Coromandel Watchdog of Hauraki (Incorporated) v Minister of Finance
[2020] NZHC 888
•5 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-404-0138
[2020] NZHC 888
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
the Overseas Investment Act 2005
BETWEEN
COROMANDEL WATCHDOG OF HAURAKI (INCORPORATED)
Applicant
AND
MINISTER OF FINANCE and ASSOCIATE MINISTER OF FINANCE
First Respondents
OCEANA GOLD (NEW ZEALAND) LIMITED
Second Respondent
Hearing: 29 April 2020
Further submissions 5 May 2020
Counsel:
B O’Callahan, R B Enright and H Z L Krebs for Applicant J B M Smith QC, K G Stephen and K Anderson for
First Respondents
J Hodder QC, S McKechnie and S Kuper for Second Respondent
Judgment:
5 May 2020
JUDGMENT OF CHURCHMAN J
The proceedings
[1] The applicant has applied for judicial review of a decision made by the Minister of Finance and Associate Minister of Finance under the Overseas Investment Act 2005 (the OIA) which had granted applications by the second respondent (Oceana) to acquire three properties in Trig Road, Waihi for the purposes of establishing a
COROMANDEL WATCHDOG OF HAURAKI (INCORPORATED) v MINISTER OF FINANCE and ANOR [2020] NZHC 888 [5 May 2020]
tailings dam to support existing mining operations and the expansion of those operations.
[2] The case is unusual in that the decision under review related to the second application by Oceana in respect of acquisition of the same properties.
[3] The earlier application had been heard by the Minister of Land Information (Hon Eugenie Sage) and the Associate Minister of Finance (Hon David Clark). Minister Clark had approved the application but Minister Sage had declined it. Accordingly, as the decision had to be unanimous, the application was dismissed on 3 May 2018.
[4] Oceana brought judicial review proceedings in respect of the 3 May 2018 decision. Those proceedings were resolved by agreement and Oceana submitted a second application which, other than in respect of an amendment to the number of jobs that would be created, was materially the same as the earlier application.
[5] Pursuant to s 7 of the Constitution Act 1986, the second application was referred to different Ministers, the Minister of Finance (Hon Grant Robertson) and Associate Minister of Finance (Hon David Parker).
[6] The two Ministers agreed with a report from the Overseas Investment Office (OIO) which recommended granting the application.
The application
[7] The applicant has sought particular discovery from the first respondents. It seeks discovery of three categories of documents. The first category is the material that Minister Sage had in reaching her decision. The applicant says that whatever material she had available to her should also have been taken into account by the Ministers on the second application.
[8] The second category of documents relate to the first set of judicial review proceedings. The applicant contends that there was an arrangement or understanding
arising out of the judicial review application in relation to Minister Sage’s decision which has resulted in a fetter on the Minister’s decision.
[9] The third category of documents sought is advice received by the first respondents from Crown Law. The applicant’s contention is that, because the assessment report in which the advice was contained is said to contain all or some of the Minister’s reasons, whatever is contained within this legal advice “must also be part of those reasons”.
[10] In addition to issues of discovery, the applicant also raised, in submissions dated 27 April 2020, issues as to confidentiality. An interim confidentiality order had been made in this Court on 17 March 2020 as a result of a consent memorandum of counsel dated 12 March 2020.
[11] The confidential material has been disclosed to the applicant’s counsel and solicitors only, and the applicant says that this causes difficulties in obtaining instructions and giving candid advice. The applicant wants the interim confidentiality order varied so as to allow disclosure to two named members of its executive.
First respondents’ submission
[12] The first respondents contend that they have already discovered all relevant documents held by the OIO and the first respondents in relation to the decision which the applicant seeks to judicially review. The documentation discovered includes:
(a)all documents provided to the first respondents by the OIO (including the OIO’s assessment report of Oceana’s application (the Assessment Report));
(b)all documents provided by Oceana to OIO and the first respondents;
(c)all correspondence between Oceana, the OIO and the first respondents (including all internal correspondence at the OIO and the first respondents’ offices).
[13] The first respondents contend that the material sought by the applicants in relation to the first decision is irrelevant, and that whatever material the first decision- makers did or did not consider, cannot establish whether the first respondents did or did not have regard to all relevant matters. They submit that the proper focus of reviewing the decision is on the information before the first respondents, not Minister Sage.
[14] The first respondents claim that the applicant has misunderstood their defence and that they are not asserting that no alleged detrimental effects arise at all, but they deny that any alleged detrimental effects were a relevant consideration under the Act. They say that the point put in issue is the relevance of the detrimental effects, not their existence.
[15] They also point to the fact that the decision of Minister Sage makes clear what matters she considered, and it is not necessary to obtain discovery to establish that.
[16] The first respondents make a similar submission of irrelevancy in relation to documents relating to the judicial review of the first application. They also submit that the application is unreasonably broad in seeking “all documents held in relation to the judicial review proceedings …”.
[17] In relation to the applicant’s contention that the documents sought might reveal whether there was some “agreement or understanding” which acted as a fetter on the second decision, the first respondents point to the fact that both they and Oceana deny that there was such an agreement or understanding.
[18] The respondents also submit that, quite apart from the fact there was no agreement or understanding of the type postulated by the applicant, even if there had been, it would make no difference to the judicial proceedings. That is because the first respondents have already admitted in the pleadings what factors they took into account in arriving at their decision, and what factors they did not. They submit that whether detrimental consequences of the application were not considered because they were viewed as irrelevant under the Act, or because there was some agreement or
arrangement that they would not be considered, makes no difference to the outcome of judicial review proceedings.
[19] In relation to the legally privileged documents sought, the first respondents submit that legal advice given to Ministers and Government departments attracts legal professional privilege and is accordingly protected, and that the first respondents are entitled to refuse to disclose the information.
[20] The first respondents deny that there has been any waiver of the privilege and submit that it can only be waived by the Attorney-General.
[21] The first respondents reject the applicant’s contention that reliance on legal advice in formulation of a decision made in exercise of a statutory power of decision renders the privilege attaching to the advice relied on waived. They submit that privilege will only be waived where that is done voluntarily (not inadvertently) by producing or disclosing the significant part of privileged advice in circumstances that are inconsistent with a claim of confidentiality, or where the decision-maker has acted so as to put the privileged advice in issue in a Court proceeding.
Second respondent’s position
[22] The second respondent adopted the submissions of the first respondents in relation to discovery.
[23] In relation to the interim confidentiality order, the second respondent noted that the material in question is commercial in nature and time sensitive, and that disclosure may be highly prejudicial to the second respondent.
[24] It submitted that there had been no formal application by the plaintiff to amend the interim order and that the first that the second respondent knew of this was when it received the plaintiff’s memorandum of submissions the day before the hearing.
[25] It submitted that the material provided in the plaintiff’s synopsis was insufficient for it to be able to properly consider the application and noted that there was no explanation of the claimed difficulties caused in obtaining instructions or
giving advice, or as to why all of the currently redacted material needed to be disclosed.
[26] It submitted that the applicant should be required to detail the difficulties being caused by complying with the current interim order so that the second respondent could consider its position and reply with evidence as to why the confidentiality orders needed to remain in the interim.
The law on discovery
[27] The principles applying to discovery in judicial review matters are well established. Discovery in proceedings of judicial review is discretionary. The leading case is Wellington International Airport Ltd v Commerce Commission which established the following principles:1
(a)discovery extends to what may advance the party’s case or damage the opponent’s case in terms of the issues in the pleadings;
(b)relevance alone is not a sufficient test for discovery;
(c)discovery must also be necessary for fairly disposing of the proceeding;
(d)while there is no difference in principle between discovery in civil proceedings and judicial review, the more urgent context in which judicial review proceedings exist is relevant with a greater judicial responsibility to see that issues are narrowed and only what is truly required is laid before the Court;
(e)the ultimate question is whether the Court could fairly and effectively adjudicate on the issues in the proceeding without the additional material sought.
1 Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 25 July 2002, per Hammond J.
Analysis
[28] Relevance is particularly important when considering discovery in judicial review proceedings. In this case, the applicant needs to establish that the material considered by Minister Sage in reaching her decision, the material in relation to the judicial review of the first decision, and the material in respect of which legal privilege is claimed is relevant and that without it, the Court could not fairly and effectively consider the judicial review proceeding.
[29] The judicial review proceedings are focussed solely on the decision made by Ministers Robertson and Parker. They were not bound in any way by the factors which Minister Sage took into account. No issue of estoppel arises.
[30] The Court will accordingly not be assisted by knowing what factors Minister Sage took into account and could well be distracted by being invited to undertake a detailed consideration of sustainable economics in connection with Oceana’s application. The issue is not the correctness or validity of Minister Sage’s views on such matters. The issue is the legal one of the matters that were relevant in accordance with the statute which the Ministers were obliged to take into account.
[31] In any event, discovery is not necessary to establish what matters Minister Sage took into account as these are evident from her decision itself.
[32] In relation to the applicant’s claim that discovery is required of all documents relating to the judicial review proceedings taken in respect of Minister Sage’s decision, such documents are not necessary for the Court to be able to fairly and effectively address the matters in issue in these judicial review proceedings.
[33] I accept the first respondents’ submission that, given that the first respondents have acknowledged in the pleadings that they did not regard allegedly detrimental effects as matters that were relevant in accordance with the criteria set out in the Act, there is nothing further that discovery in relation to the first judicial review proceedings can add.
[34] The issue is essentially a legal one. If it is established that the respondents have simply misunderstood the law by adopting the position that they were neither required or permitted to consider allegedly detrimental effects in the manner that Minister Sage had done, then they have committed the same error as they would have committed had they fettered their discretion by agreeing with Oceana during the course of the first judicial review proceedings, that it was not appropriate to consider allegedly detrimental effects.
[35] For the same reasons, the applicant’s request for discovery of all legal advice the Crown had in relation to the previous judicial review application is also irrelevant. There is also no doubt that legal advice given to Ministers and Government departments attracts legal professional privilege and the first respondents are entitled to refuse to disclose it.2
[36] In this case, it is clear that there has been no waiver by the Attorney-General as required by s 65 of the Evidence Act. An inadvertent disclosure of privileged material does not amount to a waiver.3 This is not a case such as Tau v Durie where there has been a positive assertion of reliance on legal advice amounting to a waiver,4 or voluntary disclosure such as in Attorney-General v Institution of Professional Engineers NZ Inc.5
Confidentiality orders
[37] The plaintiff is entitled to challenge the interim confidentiality order. However, fairness to the second respondent requires that the challenge be by way of formal application which provides detail as to why the applicant submits that the interim order is unworkable. The second respondent will then have the opportunity to reply with rebuttal evidence.
2 See Evidence Act 2006, ss 53, 54 and 56.
3 See Body Corporate No. 191561 v Argent House Ltd (2008) 19 PRNZ 500.
4 Tau v Durie [1996] 2 NZLR 190.
5 Attorney-General v Institution of Professional Engineers NZ Inc [2018] NZHC 74.
Outcome
[38] The documentation sought to be disclosed by the applicant in relation to the earlier decision by Minister Sage is irrelevant to these judicial review proceedings for the reasons detailed above. The first respondents are accordingly not required to disclose it.
[39] If the applicant wishes to have the interim confidentiality order varied or rescinded, a formal application will need to be made.
[40]The application is dismissed.
[41]Costs are reserved.
Churchman J
Solicitors:
K3 Legal Limited, Auckland for Applicant
Crown Law, Wellington for First Respondents Simpson Grierson, Wellington for Second Respondent
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