NO PERSON OTHER THAN THE PARTIES TO THE PROCEEDING OR THEIR COUNSEL MAY HAVE ACCESS TO ANY DOCUMENTS ON THE COURT FILE WITHOUT THE PERMISSION OF A JUDGE.

PUBLICATION OF THE NAME OR PARTICULARS LIKELY TO LEAD TO THE IDENTIFICATION OF THE APPLICANT IS PROHIBITED UNTIL FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-522 [2013] NZHC 823

UNDER	the Judicature Amendment Act 1972

IN THE MATTER OF	an investigation by Paula Rebstock into possible unauthorised disclosure of information about the Ministry of Foreign Affairs and Trade

BETWEEN	A Applicant

AND	HER MAJESTY’S ATTORNEY- GENERAL
First Respondent

PAULA REBSTOCK Second Respondent

Hearing:	18 April 2013

Counsel:	J S McHerron for applicant
U R Jagose and J E Dick for respondents

Judgment:	19 April 2013

RESERVED JUDGMENT OF DOBSON J
(Interim orders under s 8 of the Judicature Amendment Act 1972)

A v ATTORNEY-GENERAL HC WN CIV-2013-485-522 [19 April 2013]

[1]       In  this  proceeding,  A seeks  judicial  review  of  what  are  presently  draft conclusions  reached  by  the  second  respondent  (Ms Rebstock)  in  relation  to  an investigation Ms Rebstock has undertaken into possible unauthorised disclosure, in early May 2012, of Cabinet papers addressing possible changes at the Ministry of Foreign Affairs and Trade.   The Attorney-General has been sued in respect of the State Services Commissioner (the Commissioner) who appointed Ms Rebstock to report to him under s 25 of the State Sector Act 1988 in respect of an investigation to be conducted under s 8 of that Act.

[2]       The statement of claim alleges that completion of the report consistently with the draft, part of which has been provided to A for comment, would amount to an unreasonable exercise of the power vested in Ms Rebstock.   A also complains of pre-determination  and   breaches   of  natural  justice  in  the  process   by  which Ms Rebstock’s investigation has been conducted.

[3]       Prior to commencement of the proceedings, A obtained orders (by consent) that A could pursue the proceeding without disclosure of A’s identity.  The present argument was heard in chambers.   A media representative sought permission to remain  during  the  hearing  and  to  report  the  argument.     On  Mr McHerron’s application, which Ms Jagose did not contest, I declined permission for the argument to be reported.  Mr McHerron’s concern was that the matters likely to be traversed during the argument could extend to indications of A’s relevant position, or other details that might lead to A’s identification.   I was concerned that the argument should not be unnecessarily constrained to avoid that risk.

[4]     Accordingly, the terms of the order made on 10 April 2013, prior to commencement  of  the  proceedings,  will  continue  until  further  order  and  that prohibits publication of the name or any particulars likely to lead to the identification of A.  Those orders also restrict access to the Court file by anyone other than the parties or their counsel, without the permission of a Judge.

[5]       A has applied for interim orders under s 8 of the Judicature Amendment Act

1972 (s 8) to preserve his position pending determination of these proceedings.  I am

able to confirm a fixture for 30 April 2013, and the present issue is therefore the extent of orders that are necessary to preserve A’s position until that time.

[6]       Section 8 gives the Court a wide discretion in assessing the scope of interim orders required to restrain a defendant as the exerciser of a statutory power.   The Court can weigh the full range of case-specific considerations that might bear on justification for restraints of varying extent.  Classically, the Court can have regard to the apparent strength or weakness of the claim, and the repercussions, both public
and private, of granting interim relief.

[7]       Mr McHerron   sought   interim   orders   prohibiting   Ms Rebstock   from completing or submitting any report to the Commissioner that contained allegations or findings, either express or implied, against A.  He also sought an order restraining the respondents from taking any further action that might lead to the identification of A in connection with the investigation Ms Rebstock has been conducting, and an order prohibiting the respondents from making any reference to allegations of impropriety against A, whether or not A’s name was used in such references.

[8]       The respondents acknowledged the justification for a limited constraint on the steps Ms Rebstock would otherwise take in completing the report, and what the Commissioner might then do with it as the intended recipient.   The respondents accepted that they should be constrained from any steps that might lead to the identification of A until substantive determination of the proceedings.  However, it was argued for the respondents that the need to preserve A’s position should not prevent Ms Rebstock completing her report and delivering it to the Commissioner, provided that there is no publication beyond that of any component of the report that might lead to A being identified.

[9]       Ms Jagose correctly argued that the pre-requisite to the Court’s jurisdiction to make an order under s 8 is being satisfied that the order sought is necessary to preserve A’s  position.    She  argued  strongly  that,  in  light  of  the  extent  of  the constraint the respondents agreed to, A could not make out a necessity for any

broader constraint.   In those circumstances, it would be unnecessary to consider other factors that might influence the scope of orders made.

[10]     The   argument   proceeded   on   the   premise   that   the   current   draft   of Ms Rebstock’s  report   is  available  to  the  same audience  as  Ms Rebstock’s  final report would be, if she was not constrained by an interim order and proceeded to complete her task and report to the Commissioner.  The constraint agreed to by the respondents would apply to the final report, preventing any disclosure beyond the Commissioner pending determination of the substantive judicial review.  I took the
scope of disclosure that could occur in those circumstances to extend only to those assisting Ms Rebstock in preparation of the report, and those in the office of the Commissioner who would receive and consider the report on behalf of the Commissioner, together with the Commissioner himself.

[11]     Ms Jagose argued that there was no material difference, in terms of the risks of unintended disclosure, between an advanced draft such as presently exists, and a final report.  Ms Jagose put it in terms that without being able to get into the mind of a notional disgruntled public servant who might be motivated to make unauthorised disclosure of the content, it was impossible to attribute any materially greater risk of disclosure of the final report than already exists in relation to an advanced draft of it.

[12]     Ms Jagose urged the Court to test in a robust way the extent to which A could make out genuine necessity for s 8 orders pending a substantive hearing.  Ms Jagose was concerned that the bar should not be lowered by other factors such as a lack of prejudice to the respondents if, for example, the scope of restraint which A desired went beyond what was absolutely necessary to protect A’s interests pending substantive determination.

[13]     Applying  that  point  to  the  present  situation,  Ms Jagose  argued  that  if Ms Rebstock was not constrained from completing her report, and  proceeded in terms materially similar to the present draft in respect of A, then there would be no

harm to A or prejudice to A’s position that could not adequately be addressed by the terms of orders made at the substantive stage of the proceedings.

[14]     In responding, Mr McHerron identified two respects in which he argued that additional  prejudice  would  arise  for A if  Ms Rebstock  is  not  constrained  from completing her report and providing it to the Commissioner. On that basis, he argued that a wider constraint was necessary to prevent those steps occurring.

[15]     First, Mr McHerron submitted that materially greater prejudice would exist to A’s interests if the report were completed and provided to the Commissioner than presently exists because there would be measurably more pressure on those with access to a final report to succumb to the temptation to provide unauthorised disclosure of the report in its final form.  Mr McHerron’s point was that a draft report does not contain conclusions to which the report writer was committed.  Arguably, draft findings would remain deniable until the report was in final form, and there was a material difference in status between a draft and final report.  The greater pressure for unauthorised disclosure of a final report would add, to the same proportionate extent, to the risk of disclosure of A’s identity.

[16]     The necessity for interim orders cannot be assessed in absolute terms. As has been acknowledged by the Supreme Court, before the Court makes interim orders under s 8:

…  it  must  be  satisfied that the order sought is reasonably necessary to
preserve the position of the applicant.

[17]     The issue is the nature of constraints that can realistically be imposed that would add materially to the protection of A’s position.  The respondents accept that constraints to prevent A being identified prior to the substantive determination are necessary.  The respondents dispute that additional constraints on the steps that could otherwise be taken are necessary to further reduce the risk of disclosure of A’s identity.

[18]     I am persuaded that the steps reasonably necessary to limit the risks of A being identified as a subject of the investigation extend to requiring the report to stay at a draft stage rather than being completed.  I am reinforced in my view that that is a reasonably necessary constraint by the short period that it will operate, with only seven working days between the making of the present orders and the substantive hearing of A’s judicial review claims.

[19]     Secondly,  Mr McHerron  argued  that  an  applicant  for  relief  is  entitled  to pursue orders on an anticipatory basis, to prevent the exercise of a statutory power that would be in breach of the law because, in appropriate circumstances, the Court will recognise that “prevention is better than cure”.   The reasonable necessity for such wider orders is supported by the prospect that this is a case in which any substantive relief  to  which A is  entitled  would  have  more  appropriate  utility if granted in anticipation of the report being finalised, rather than seeking to correct the position  after  that  step  had  occurred.    Mr McHerron  invited  analogy  with  the approach of the Court of Appeal in BNZ Finance Ltd v Holland, which involved pre- emptive initiatives on behalf of a taxpayer seeking to restrain the Commissioner of Inland  Revenue  from  issuing  an  assessment  which  the  taxpayer  argued  would
constitute an abuse of power.   Richardson P observed:

…   s 4   directly   contemplates   investigation   of   and   protection   against threatened abuse of statutory power.  Prevention is often better than cure.

…

… it is a very strong step to stay the proceeding and insist that the applicant wait until the statutory body or officer has committed a possibly unlawful act before allowing the judicial review jurisdiction to be exercised.

[20]     Mr McHerron also invited analogy with the approach adopted by the Court of Appeal in Zaoui.    Those proceedings were brought on the basis of a preliminary decision by the Inspector-General of Intelligence and Security, in respect of a certificate issued in relation to Mr Zaoui as a refugee, stating that he constituted a security risk.  It was sought to be argued on behalf of Mr Zaoui that judicial review
should be available in  relation to the Inspector-General’s anticipated subsequent

steps in the exercise of statutory power.  The Crown had argued that seeking judicial review in those circumstances was premature, but the argument was rejected by the Court of Appeal, recognising that the availability of judicial review extended to the proposed exercise of statutory powers.

[21]     Ms Jagose’s response to this second argument relied on the same point as advanced in another context.  She submitted that if there is any error subsequently established in the decision still to be finalised by Ms Rebstock, then no material harm is done to A if the decision-making process is allowed to proceed to that stage. Provided the decision is not given effect to in any way adverse to A and there is no publicity identifying A, then any administrative law errors can be addressed adequately thereafter.    Implicit  in  Ms Jagose’s  submissions  to  this  effect  was  a measure of confidence that no administrative law errors will be made out, so that the least  disruption  to  the  process  that  is  now  ordered,  the  more  expeditiously the original task will be completed.

[22]     The point at which A is granted any administrative law relief, if at all, seems unlikely to be critical to how effective that relief will be.   However, if procedural deficiencies in Ms Rebstock’s investigation up to this point are made out, then it would be desirable for her to address those deficiencies before the report is finalised. So, too, if the content of her report goes beyond the jurisdiction contemplated by the terms of reference under which she is acting, then that error would be cured more effectively if the report is not in its final form.   Findings under either of those headings would not cease to be effective if the relief is only granted after the report has been finalised.  The differences in the utility of relief at the different stages do not render orders stopping preparation of the report at this point “reasonably necessary”.  It is nonetheless clearly highly desirable that that sequence is followed. In the circumstances of this case, it is appropriate to weigh that desirability against the  lack  of  substantial  prejudice  to  the  respondents  if,  for  the  following  seven working days and whatever time is required for the Court to produce a substantive judgment after the hearing on 30 April 2013, Ms Rebstock’s report is not formally
completed and submitted to the Commissioner.

[23]     Therefore, on the basis of the first consideration, with some weight added by the second, I am satisfied that constraints of wider ambit than those accepted by the respondents are reasonably necessary.

[24]     Although I tested counsel on the relative strengths of A’s case,  I do not consider it appropriate to express a provisional view on the point.  The claims cannot be dismissed as untenable but are likely to face substantial hurdles.  They are being pursued expeditiously and there is no disputing that A has a legitimate interest in preserving his position until the substantive determination.   This is not a case in which  the  entitlement  to,  or scope of,  constraints that  are reasonably necessary should be influenced by a provisional view on the strength of A’s case.

[25]     It  is  not  necessary  to  constrain  Ms Rebstock  from  taking  further  steps towards the conclusion of her report.  I am satisfied, however, that preservation of A’s position requires Ms Rebstock to stop short of formally completing her report so that the final report does not come into existence prior to the substantive hearing. Apart from the dialogue with those who have been assisting her so far and who might reasonably contribute to further work short of signing off the report as complete, Ms Rebstock  ought  not  to  communicate the content  or nature of any further work she might undertake towards its completion.

[26]     Accordingly, the scope of orders that I make until substantive determination of the proceedings are as follows:

(a)       The second respondent is restrained from completing or submitting her report to the first respondent in any form that contains any allegations or findings, whether express or implied, against the applicant.

(b)       Except to the extent necessary for the second respondent to continue work in the stages up to completion of her report:

(i)	the respondents must not take any other action that may lead to the  identification  of  the  applicant  in  connection  with  the

investigation   into   a   possible   unauthorised   disclosure   of Cabinet Committee papers concerning the Ministry of Foreign Affairs and Trade in or around May 2012; and

(ii)     the respondents must not make any reference (outside the suppressed confines of the Court proceedings) to allegations of impropriety   against   the   applicant,   whether   or   not   the applicant’s name is used in such references.

[27]	I confirm the following timetabling directions in relation to the substantive fixture on 30 April 2013, as discussed with counsel at the hearing:

(a)	the respondents are to file and serve their statement(s) of defence by

Monday, 22 April 2013;

(b)	the  respondents  are  to  file  and  serve  any  affidavit  evidence  by

Tuesday, 23 April 2013;

(c)	the applicant is to file and serve any affidavit in reply (if required) by

Friday, 26 April 2013;

(d)	the applicant is to file and serve an outline of submissions by Friday,

26 April 2013;

(e)	the respondents are to file and serve an outline of submissions by 1pm

on Monday, 29 April 2013.

Dobson J

Solicitors:
Lee Salmon Long, Auckland for applicant
Crown Law, Wellington for respondents

Counsel:
J S McHerron, Wellington