Court’s role ‘extended’

Press, 15 July 1985, Page 4

Court’s role ‘extended’

A Christchurch professor of law believes that Mr Justice Casey has extended the traditional role of the court in his explanation of the interim injunction to stop the All Black rugby tour of South Africa. Professor Gerald Orchard, of the University of Canterbury’s law department, said Mr Justice Casey’s statement that the 1981 rugby tour by the Springboks was a disaster was unprecedented. “Second, he seems to have expressed the view that it is not in the interests of rugby for the tour to go ahead. The question under consideration seems to be whether the Court believes it is in the interests of rugby for the tour to proceed, not whether the Rugby Union council believed it was,” Professor Orchard said. The traditional role of the Court would have been to consider whether the Rugby Union believed it was in the interests of the sport when it made its decision to tour, rather than for the Court itself to express an opinion. “An example would be members of Hart seeking an injunction to stop demonstrations because they believed that people were

being turned away against the organisation because of the demonstrations. Would it then be appropriate for a judge to view that evidence and conclude that Mr Minto and his colleagues were wrong?” Professor Orchard, who was in the High Court in Wellington when Mr Justice Casey delivered his judgment, said the injunction had set a precedent. “It is a remarkable decision. The Government has said it believes the tour is contrary to the public interest. But it also said it did not have the power to stop it, and it has not been willing to introduce legislation to stop it. “That being the case, we now have the High Court saying it will stop the tour, at least for the time being, on the basis of written evidence with no crossexamination, and on evidence that the judge has said might or might not be admissible in the hearing of the case.”

Professor Orchard emphasised that he had the highest regard for Mr Justice Casey, as did the rest of the legal profession, but the decision was remarkable.

“The injunction has pre-

vented a voluntary association from an act that is entirely lawful and involves travel,” he said. What the implications of the decision were he was not sure.

“It has certainly set a precedent. How that will be used or interpreted in future we cannot know.” Mr Justice Casey had indicated that the case was unique in his view, “so perhaps he did not believe it would set a precedent, but it certainly has,” Professor Orchard said.

The Rugby Union’s next step could be to appeal, he said. It had been indicated that an appeal against the injunction would be expedited by the Court of Appeal. However, the union might decide that given the short time to the date when the tour was to have begun and the disruption to its plans, it might forgo an appeal. The union might prefer to hear the case out instead, he said. Professor Orchard expected the case would take weeks rather than days to hear, although there was no real way of knowing. “The process of discovery which began last week, where the Rugby Union

hands over all its documents on the tour to the lawyers for the plaintiffs, is still going on. As the plaintiffs’ lawyers see new documents they find more evidence. It will certainly be some time before the case could be heard completely,” he said.

Asked about damages against the plaintiffs should it be found that the injunction should not have been granted, Professor Orchard said plaintiffs were required to accept responsibility for damages to the defendants when seeking an interim injunction. if the finding in the case went against the plaintiffs, the injunction would be unjustified and the plaintiffs liable for damage. Normally the damages would apply only to the listed defendants in a case. Mr Justice Casey’s statement that the plaintiffs had accepted damages “to extend to commercial loss action to individual team members and the team doctor” seemed to indicate that provision had been broadened, Professor Orchard said. But he could not be sure without checking with the lawyers acting in the case.