BRADSHAW V MAF HC AK CIV 2002-404-2450

BRADSHAW V MAF HC AK CIV 2002-404-2450 25 May 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2002-404-2450BETWEEN JAMES STEWART BRADSHAW Plaintiff AND THE CHIEF EXECUTIVE OF THE MINISTRY OF AGRICULTURE AND FORESTRY Defendant Hearing: 25 November 2005 Appearances: J C LaHatte for plaintiff P McCarthy for respondent Judgment: 25 May 2006JUDGMENT OF ALLAN JSolicitors: Dominion Law, Lawyers@dominionlaw.co.nz Chris@mcbut.co.nz, Auckland Crown Law Office, PO Box 2858, Wellington Peter.McCarthy@crownlaw.govt.nz[1] Mr Bradshaw is heavily involved in the breeding and raising of budgerigars and similar birds. In 2002 he had at his home in West Auckland an established aviary which contained an extensive flock of budgerigars. He also kept a pet cockatiel which lived indoors. During that year he acquired two rosella parrots. They became sick. He took them to a veterinarian. One rosella died before examination. The other was subsequently destroyed. [2] The birds were subsequently diagnosed by the Ministry of Agriculture and Forestry (MAF), as having a psittacine poxvirus infection. Psittacine poxvirus is designated an unwanted organism under the Biosecurity Act 1993. MAF determined that there may have been contamination of the plaintiff's property, that it was not possible to establish with certainty that the birds on his property were free from psittacine poxvirus, and that, inter alia, all psittacine birds on Mr Bradshaw's premises should be removed by MAF and humanely destroyed. [3] Mr Bradshaw sought judicial review of that decision, claiming that the decision to seize and destroy the birds was unreasonable in administrative law terms. He also claimed that the Permit to Move issued in consequence of that decision was invalid, and that there had been a breach of the New Zealand Bill of Rights Act in that MAF had breached an undertaking not to take any steps to implement its decision for a period of some days over Labour Weekend 2002. [4] The plaintiff's application for judicial review was heard by O'Regan J on 10 December 2002. He delivered his reserved decision on 18 December 2002. He dismissed all of the plaintiff's claims. Mr Bradshaw's cockatiel and all of his budgerigars were subsequently destroyed. [5] The plaintiff now applies pursuant to r 494 of the High Court Rules for an order directing a new trial, upon the ground that material evidence has been discovered since the trial which could not reasonably have been foreseen prior to trial.The law[6] The power of the Court to order a new trial is governed by the provisions of r 494 which (as relevant) reads:494 Power to order new trial(1) A new trial may be ordered only where, in the opinion of the Court, there has been a miscarriage of justice that justifies a new trial. (2) An order under subclause (1) may be made on such terms as the Court thinks fit. (3) Without limiting the circumstances in which the Court may hold that there has been a miscarriage of justice that justifies a new trial, it is hereby declared that the Court may hold that there has been such a miscarriage of justice if— ... (e) Material evidence has been discovered since the trial which could not reasonably have been foreseen or known before the trial; or (4) If it appears to the Court that the miscarriage of justice affects part only of the matter in dispute, the Court may give final judgment as to the part not so affected, and direct a new trial as to the affected part only: Provided that no new trial shall be ordered as to the affected part if the amount of damages awarded in respect thereof can be separately ascertained, and the plaintiff consents to reduce the whole sum awarded to him by that amount. (5) A new trial may be ordered on any question in a proceeding, whatever be the grounds on which a new trial is applied for, without interfering with the decision upon any other question. (6) Where there is more than one defendant, a new trial may be ordered against any one or more of them.[7] The Court must be satisfied that there has been both a miscarriage of justice and that a new trial is thereby justified. In this case the plaintiff relies upon r 494(3)(e) in that he claims material evidence has been discovered since the trial which could not reasonably have been foreseen or known before the trial. [8] Where this ground is relied upon, three conditions must be met:a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; b) The evidence must be such that if given it would probably have an important influence on the result of the case, although it need not be decisive; c) The evidence must be such as is presumably to be believed, or in other words it must be apparently credible, although it need not be incontrovertible.Ladd v Marshall [1954] 3 All ER 745, 748 adopted in Dragicevich v Martinovich [1969] NZLR 306 (CA) and reconfirmed in Bottrill v A[2001] 3 NZLR 622.[9] In Dragicevich, North P said the ultimate determination of an application for a retrial would be a matter for the discretion of the Judge who will be guided by the over-riding consideration of the interests of justice. In that respect he referred to In re The Neath Harbour Smelting and Rolling Works (1885) 2 TLR 94, where Halsbury LC said:It would be disastrous to the administration of justice if it could be supposed that by reason of any technicality the real truth could be shut out. The grounds on which the discretion of the Court to admit fresh evidence might be exercised were so various that it would be impossible to give any precise definition of how, when, and why it would be exercised. Each case must necessarily depend upon its own special circumstances.[10] While justice ought not to be denied to a deserving applicant "... by reason of any technicality..." the Court must be astute to ensure that the rule is not utilised in a fashion which simply affords an unsuccessful party an opportunity to repair his case, so as to seek a different outcome before a different Judge. The public interest requires that there be an end to litigation: Green v Broadcasting Corporation of New Zealand [1988] 2 NZLR 490, 505 per Casey J. That consideration led the Court inRoe v Robert McGregor & Sons Ltd [1968] 2 All ER 636 to observe that the admission of new evidence should only be permitted in very exceptional circumstances.The High Court judgment[11] The judgment of O'Regan J commenced with an extensive review of the factual material which emerged from the affidavits and from brief cross-examination of certain witnesses before him. The Judge noted that the facts were not seriously in dispute. The Judge's factual findings may be summarised as follows: a) On 23 July 2002 the plaintiff took two rosellas to his own veterinarian, Dr Westera, for examination, because they showed obvious signs of illness. The examination took place on 24 July 2002. A number of diagnostic samples were taken. One of the birds died before the examination and the other was subsequently destroyed. The samples were sent to a veterinary pathology laboratory, and after histological examination, a diagnosis of avian pox infection was made. b) On 1 August 2002, Richard Jakob-Hoff, a veterinarian from Auckland Zoo who had been consulted by Dr Westera, reported to MAF Biosecurity Authority, Wellington, on the basis that the laboratory reports indicated psittacine poxvirus. He referred to an article which said there was a possible risk to indigenous parrots from avian poxvirus, and in particular psittacine poxvirus. c) It was common ground that the histological examination of samples established only that the two rosellas had avian poxvirus, but not the particular strain of avian poxvirus. The diagnosis of psittacine poxvirus appeared to have arisen because avian poxviruses tended to be species specific, so that when a bird from the parrot family such as a rosella had an avian poxvirus: "..it is concluded that this is psittacine poxvirus. It is common ground that this is a deduction only, and not a complete diagnosis" d) The samples presented to the laboratory for testing were destroyed, as were the bodies of the two rosellas. This meant it has not beenpossible to undertake any other form of testing which may provide a more reliable diagnosis. Such a diagnosis could be made only from DNA sampling, which in turn required a DNA sample of the psittacine virus. MAF argued that no DNA sample of psittacine virus was available, so in practice the destruction of the samples may not have had any significance, because even if they had been held, no foolproof testing procedure could have been undertaken. That was, however, disputed by Mr Bradshaw. For present purposes, the important point was that there was no clear identification of the avian poxvirus affecting the two rosellas as psittacine poxvirus, but it was not possible to exclude the possibility that the rosellas had psittacine poxvirus. e) The Ministry commissioned a report from a Mr Brett Gartrell, a lecturer in avian health at the Institute of Veterinary Animal and Biomedical Sciences, Massey University, Palmerston North, on psittacine poxvirus. That report highlighted the potential risks to New Zealand parrots and other bird life. f) Later in August, MAF commissioned a report from another expert, Mr Neil Christensen, who noted that there was no conclusive evidence that the poxvirus was psittacine poxvirus, but that it was likely to be some type of psittacine poxvirus because parrots would be the natural host of that virus. g) On 30 August 2002, Mr Gartrell produced a further report for MAF, in which he suggested that Mr Bradshaw's budgerigars should be destroyed, his aviaries disinfected and that a Restricted Place Notice, already in place, should continue for a further period to ensure elimination of the disease, and further that no psittacine bird should be kept there for two years after the incident. h) But at that stage MAF officials did not believe it was necessary to kill the budgerigars. That view was held in part because Mr Bradshawhad told MAF he had obtained the rosellas through Trade and Exchange, the inference being they were captured, wild rosellas. There was a body of opinion within MAF that it was a reasonable inference that the disease was probably present in rosellas in the wild, and did not arise from an infection present in a flock of captive birds. i) On 17 September 2002 Mr Bradshaw admitted that he had not been truthful about the source of the rosellas. He conceded that they had been obtained from a Mr Baney whose property had been the source of a number of rosellas which had either died or been destroyed by MAF in mid-2002. Numerous birds from Mr Baney's property were unaccounted for. j) In cross-examination, Dr King, a MAF investigator, said that the discovery that Mr Baney had been the source of the plaintiff's sick rosellas was an over-riding factor in changing his mind as to the steps MAF needed to take. While there was little MAF could do about sick rosellas if the disease was present in the wild, it was his view that MAF could and should do something about containment and eradication of the disease if the plaintiff's dead birds had been sourced from Mr Baney's admittedly diseased captive flock. k) Dr King advocated the destruction of the plaintiff's flock, given the potentially devastating effect of psittacine poxvirus on native and introduced birds. That advice was accepted within MAF, which issued a decision to that effect on 23 October 2002. l) On Sunday 27 October 2002, an MAF enforcement team visited the plaintiff's property and seized all psittacines under a Permit to Move, issued under ss 125 and 130 of the Biosecurity Act. They removed all of Mr Bradshaw's budgerigars as well as the pet cockatiel kept in his house.m) All the birds removed from Mr Bradshaw's property were taken to a quarantine station at Auckland Airport. During the period of six weeks or so between their removal and the date of the hearing, some birds had died and others had been born, but there had been no sign of any outbreak of psittacine poxvirus in the birds held at the quarantine station. [12] After reviewing the law as to Wednesbury unreasonableness, O'Regan J expressed his conclusions in the following terms:[46] ....on the evidence before me, I am unable to find that no reasonable MAF officer would conclude that, in the light of those factors, there is no risk of latent infection in Mr Bradshaw's birds. [47] The MAF decision involves a number of matters of fine judgment. In my view, the MAF decision is one a reasonable officer occupying the position of the decision maker could come to, given the factual matrix and the scientific advice received. While the decision involves extreme caution, it is not perverse, absurd or outrageous in its defiance of logic, to use the words of Richardson P in Wellington City.[48] The fact the ultimate decision represented a change of heart on the part of MAF does not, of itself, render the decision unreasonable. Rather, it reflects the fact that MAF officials kept an open mind about the danger and followed a progressive decision making process as more information became available and more input was obtained from MAF's advisers and from DOC. [49] In conclusion, I find that the decision was not unreasonable in theWednesbury sense.[13] The Judge accordingly declined Mr Bradshaw's claim for a declaration that the budgerigars and the cockatiel need not be destroyed. [14] The judgment dealt also with two supplementary matters. The first was the validity of the Permit to Move, which was challenged on technical grounds. The second was the legal effect of an undertaking said to have been given on behalf of MAF not to take any steps over Labour Weekend. Each of those issues was determined by the Judge in MAF's favour. They are not relevant to the present application and accordingly, it is unnecessary to say anything more about them.The case for the plaintiff[15] Mr Bradshaw did not appeal from the judgment of O'Regan J. He says he had no alternative but to accept the statements in the defendant's affidavits, and in the statement of defence, to the effect that samples were no longer available, and it was therefore not possible to engage in further testing which might have enabled a more confident diagnosis to be made. He accepted that, given the uncertainty as to the identity of the pathogen which had affected the rosellas, the Judge's conclusion as to the reasonableness of MAF's actions was understandable. But now it has emerged that, at the time of the hearing, not all samples had been destroyed. With expert assistance the plaintiff may have been able to demonstrate the true identity of the pathogen at the hearing. If that pathogen could be shown not to constitute a threat to biosecurity, then the Court would have been in a position to grant the declaration sought by the plaintiff. The loss of that opportunity constitutes a miscarriage of justice. That is the plaintiff's argument. [16] Mr Bradshaw accepts that a declaration that the birds ought not to be destroyed is now of no use to him. His focus in the proceeding has altered. He now wishes to obtain a ruling from the Court as to the propriety of the actions and/or omissions of MAF in discharging their obligations under the Biosecurity Act. He says he will seek declaratory relief in respect of MAF's conduct. He will also seek damages for the loss of an opportunity to obtain an order restraining destruction of his flock. [17] Finally, he will seek damages under the New Zealand Bill of Rights Act 1990 in reliance on such cases as Baigent's Case [1994] 3 NZLR 667; Martin v Tauranga District Court [1995] 2 NZLR 419; and Attorney General v Udompun [2005] 3 NZLR 204. [18] While he accepts that delay is a factor in the application of r 494, he says that the delay in this case, while significant, has been satisfactorily explained. Moreover, he says the purpose of providing time limits in r 495 (see below) is to prevent the loss of evidence and the inability of witnesses to recall events. Here there is no suchproblem, because the case has been "thoroughly documented" in both affidavit and documentary form.The defendant's submissions[19] The defendant accepts that, since the hearing before O'Regan J, the plaintiff has obtained access to slides and histology blocks. There is a dispute as to whether Mr Bradshaw knew, or should have known, of their existence at the time of the hearing. Assuming that issue is resolved in favour of the plaintiff, the Crown says that Mr Bradshaw has not produced any new evidence arising from a further examination of that material. Some DNA research has more recently been undertaken on an experimental basis. The results were consistent with the diagnosis of psittacine poxvirus in this case, but were not conclusive. Otherwise, no new evidence relating to the psittacine poxvirus diagnosis has emerged. [20] The indication in Mr Bradshaw's affidavits (of his desire to call additional evidence about the risks of fomite transfer (that is transfer by contact), the reaction of a naïve population to psittacine poxvirus, and the adequacy of the reasoning on which the diagnosis of psittacine poxvirus was based), raises no new matters. All those issues were squarely before this Court in December 2002. [21] It follows, so the Crown submits, that the proposed new evidence could not be expected to have an important influence on the outcome at a retrial. The applicant has not shown that there has been a miscarriage of justice. Moreover, there have been unacceptable delays on the applicant's part. [22] Overall, the merits of the application are weak, in the Crown's submission.Discussion[23] In my view this application is misconceived. In most cases attracting the application of r 494 the applicant for a new trial seeks a rehearing of the case as it was constituted at trial, on the footing that the new evidence will make a differenceto the outcome. The same issues will be traversed and the same relief claimed or opposed. But that is not what Mr Bradshaw wants at all. The relitigation of his claim for a declaration that the birds ought not to be destroyed is of little utility to him. They were destroyed years ago. Instead, Mr Bradshaw's focus is upon the activities of MAF. He says that MAF has been responsible for lies (or at least misrepresentations) to him, and to the Court, in respect of the extent to which swabs, samples, slides and other similar items remained in existence, with the consequence that he was deprived of the opportunity of seeking evidence which might have demonstrated to the Court in December 2002 that the decision to destroy the birds was unreasonable. He intends to seek rulings from the Court as to MAF's behaviour in that respect. [24] He also intends to seek damages for unspecified breaches of the New Zealand Bill of Rights Act in respect of both the value of the lost birds, and the values underlying the personal rights which he says have been breached. [25] In order to pursue those claims, it is in my view completely unnecessary for the plaintiff to seek a retrial. Indeed, it seems to me that the claimed breaches of the New Zealand Bill of Rights Act will depend for their validity on the losses suffered by the plaintiff as the result of the outcome of the hearing before O'Regan J. In order to establish that his lost opportunity had some value, it will be necessary for the plaintiff to show there was at least a reasonable prospect that he would have been able, at trial, to call evidence, based on material which should have been disclosed to him, which might have resulted in a different outcome. But to do that it is quite unnecessary to re-open this case, and to retry the issues which were before O'Regan J. They are not the same issues which the plaintiff now wishes to argue. [26] The plaintiff's proposed claim, as outlined to me by Mr LaHatte, would involve a complete reformulation of the pleadings of both parties, and evidence which would have a totally different focus from that heard by O'Regan J. Rule 494 is not an appropriate vehicle for the conduct of an exercise of that sort. [27] In the light of my conclusions, it is unnecessary for me to express any view as to the merits of the plaintiff's contemplated claim. I note however the Crown'scontention that a claim for damages in respect of the value of the destroyed flock may be affected by the provisions of s 162A of the Biosecurity Act 1993, which provides a regime for the payment of compensation in circumstances such as these. Section 162A(5) requires that any dispute concerning the eligibility for, or amount of, compensation must be submitted to arbitration and the provisions of the Arbitration Act 1996 are to apply. On the face of it, that would seem to prevent the Court from entertaining a claim for damages, at least in respect of the value of the destroyed birds. [28] On the other hand, s 162A(4)(c) provides that compensation must not be paid to any person who has failed to comply with the Act and whose failure has been serious or significant. [29] Some time after the hearing in December 2002, Mr Bradshaw pleaded guilty to a charge of obstructing an officer in the execution of his duty under the Biosecurity Act. The defendant takes the view that he is thereby disqualified from obtaining compensation. It may be that, statutory compensation being unavailable, the right to damages has not been lost, but it is unnecessary to say anything more on that aspect of the matter. [30] I have held that the plaintiff's application must fail because it cannot produce an outcome which would be of any practical utility to the plaintiff, but I would in any event have refused the application, because I do not accept that the plaintiff has brought himself within the stringent requirements of r 494. A threshold requirement for an application under r 494 is that the evidence concerned be material, and that it could not have been obtained with reasonable diligence. [31] After the hearing, in about January 2004, Mr Bradshaw obtained access (through Dr McSporran) to certain slides and histology blocks. For present purposes, (although it is disputed) I assume that Mr Bradshaw did not know about these items at the time of the hearing, and could not with reasonable diligence have discovered their existence. That material was returned by the defendant to enable Doctors McSporran and Cooper to undertake further tests for Mr Bradshaw. But there is no indication of any further evidence which the plaintiff may be able toadduce as to the results of tests carried out once Mr Bradshaw and his advisers had access to the items concerned. [32] Mr Bradshaw has filed an affidavit which annexes an affidavit by Dr Cooper. Little in Dr Cooper's proposed affidavit is new. Some of what he says is simply expert theorising. There is nothing to suggest that Dr Cooper could not have given that part of his evidence in December 2002. For example, he suggests that the survival of many of the birds in contact with those infected does not support a diagnosis of psittacine poxvirus. But that point was clearly made by others at the December 2002 hearing. He appears to agree that conclusive DNA testing was not possible. That is the position taken by several deponents before O'Regan J. Much of what Dr Cooper has to say is simply a further contribution to the debate among a number of experts. [33] While it is obviously regrettable that Mr Bradshaw was not afforded access to everything that was available pretrial, almost two years elapsed between the provision of samples to Dr McSporran and the hearing before me in November 2005. In that period, nothing became available to suggest that O'Regan J might have been wrong to conclude that there was a real possibility that the sick rosellas had psittacine poxvirus. [34] In short, Mr Bradshaw has not been able to point to "material evidence" for the purposes of r 494(3)(e). He refers to the items made available by the defendant to him post-trial, but those items are not themselves evidence. The examination of those items and conclusions to be drawn from that examination, might well become evidence, but nothing of that sort is relied upon. [35] The Judge held it was not unreasonable for MAF to adopt "an extremely cautious and risk-adverse approach to the situation". It is logical to assume that the Judge would have concluded that MAF's stance was unreasonable only if there existed strong evidence to suggest that the birds did not in fact have psittacine poxvirus. The new material referred to in the context of the plaintiff's present application falls well short of altering in any meaningful fashion the balance of the evidence. It is not material in the sense that it could have made a difference to theoutcome of the case before O'Regan J, and that must be the inquiry for present purposes. It is not simply a question of whether a different Judge might reach a different result on substantially the same evidence: Shannon v Shannon (2005) 17 PRNZ 587 (CA) [115] and [119]. [36] Moreover, I would have held against the plaintiff on the ground of delay. Rule 495 governs the procedure to be applied where application is made under r 494. Rule 495 provides:495 Application for new trial(1) Application for a new trial shall be made by interlocutory application filed within 14 days after the verdict of the jury, or, in the case of trial before a Judge alone, from the date of delivery of judgment. (2) The application shall state the circumstances alleged to have resulted in a miscarriage of justice and no other circumstances will be considered by the Court. (3) The application shall not operate as a stay of proceeding unless the Court so orders. (4) The Court shall not receive— (a) Any affidavit of any witness to explain or add to evidence given by him at the trial; or (b) An affidavit of any facts which might have been given in evidence at the trial. (5) Notwithstanding subclause (4), the Court may receive an affidavit from a material witness showing that he made a serious mistake in giving his testimony. (6) Where misdirection by the Judge is relied upon, the terms of the direction may be proved by reference to any record thereof approved by the Judge, including the transcription of any shorthand note or tape taken at his direction.[37] There has been no application for extension of time, although the Court has jurisdiction to grant an extension under r 6. The 14 day period prescribed by r 495 is tight. That is plainly deliberate. It is in the interests of justice that there be finality in litigation. In many cases, 14 days after the delivery of a decision will be sufficient within which to review the file and the conduct of the trial generally and to make an application under r 494 if it is warranted. But there will be situations in which alonger period is needed, particularly where an applicant can bring himself or herself within r 494(3)(e). [38] Here, it appears that Mr Bradshaw became aware of the existence of swabs, samples and other items in about November or December 2003. By the end of January 2004 Dr McSporran had the slides and histology blocks for further examination. But no application was made for legal aid until early in 2005, and the present application was not filed until 7 September 2005. Mr Bradshaw justifies this long delay by arguing that disclosure came from MAF only in dribs and drabs. That may be, but the samples and slides made available to Dr McSporran in about January 2004 must have provided the opportunity for the making of urgent inquiries and the undertaking of urgent tests. Urgency was required. That is plain from r 495. Once evidence has been identified it is incumbent upon an applicant to file and serve an application under r 494 with celerity. [39] In Quadling v Bambury HC AK CP56/98, 7 September 1990, a delay of one month between the disclosure post-trial of a bank manager's diary notes and the date of the application for a retrial was held to be too long. While delays associated with the processing of an application for legal aid are perhaps to some degree understandable, more than a year elapsed between the delivery of the items to Dr McSporran and the making of an application for legal aid. The delay in this case was simply too long.Result[40] For all the foregoing reasons the plaintiff's application fails and is dismissed. [41] The defendant is entitled to costs. The parties may file memorandum if they cannot agree.C J Allan J