CHRISTIANSEN v THE DIRECTOR-GENERAL OF HEALTH [2020] NZHC 887

CHRISTIANSEN v THE DIRECTOR-GENERAL OF HEALTH [2020] NZHC 887 [4 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-616[2020] NZHC 887UNDER 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 2020Reasons: 4 May 2020JUDGMENT OF WALKER J[REASONS]This judgment was delivered by me on 4 May 2020 at 11.30 amPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] Oliver Christiansen challenges the Ministry's refusal to allow him to cut shorthis mandatory 14-day isolation to see his dying father. The application has beenprepared, argued and determined as a matter of urgency. I issued a results judgment atthe end of the hearing on Friday 1 May 2020. I granted interim relief and indicatedthat my reasons would follow. The interim orders I made are set out at the end of thisjudgment. These reasons are also prepared under urgency and will therefore be shornof anything other than the critical facts and analysis to explain my reasoning.[2] The context is New Zealand's response to the COVID-19 crisis.Mr Christiansen arrived in New Zealand on 23 April 2020 on a flight from the UnitedKingdom. He was placed in 'managed isolation' in a city hotel as directed under theHealth Act (Managed Air Arrivals) Order dated 9 April 2020 (the Order).1 The hotelat which he resided is apparently designated a low-risk isolation facility. He has nosymptoms of COVID-19 and is monitored by health professionals at the facility everytwo days.[3] His father was diagnosed with brain cancer in January 2020. The initialprognosis was that his father would decline over a relatively lengthy period. However,by mid-April, the prognosis changed. Mr Christiansen learned that his father had onlya few weeks to live. He decided to leave his family in London and return to NewZealand to sit out the quarantine, and then spend his father's last days with him. Sadly,his father's condition declined suddenly and dramatically. The medical evidence wasthat his father will survive for no more than a few days, perhaps to the end of the week-end.2[4] Mr Christiansen applied to the Ministry of Health for an exemption to permithim to travel from the city hotel to the family home where his father is spending hislast days. There is no suggestion before me that his father would be going to thehospital. The other family members either at the family home or visiting are1 The Health Act (Managed Air Arrivals) Order was made on 9 April 2020 and amended on21 April 2020. The amendments are not material to this application save that the Order wasextended to 11.59 pm on 11 May 2020.2 The medical evidence is from an oncologist treating his father and his father's GP. It isunderstandably not challenged.Mr Christiansen's mother and two sisters. A palliative care nurse attends for a shortperiod daily. I am informed by Mr Foote QC from the bar that the family 'desperately'support the application.[5] Mr Christiansen's evidence is that he asked for a test for COVID-19 but wasrefused because he has no symptoms.[6] He and other individuals at the managed isolation facility are permitted to gooutside in groups of 8–10 into an area in front of the facility and are escorted to apublic park every second day. They are permitted to walk freely and unsupervised inthe park but must practice social distancing.[7] Mr Christiansen was prepared to comply with any conditions required by theMinistry of Health, such as travelling to his father's residence in a private car, ensuringany necessary cleaning and/or quarantining of the vehicle, staying at his father's homeand not leaving it at all for any reason until the expiry of a 24-hour period after hisfather dies and then returning to managed isolation, and wearing appropriate PPE asdirected.Decisions challenged[8] Mr Christiansen challenges three Ministry of Health decisions declining himpermission to leave quarantine before expiry of the 14 days:3(a) A decision on 27 April 2020 sent at 10.31am by the Deputy-DirectorCOVID-19 at the National Health Coordination Centre of the Ministryof Health (first decision);(b) A decision on 27 April 2020 sent at 11.52am by the Managed IsolationTeam (second decision);3 The 14 day period of managed isolation will expire on 7 May 2020.(c) A decision on 30 April 2020 notified by the National Coordinator,National Health Coordination Centre of the Ministry of Health (thirddecision).[9] Each decision was made under delegated authority from the Director-Generalof Health by a Ministry official or officials. This is the reason why the Director-General is the respondent. The gist of each decision is that Mr Christiansen did notqualify for exemption or reduction of the quarantine period because he did not fit thecriteria of the Ministry of Health 'framework'. Specifically:(a) First decision – the criteria for exemption is medical transfers, andthose with serious medical conditions that cannot be managed in theaccommodation provided;(b) Second decision – the criteria for exemptions is very limited and basedon the health of the person who was arriving in the country;(c) Third decision – exemptions are only granted to those requiringmedical transfers and those with serious medical conditions that cannotbe managed in the accommodation provided.[10] It is apparent on the face of the decision records that the decision maker(s)applied the narrow exemption criteria in the Ministry of Health framework found onthe covid19.govt.nz website even though Mr Christiansen's application was based onother grounds referred to in the Order. I will return to this later in my judgment.Respondent's position[11] The respondent, who moved speedily to accommodate this hearing, filed amemorandum just before the start of the hearing.4 The memorandum dated 1 May2020 states:The [respondent] has reviewed the decision under review, and concedes that,on the face of the documentary record at least, the grounds of review describedat paragraph 5 above can be made out. Accordingly the defendant has decided4 The application was filed and served on 30 April 2020 and argued the next day.the matter should be reconsidered to ensure that relevant factors areconsidered, under clause 5(i) of the Order. The [respondent] submits that thiswould be the appropriate remedy should the substantive application forjudicial review be successful in any event.[12] Mr Martin for the respondent sought an adjournment of the hearing for threehours (until midday) and undertook to provide a new decision by that time. Heproposed that should the outcome of the new decision making be the same, the issuecould be determined in the light of the new decision.[13] While this was a responsible position to take, it presented something of adilemma for Mr Christiansen and for the Court. My interpretation of Mr Martin'ssubmission was that any grant of interim orders in these circumstances would betantamount to a wrongful incursion by the Court into the substantive decision makingwithout the required public health assessment. I acknowledge that any healthassessment falls squarely within the respondent's domain of expertise. However, afterconsidering the parties' submissions, I determined that an adjournment was notappropriate for four reasons.[14] First, the Ministry of Health had already had three opportunities to reconsiderits decisions. Second, the evidence is that Mr Christiansen senior was at the very laststage of his life so that any delay could frustrate the application. This is so even witha hearing delayed by only a few hours, particularly if the grounds of challenge shifted(if the new decision was to decline Mr Christiansen's application). Third, theindication in the respondent's memorandum is that they intend reconsideration on onlyone ground which is non substantive rather than encompassing all grounds ofchallenge. Fourth, any difficulties around the Court making public health assessmentsstem from the respondent's own failure to make such an assessment as part of theirdecision making. It would be circular and inherently unfair for the respondent to beable to rely on this to delay Mr Christiansen's access to justice.The challenge[15] Mr Christianson raises three grounds of challenge. The first is that there wasan error of law in four respects:(a) Misinterpreting the grounds on which the application for exemptionwas based;(b) Misinterpreting the scope of the power under the Order to grantexemptions to the mandatory 14-day isolation period;(c) Confining the possible exemptions under the Order to the narrowgrounds of medical transfers and those with serious medical conditionsthat cannot be managed in the accommodation provided, when muchbroader grounds are available under the Order;(d) Declining the application for failure to meet those narrow grounds,when the application otherwise complied with the grounds insubclauses 5(g) and 5(i) of the Order.[16] The second ground of challenge alleges failure to take into account mandatoryrelevant considerations. Seven mandatory relevant considerations are pleaded:(a) The actual grounds on which the application was based;(b) Subclauses 5(g) and 5(i) of the Order;(c) Mr Christiansen's health;(d) Mr Christiansen's father's health;(e) The ability under subclause (1) of the Order to test Mr Christiansen onarrival for COVID-19;(f) The relatively low risk of transmission arising from travel from themanaged isolation facility to his father's residence; and(g) The negligible, if any, impact on the risk of the outbreak or spread ofCOVID-19.[17] The third ground is the alleged unreasonableness of the decision. This isunreasonableness in the legal sense rather than as commonly understood.[18] The acknowledgement by the respondent is only as to the error of law ground.[19] In the underlying substantive proceeding, Mr Christiansen asks this Court fora declaration that the decisions are unlawful, invalid and of no legal effect. However,he also sought interim relief given the extreme urgency of the situation. The relief wasin the form of an order requiring the Director-General to exempt him from theremainder of his isolation to attend to his dying father.5 Although characterised asinterim, this relief would determine the substantive case for obvious reasons.Legal background and context[20] COVID-19 has been classified as an infectious disease for the purposes of s70(1) of the Health Act 1956.6[21] On 24 March 2020, the Prime Minister issued an epidemic notice under s 5 ofthe Epidemic Preparedness Act 2006. This notice gave the Medical Officer of Healthspecial powers in accordance with s 70 of the Health Act for the purpose of preventingthe spread and outbreak of COVID-19.[22] The epidemic notice was accompanied one day later by a declaration of a stateof national emergency under the Civil Defence Civil Management Act 2002. It hasbeen extended five times.[23] In accordance with his powers as a Medical Officer of Health under ss 70(1)(e),(ea) and (f) of the Health Act, the Director-General of Health made the Order on the"medical examination and testing and isolation or quarantining requirements" to applyto all persons arriving in New Zealand by air.5 The application for interim relief also expresses this in the alternative negative form – an orderrestraining the Director-General from preventing Mr Christiansen from leaving isolation to attendto his father.6 An infectious disease is any disease for the time being specified in Parts 1 or 2 of Schedule 1 ofthe Health Act 1956. COVID-19 is specified in Section B of Part 1 of Schedule 1.[24] I attach a copy of the Order (as subsequently amended) to this judgment. TheOrder relevantly provides that all persons arriving in New Zealand by air must beisolated or quarantined for a minimum of 14 days, "except as permitted for essentialpersonal movement for arrivals". The Order has the objective of preventing the spreadof COVID-19 into New Zealand from overseas. A significant source of the spread ofthe disease is attributed to overseas travel and contact with travellers.[25] Clause 5 of the Order defines "permissions for essential personal movementfor arrivals" to include:Emergencies, medical services, court orders etcb. a person leaving their place of isolation or quarantine if necessary, as amatter of emergency, to preserve their own or any person's life orsafety:c. a person leaving their place of isolation or quarantine if necessary toaccess hospital health services or any court or tribunal:.Authorised travelg. a person leaving their place of isolation or quarantine to undertaketravel that is permitted under a framework approved by the Director-General (and published on the covid19.govt.nz internet site maintainedby the New Zealand government for travel) that is appropriate both –i. so as to enable persons entering New Zealand to travel to theirintended residence after they cease to be isolated or quarantinedunder clause 1 of this order or on other compassionategrounds; andii. on the basis that it has a relatively low risk of transmission orotherwise reduces the overall risk of outbreak or spread ofCOVID-19 for New Zealand's health system.Exceptional circumstancesi. a person leaving or changing their place of isolation or quarantine forany other exceptional reason approved by the Director-General aftertaking into account any impact on the risk of outbreak of spread ofCOVID-19.(emphasis added)[26] The framework published on the covid19.govt.nz website provides that "a verysmall number of people will be eligible for exemption from managed isolation". To beeligible for an exemption, an applicant needs to fit into one of the prescribed"exemption categories". Those categories are listed as:• a minor who is travelling alone — this exemption allows a parent orcaregiver to join the minor in managed isolation, not for the minor toleave self-isolation.• individuals arriving as medical transfers — if being transferred tohospital, a letter from the DHB verifying they will enable self-isolation in hospital or discharged within 14 days, they will berequired to complete the time in a managed isolation facility.• individuals with physical or other needs that cannot be appropriatelyaccommodated at the managed facilities — applications in thiscategory need to be supported with clinical evidence from a registeredmedical practitioner. Needs considered are the needs of the individualarriving in New Zealand, not of others already in New Zealand.• workers critical to the COVID-19 response required to undertaketasks during the 14 days isolation — applications in this category needto be supported by a letter from the relevant government department,essential service employers or lifeline utility.[27] Nothing in the online framework references "exceptional circumstances", asprovided for in clause 5(i) of the Order or "other compassionate grounds" providedfor in clause 5(g)(ii).Requests for permission[28] Mr Christiansen first emailed the Ministry of Health on 24 April 2020 at14.36 pm. He appended supporting documentation comprising a letter from hisfather's oncologist. He expressly stated that he sought "compassionate dispensation".When he first applied, the family's expectation at that stage was that there was stilltime in hand so he was only seeking to reduce the length of managed isolation.[29] Operations personnel from the National Crisis Management Centre (NCMC)emailed a response on Sunday 26 April 2020 at 14.42 pm. Although that email wasincomplete, the nub of it was that the application was being referred to the HealthTeam, another unit within the NCMC.[30] On Sunday 26 April 2020 at 15.15 pm, the Managed Isolation Team emailedMr Christiansen to say that the medical information provided was insufficient. Theyasked him to complete an attached form. The nature of that form suggested that theManaged Isolation Team had not comprehended the nature and basis of theapplication. That was because the form they sent was a Medical Exemption fromManaged Isolation form. Mr Christiansen responded in short order, emphasising thathe was not applying on the basis of his own medical condition but in order to care forhis gravely ill father. His email stressed the urgency.[31] On Monday 27 April 2020 at 10.31 am, the Deputy-Director COVID-19National Health Coordination Centre emailed Mr Christiansen declining hisapplication to reduce his 14-day isolation period. The email stated:Minimising the spread of COVID-19 is critical to protecting New Zealand,and exemptions are being granted in very limited circumstances.Unfortunately, your application did not meet the criteria for an exemption. Thecriteria for an exemption is: medical transfers, and those with serious medicalconditions that cannot be managed in the accommodation provided. You aretherefore required to complete your 14-day isolation period at managedfacilities.If you believe there is information that has not been considered in thisassessment, or that there are compassionate or other exceptional reasons whyan exemption should be granted, please contact us again with additionalinformation.[32] Mr Christiansen emailed a response within approximately 20 minutes,reiterating that "I am NOT applying for a medical exemption, I am applying forpermission to travel on compassionate groundsI ask that you consider myapplication and supporting evidence as it is intended, as an application for domestictravel on compassionate grounds" (emphasis as per original email). He re-attached theapplication and asked for it to be considered on a proper basis.[33] On Monday 27 April 2020 at 11.01 am Mr Christiansen emailed the NCMCTravel Team again re-emphasising that the application he was making was made oncompassionate grounds. He re-attached the original application and supporting letterfrom medical professionals. In the early afternoon of the same day, he emailed thesame Team advising that he had just learned his father had had a seizure and may beabout to pass away imminently. He asked for an urgent response and offered to havethe oncologist speak with someone at the Ministry to facilitate his application.[34] Approximately an hour-and-a-half later, at 3.32 pm, personnel at NCMCresponded by email saying that the Team was unable to approve reduced periods ofmanaged isolation as that was within the Health Team's compass and needed theirapproval. The email stated, "Sorry but we (ncmc) do not have the flexibility in thiscase."[35] Earlier on Monday 27 April 2020 at 11.52 am, the Managed Isolation Teamemailed stating "There does seem to be a misunderstanding that needs to be clarified."The email went on to say:All travellers arriving in New Zealand are required to complete 14 days ofisolation in a managed facility. The criteria for exemptions to this are verylimited and are based on the health of the person who is arriving in the country.As you are in good health you unfortunately do not therefore qualify for anexemption or a reduction to the isolation period... I hope this explains thegrounds on which your case was considered. I apologise for any confusion.[36] On Monday 27 April 2020 at 15.18 pm, the Managed Isolation Team emailedagain. They expressed sympathy. They re-emphasised "there is just nothing we canchange at this time. 14 days isolation in managed facilities is a mandated requirementin force in New Zealand." Mr Christiansen followed up in response, expressing howdevastated he was. He urged compassionate grounds. He proposed the use of PPE andconditions to minimise, if not eliminate any risk.[37] On Tuesday 28 April 2020 at 21.03 pm, Mr Christiansen again emailed theManaged Isolation Team to repeat his request for reconsideration under the exemptionprocedure. He expressly referred to the "exceptional circumstances" exemption. Hestated that his father is asking "Where is my boy? Where is my boy?"[38] On Wednesday 29 April 2020, Mr Christiansen emailed the Minister of Healthand Director-General of Health and the Minister for Health directly. The Director-General quickly responded within an hour and a half saying he will refer the letter tothe Team to "carefully consider the information."[39] Mr Christiansen updated the Director-General on his father's condition. In anemail on Thursday 30 April 2020 at 9.59 am, he suggested to the Director-General thatreferral to "the Team" is not likely to help if the Team is operating under a view thatthey can only look at the limited medical grounds exemption. He stated:If that means you have not delegated to the Team your authority to grantexemptions for other exceptional reasons, (such as [I am] invoking forcompassionate purposes), then you either need to enlarge the criteria they areworking under at [your] direction or [you] should [yourself] consider [my]request, as the official who has the authority to grant exemptions underparagraph 5(i) of the Notice.[40] That same day at 12.16 pm, Mr Christiansen received an email attaching aletter from the National Coordinator of the National Health Coordination Centre. Theletter stated that the writer has reviewed all of the information provided and declinesthe appeal to leave the managed isolation facilities. Consistent with the themeemerging from all the correspondence from the various individual or units within theMinistry of Health, it stated:We have consistently taken a precautionary approach to COVID-19 and ourborder measures are there to protect all New Zealanders from the virus.Exemptions are only granted to those requiring medical transfers, and thosewith serious medical conditions that cannot be managed in theaccommodation provided.Arguments[41] In view of the respondent's position at the hearing, it is unnecessary to traversethe substantive argument in great detail. In summary, Mr Christiansen's case is thatthe Order impliedly requires consideration of the specific circumstances of eachindividual application – a weighing of the compassionate circumstances with the riskof transmission in that particular case. This did not happen because the decisionmakers confined themselves to whether the circumstances fitted any of the criteria inthe so-called "framework" on the government website. This was in essence to adoptfixed rules which is the antithesis of a discretion.7[42] The respondent limited his opposition to the jurisdiction point; that the Courtcould not or ought not make an interim order in circumstances where the decision wasunder reconsideration.7 Housing New Zealand v Auckland District Court [2008] NZAR 389 at [31] and [35].Legal Principles[43] It is important to understand that this is not an appeal. The Court is not entitledto ask itself whether the substance of the decisions were right or wrong. There arelimits to scrutiny of the merits. Traditionally, the primary role of the Courts in judicialreview is to supervise the decision maker's reasoning process - how, rather than what,decisions are made. The extent of those limits, particularly in the extraordinarycircumstances such as the ones prevailing in New Zealand at present, is open to debate.First cause of action – error of law[44] The central question is whether the respondent has misinterpreted its powersunder the Order. A person with a legal power must exercise that power within theperimeters set by that law.8 An error of law arises where a decision-maker does not actwithin those perimeters; for example, where a decision-maker applies gloss to astatutory test, or asks themselves the wrong question.9 To be reviewable, an error oflaw must be material: "one which may well have altered the ultimate decision".10[45] In my judgment, the decision-makers in this case construed the exemption testtoo narrowly by omitting consideration of two available grounds. This omissionrelated to the decision-makers' interpretation of both clauses 5(g)(i) and 5(i). Properlyconstrued, there are two elements to clause 5(g)(i). They are disjunctive and explicitlyinclude a provision for "other compassionate grounds". The exceptional circumstancesprovision in clause 5(i) also received no mention by the decision makers.[46] The decision-makers' rejection of Mr Christiansen's application was based onthe repeated assertion that exemptions would only be granted to those requiringmedical transfers, and those with serious medical conditions that could not bemanaged in the accommodation provided. This appears to be based on the 'framework'posted on the covid19.govt.nz website, which lists four narrow grounds forexemptions relating to medical conditions. The 'approved' grounds for exemptions8 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].9 Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709.10 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314,22 December 2011 at [73].were then reflected in the form provided to Mr Christiansen, which is tellingly titled"Medical Exemption from Managed Self Isolation Form".[47] A decision-making public body entrusted with a decision must not adopt rigidrules that disable it from exercising discretion in individual cases. Decision-makerscannot rely on fixed frameworks which "close [their] mind to the possibility thatspecial circumstances may exist outside those categories", particularly when the lawin question gives the decision-maker some flexibility.11[48] The framework the defendant based their decisions off did not reflect thewording in the empowering Order. It is unlawful to blindly follow a policy if thatpolicy is not reflective of the actual position in law: "the policy cannot deny the powerwhich the law has conferred".12 The framework adopted by officials is not the sameas the empowering legal test that should have been applied to Mr Christiansen'sapplication. They applied narrow list of medical-related reasons for an exemption. TheOrder, however, allowed for other exemptions – both in terms of "other compassionategrounds" in cl 5(g)(i) and "exceptional circumstances" in cl 5(i). Based on the face ofthe record, the decisions failed to consider these grounds for exemption at all. As such,this failure amounts to an error of law.Second cause of action – failure to take into account mandatory relevantconsiderations[49] It is also strongly arguable that the decision-makers' failure to specificallyaddress Mr Christiansen's submission that his case fell under the exceptionalcircumstances ground in cl 5(i) amounts to a failure to address a mandatory relevantconsideration. Understandably in the present context, Mr Martin did not address thatground. I stress that my finding is not to be construed as a determination of thesubstantive claim.[50] Where a person has made a submission to a decision-maker on a discretionaryrelevant factor, it becomes mandatory for the decision-maker to consider that factor11Housing New Zealand v Auckland District Court [2008] NZAR 389 (HC) at [31];12 Westhaven Shellfish Ltd v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].and the submissions on it.13 That happened here – Mr Christiansen's email to theManaged Isolation Team on 28 April, asked the Ministry to consider his application asan "exceptional circumstance" under s 5(i). Previous to that, he had emphasised hewas "NOT" applying for a medical exemption, but under "compassionate grounds".However, in their responses to him, neither the National Co-ordinator nor theExemptions Team mentioned cl 5(i), or in any way suggested they had consideredwhether his case was exceptional. As a result, a failure to consider his submissionsproperly – namely, whether his circumstance falls under cl 5(i) – is a failure to considera mandatory relevant consideration.[51] On this basis, I am satisfied that there is a strong case that the decision was inerror. The respondent has made both an error of law and has arguably failed to takemandatory relevant considerations into account.14Third cause of action - unreasonableness[52] The plaintiff's final cause of action is that the decisions are so untenable andinsupportable that a proper application of the law requires a different answer. AsPalmer J noted in Hu v Minister of Immigration, "the law of judicial review isbedevilled by whether and how "unreasonable" public decisions are allowed to be".15The seminal test for "unreasonableness" sets a very high threshold.16 A plaintiff mustshow that there was something overwhelmingly wrong with the decision.[53] There is an often-cited concern that review for reasonableness strays too farinto the substantive merits of a decision; a concern that courts will use the concept tosimply overturn decisions they disagree with.17 In my view, the threshold foroverturning a decision on the basis of reasonableness will vary depending on thecontext of a decision. These are extraordinary times. I am inclined to the view that thecontext of this application, the nature of the fundamental rights in issue, the wide-13 New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR544 (CA); Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55]– "A failure totake into account a central submission may constitute jurisdictional error".14 The respondent acknowledges only the error of law "on the face of the record".15 Hu v Immigration and Protection Tribunal [2017] NZHC 41 at [2].16 Associated Provicial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.17 See, for example, Hanna Wilberg and Mark Elliott (eds) The Scope and Intensity of SubstantiveReview: Traversing Taggart's Rainbow (Hart Publishing, Oxford, 2015).ranging powers under the Health Act and the current crisis all support, if not demand,more expansive supervision by the Courts.[54] However, those issues are best left to considered reflection and judgment. Inview of my findings in respect on the grounds of error of law and failure to take intoaccount relevant considerations, I find it unnecessary to discuss further thereasonableness ground advanced.Remedy and Orders – Interim relief[55] The availability of interim relief was the nub of the argument before me. Theapplicant sought an interim order requiring, among other things, the respondent torelease Mr Christiansen from managed isolation so he could visit his gravely ill fatheron certain conditions designed to minimise, or even eliminate, the risk of any spreadof COVID-19. It is worth re-emphasising that the applicant is completelyasymptomatic and his health status has been checked every few days but he has notundergone a COVID-19 test, despite his many requests to do so.[56] The respondent submitted that the answer was remitting the decision back tothe officials, then under train, and that an interim injunction in these circumstanceswould be inappropriate, particularly given this is a matter concerning risk to publichealth which the Court is not well placed to assess.[57] A Court may make interim orders under s 15 of the Judicial Review ProcedureAct 2016 if it is satisfied that such orders are necessary to preserve the applicant'sposition before the final determination of the case. Once that threshold is reached, theCourt has a wide residual discretion to make an interim order, taking into account anyrelevant circumstances. Section 15 reads:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.(3) However, if the Crown is a respondent,—(a) the court may not make an order against the Crown undersubsection (2)(a) or (b); but(b) the court may, instead, make an interim order—(i) declaring that the Crown ought not to take any furtheraction that is, or would be, consequential on theexercise of the statutory power:(ii) declaring that the Crown ought not to institute orcontinue any proceedings, civil or criminal, inconnection with any matter to which the applicationrelates.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[58] The purpose of s 15 is generally to preserve the position of the applicant, notimprove it.18 However, preservation is not interpreted so narrowly that it means onlypreserving the status quo. In Greer v Chief Executive of Department of Corrections,Francis Cooke J held that interim relief can encompass orders which place theapplicant in the position they would have been in but for the alleged illegality.19 It can18 See, for example, Forser v New Zealand Chiropractic Education Trust [2010] NZAT 361 (HC).19 Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571at [22] relying on Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 10 September 2003; Kiwi Foundation Ltd v Attorney-General HC WellingtonCP346/97, 18 December 1997; and Taylor v Chief Executive of the Department of Corrections[2010] NZCA 371, [2011] 1 NZLR 112.also encompass orders which preserve an applicant's remedy in the event he or sheprevails in the substantive proceeding. As the Court said in Greer:20Like all legislation, s 15 should be interpreted in light of its purpose. There aretwo evident purposes of the interim relief power – to relieve the applicant fromthe adverse effects of a challenged decision until the challenge is heard anddetermined, and to preserve the ability of the Court to grant effective relief ifthe challenge is successful. The threshold question should be interpreted andapplied in light of these purposes.[59] I find further support in Part 30 of the High Court Rules 2016. Rule 30.14recognises the inherent power of this Court and is another route to the same endwithout the same express threshold requirement. In short, whichever approach isadopted, I find that I have the jurisdiction to make an interim order in the terms sought.[60] This is an exceptional situation. It is strongly arguable that the interim orderplaces Mr Christiansen in the position he would have been in had the respondentaddressed his application as it should have been addressed. As Mr Foote andMr Cameron put it their crisp written synopsis:There is a strong case that had the respondent applied the Health Act Ordercorrectly, Mr Christiansen's circumstances would be recognised as comingwithin one or both of the exemption categories: either compassionate groundswith a low risk of transmission, or exceptional circumstances. It is difficult tocomprehend what other situations would suffice to meet these categories if thepresent applicant's circumstances do not.[61] In other words, it restores him to the position he would have been in but forthe fault in the original decisions. The harsh reality is there is no time for a sensiblealternative remedy. It is difficult to envisage more compassionate grounds than thosepresented here. There could not be any more pressing circumstances than the prognosisof likely death within 1–2 days. Even a short delay may mean any remedy is futile.[62] Just because interim relief will effectively or practically determine theproceeding through dint of circumstance does not present an insurmountable hurdle.[63] It is also now apparent that there is no jurisdictional bar to interim mandatoryorders where necessary and appropriate.21 While the interim orders I made in this20 At [24].21 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112.instance take the form of mandatory terms, because of the manner of their expression,they do not require the respondent to take positive steps other than to stipulate anyfurther reasonable conditions to minimise the public health risk. The orders aretherefore distinguishable from those at issue in Taylor v Department of Corrections,where the interim orders would have required Corrections to take positive steps toprovide Mr Taylor with a computer. In substance and effect, the permission is reallymore akin to a prohibitive interim order in the sense that it restricts enforcement of theisolation requirements against Mr Christiansen.Summary[64] In conclusion, I am satisfied that the merits strongly favour Mr Christiansen.The decisions to decline permission are on their face legally flawed on more than basis.Had the correct approach been followed, Mr Christiansen's application may havesuccessfully come within the compassionate grounds (with low risk of transmission)or exceptional circumstances categories.[65] A rigid policy that does not include exceptional circumstances, especiallywhere the empowering law provides for those exceptions, is the antithesis of what wasintended under the Order, objectively read. As stated by Winkelmann J in HousingNew Zealand Corporation v Auckland District Court officials "cannot close [their]mind to the possibility that special circumstances may exist outside those categoriesdescribed and dealt with in even the most carefully formulated policy".22[66] I have balanced other material factors in the exercise of my discretion. Theseare principally the public health and safety concerns and the potential ramifications ofthe grant of relief. I am satisfied that the restrictive conditions I imposed, whichinclude directing the respondent to stipulate additional reasonable conditions,addresses the question of risk.[67] I have also considered the question of the appropriate deference to the expertiseof the decision makers in a time of unprecedented public crisis. No matter hownecessary or demonstrably justified the COVID-19 response, decisions must have a22 Housing New Zealand Corporation v Auckland District Court [2008] NZAR 389 (HC) at [31].clear and certain basis. They must be proportionate to the justified objective ofprotecting New Zealand bearing in mind the fundamental civil rights at issue –freedom of movement and of assembly in accordance with the New Zealand Bill ofRights Act 1990.[68] In this particular case, there is a very strong argument that the permission forMr Christiansen to visit his dying father was not considered on the correct legalgrounds and did not take account of relevant mandatory considerations. It had thehallmarks of automatic rejection based on circumscribed criteria rather than a properexercise of discretion required by the Health Act (Managed Air Arrivals) Order.Indeed, the respondent responsibly acknowledges that on the face of the documentaryrecord, one of the grounds of review can be made out.[69] In my judgment, this exceptional case demands an effective and swift responseby the Court to achieve overall justice. I have in mind here particularly the imminenceof Mr Christiansen's father's passing and the very material factor that visitation is onlyat a private home and not in a public space.Orders[70] 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;(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.[71] These orders are to lie in Court until 12.00 pm, Friday 1 May 2020.[72] The parties have leave to apply, and I will make myself available at short noticeif any practical problems arise.[73] The parties did not address me as to costs. I reserve costs.[74] I record my gratitude to all counsel for their focused and helpful submissionsunder extreme urgency............................................................Walker JCOVID-19 SECTION 70 ORDER - 9 APRIL 2020