SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2349

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2021] NZHC 2349 [9 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000754[2021] NZHC 2349UNDER THE Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial review underPart 1 of the Judicial Review Procedure Act2016AND IN THE MATTEROFa decision made under s 157 of theImmigration Act 2009BETWEEN MANPREET SINGHApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: (On the papers)Counsel: Rod Hooker for the ApplicantShaun Connolly and Sonali Perera for the RespondentJudgment: 9 September 2021JUDGMENT OF MOORE JThis judgment was delivered by me on 9 September 2021 at 2:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar / Deputy RegistrarDate:Introduction[1] The applicant, Manpreet Singh, has filed an application to vacate the fixtureset down for 29 September 2021 and for costs. The respondent opposes the fixturebeing vacated.Background[2] In June 2020, Mr Singh was convicted for a drink driving offence. He wasrendered liable to deportation under s 157(5) of the Immigration Act 2009.Immigration authorities served a deportation notice on him on 27 July 2020. This wasreconsidered after Mr Singh applied for judicial review. On 16 August 2020, afterconsidering the submissions advanced for Mr Singh by his counsel, a complianceofficer employed by the Ministry of Business, Innovation and Employment ("theMinistry") made a determination that Mr Singh had not provided good reason as towhy deportation should not proceed.[3] Mr Singh seeks judicial review of that decision. On 21 April 2021, he filed astatement of claim in support of his application for judicial review. He alleges thedecision of Immigration New Zealand ("INZ") to cancel his work visa was madecontrary to policy and is unreasonable.[4] As part of these proceedings, Mr Singh sought discovery orders for documentsheld by the Ministry which he believed would assist his case. On 8 July 2021, Lang Jdelivered his decision1 declining to make any discovery orders. On 7 July 2021,Lang J had issued a Minute confirming the fixture date of 29 September 2021 andmaking various timetabling directions. He directed that affidavits in support of theapplication were to be filed by 7 August 2021, and those in opposition by 21 August2021. Reply affidavits were to be filed by 28 August 2021. Submissions in supportand in opposition were to be filed by 15 and 22 September 2021 respectively.[5] On 30 July 2021, Mr Singh applied to this Court for leave to appeal Lang J'sdecision. Lang J declined the application on 3 September 2021.1 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC1695.[6] On 4 August 2021, between the filing the application for leave to appeal andthe delivery of Lang J's decision to refuse it, Mr Singh, by memorandum, filed his firstrequest to vacate the 29 September 2021 fixture and associated timetabling orders. On13 August 2021, the respondent filed its memorandum in opposition. On17 August 2021, Lang J declined to vacate the fixture.[7] On 1 September 2021, Mr Singh then filed the present application. Thefollowing day, on 2 September 2021, the respondent filed submissions in opposition.Parties' positions[8] The present application is made on the following grounds:(a) it is not possible for issues to be properly pleaded and addressed, or forMr Singh's affidavit to be prepared without resolution of the discoveryissues;(b) the timetable for the judicial review hearing has been overtaken by thediscovery application and proposed appeal;(c) additional time is needed for the respondent to reply to the amendedstatement of claim; and(d) the Auckland Level 4 lockdown prevents the applicant from properlypreparing his affidavits and submissions.[9] The respondent opposes any order to vacate the fixture on the grounds that theamended statement of claim was filed out of time and that it is amendable totimetabling adjustments. The respondent does not accept that lockdown provides goodreason to delay the fixture and the proper determination of the issues.Discussion[10] I deal first with the question as to whether an amended statement of claim isable to be filed at this stage of the proceedings.[11] Rule 7.7 of the High Court Rules 2016 states that no amended pleading maybe filed after the close of pleadings date without leave of a Judge. Rule 7.6(4A) statesthat where no pleadings date has been fixed, as is the case here, the close of pleadingsdate will be the later of either 60 working days before the allocated hearing or trialdate, or the date on which the hearing or trial date is allocated. The trial date wasallocated by Lang J on 7 July 2021, and coincidently, that date is also 60 working daysbefore the allocated hearing date. It follows the close of pleadings date was7 July 2021. Leave of a Judge was required before an amended statement of claimcould be filed.[12] Mr Connolly, for the respondent, acknowledges that close of pleadings datesare not always fixed by Judges in judicial review proceedings, particularly those ofthis nature, and that there is sometimes more flexibility around the timing of new oramended pleadings despite the default dates set by r 7.6(4A). However, as he pointsout, scrutiny is warranted where the applicant seeks to vacate a fixture on the groundsthat a new cause should be added and, consequentially, an amended statement of claimis filed.[13] For present purposes, the starting point must be that the date for close ofpleadings has passed. The applicant now requires leave to file further pleadings. Agrant of leave is discretionary. I will not exercise that discretion in the presentcircumstances. My reasons follow.[14] The proposed amended statement of claim asserts new facts and brings a newclaim, which Mr Hooker, for Mr Singh, submits only became apparent to the applicantwhen the respondent filed its affidavits on 20 August 2021. It is said that the settlementagreement entered into between the parties in Singh v Chief Executive of the Ministryof Business, Innovation and Employment2 was breached. The settlement was that thedecision of an immigration officer, around which that set of proceedings revolved, wasto be set aside, with a new officer from a different branch engaged to consider thematter afresh and make a new decision. The applicant alleges that the new officer had2 CIV-2020-404-001677.access to INZ files concerning Mr Singh, including the settlement decision andassociated legal correspondence. This was contrary to the terms of settlement.[15] On the other hand, the respondent submits that although the immigrationofficer technically had access to all of the material on the INZ file, they were directedto only consider that material which pre-dated the first decision-making officer,together with any updated submissions from Mr Singh's counsel. Mr Connollysubmits, and I agree, there is nothing to suggest the officer acted otherwise than inaccordance with that direction.[16] Mr Hooker also submits the respondent will need time to prepare its statementof defence to the amended statement of claim and that it is thus just and equitable thatthe fixture be vacated. Given my earlier determination that the close of pleadings datehas passed, and leave would not be granted, it is unnecessary for me to consider thisground. However, given the complete evidential vacuum to support the claim theofficer acted contrary to the agreed directions, it is difficult to apprehend how the claimmay be responded to other than in the form of a blanket denial. That would requirelittle time or effort to plead.[17] I next turn to Mr Hooker's submissions regarding discovery. Mr Singh appliedfor leave to appeal Lang J's decision of 8 July 2021. Mr Singh's key submission isthat until his appeal is determined, and discovery resolved, the issues between theparties cannot properly be pleaded or addressed in submissions. Furthermore,Mr Singh's affidavit cannot be prepared. On 3 September 2021, after Mr Singh hadfiled this application to vacate the fixture, Lang J issued his judgment decliningMr Singh's application for leave to appeal.[18] Mr Hooker submitted that if his client was not successful in obtaining leave toappeal to the Court of Appeal, he would still be able to apply for leave from the Courtof Appeal. That is, of course, true. However, no such application has currently beenmade (to my knowledge), and I consider the likelihood of success to be slim and themerits of appeal to be weak.[19] When Lang J issued his decision of 8 July 2021, Mr Singh had not yet beengiven a copy of the Ministry's file or its evidence in opposition. As Lang J observed,the application was premature. Regardless, Lang J went on to dismiss each set ofrequested materials, reviewing the merits of each:(a) Mr Singh's request for compliance officer training records was declinedon the grounds that internal training records would not inform the issuebefore the Court given that a decision made in accordance with themmay nevertheless be vulnerable to review, and a decision not made inaccordance with them may still comply with natural justice;3(b) the Character Waiver templates Mr Singh requested related to differentfactual and legal contexts, contained personal information triggeringprivacy issues and were not of sufficient relevance to warrant discoveryorders;4(c) the request for documents "relating to visa applicants who have soughta character waiver after having been convicted of drink drivingoffences" was deemed to be irrelevant considering the currentproceeding does not relate to a visa application;5 and(d) the request for the advice to staff members displayed on the Ministry'swebsite was declined on the basis it was already available and wouldbe of little assistance.6[20] The Ministry provided Mr Singh with the file on 10 July 2021. Mr Hookersubmits it contained 799 pages and was not indexed or paginated. He notes whenprovided with the file last year, it contained only 300 pages. He submits thatinformation contained in the updated and much larger file should have been disclosedin prior proceedings. While that may be correct, whether or not the updated file should3 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC1695 at [12] and [13].4 At [16]-[18].5 At [21].6 At [25].have been provided for prior proceedings is not a matter of concern in respect of thecurrent proceeding.[21] Lang J's decision of 3 September 2021 further justifies his decision to declinediscovery orders and sets out his reasons for refusing leave to appeal to the Court ofAppeal. Respectfully, I agree with him where he states:7"I do not see how it can seriously be argued that I applied the wrong test, orreached the wrong decision, when the ultimate reason for the application beingdeclined was lack of relevance."[22] Further, the Court cannot continuously delay the determination of proceedingson the chance an appeal may be lodged against an interlocutory decision and that itmay be successful. The Court must be cognisant of the fact that it is not only theimmediate parties who are affected by any adjournment, but also those other partiesin other unrelated litigation who are waiting in the pipeline and competing with othersfor fixture dates.8 Any adjournment has a consequent "knock on effect" which is aparticularly relevant consideration at this time when the strictures of the Level 4lockdown and the likelihood of Auckland being at Level 3 for some time after that,means witness action fixtures, both civil and criminal, have had to be adjourned.[23] It is regrettable that the timetables for the discovery application, its associatedappeal and the judicial review hearing have overlapped. However, the risk of thisoccurring was always present and must have been contemplated prior to making theoriginal discovery application. As Lang J pointed out in his decision of 8 July 2021,discovery orders in judicial review proceedings are not commonly made becausediscovery is so often unnecessary. The success of the discovery application was thusnever an assured outcome. The parties must have known that the fixture would likelybe set and worked towards pending any appeal.7 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC2308 at [5].8 Body Corporate 348047 v Auckland Council citing McKay Builders Ltd (in liq) v McKay [2019]NZHC 1783, (2019) 20 NZCPR 499 at [6] citing Gray v Thom (1997) 20 PRNZ 373 (HC) at 379.[24] Finally, I address the adverse effects of lockdown as claimed by Mr Singh inhis affidavit affirmed in support.[25] Mr Singh says he is an essential worker and it is not practical for him to leavework to consult with counsel. He does not explain why, assuming he was similarlyemployed before lockdown, it was then practical for him to meet with his lawyer. Heclaims that in the past he, with his brother and cousin, would meet counsel in hischambers when issues arose. They would discuss matters and following the meetinghe would consult further with his relatives and then instruct his lawyer. Such visitsare not permitted under lockdown. He says, without explaining why, he cannot nowdiscuss these sorts of matters with counsel or family. He simply claims that usingmodern technology will not suffice.[26] While I am sympathetic to the inevitable added difficulties necessarily facedby Mr Singh in communicating with Mr Hooker, this is not a unique challenge or onewhich he faces alone. I am not satisfied that consultation and discussion with counseland others cannot proceed effectively, albeit, not in the conventional or usual, pre-COVID fashion. Since early last year, counsel and the Courts have demonstrated anadaptability to modify the usual forms of communication while still continuing tooperate effectively. The legal system is not alone in this. The wider community haslearned how to engage remotely. Mr Singh does not suggest he does not have accessto conventional communication tools such as a telephone or AVL technology. Zoomprovides the ability for numerous parties to meet virtually. Why that sort of facility isnot available to Mr Singh is left unexplained.[27] Finally, I agree with Mr Connelly that it is appropriate to adjust the timetablingdirections.Result[28] The application to vacate the fixture is declined.[29] I direct the parties to consult with a view to reaching agreement bymemorandum on any amendments which are needed to the present timetabling orders.Assuming I agree, I will then make orders accordingly.Moore JSolicitors:Vallant Hooker & Partners, AucklandCrown Law Office, Wellington