Dickson v Real Estate Agents Authority - [2025] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-134 [2025] NZHC 50

UNDERJudicial Review Procedure Act 2016 Part 30 of the High Court Rules 2016 New Zealand Bill of Rights Act 1990

IN THE MATTER of an application for judicial review of
Practice Rules and decisions made under the Real Estate Agents Act 2008

BETWEEN JANET ELIZABETH DICKSON
Applicant

AND REAL ESTATE AGENTS AUTHORITY
First Respondent
REGISTRAR OF LICENSED REAL ESTATE AGENTS
Second Respondent
ASSOCIATE MINISTER OF JUSTICE
Third Respondent

Hearing: 18 June 2024

Appearances: N M Pender, B E Morten and P A Miller for Applicant
A S Butler KC, S A H Bishop and S Deng for First and Second Respondents
K Laurenson and I M McGlone for Third Respondent

Judgment: 4 February 2025

JUDGMENT OF McQUEEN J

DICKSON v REAL ESTATE AGENTS AUTHORITY [2025] NZHC 50 [4 February 2025]

Table of Contents

Para Nos

Introduction [1]

Overview of the scheme for regulating real estate agents [9]

The licencing scheme [12]

The Authority’s powers to set continuing education requirements [17] The 2018 Practice Rules [20]

What happened? [24]

Background to Te Kākano [24]

Te Kākano is developed  [40]
Te Kākano is introduced  [47]
The Registrar issues exemption guidelines  [53]
Mrs Dickson does not complete Te Kākano and applies for an exemption      [56]

Overview of parties’ positions [62]

First cause of action—are the Practice Rules invalid? [69]
First ground —is the requirement to complete “verifiable CPD” ultra vires
the Act? [70]

Should s 15 be interpreted narrowly or broadly?  [82] Is the definition of “verifiable CPD” permissible under s 15(1)(a)?  [110] Is the definition of “verifiable CPD” permissible under s 15(1)(b)?  [114] Are subs (1)(a) and (1)(b) disjunctive?  [119]
Conclusion  [123]
Second ground —did the Associate Minister abdicate their authority in
approving the Practice Rules?  [124]

Conclusion on first cause of action  [131]
Second cause of action—review of the Authority’s decision to mandate Te Kākano      [132]
First ground —was the Authority’s decision illegal?  [133]
Second ground —did the Authority’s decision fail to adhere to the
purposes of the Act or the criteria set out in s 17?  [138]

Did the decision need to meet s 17 criteria? [139] Did the Authority act in accordance with the Act’s purposes? [140]
Third ground—was the Authority’s decision a breach of Mrs Dickson’s
right to freedom of expression? [158]

Conclusion on second cause of action [169]

Third cause of action—review of the Registrar’s refusal to grant an

exemption [170]

Result [181]

Costs [182]

Introduction

[1] In 2023, the Real Estate Agents Authority (the Authority) directed all real estate agents, branch managers and salespersons (licensees) to undertake a mandatory 90-minute course focussed on Māori culture, language and te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) as part of their continuing professional development (CPD) requirements for 2023. The course was titled Te Kākano. Mrs Janet Dickson, an experienced real estate agent, did not complete Te Kākano despite completing all other CPD…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 50
Decision Date: 4 February 2025

CaseChat Overview and Summary

In Dickson v Real Estate Agents Authority, Janet Dickson, a real estate agent, challenged the validity of the Real Estate Agents (Continuing Professional Development Rules) Notice 2018 (the Practice Rules), which required her to complete a mandatory 90-minute course titled Te Kākano, focusing on Māori culture, language, and the Treaty of Waitangi. Dickson did not complete the course, arguing it conflicted with her personal beliefs and was irrelevant to her work. The Real Estate Agents Authority (the Authority), the Registrar of the register of licensees, and the Associate Minister of Justice opposed the judicial review. The court dismissed Dickson's application in its entirety. The first cause of action argued the Practice Rules were invalid because they did not adequately specify the content of continuing education topics, which they must do if the Authority wishes to mandate a continuing education topic. The court rejected this argument, stating that the Act's purpose and context indicated that Parliament intended for the Minister to have a high-level role, while it is for the Authority to set specific courses for licensees to complete. The second cause of action argued that the Authority's decision to mandate Te Kākano was invalid because it failed to adhere to the purposes of the Act or the criteria set out in s 17, and breached Dickson's right to freedom of expression. The court found that Te Kākano met the Act's purposes of promoting and protecting the interests of consumers and promoting public confidence in the performance of real estate agency work, and that there was no reasonable prospect that mandating Te Kākano would restrict the right to freedom of expression. The third cause of action argued that the Registrar's refusal to grant an exemption from completing Te Kākano was invalid. The court found that there was no evidence of a no-exemption policy for Te Kākano and that the Registrar had not fettered their discretion to grant an exemption. The application for judicial review was dismissed, and costs were ordered to follow the event.

Orders