the wellbeing and even the life of WINZ staff members asa result of the aggressive and violent behaviour of a small number of its clients, thatthe respondent would wish to consult with its staff members in relation to changes topolicies designed to safeguard their wellbeing.[97] Mr Fraser submits that the relief sought, including a declaration, is," required to vindicate (the applicant) and to deter this from happening again."[98] No element of "vindication" would appear to arise on a making of adeclaration. The applicant was not subject to an adverse finding as to his character or35 Above n 2 at [27]-[24].36 WorkSafe New Zealand v Ministry of Social Development [2016] NZDC 12806.behaviour, and there is no question that he was somehow responsible for the policy ofthe use of pseudonyms by BRC members.[99] Given the changes set out in the supplementary affidavit of Ms Allan, I amsatisfied that a declaration is not required in order to ensure that the respondentcomplies with its legal obligation.Mandamus/mandatory injunction[100] The applicant seeks:(a) an order in the nature of mandamus that all future decisions include thenames of members; and(b) a mandatory injunction requiring for each previous sitting of the BRCthat the names of members sitting be disclosed to the applicant inrespect of his respective cases.[101] No remedy in the nature of mandamus or mandatory injunction lies against theCrown in judicial review proceedings.[102] Mr Fraser's response to this proposition was to say that the entity named as therespondent in these proceedings was not the Crown but the Chief Executive of theMinistry of Social Development. In reality, the applicant is seeking to enforceobligations against a representative of the Crown.[103] An order in the nature of mandamus is an order that a duty be performed. It is,of course, a discretionary remedy. For an order of mandamus to issue, there must bea distinct request that the duty be performed and that the person on whom the duty toact rests must have unequivocally manifested their refusal to comply.37 As set outabove, that is not the case here.37 Woolf, Jowell and Le Sueur's De Smith's Judicial Review (6th ed, Sweet & Maxwell, London,2007 at 894).[104] Even if an order in the nature of mandamus was available against therespondent, there would be no basis for issuing it given the fact that the respondenthas changed its practice and no longer anonymises the names of the members of theBRC.[105] I also note that the applicant is no longer a client of WINZ required to interactthrough the RCU.[106] For similar reasons, if a mandatory injunction had been available against therespondent, it would not have been issued as the applicant has already received theinformation to which the request for an injunction was directed.Damages[107] The applicant sought damages being:Compensation under the NZBORA in the sum of $15,000 for each and everytime a BRC sat without providing names to the plaintiff in respect of his cases.[108] Mr Fraser, in his submissions, acknowledged the high threshold for the awardof public law damages. He said that the behaviour of the respondent here met the"shocking" standard identified by the Court of Appeal in Attorney-General v Upton.38[109] Mr Fraser also categorised the failure by the respondent to comply with thedirection by the SSAA in the appeal relating to ROD 195941 as going beyond the"bureaucratic bungle" that had been identified in Taunoa v Attorney-General39 andCombined Beneficiaries Union Inc v Auckland City COGS Committee.40[110] A further justification put forward by Mr Fraser for the award of damages was: these breaches have continued and (probably) still take place, despiteconsistent directions from the Authority, and now the High Court as well.38 Attorney-General v Upton [1998] NZCA (CA 305/96) p 62.39 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.40 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009]2 NZLR 56.[111] For the reasons set out above, the submission that the respondent is continuingto use pseudonyms in the decisions of the BRC is unfounded.[112] In support of the claim for damages, Mr Fraser referred to what he said washumiliation and frustration that the applicant had experienced. However, it is clearthat the source of the applicant's humiliation and frustration was being placed in theRCU, not the manner in which the BRC dealt with his appeal. At [7] of his affidavitof 13 September 2018, the applicant said:Being "put" in the RCU is so humiliating and frustrating. It makes memiserable and I feel excluded. The worst part is not being able to properlycommunicate with someone when I need something.[113] The process adopted by the BRC was addressed at [8] of the same affidavitwhere the applicant said that when a decision got to the BRC: more nameless people get to make a decision on my matter. I can't debateit with them, I can't attend the hearings and see them, the whole purpose isunfair and drawn out.[114] The comments about not being able to debate matters with the BRC andattending hearings, are not matters where there has been any breach of s 27 NZBORA,therefore they cannot support an award of damages.[115] Much of the content of the applicant's affidavit of 13 September 2018 hasnothing to do with the use of pseudonyms. It is replete with criticisms of, or insultsdirected toward, staff of the respondent. Several paragraphs are devoted to the actionsof a named staff member who the applicant claims put some documentation relevantto him in a paper shredder. This is wholly unrelated to the use of pseudonyms. Thereis nothing in the affidavit that would indicate that the impact on the applicant's dignityor feelings from the use of pseudonyms by BRC members (as opposed to the manyother grievances the applicant has about the respondent and its staff) was of suchseverity that public law damages are merited.[116] The leading case on damages for breaches of NZBORA is the Supreme Courtdecision in Taunoa v Attorney-General.4141 Above n 39.[117] In that case, the leading judgment is that of Blanchard J. He noted:42 Bill of Rights damages do not fill the same function as common lawdamages or equitable compensation and that they should not be allowed to fillperceived gaps in the coverage of the general law.[118] Blanchard J went on to say:43 making amends to a victim is generally a secondary or subsidiary functionof NZBORA damages and that the more important task is to bring theinfringing conduct to an end and ensure future compliance.[119] The Court said that the award of public law damages is normally more to marksociety's disapproval of official conduct than it is to compensate for hurt to personalfeelings.[120] These principles have been widely applied subsequently.44[121] In order to assess whether the breach of s 27 in the present case could becategorised as "egregious",45 or such as to "shock the public conscience",46 it is helpfulto consider the practical consequences of the use of pseudonyms in this case.[122] In ROD 195844, the use of pseudonyms had no material effect on the applicant.He was effectively successful and did not need to appeal the matter to the SSAA.[123] In relation to ROD 195941, following the hearing before the BRC, theapplicant had the benefit of a full merits-based hearing before the SSAA whichreferred the matter back to the BRC. In relation to the second appeal, the applicantagain had a full merits-based hearing before the SSAA which dismissed the appeal.He was also subsequently provided with the names of the members of the BRC whohad used pseudonyms. Any disadvantage in the use of pseudonyms by the BRC wascovered by the full-merits appeal before the SSAA.42 At [259].43 Above n 39.44 See for example the decision of the Court of Appeal in Combined Beneficiaries Union Inc vAuckland City COGS Committee [2009] 2 NZLR 56 at [59]-[65].45 See Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [81].46 See Combined Beneficiaries Union Inc v Auckland City COGS Committee, above n 41 at [70].[124] In relation to ROD 204289, the applicant was successful before the BRC andwas not disadvantaged in any way by not, at the time, knowing the names of all of themembers of the BRC.[125] There is nothing in the circumstances of the breach of s 27 that could properlybe classified as "egregious". Neither is there anything in the consequences of thebreach for the applicant that could be said to shock the public conscience.[126] Unlike cases such as Attorney-General v Upton,47 it cannot be said that theoutcome of any of the reviews undertaken by the BRC where pseudonyms were used,would have been different if the applicant had known the real names of the Committeemembers. That is because either the applicant obtained a successful outcome from theBRC, or he had the benefit of having his review considered on the merits by the SSAAwhere no question of the use of pseudonyms arose.Costs[127] The applicant sought costs and submitted, "The costs sought are exactly what(the applicant's) legal aid costs will be." This was estimated as being "far less thanschedule costs".[128] The respondent wished to be heard on the question of costs so I will notdetermine the matter now.[129] However, my provisional view is that this is a case where, but for the decisionof the Court in the Chief Executive of the Ministry of Social Development v L, theCourt would have made a declaration that the use of pseudonyms by members of theBRC was a breach of s 27 NZBORA.[130] I suspect that, had the outcome in Chief Executive of the Ministry of SocialDevelopment v L been known prior to the commencement of these proceedings, theymay not have been issued.47 Above n 38.[131] My provisional view is therefore that a costs award of the nature sought by theapplicant would be appropriate.[132] Should the respondent wish to make submissions on costs, then they are to befiled and served within 10 days, with the respondent having 10 days to reply.Churchman JSolicitors:Liberty Chambers, Wellington for the ApplicantCrown Law Office, Wellington for the Respondent