It ain't over 'till it's over

A couple of recent cases show that being right about the law isn't enough - you also need to get the courts to do what you want. Because if you can't, you may even end up worse off than when you started.

In any court case, there are (at least) two big questions. The first is, what does the law say about the matter? Then there is the second; given what the law says, what will the court do as a consequence?

Sometimes that second question answers itself. If, for example, you are charged with assault for hitting someone in the face as they run at you with an iron bar and the law says that punching a person who is attacking you constitutes "self defence", then the consequence is that the court must acquit you on the charge. But in lots of cases the second question remains quite open - the court retains a real choice as to how it will respond to a particular legal finding.

A couple of recent cases demonstrate just how important the exercise of that choice can be in practice. In both, the plaintiffs appeared to have won their legal battle, only to find that they ultimately have lost the war as the court refuses them their sought relief. And in at least one of these cases, the plaintiff actually creates a far worse situation (in their eyes) than existed before they went to court. 

Let's begin with that latter case. It was brought by Right to Life New Zealand - a group that (as its name suggests) opposes the practice of abortion. It alleged that the Abortion Supervisory Committee (the Committee) had given the Family Planning Association (the FPA) an unlawful licence to carry out abortion procedures at its Tauranga Family Planning Clinic. As a consequence, it wanted the High Court to rule that carrying out any further such procedures at that clinic would be unlawful; in effect, that there couldn't be any more abortions in the Bay of Plenty, as the Tauranga clinic was the sole regional provider of that service.

The first question for the Court, then, was whether the Committee's licence was unlawful. The problem was that the Committee had purported to only allow the FPA to carry out medical abortions (i.e. pregnancy terminations using drugs, not surgical procedures) in the first 9 weeks of pregnancy. Yet the governing legislation empowered the Committee to "authorise the holder to permit the performance of abortions in the institution to which the licence relates only during the first 12 weeks of the pregnancy."

So, said Right to Life, the Committee's licence purported to permit something that the Committee couldn't allow. It could either say "no licence", or it could say "you have a licence to perform abortions up to 12 weeks", but it couldn't say anything else. And if the Committee tried to do so, it was acting unlawfully.

With which the Court agreed (at para [74]): 

The wording of the subsection is very prescriptive. To paraphrase the statutory language, s 19(3) says that a limited licence must authorise FPA to perform abortions at its Tauranga clinic during the first 12 weeks of pregnancy. That language is explicit, clear and mandatory. There is no room to read into the provision a discretion to grant licences for a shorter period than 12 weeks. The broad terms of s 14(2), the Act’s implied powers provision, though they are permissive in character, cannot override such clear language. Nor is it appropriate to adopt an ambulatory approach to construction of s 19(3) in order to take into account advances in EMA procedures when interpreting the provision. There is simply no room in the words, even by adopting a deliberately liberal interpretation, to extend the terms of s 19(3) so as to treat 12 weeks as no more than an upper limit. 

The consequence of this understanding of the law is that the Committee's licence allowing the FPA to carry out abortions was ultra vires - beyond the legal power that the Committee possessed under statute. So does it then follow that the FPA will have to stop carrying out medical abortions in Tauranga, as it has no valid licence to do so? Well, that is where the second, remedial question comes in.

Because the Court had a choice. It could declare future such procedures to be unlawful because there was no valid licence permitting them (at least, unless and until the Committee got around to granting the FPA a new licence). But it also could refuse to do so and instead take action to remedy the current unlawful state of affairs. Which is what the High Court proceeded to do.

First, the Court formally declared that the old licence was unlawful (thus alerting the Committee to what it can and can't do in the future). Then it amended the terms of the Committee's licence to allow medical abortions during the first 12 weeks of pregnancy (thus bringing the licence terms into line with what the statute prescribes). And finally it refused to void the licence because, with the new wording in place, it now conforms to the law.

Meaning that, as a result of the Right to Life case, the Tauranga Family Planning Clinic now has a licence permitting it to carry out medical abortions 3 weeks later into a pregnancy (although in practice this isn't done, as it's not considered medical best practice). Which is, I think it is safe to say, pretty much the opposite of what Right to Life wanted to accomplish!

The second case I want to discuss (Charles William Willams & Ors v Auckland Council, available from here) involves coastal land at Te Atatu currently owned by the Auckland Council. The Council (in the form of the old Harbour Board) effectively required owners to sell it the land in the 1950s for the purpose of building new harbour facilities. However, by the early 1980s those harbour plans had been abandoned and the Council began to consider other uses for it.

Under the Public Works Act 1981, once the Council no longer needed the land for its harbour work it should have offered the descendants of the original owners the right to buy the land back at its then-market value. But it didn't do so. And for some twenty-odd years matters largely lay dormant, until in the early 2000's a litigation funding company - S 40 Ltd - went knocking on the doors of the owner's descendants with a proposed deal.

In essence, the deal was that the company would take on the costs of running the case and, if it won, pay the owners a success fee (representing a fraction of the potential gains from the case). In exchange, the owners signed over to S 40 Ltd their legal rights to buy back the land from the Council at its early 1980s value - which is a lot, lot less than its current worth. So the major beneficiary from winning this case would be S 40 Ltd, not the people descended from the land's original owners (many of whom had absolutely no idea they were connected to the land before S 40 Ltd came knocking).

The matter then came before the Court of Appeal after the High Court had found, on a narrow legal point, that the Council didn't have a legal obligation to offer the land back to the original owners or their descendants. A conclusion that the Court of Appeal found was mistaken. So the Court of Appeal concluded that in law the landowners and their descendants did have a statutory right to buy back the land at its early 1980s value, and nothing that has happened since then removed that right.

That then raises the second of our questions. Given its legal finding, what should the Court do about the existence of that right? It begins by noting the underlying presumption (at para [99]):

... while we retain a residual discretion to refuse relief, it must be exercised according to principled limits within the statutory framework. In the judicial review context a plaintiff who has proved a breach of his or her rights is entitled to the vindication of a declaration unless there are special considerations to the contrary or extremely strong reasons for refusal.

In other words, the Council's breach of the landowners' (and their descendants') statutory right usually deserves a remedy in their favour ... unless there's some reason not to grant it. And it is at this point that the plaintiffs' (who are, remember, in practice S 40 Ltd) case begins to fall apart.

First of all, the rights holders (the landowners' descendants) had waited some two decades before beginning to pursue their legal claim. This delay is despite the fact that it was abundantly apparent that the Council had long ago changed its plans for the Te Atatu land, meaning that the basis for their claim was publicly known about for decades. 

Second, the Council had made a lot of plans for the use of the Te Atatu land in the interim. Some of that use is intended to be residential - it's going to build houses on it to help fix the shortage in the Auckland region. Some of the use is recreational - there's a park and walking trails on the land now. And some of these developments were paid for through a special rates impost, meaning that the entire community has now invested into the land in question.

Third, the Court clearly was not happy that the effect of any declaration would be to enable a private litigation firm to piggyback on the owners' descendants and obtain a huge profit at the expense of the wider Auckland community (at para. [125]):

 Critically, S 40 Ltd would ... obtain a substantial windfall attributable to the relentless effects of inflation on land values in West Auckland ... . And the Council would remain both exposed to a corresponding financial burden and vulnerable to losing the amenity value of the Te Atatu land. 

So a combination of those three factors - the delay in bringing the case, the Council's investment in the land over the years and the fact that it isn't really a case about reuniting owners with their lost turangawaewae - led the Court to refuse to declare that the Council has a legal obligation to offer the land back under the legislation. Which in turn makes the identified legal right meaningless, because until the Court tells the Council it must act, it doesn't have to. 

Both of these cases stand as an object lesson to lawyers, wannabe lawyers and ordinary people - it's not just about what the law says, it's also about what a court will do for you as a result. Because unless both things go your way, you really, really don't want to be in a courtroom.  




Random addendum: The title to this post, is of course, courtesy of the late, great Lawrence Peter "Yogi" Berra. It's been a few weeks since his passing, but I want to briefly note the end of one of the all time baseball greatsFurthermore, as this account in The Guardian makes clear, reducing Berra's legacy to a purveyor of mangled folk wisdom is deeply unfair to his life and achievements:

What is not told as much is that Berra was one of the first in baseball to welcome African American players when the color line was broken or that he was always an inclusive person. A few years ago he joined Athlete Ally, an organization dedicated to ending homophobia and transphobia in sports.

 Rest well, "Yogi". Rest well.