Evolve Group 4 Limited v Secretary of Education
[2021] NZHC 683
•30 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-140
[2021] NZHC 683
BETWEEN EVOLVE GROUP 4 LIMITED
Plaintiff
AND
SECRETARY OF EDUCATION
Defendant
Teleconference: 26 March 2021 Counsel:
M Coltart for Plaintiff
J McTavish Butler for Defendant
Judgment:
30 March 2021
JUDGMENT OF GRICE J
(Without notice application for interim injunction re early childhood education license
[1] Evolve Group 4 Ltd applied under urgency for interim orders that would prevent the defendant from suspending the plaintiff’s early childcare licence. The suspension is due to come into effect at close of business on the day of hearing. I granted the order sought following a teleconference. The reasons follow.
[2] Evolve Group has brought proceedings for judicial review of the suspension decision. In essence, it claims that the suspension notice, which was received on 19 March 2021, was unexpected and unreasonable because the matters referred to in the notice are not serious and the interests of the children at the centre will not be served by it closing summarily this evening.
[3] Evolve Group operates a number of early childcare centres. The centre which received the cancellation notice is in Wellington. It caters for 53 children. If the centre were closed, the parents of those children would need to find alternative care
EVOLVE GROUP 4 LTD v SECRETARY OF EDUCATION [2021] NZHC 683 [30 March 2021]
arrangements by Monday morning. Needless to say, that may prove difficult, particularly for some parents, despite the Ministry indicating there are centres who would take the children if asked.
[4] The reasons advanced by the Ministry for suspending the licence do not involved allegations against the staff at the centre.
[5] The notice in general terms alleges eight areas of non-compliance which primarily relate to repairs and maintenance of the premises. Nevertheless, some issues raised may affect the safety of the children. By way of example, it is alleged:
(a)the juniors and toddlers’ area is too noisy, acoustic sorption materials need to be installed;
(b)the surfaces in the food preparation areas are damaged and unhygienic, and the kitchen benchtop is worn;
(c)the children’s toilets need to be configured so that one toilet in each bathroom is designed to provide a sense of privacy;
(d)nappy changing benches in the juniors and toddlers’ areas and steps leading up to the benches are scratched and worn;
(e)furniture, furnishings, fittings, equipment and materials in the centre are scratched and worn;
(f)indoor and outdoor items of furniture and equipment are scratched and worn.
[6] Evolve say that they have been liaising with the defendant to comply with the requirements required for compliance. Evolve says that all the items can be completed within four weeks, although there may be some delay over the replacement of the benchtop as it is a custom made to fit.
[7] Evolve through Mr Colthart also indicated that many of the more minor items had been complied with, such as the centre having a deep clean, loose nails and screws being fixed and frayed ropes being replaced.1
[8] Mr Colthart submits that this is not a case where parents have complained. While there were two minor incidents with staff which the defendant does not rely on, no other complaints, in particular about the issues in the notice have been raised by parents. The parents of the children are apparently unaware of the present situation.
[9] Evolve says that it anticipated having more time to enable it to comply. That had been its experience in a similar case with one of its other centres. Evolve also says that it had complied with the one major compliance issue when the landlord had obtained the building warrant of fitness. Evolve says it had mistakenly taken the view that as the major issue was resolved, the other matters could be dealt with progressively.
[10] The Secretary takes the position that the interests of the children are at risk. The Secretary has only the tools of suspension and management of the licence to enforce compliance. The defendant therefore opposed this application.
[11] I note that the Secretary has been aware of the issues of non-compliance since 4 March. Evolve says its staff were liaising with representatives of the Secretary with a view to compliance and the seven days’ notice of suspension was a surprise to it. It has not had time to achieve compliance in all respects within that time.
The law – Judicial Review Procedure Act 2016
[12] The general approach to applications under s 15 of the Judicial Review Procedure Act 2016 is that the Court considers four questions.2 These are:
1 Ms McTavish Butler objected because evidence concerning repairs relating to the nails, screws and frayed ropes was not before the Court. It was the subject of submission only. In the circumstances given the urgent nature of this application I consider I am able to rely on counsel’s submission in that regard.
2 Carlton and United Breweries v Commerce Commission [1986] 1NZLR 423 (CA); Easton v Wellington City Council [2010] NZSC 10; New Zealand Health Trust v Promisia Integrative Ltd [2020] NZHC 433 at [19].
(a)Does the plaintiff have a position to be protected by the order sought?
(b)How strong is the plaintiff’s case on the substance of the proceedings?
(c)What are the effects on each party and third parties of either granting or refusing the application for interim orders?
(d)Considering the nature of (a), the strength of (b), the nature and seriousness of (c) and any other relevant matters, does the balance of justice favour granting the application for interim orders?
[13] This matter is being dealt with on an urgent basis. It is difficult to evaluate for instance the strength of the plaintiff’s case at this early stage on the material now before the Court.
[14]However, in relation to those questions:
(a)The plaintiff does have a position to be protected by the order sought. It points to the funding that will be lost if it needs to close in a summary way. Its reputation will be damaged. Children may not return. But in particular it points to the fact that 53 children who are due to return to the centre on Monday morning will need to be sent somewhere else. This will cause considerable disruption to not only their care but also disruption to their parents who no doubt are relying on being able to leave their children at the centre on Monday morning.
(b)The strength of the plaintiff’s case: this is difficult to assess at present. Mr Colthart emphasised the strength of the plaintiff’s case lay in that it was not in the interests of the children for the centre to close. He referred to that criteria being the basis for the suspension of the notice under Regulation 30(1)(a) of the regulations promulgated under the Education and Training Act 2000, Part 2. Part 2 of the Act in s 14 explicitly sets out that one of its primary purposes is regulating an early childhood education system where all children can participate and
receive a strong foundation for learning, positive wellbeing and life outcomes by supporting the health, safety and wellbeing of children. In addition, the provisions relating to suspension of the licences in Regulation 30(1)(a) provides that the Secretary may suspend the services licence if satisfied on reasonable grounds that:
“(a)It is not in the interests of the children attending or participating for the service to continue to operate.”
In view of that requirement, the interests of the children are the focus when a decision to suspend is made. The proceedings in this case challenge that basis on the grounds of illegality, failure to take into account relevant considerations and unreasonableness. A further head of claim is based on unlawful delegation of the decision. The defendant has responded to the delegation issue and Mr Colthart has yet to consider the plaintiff’s position on that head of claim. In summary, there is a seriously arguable claim. The strength of it is uncertain but I cannot say at this stage it is weak.
(c)The effects on each party and third parties of either granting or refusing the application for interim orders: the defendant says it is the interests and safety of the children are at risk here. Evolve says the interests of the children are served by keeping the centre open so they receive continuity of education and their lives are not disrupted yet again as they were during the COVID-19 lockdown period. In my view the effect of the suspension coming into effect this evening on the children and parents weighs in favour of the centre continuing to operate at least until this matter can be dealt with on a more considered basis.
(d)Any other relevant matters: in my view the balance of convenience favours granting the application. As I noted, this is done on an urgent interim basis. The matter has been allocated a fixture for 14 April 2021 when the situation can be properly considered.
[15] It is also appropriate to grant leave to the defendant to apply on 24 hours’ notice if the position changes and/or it considers the interim order should be reassessed in light of a change in circumstances or any further information comes to its attention.
[16]Accordingly I make the following order:
(1) I declare that the Secretary cannot suspend the licence until the substantive proceeding is determined or earlier order of this Court.
Timetable directions
(1)The defendant will file its notice of opposition and statement of claim (by consent) on or before 1 April 2021.
(2)The plaintiff will file affidavits in reply on or before 1 April 2021.
(3)The plaintiff will file: its submissions; a joint bundle of authorities; a bundle of common documents and a joint chronology on or before 8 April 2021.
(4)The defendant will file submissions by 12 April 2021.
[17]The documents will be filed electronically and in hard copy.
[18] The application for interim injunction is set down for hearing for one day on 14 April 2021.
Grice J
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