FANG v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZCA 28 [6 March 2017]

FANG v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZCA 28 [6 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA369/2016[2017] NZCA 28BETWEEN MINGBO FANGAppellantAND THE MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentCA370/2016BETWEEN THE MINISTRY OF BUSINESS,INNOVATON AND EMPLOYMENTAppellantAND DEFANG DONGRespondentCA423/2016BETWEEN THE MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTAppellantAND ZHIWEI LIRespondentHearing: 7 February 2017Court: Wild, French and Brown JJCounsel: H Zhang for Appellant Fang and Respondent DongI C Carter for the Ministry of Business, Innovation andEmploymentS M Kilian for Respondent LiJudgment: 9 February 2017 at 4.30 pmReasons: 6 March 2017JUDGMENT OF THE COURTA The application for review of directions made by Kós P in his minute of 14 November 2016 is declined.B The appellant in CA369/2016 and the respondent in CA370/2016 must pay one set of costs to the Ministry of Business, Innovation and Employment as for a standard leave application on a band A basis and usual disbursements. Liability is joint and several.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] On 9 February 2017 we issued a results judgment declining Messrs Fang andDong's application for review.1[2] Our reasons for that decision follow.Background[3] Mr Fang filed an appeal in this Court against a decision of Duffy J.2 His then counsel requested that the appeal be heard with two other appeals raising the same issue3 and that all three appeals be heard by a full court, that is a court comprisingfive judges instead of the usual three judges. Mr Fang's counsel also requested thatthree days be allocated to hear the appeals.[4] In a minute dated 14 November 2016, the President of this Court, Kós P, declined the request for a three day hearing before the full court and made various directions including the following:1 Fang v Ministry of Business, Innovation and Employment [2017] NZCA 7.2 Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630.3 Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1468; Li v Ministry of Business, Innovation and Employment [2016] NZHC 1788.(a) The appeals were to be heard together by a panel of three judges of the permanent court.(b) The appeals would be heard on 28 February 2017, with one day set aside.4[5] Dissatisfied with those two directions, Mr Fang then filed an application for them to be reviewed by three judges. The application was supported by the respondent in CA370/2016, Mr Dong.[6] At the hearing of the application, Messrs Fang and Dong were both represented by new counsel Mr Zhang. The respondent in CA423/2016 Mr Li was represented by Mr Kilian who abided the decision of the Court. Mr Carter who appeared for the Ministry of Business, Innovation and Employment in all three appeals opposed the application.Decision declining request for full courtIs there jurisdiction to review the President's decision?[7] Section 58D(4) of the Judicature Act 1908 sets out three categories of cases in which this Court must sit as a full court. The three categories are:(a) Cases considered in accordance with the procedure adopted under s 58E to be of sufficient significance to warrant the consideration of a full court.(b) Cases referred under s 58(6) by a majority of a panel of three judges who consider it desirable for the matter to be considered by a full court.(c) Appeals from decisions of the Court Martial Appeal Court.4 Fang v Ministry of Business, Innovation and Employment CA369/2016, 14 November 2016.[8] The first category (cases considered to be of sufficient significance) is regulated by s 58E. It states that whether a case is of sufficient significance to warrant the consideration of a full court must be determined in accordance with a procedure that has been agreed by all the judges of the Court of Appeal and that has been published in the Gazette.[9] In making the decision he did in this case, the President was acting in accordance with the current version of that agreed procedure. The salient features are:52.1 The President will determine whether an appeal is of sufficient significance to warrant the consideration of a Full Court. The President will, where appropriate, consult with other permanent Judges. In the main, an appeal will be allocated to a Full Court only where:(a) the establishment or revision of sentencing guidelines is proposed; or(b) the appeal involves issues of evidence, procedure or practice of general application or some other issue which will be of major significance to other cases particularly where there is no right to apply to the Supreme Court for leave to appealagainst the Court's decision.2.2. In determining whether an appeal should be allocated to a Full Court, the President may take into account the following considerations:(a) The forward planning programme and availability of Judges.(b) The efficient dispatch of the Court's business.2.3 That one or more of the parties seeks the reconsideration of an earlier judgment of the Court is not, in itself, a reason for allocating the appeal to a Full Court.2.4 A decision that an appeal be allocated to a Full Court may be reviewed by the President from time to time (for instance for reasons associated with the availability of Judges) and the President may direct that an appeal which has been allocated to a Full Court be reallocated to a Permanent Court or a Divisional Court.2.5 The permanent Judges will consult regularly to review the criteria, their implementation and the general effect of the allocation to a Full Court on the overall workload of the Court.5 "Procedures Adopted by the Court of Appeal of New Zealand / Te Kōti Pīra O Aotearoa"(3 April 2014) 36 New Zealand Gazette 1049 at 1049–1050.[10] Mr Fang's application for review was made under s 61A of the Judicature Act which relevantly reads:61A Incidental orders and directions may be given by 1 Judge(1) In any civil appeal or in any civil proceeding before the Court of Appeal, any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal or proceeding.(2) Every order or direction made or given by a Judge of the Court of Appeal under subsection (1) may be discharged or varied by any Judges of that court who together have jurisdiction, in accordance with section 58A or section 58B or section 58D, as the case may be, to hear and determine the proceeding.[11] Prior to the hearing, we raised with counsel whether we had jurisdiction toreview the President's decision about the full court and asked them to address thatissue at the hearing.6 As it transpired, both Mr Zhang and Mr Carter were of the view that we did have jurisdiction.[12] The issue is not a straightforward one but despite the joint view of counsel, we very much doubt that there is jurisdiction.[13] The review jurisdiction conferred by s 61A(2) of the Judicature Act is limited to reviewing incidental orders or incidental directions in civil matters made by any judge sitting in chambers. We accept as emphasised by Mr Carter that the provision does not expressly exclude decisions about full court allocations. On the other hand, such a decision strikes us as being more in the nature of an internal administrativedecision, and not one made "sitting in chambers".[14] Further, it is a decision that has its own special procedure and that cannot bemade by "any judge" but only by the President. It seems odd that three judges wouldbe able to review a decision that all the judges of the Court have agreed to entrust tothe President, he or she being uniquely placed to assess the Court's overall workloadand the availability of its judges.6 Fang v Ministry of Business, Innovation and Employment CA369/2016, 1 February 2017.[15] Another factor pointing against there being jurisdiction under s 61A(2) is that it is a decision made under a procedure which contains its own review mechanism.7This last consideration must be tempered by the fact that review under the gazetted procedure is limited to review of a decision allocating a case to a full court, not a decision refusing to do so. The gazetted procedure says nothing about a review of the latter. It does not expressly preclude review by other judges and, as submitted by Mr Carter, a Gazette notice could not override a statutory provision such as s 61A(2)— assuming the latter is applicable.[16] Mr Zhang attempted to counter some of these difficulties by relying on s 58(6) which, it will be recalled, empowers a panel of three judges to refer a matter to a full court if a majority of the panel consider it desirable. Mr Zhang submitted that the existence of this provision detracted from arguments about the unique position of the President. It showed Parliament considered other judges of the Court are also able to make the relevant assessments.[17] Mr Zhang further suggested that regardless of whether we did or did not have jurisdiction under s 61A(2) to review the President's decision, s 58(6) meant we had an original jurisdiction to consider the matter afresh anyway, either on application or of our own initiative. He suggested that if need be his application could therefore be treated as an application under s 58(6), rather than a review application. Mr Zhang also pointed out that if he were correct and we did have jurisdiction under s 58(6), that would suggest there must also be a review jurisdiction, it being illogical to have one and not the other. Otherwise, in his submission, form would be triumphing over substance.[18] On the face of it, s 58(6) and its interaction with s 58E is problematic. However, we consider that correctly analysed s 58(6) is confined to the situation where a three-judge panel is already seized of a substantive matter but comes to the conclusion, having either read the material or heard some of — or even all — the oral argument, that the substantive matter is more appropriate for consideration by a full court. That is not the situation before us. We have not been convened to7 "Procedures Adopted by the Court of Appeal of New Zealand / Te Kōti Pīra O Aotearoa", aboven 5, at [2.4].consider the substantive appeal, only (at its highest) an interlocutory direction on the issue of allocation itself. Mr Zhang's interpretation allowing three judges to operatein an unstructured way would create significant practical problems for the Court and its processes.[19] As we say, we have significant doubts about jurisdiction and our strongly held view is that it does not exist. However, for reasons we explain, the current application must in any event fail on its merits regardless of whether there is jurisdiction or not.The merits of the review application[20] Mr Zhang submitted that, in breach of the rules of natural justice, the President failed to give reasons for his decision and further that applying the criteria under the gazetted procedure for allocating an appeal to the full court, the decision was plainly wrong.8[21] We do not accept those submissions.[22] The minute records that the President had read counsel's memoranda. Therewere four in total. In its memorandum, the Crown had identified the central issue in the three appeals as being whether the requirement in s 177(5) of the Immigration Act 2009 to record facts is satisfied by an immigration officer completing what isknown as the "record of personal circumstances" (the Crown position) or whether aseparate statement of relevant facts must be created (the position of Messrs Fang, Dong and Li).[23] The Crown memorandum went on to submit that a full court was not warranted to consider this issue. The Crown pointed out that, subject to obtaining leave, the parties would have a right of further appeal to the Supreme Court; that counsel for Mr Fang had overstated the extent of conflict in the relevant High Court authorities; and that the overwhelming preponderance of authority, including decisions of this Court, supported the Crown interpretation of s 177(5). These8 A further argument that the President lacked jurisdiction to make the decision was abandoned.assertions were backed up by citation of a significant number of cases relating to s 177(5).[24] The then counsel for Mr Fang filed a memorandum in reply. Significantly,the reply memorandum did not dispute the Crown's assertions about the state of theauthorities.[25] In those circumstances, it is clearly implicit from the President's reference tohaving read the memoranda that he based his decision on them. There was no breach of natural justice. In any event, for the reasons advanced by the Crown we agree the appeal is plainly not of sufficient significance to justify a full court. Contrary to a submission made by Mr Zhang, the fact the Registrar considered there was sufficientpublic interest in Mr Fang's appeal to justify waiving payment of security for costsdoes not mean of itself that a full court is warranted. The criteria to be taken into account are not the same.Direction allowing hearing time of one day[26] The same doubts about jurisdiction apply in respect of this direction. It too has the quality of an internal administrative decision.[27] Mr Fang advanced a number of grounds why we should vary the President'sdirection.[28] The first was that the President lacked jurisdiction to make the direction, it being contended that allocation of hearing time is the exclusive preserve of the Registrar under r 38 of the Court of Appeal (Civil) Rules 2005. This submission was made in reliance on the decision of Richard Zhao Lawyers Ltd v Chen where it was held a single judge of this Court lacked jurisdiction to decide an application for dispensing with security for costs.9 However, Richard Zhao Lawyers Ltd is distinguishable. It turned on the fact there was an extant application to the Registrar that had not been determined at the time the Judge in question purported to make her decision. In this case, no application was ever made to the Registrar. A judge of this9 Richard Zhao Lawyers Ltd v Chen [2016] NZCA 540.Court undoubtedly has jurisdiction to allocate a date for hearing an appeal. Jurisdiction is contained under both s 61A(1) of the Judicature Act, and the Court of Appeal (Civil) Rules.10[29] Secondly, Mr Zhang contended that in breach of the obligation to consult contained in r 38(5), the President had failed to consult before issuing his direction. However, as already pointed out, r 38 was not engaged because there was no application to the Registrar. In any event, as the President's minute records, he hadread and thus taken into account memoranda provided by counsel setting out their views on hearing time. There was no breach of procedural fairness.[30] The third ground of review was that, on its merits, the decision was plainly wrong. We disagree. In our assessment, one day is sufficient hearing time. The three appeals all turn on the same narrow issue of statutory interpretation. The facts of each appeal are different but any differences will not affect the outcome and there will be no need for counsel to traverse the facts in any detail. Mr Zhang says there is a substantial body of documentation but that would appear to be the result of an overly cautious and unfocused approach in preparing the case on appeal. Similarly, contrary to another submission made by Mr Zhang, the fact there are three differentcounsel does not mean the hearing should take more than one day. The Court'sexpectation in such circumstances is that counsel advancing the same arguments will confer and agree on a division of labour in advance of the hearing so as to avoid unnecessary duplication.[31] It follows we uphold both of the President's directions.Outcome[32] The application for review is declined.[33] In the event the application was dismissed the Crown sought costs. Mr Zhang however submitted that costs should lie where they fall because first there was an element of public interest and secondly because the Crown had agreed with10 See rr 5(1) and 7(1)(a).him on the jurisdiction point. In our view, neither of those arguments justifies departing from the usual principle that costs should follow the event. The application (as distinct from the substantive appeal) did not involve any element of public interest and the arguments advanced in support of the application lacked merit. The issue of jurisdiction was raised by the Court, not the Crown. The fact the Crown took the same position as the applicants on that issue cannot logically detractfrom the Crown's success on the application.[34] Messrs Fang and Dong are ordered to pay the Ministry of Business, Innovation and Employment one set of costs as for a standard leave application on a band A basis and usual disbursements. Liability for the costs and disbursements is joint and several.Solicitors:Amicus Law, Auckland for Appellant Fang and Respondent DongKilian & Associates Ltd, Auckland for Respondent LiCrown Law Office, Wellington for the Ministry of Business, Innovation and Employment