Discoveries Educare Limited v Secretary of Education
[2019] NZHC 2507
•3 October 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-560
[2019] NZHC 2507
UNDER Judicial Review Procedure Act 2016 BETWEEN
DISCOVERIES EDUCARE LIMITED
Applicant
AND
SECRETARY OF EDUCATION
Respondent
Hearing: 1 October 2019 Counsel:
N J Russell and L G King for Applicant
K G Stephen and E G Dowse for Respondent
Judgment:
3 October 2019
JUDGMENT OF SIMON FRANCE J
[1] On Tuesday of this week I heard under urgency an application by Discoveries Educare Limited for interim orders that would prevent the respondent from gazetting a Notice cancelling the applicant’s early child care licence. Cancellation would have immediate effect. Discoveries Educare Limted intends to bring proceedings challenging the cancellation. I granted the application. These are my reasons.
[2] Discoveries Educare Limited operates as an early-childhood education centre in Auckland. At present 28 children attend, and there are six staff.
[3] On 8 November 2016, a large eucalyptus tree located on the property fell. Many children were outside playing and four were hurt, two seriously. On 14 November 2017 charges were laid under the Health and Safety at Work Act 2015. On 22 May 2019, so approximately two and a half years after the tree fell, Discoveries pleaded guilty. It had continued to operate the child-care centre throughout the period.
DISCOVERIES EDUCARE LIMITED v SECRETARY OF EDUCATION [2019] NZHC 2507 [3 October 2019]
[4] Discoveries were sentenced on 23 August 2019. I am unaware whether convictions were entered on plea or at sentencing. Whichever, the Secretary of Education considered the convictions have triggered Regulation 32(1)(c) of the Education (Early Childhood Services) Regulations 2008 which provides:
(1)Subject to subclause (2), the Secretary must, by notice in the Gazette, cancel the licence for an early childhood service if the Secretary is satisfied that –
(c) the service provider operating the service has been convicted of an offence against these regulations or an offence involving harm to children, violence, or fraud; or
[5] The Secretary has accordingly given notice that the Gazette Notice cancelling the licence will be published overnight. Discoveries Educare Limited applies for interim relief preventing the making of the Notice pending determination of its intended judicial review proceedings. In those proceedings it will challenge the Ministry’s interpretation of the Regulations, arguing that “offence” should be limited to offences where an element of the offence requires harm to children. It is not enough that harm be a circumstance of the particular incident of offending.
[6] The Ministry contends the argument is not tenable. Mr Stephen took me to the scheme of the Regulations, and noted the various provisions where the same expression is used. It is submitted it would inhibit the working of the Regulations if the provision were interpreted in such a narrow way.
Decision
[7] The Gazette Notice takes immediate effect. That will impact on the owner, the children and the staff.
[8] The incident occurred nearly three years ago. The business has been allowed to operate in the interim. The inference must therefore be that no ongoing concerns exist, and no evidence suggesting otherwise has been filed. The cancellation comes about because it is mandatory if the offence is indeed one involving harm to children. Conversely, there is no reason to think the licence would be cancelled if the mandatory provision does not apply.
[9] Against that set of circumstances, I do not consider the respondent’s opposition is meritorious. A child-care centre operating satisfactorily will continue to do so for the short period required to allow the substantive dispute to be fully argued.
[10] There is no disadvantage to the respondent, given the lack of any concern about the child-care centre. Mr Stephen argued relief should be denied because the argument is not tenable. I accept that at this point the strength appears to lie with the respondent, but the balance clearly favours interim relief. An early fixture is possible.
[11] The parties addressed me on the relevance of an existing agreement for sale and purchase of the business. I do not consider it affects the interim relief issue which properly focuses on the cancellation or otherwise of the applicant’s licence, a cancellation occurring solely because the Regulations arguably mandate that course of action.
[12] I did not hear from the parties on costs. My interim view is that the applicant is entitled to an award of scale costs irrespective of the outcome of the substantive issue. I make this indication on the basis that I consider the opposition to interim relief lacked merit. Memoranda may be filed if the parties wish.
Conclusion
[13] The application for interim orders is allowed. I declare that the Secretary should not issue the Gazette Notice cancelling the licence until the substantive proceeding is determined.
Future timetable
[14] The matter should come on for an urgent fixture. Three weeks is sufficient to prepare the matter which turns on the interpretation of the Regulation. The parties should agree on timetable but leave is given for a telephone conference should it be necessary.
Simon France J
Solicitors:
Chen Palmer, Wellington for Applicant Crown Law, Wellington for Respondent
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