Borrowdale application to transfer judicial review to Court of Appeal declined

Andrew Borrowdale had issued a proceeding for a judicial review the Director-General of Health over Covid-19 lockdown restrictions in the High Court at Wellington.

He then applied to have the proceeding transferred to the Court of Appeal to try to speed up the process, anticipating the likelihood the Crown would appeal if ruled against. But this transfer application has been declined by the High Court, who say that the matter is best dealt with in the first instant by a trial court rather than an appeal court.

Borrowdale is appearing in person (not represented by another lawyer).

The Court of Appeal judgment gives some details about the judicial review.

Mr Borrowdale has issued a proceeding for judicial review against theDirector-General of Health in the High Court at Wellington. He alleges three lockdown orders made by the Director-Generalare ultra vires. That is, he saysthey exceed the powers vested in medical officers of health to make quarantine, isolation, non-association and closure orders under s 70 of theHealth Act 1956. He alleges theorders are unlawful, ineffective and should be quashed by the High Court.

The three orders challenged (andthe basis of challenge in each case) are as follows.

First, there is the initial “Level 4”non-association and closure order of 25 March 2020, made purportedly pursuant to s 70(1)(m)of the Health Act. This required premises in all districts of New Zealand to be closed, other than certain essential businesses defined in an appendix. Mr Borrowdale alleges the order exceeded the power within s70(1)(m)(i) of the Health Act enabling closure of “all premises within the district … of any stated kind or description” by failing to refer to premises of a stated kind or description,and in purporting to define premises negatively by reference to all premises (other than those essential). Mr Borrowdale makes a related argument in relation to the prohibition on congregation inoutdoor places of amusement or recreation. He further alleges that the order’s definition of “essential businesses” amounted to an unlawful delegation to unnamed officials to decide which premises should be closed, and that the definition of “congregate” purports to vary the primary legislation

Secondly, Mr Borrowdale challenges the further “Level 4” isolation and quarantine order of 3 April 2020,made purportedly pursuant to s 70(1)(f)of the Health Act. This required all persons in all districts of New Zealand to be isolated or quarantined by remaining at their current place of residence, other than for certain “essential personal movement”. Mr Borrowdale alleges th eorder is ultra vires s70(1)(f)because that provision does not empower orders of a general nature. Rather,he says it only empowers a medical officer of health to require particular individuals to be isolated, quarantined or disinfected.Mr Borrowdale further alleges that the Director-General exceeded his powers by purporting to act nationally in exercising the functions of medical officers of health in their health districts, without considering the needs of each health district separately.

Thirdly, Mr Borrowdale challenges the “Level 3” orderof24 April 2020,made purportedly pursuant to s 70(1)(f) and (m)of the Health Act.1He says the third orderis ultra vires for the same reasons as the second order.

But level 4 is past (hopefully for good) so is sort of irrelevant now.

It should be noted that thefirst and second orders were revoked by the thirdorder and are no longer in force. Any urgency therefore relates to the operative effect of the third (“Level 3”) order only.

And that needs to be heard urgently if it is to be dealt with before the middle of next week, when we may be dropping to Level 2.

The law may be changed for Level 2 anyway – see Covid-19 response: New legal framework as move to Alert Level 2 considered

Mr Borrowdale relies on s 59(3)(b). He submits that this proceeding raises issues of considerable public importance. The orders affect the whole population in a variety of ways, “by confining virtually the whole of the population of New Zealand to their homes and requiring businesses to close”.

Mr Borrowdale submits the orders continue in force and are likely to be replaced by similar orders using the same powers under scrutiny in the proceeding. Potentially these the orders may be spent by the time his application has run its full course through both the High Court and Court of Appeal. He submits that he is unlikely to have resources sufficient to take a protracted proceeding through potentially three levels of court,with cumulative exposure to costs.

He submits, “[t]here is a real possibility that, if the matter proceeds in the High Court without removal, it may not reach the Court of Appeal at all.”

For the Director-General, Ms Casey QC and Mr Powell oppose removal and transfer to this Court. They submit that it is of critical importance that the resolution of this proceeding be progressed in a manner that allows for a fully informed and considered determination of the issues before the Court.

They submit that urgencyshould not displace the respondent’s right to properly prepare his defence and to be heard fairly, nor the public interest in achieving an appropriate outcome,both in terms of the legality of the orders and the remedies sought by the applicant.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

As this Court observed last week during the hearing of the habeas corpus applications in A v Ardern, questions raised concerning legality of theDirector-General’s various lockdown orders are complex.3They are not merely questions of statutory interpretation, or law, but mixed questions of law and fact. It may be assumed the Crown may need to call evidence of process,contexta nd history. It is not inconceivable there will need to be cross-examination. These are forensic processes far more amenable to resolution in a trial court. It would not be right for this Court to make orders now which limit the parties’ reasonable freedom of action in both proving and defending this proceeding.The burden of the mandatory considerations in s 59(4) lies firmly against removal and transfer

While the restrictions under lockdown are considerable and affect everyone in New Zealand, a quick process that ruled lockdown restrictions illegal would also potentially have a big effect on many people. It could have a life or death effect.

I am not persuaded,in these circumstances, that the proceeding is unlikely to be determined urgently if heard first in the High Court.

The question this application begs is whether this Court should now limit theavailable judicial steps to two (Court of Appeal, and perhaps Supreme Court) rather than three (High Court, Court of Appeal and perhaps Supreme Court).

And behind that lies another question, which is whether we should thereby deny parties’ordinary constitutional entitlement to a first appeal as of right (any appeal to the Supreme Court being by leave only). While leave might be anticipated, that is still a step this Court should be reluctant to take, especially where the issues are ones of such fundamental importance as these.

The application for transfer of the proceeding to the Court of Appeal, under s59 of the Senior Courts Act 2016, is declined.

There is likely to only be time and need for this matter to be heard once anyway due to law changes indicated by the Government for the near future. If the Government loses then they are more likely to get the law right (to suit their purposes) rather than appeal the decision.

Click to access CA2392020.pdf

 

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8 Comments

  1. Alan Wilkinson

     /  8th May 2020

    I’m not so sure about that last sentence. Losing could open the Crown to a multitude of litigation about illegal enforcement actions.

    Reply
    • Maybe, but unless anyone has been imprisoned solely on alleged Covid restriction breaches it’s unlike;y to require super urgency.

      Reply
    • Duker

       /  8th May 2020

      ” Losing could open the Crown to a multitude of litigation about illegal enforcement actions.”
      Didnt help Kim DotCom to have many police/crown actions rulled illegal

      Reply
  2. Duker

     /  8th May 2020

    My simple mind sees the ex barrister Andre Borrowdale already has an error
    “Mr Borrowdale alleges th eorder is ultra vires s70(1)(f)because that provision does not empower orders of a general nature. Rather,he says it only empowers a medical officer of health to require particular individuals to be isolated, quarantined or disinfected.”

    However, all powers under Section 70(1) are because
    ” the medical officer of health may from time to time, if authorised to do so by the Minister or if a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or while an epidemic notice is in force,—”
    So we need a state of emergency or Epidemic Notice ( from the PM) for a few individuals ?

    Same with his other claim of not able to close all premises, it clearly says that can be done and says so.

    Reply
  3. NOEL

     /  8th May 2020

    Congratulations to the majority of Kiwis for accepting the reasons for lockdown without questioning Level 4 .
    Now that were are soon to go to Level2 is this hindsight shite of any value?

    Reply
    • Alan Wilkinson

       /  8th May 2020

      Might stop the next dictator taking over, NOEL. And might let you see your dying wife/son/daughter. If you don’t think that is shite of course.

      Reply
      • Duker

         /  9th May 2020

        Should have followed the ‘last dictatorship’ who for the Canterbury earthquakes would write in provisions for most court challenges to be barred. That wasnt to save lives of course, as that period had passed.

        Reply
  1. More from Geddis on Covid lockdown legality | Your NZ

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