CHRISTIANSEN v THE DIRECTOR-GENERAL OF HEALTH [2020] NZHC 883
The court granted interim relief because there was a strong arguable case that the respondent's decision unlawfully failed to consider mandatory factors and appeared automatic; given the imminence of the father's death and the limited, manageable public health risk, justice required immediate temporary release...
Source-derived case information.
- Citation
- [2020] NZHC 883
- Parties
- Applicant: Oliver Charles Christiansen; Respondent: The Director-General of Health
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 1 May 2020
- Procedural Posture
- Judicial Review / Urgent Interim Relief (oral Judgment)
- Outcome
- Interim relief granted permitting temporary release from managed isolation to visit terminally ill father subject to conditions
- Legal Topics
- Managed Isolation Order, Discretion and Mandatory Considerations, Interim Relief, Procedural Fairness, Visitor Exceptions
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oliver Charles Christiansen
Applicant
The Director-General of Health
Respondent
Procedural Posture
Judicial Review / Urgent Interim Relief (oral Judgment)
Legal Issues
- 1 Whether the refusal to permit exit from managed isolation was made on incorrect legal grounds and without consideration of mandatory factors
- 2 Whether the decision exhibited characteristics of automatic rejection rather than a proper exercise of discretion under the Health Act (Managed Air Arrivals) Order
- 3 Whether interim relief should be granted to allow a temporally limited release to visit a terminally ill relative given public health risks
Ratio Decidendi
The court granted interim relief because there was a strong arguable case that the respondent's decision unlawfully failed to consider mandatory factors and appeared automatic; given the imminence of the father's death and the limited, manageable public health risk, justice required immediate temporary release subject to strict conditions to mitigate transmission risk.
Court Disposition
Interim relief granted permitting temporary release from managed isolation to visit terminally ill father subject to conditions
Orders
- Permit Mr Christiansen to leave Managed Isolation prior to the end of his 14-day isolation period at the Central City facility for the purposes of visiting his terminally ill father.
- Release conditional on Mr Christiansen travelling by private car, unaccompanied, to his father's home address and remaining there until his father passes.
Full Case Text
Judgment text and source record
1 paragraphs
CHRISTIANSEN v THE DIRECTOR-GENERAL OF HEALTH [2020] NZHC 883 [1 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-616[2020] NZHC 883UNDER the Judicial Review Procedure Act 2016ANDIN THE MATTER of an application for judicial review ofdecisions made pursuant to an order unders 70(1)(f) of the Health Act 1956BETWEEN OLIVER CHARLES CHRISTIANSENApplicantAND THE DIRECTOR-GENERAL OF HEALTHRespondentHearing: 1 May 2020Appearances: SWB Foote QC and AM Cameron for ApplicantA Martin and IS Auld for Respondent (appearing by AVL)Results: 1 May 2020ORAL JUDGMENT OF WALKER J[RESULTS]Results[1] In the urgent circumstances of this application I am providing the parties withmy determination. I will provide full reasons shortly. I grant interim relief to theapplicant.[2] In this particular case, there is a very strong argument, in my judgment, thatthe permission for Mr Christiansen to visit his dying father was not considered on thecorrect legal grounds and did not take account of relevant mandatory considerations.It had the hallmarks of automatic rejection based on circumscribed criteria rather thana proper exercise of discretion required by the Health Act (Managed Air Arrivals)Order.1 Indeed, the respondent responsibly acknowledges that on the face of thedocumentary record, one of the grounds of review can be made out. The respondentadvises that it is in the process of urgent reconsideration.[3] This places the Court in an unusual position. However, my assessment is thatoverall justice demands an effective and swift response by the Court in theseexceptional circumstances. I have in mind here particularly the imminence ofMr Christiansen's father's passing and the very material factor that visitation is onlyat a private home and not in a public space.[4] I therefore make the following orders:(a) Requiring the respondent to permit Mr Christiansen to leave ManagedIsolation prior to the end of his 14-day isolation period at the CentralCity facility for the purposes of visiting his terminally ill father.(b) The release is on condition that Mr Christiansen complies with thefollowing conditions:(i) To travel by private car, unaccompanied, to his father's homeaddress and remain there until his father passes;1 Dated 9 April 2020 as amended.(ii) To maintain physical separation from other family members atthe home address;(iii) To return on his own within 24-hours of his father's passing bythe same private car to the Managed Isolation Facility for theremainder of the duration of his 14-day isolation period (shouldthat be required);(iv) To ensure that any necessary cleaning and/or quarantining ofthat private car is carried out;(v) To wear personal protective equipment as directed by theMinistry of Health, including gloves and a face-mask;(vi) To comply with any monitoring requirements by Police and/orofficials; and(vii) To comply with any other reasonable conditions directed by therespondent to reduce any risk of transmission, such conditionsto be notified by the respondent to Mr Christiansen by 12.15 pmtoday.[5] These orders are to lie in Court until 12.00 pm today, Friday 1 May 2020.[6] The parties have leave to apply, and I will make myself available at short noticeif any practical problems arise............................................................Walker J