Financial Services Complaints Ltd v Wakem - [2016] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-877 [2016] NZHC 634

IN THE MATTER
of an application for judicial review under

Part 1 of the Judicature amendment Act
1972

BETWEEN

FINANCIAL SERVICES COMPLAINTS LIMITED

Plaintiff

AND

DAME BEVERLEY WAKEM Defendant

Hearing: 1 March 2016

Appearances:

K Murray for Plaintiff
M Scholtens QC and RM Stoop for Defendant

Judgment:

12 April 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 12 April 2016 at 11:00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

FINANCIAL SERVICES COMPLAINTS LIMITED v WAKEM [2016] NZHC 634 [12 April 2016]

Introduction and result

[1] Financial Services Complaints Ltd (FSCL) challenges the Chief Ombudsman’s decision to refuse FSCL consent to using the term “Ombudsman” in its company name. In this judgment, I consider an application by the Chief Ombudsman to strike out FSCL’s challenge on the grounds that the privative provision in s 26(1)(a) of the Ombudsmen Act 1975 grant the Chief Ombudsman immunity from judicial review.

[2] For the reasons given below, I dismiss the Chief Ombudsman’s strike-out application, essentially on the ground that I do not consider that the decision to refuse consent was the exercise of a function falling within the scope of the privative provisions. It is not plain and obvious that FSCL’s challenge by judicial review cannot succeed at trial.

Background

[3] FSCL is a not-for-profit company which offers independent dispute resolution services for financial service providers and their customers. FSCL’s dispute resolution scheme was the first to be registered as an approved scheme under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (“the FSP Act”). Membership of FSCL is open to all financial service providers; it claims to have more than 6,000 participants in its scheme.

[4] To date, three other schemes have been approved under the FSP Act by the

Minister of Consumer Affairs:

(a) The Banking Ombudsman Scheme (BOS);

(b) The Insurance and Savings Ombudsman Scheme (ISOS); and

(c) Financial Dispute Resolution Service.

[5] FSCL claims that its scheme shares several similar features with the ISOS scheme. These similarities are said to have the effect of putting the two schemes in direct competition.

[6] FSCL is also interested in ensuring that the public is aware of its services and that it exhibits the qualities which are characteristic of ombudsmen under the Ombudsmen Act. Section 52 of the FSP Act requires approved schemes to satisfy the key principles of accessibility, independence, fairness, accountability, efficiency and effectiveness. FSCL submits that these are all features of ombudsmen, making the use of the name “Ombudsman” in FCSL’s name appropriate. After ISOS proposed to change its name to “Insurance and Financial Services Ombudsman Scheme”, FSCL became concerned about public confusion between the schemes, and realised that its current name lacks the “gravitas or mana” that the name “Ombudsman” conveys.

[7] The use of the name “Ombudsman”, however, is restricted by the Ombudsmen Act. Section 28A of that Act prohibits the use of the name “Ombudsman”…

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.

Keep reading for free

Create a free CaseChat account to read Financial Services Complaints Ltd v Wakem and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 634
Decision Date: 12 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Financial Services Complaints Ltd (FSCL) sought to challenge the Chief Ombudsman's decision to refuse consent to use the term "Ombudsman" in its company name. The court considered an application by the Chief Ombudsman to strike out FSCL's challenge on the grounds that the privative provision in s 26(1)(a) of the Ombudsmen Act 1975 grants the Chief Ombudsman immunity from judicial review. The court dismissed the Chief Ombudsman's strike-out application, essentially on the ground that it did not consider that the decision to refuse consent was the exercise of a function falling within the scope of the privative provisions. The court concluded that the statutory immunity granted to the Ombudsmen and their officers and employees under s 26 is limited to matters done in connection with the investigative functions outlined in the "Functions of Ombudsmen" part of the Act and does not extend to ancillary powers conferred in the other parts of the Act, including the Chief Ombudsman's discretion under s 28A to permit or decline the use of the name "Ombudsman." The court found that FSCL's case was not so untenable that it could not succeed, and therefore, the threshold for a successful strike-out application was not met. The court dismissed the Chief Ombudsman's application to strike out FSCL's statement of claim.

Orders