Lockdown case can’t leapfrog High Court

An attempt to have a test case over the legality of the Covid-19 lockdown go straight to the Court of Appeal, skipping the High Court, has failed.

Andrew Borrowdale, of Wellington, asked the Court of Appeal to accept the case for hearing but, in a decision issued yesterday, the court declined.

Borrowdale sued director-general of health Ashley Bloomfield in the High Court at Wellington, claiming a lockdown at alert level 4 was imposed and enforced without legal authority.

In a statement of claim filed in court he said he wrote to the Attorney-General, copied to the Solicitor-General, over a month ago setting out his concerns that the Government was acting unlawfully in imposing a national lockdown.

Aside from the Attorney-General’s office saying they’d received the April 1 letter, Borrowdale received no other response. He now wanted the orders quashed and declarations made that Bloomfield’s orders for lockdown, quarantine and reduction to alert level 3 were outside the law and nothing done under their supposed authority had any legal effect.

Two of the orders have already been overtaken by the third and are no longer in force, so any urgency related just to the level 3 lockdown order, the Court of Appeal said.

Borrowdale said the level 3 order could be replaced with another using the same powers that he wants to challenge.

He also doubted he would have the resources to go through hearings in up to three levels of court, if he potentially had to pay costs. There was a real possibility that if it was heard in the High Court it might not reach the Court of Appeal at all, he said.

Bloomfield’s lawyer opposed the application for the Court of Appeal to hear the case directly. She said there should be a reasoned High Court decision before any Court of Appeal hearing.

The President of the Court of Appeal, Justice Stephen Kos, said he accepted the case raised issues of considerable public importance that needed to be decided with urgency, but that could be done in the High Court in the first instance.

The issues were complex and witnesses might need to be crossexamined. The parties’ opportunity to prove and defend the proceeding should not be limited, he said.

The Court of Appeal’s primary role was to correct errors on appeal, he said.

The High Court decision would either uphold Bloomfield’s orders or invalidate them. If they were invalidated the Government could choose to either appeal or seek to change the law.

If the outcome was appealed, the parties’ options should not be limited when they would ordinarily have the chance of also asking for a second appeal to the Supreme Court.

Borrowdale says orders Bloomfield made, including on March 25 closing all but essential businesses, a more detailed isolation and quarantine order on April 3, and one that took effect from April 28 reverting to level 3 lockdown, were claimed to be made under section 70 of the Health Act 1956.

Individual freedom of movement and association couldn’t be infringed except by clear and express authority by law.

Bloomfield exceeded his power in making the orders, the claim alleged.

The law gave the power to require that individuals should be ‘‘isolated, quarantined or disinfected’’, but it was an ‘‘absurdity’’ to suggest the law allowed a medical officer of health to require the entire population to be disinfected.

Any urgency related just to the level 3 lockdown order.