Gifford v Secretary for Education
[2025] NZHC 1759
•30 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-044
[2025] NZHC 1759
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
a request for clarification of fundraising in integrated schools
BETWEEN
GUY JAMES GIFFORD
Applicant
AND
SECRETARY FOR EDUCATION
Respondent
Hearing: 9 June 2025 Appearances:
Applicant Self Represented
M J Mortimer-Want for Respondent
Judgment:
30 June 2025
JUDGMENT OF CHURCHMAN J
Introduction
[1]The respondent seeks orders under r 15.1 of the High Court Rules 2016:
(a)striking out in whole or in part the applicant’s statement of claim dated 15 January 2025; and
(b)costs.
[2]The respondent relies on the following grounds, namely,
GIFFORD v SECRETARY FOR EDUCATION [2025] NZHC 1759 [30 June 2025]
(a)the determination of this Court in Gifford v Secretary for Education
(The 2022 Decision) means that the claim, in whole or in part:1
(i)discloses no reasonably arguable cause of action; and/or
(ii)amounts to an abuse of process.
(b)to the extent the claim also seeks a separate ruling on the identified Ministry of Education (the Ministry) circular that is not addressed by the ground above:
(i)the passage of the circular in question is descriptive only and not a statutory power of decision or exercise of public power amenable to judicial review, such that the claim discloses no reasonably arguable cause of action; and
(ii)the Court will not determine the correctness of circulars not currently in force, such that the claim discloses no reasonably arguable cause of action.
Background
[3] Mr Guy Gifford is a self-represented litigant. He is a retired teacher and has a particular interest in funding arrangements relating to state-integrated schools. State-integrated schools are private schools that have become integrated into the state system.2 Mr Gifford is concerned that certain legislative provisions of the Private Schools Conditional Integration Act 1974 designed to limit the possibility of some wealthy state-integrated schools obtaining an advantage over other State schools, are not being observed.
1 Gifford v Secretary for Education [2022] NZHC 1875 [The 2022 Decision].
2 See Gifford v Secretary for Education, above n 1, at [14].
[4] In 2022, the applicant filed a claim in judicial review against the Secretary for Education regarding the interpretation of cl 34 of sch 6 Education and Training Act 2020 (the Act).3 Clause 34 provided:
34 Financial contributions
(1)In addition to the power to collect attendance dues under clause 30, the proprietor of a State integrated school may—
(a)conduct fund-raising activities within the school; and
(b)inform the parents of the financial obligations of the proprietor in the prospectus and in other ways; and
(c)request the parents of students attending the school to make regular financial contributions to the proprietor for the benefit of the proprietor in meeting any debt, mortgage, lien, or other charge associated with the land and buildings that constitute the school premises or are associated with the school.
(2)Financial contributions other than attendance dues must be made on a voluntary basis, and no student may be refused enrolment because of the unwillingness of the parents to contribute in this way.
[5] The applicant argued that the proprietors of some State-integrated schools were inflating charges for services they provided to students and that what he saw as the “inflated” component of the charges effectively amounted to a “compulsory donation” of a type not permitted by the Act.
[6] In my judgment dated 1 August 2022, I dismissed the applicant’s claim. I declared that:4
(a)proprietors of State-integrated schools may fundraise for purposes other than the acquisition and maintenance of land and buildings and may dispose of funds to school boards; and
(b)the only limitations on the ability of a proprietor of a State-integrated school to fundraise or dispose of funds are those expressly set out in the Act or in the Proprietor’s Trust Deed or other governing document or documents.
3 Gifford v Secretary for Education, above n 1.
4 At [41].
[7] On 15 January 2022, the Mr Gifford filed another claim seeking judicial review. He argued that the declaration in the 2022 Decision set out at [6](b) of this judgment failed to identify certain limitations. He argues the Ministry’s interpretation of cl 34 of the Act in its circulars and correspondence are incorrect and inconsistent and therefore, and this requires further clarification from the Court. The applicant seeks a declaration that “the only requests to parents for regular financial contributions permitted in an integrated school are those intended to pay down debts incurred in preparing the school buildings for integration”.
Submissions
Applicant’s submissions
[8] In essence, Mr Gifford challenges the declarations issued in the 2022 Decision and the interpretation of cl 34, namely the ability of a proprietor to use regular financial contributions from parents. He suggests that the findings in the 2022 Decision ought to be interpreted as:
(a)a proprietor may transfer his funds to the board of trustees but if those funds were raised by requests to parents to the board of trustees, the proprietor cannot; and
(b)a proprietor may raise funds for special character, but not through regular financial contributions from parents which are limited to debts on land and buildings.
[9] Mr Gifford submits that a proprietor having organised systems for collecting donations from parents is inconsistent with the scheme of the Act. He submits the only exception to cl 34(1)(c) is the provision that allows proprietors to request regular financial contributions from parents to assist with paying down debts. He submits that an interpretation that allowed proprietors to use financial contributions from parents for any purpose “is a pathway to riches for integrated schools”.
[10] In the claim for judicial review, he contends the definition of the word “limitations” in the declaration outlined at [6](b) of this decision ought to be clarified.
He contends the Ministry’s interpretation of cl 34 is incorrect and inconsistent, by way of:
(a)the Ministry changing the interpretation of cl 34(1)(a) three times since 2012;
(b)the Ministry refusing to explain the rationale behind the changes; and
(c)the Ministry omitting two key words “conduct” and “activities” from the Act in Education Circular 2021/03 (the Circular).
[11] Mr Gifford submits that a proprietor may conduct fund-raising activities within the school but requesting donations from parents for specified amounts and invoiced at regular intervals should be subject to the “limitation” referred to at [6](b). The applicant submits those requests can only be applied to debts incurred for the purpose of integration and when a school becomes debt-free, the Act intended for any organised collection system would cease.
[12] Mr Gifford argues the Ministry frequently omits the word “debts” to give the impression that regular financial contributions can be requested for land and buildings. The applicant contends that Parliament did not intend for proprietors to set up organised collection systems for on-going expenses related to buildings, those financial contributions were for integration debts only. He argues that the Act does not specify that regular financial contributions can be used for “special character”.
[13] Mr Gifford submits that an interpretation that a proprietor can request regular financial contributions towards land and buildings (rather than debts only) would turn taxpayer funding into subsidies for proprietors. He argues that interpretation would be inconsistent with the purpose of the Act which is to ensure integrated schools operated at the level of state schools.
Respondent’s submissions
[14] The respondent submits that the applicant’s claim discloses no reasonably arguable cause of action, because the applicant’s propositions are contrary to the
2022 Decision. In the event the claim is arguable, the respondent submits the claim is an abuse of process. The respondent argues that Mr Gifford did not appeal the 2022 Decision and instead, has commenced a second claim based on similar arguments to those made in 2022.
[15] The respondent submits that while aspects of the applicant’s argument are different to what he argued in 2022, he had the opportunity to advance that interpretation in 2022. The respondent argues the applicant should not be permitted to make a similar claim again contending for a similarly restrictive interpretation.
[16] The respondent contends that she is being vexed with the same claim twice. The respondent suggests that there would be little value in expending public funds again to litigate the same issue, in the absence of an appeal. The respondent notes that the current proceedings do not involve the other parties to the 2022 Decision and that this is prejudicial to the interests of those parties in a way that would also amount to an abuse of process.
[17] The respondent submits the circulars are accurate but, in any case, are not amenable to judicial review. The respondent argues the circulars form departmental guidance — a public statement of how the Ministry considers the law it administers to operate. They are not themselves law and do not find their basis in the Act. Rather, the respondent submits the circulars are intended as summaries or guides as a product of good public administration.
[18] The respondent submits that the differences in wording between cl 34 and the circulars are minor. In that respect, the respondent submits the applicant’s challenge is not an instance of a departmental policy being scrutinised for non-compliance with legislation; it is arguing over the choice of words.
[19] The respondent contends the 2022 Decision does not support the applicant’s main contention that the circular is wrong because it “convey[s] approval for general fundraising”. The respondent refers to the finding of the 2022 Decision that “the only
limitations on the ability of a proprietor of a State-integrated school to fundraise or dispose of funds are those expressly set out in the Act or in the Proprietor’s Trust”.5
Relevant law
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[20] The principles relating to this provision are well-established. The principles were summarised by the Court of Appeal in Attorney-General v Prince, which has been most recently endorsed by the Supreme Court in Smith v Fonterra Co-operative Group Ltd:6
[38] We [address each cause of action] through the lens of well-established strike out principles. That is to say, we assume the pleaded material facts are true save for those that are entirely speculative and without foundation and we also bear in mind that the strike out jurisdiction is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law. The fact a claim involves a complex question of law which requires extensive argument should be no bar provided we have the requisite materials and assistance to determine the matter. We must also be mindful of the well-established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.
[21] As the Supreme Court in Smith v Fonterra emphasised, a measured approach is appropriate. The Court held that:7
[84] Such an approach is consistent with fully informed access to civil justice by those who have a tenable case that they have been harmed and who
5 At [42].
6 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at [38] as cited in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 [Smith v Fonterra] at [74]––[75]. See also Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
7 Smith v Fonterra, above n 6, at [84]––[85] citing Couch v Attorney-General, above n 6, at [37] per Elias CJ and Anderson J (footnotes omitted).
will otherwise go without remedy based on a pre-emptive evaluation only. And as was observed in Couch, a refusal to strike out a cause of action “says little about its eventual merit”. That is to say, it is not a commentary on whether or not the claim will ultimately succeed.
[85] Pre-emptive elimination is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail.
Analysis
Abuse of process
[22] The issue for me to determine is whether there are any reasonably arguable causes of action in Mr Gifford’s claim and whether his claim amounts to an abuse of the process of the Court.
[23] In the 2022 Decision, I outlined the arguments from counsel for the third and fourth:
[22] …They argue that the scheme and purpose of the Act does not prohibit this, and that if a proprietor has raised funds by regular financial contributions from parents, then, on the terms of cl 34, they are not limited to being disbursed on land, buildings, and associated debts.
…
[26] …They submit that cl 34 does not provide that regular voluntary financial contributions may only be directed towards land, buildings, and associated debts, and that there is no indication Parliament intended to prevent proprietors, or other donors, providing additional resources to integrated schools.
[24]I then went on to conclude:
[34] In my view, the submissions of Mr Radich and Mr Richards as to the purposes for which voluntary financial contributions are allowed, are compelling. Clause 34 does not limit regular voluntary financial contribution to being used for the purposes of land, buildings, and associate debts. This interpretation is consistent with the function and purpose of a proprietor noted above (emphasis added)…
[25] I consider these paragraphs address the essence of the applicant’s claim for judicial review: a proprietor may use voluntary financial contributions from parents for purposes other than for land, buildings, and associate debts. That finding deposes of Mr Gifford’s current submission that the only requests to parents for regular
financial contributions permitted in an integrated school are those intended to pay down debts incurred in preparing for integration.
[26] The wording of cl 34 does not limit proprietors from using financial contributions only for “debt, mortgage, lien or other charge associated with the land and buildings”. Clause 34 can be contrasted with cl 30. Cl 30 sch 6 of the Act restricts how a proprietor is to use attendance dues, namely “[r]evenue received by the proprietor from attendance dues must be used solely for the following: …”. In relation to cl 34, the provision states:
34 Financial contributions
(1)In addition to the power to collect attendance dues under clause 30, the proprietor of a State integrated school may—
…
(c) request the parents of students attending the school to make regular financial contributions to the proprietor for the benefit of the proprietor in meeting any debt, mortgage, lien, or other charge associated with the land and buildings that constitute the school premises or are associated with the school (emphasis added).
[27] The use of the word “may” creates a power for the proprietor to exercise, at the discretion of the proprietor. The statutory provision, in contrast to cl 30, does not bind the proprietor to use financial contributions for debts only. Contrary to the applicant’s submissions, Parliament has chosen not to include the words “must be used solely for
… any debt, mortgage, lien, or other charge associated with the land and buildings”. In light of that interpretation, Mr Gifford’s submission that the proprietor may only use financial contributions from parents for debts incurred during integration is untenable.
[28] I accept the respondent’s submission that Mr Gifford’s claim is an abuse of the process of the court. As discussed above, I have already addressed the issue in respect of which which the applicant relies on to justify a second claim of judicial review against the Secretary of Education. If the applicant was not satisfied with the Court’s interpretation of cl 34 in the 2022 Decision, he should have appealed the decision to the Court of Appeal. An appeal would have allowed Mr Gifford the opportunity to challenge the interpretation in the 2022 Decision.
[29] I accept with the respondent’s submissions that Mr Gifford also had the opportunity to advance the current arguments in his first claim of judicial review. Mr Gifford submits that he was allegedly pressured to drop the arguments currently subject to the judicial review claim. Mr Gifford made a choice as to what arguments he pursued and what he abandoned in 2022. It is too late now for him to seek to revive arguments he chose not to advance in 2021.
[30] Mr Gifford is attempting to relitigate matters already determined in the 2022 Decision.8 He has attempted to bring further proceedings, to relitigate what are essentially the same issues as were determined in 2001.9 Although a different cause of action was pleaded in the 2022 Decision, the relief sought was the same, namely limits the seeking of regular donations by proprietors to fundraising for the purpose of “meeting any debt, mortgage, lien, or other charge associated with the land and buildings that constitute the school premises or are associated with the school”.
[31] Mr Gifford sought the same relief as set out at [32] of the 2022 Decision. I accept the respondent’s submissions that the respondent has been vexed with the same claim twice.
The circulars
[32] The second issue for me to determine is whether the circulars are amenable to judicial review.
[33] The Supreme Court in Ririnui v Landcorp Farming Ltd held that all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source.10 Parties seeking judicial review must “identify the relevant statutory power, the decision to be challenged, the relevant surrounding factual circumstances giving rise to the breach and the basis on which the breach is to
8 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586; and Little v New Zealand Law Society [2023] NZHC 1880.
9 See Registered Securities Ltd (in liq) v Yates (1991) 5 PRNZ 68 (HC).
10 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].
be reviewed.”11 In this case, the applicant has not identified a ground of review in relation to the circulars.
[34] The Public Service Act 2020 does not provide explicitly for the power to publish circulars. The respondent acknowledged that although statutory authority is not required for publishing circulars, that activity would fall under the Secretary’s responsibility for “the operation of their agency, including in carrying out the purpose of the public service under section 11 [of the Public Service Act 2020]”.12 Section 11 of the Public Service Act provides:
The public service supports constitutional and democratic government, enables both the current Government and successive governments to develop and implement their policies, delivers high-quality and efficient public services, supports the Government to pursue the long-term public interest, facilitates active citizenship, and acts in accordance with the law.
[35] The circulars may be appropriately categorised as policy guidance or departmental guidelines to inform decision-making. A department may develop and evolve general working rules or guidelines to give effect to the broad purposes of the legislation, as long as they are not elevated into something inflexible.13 Policy guidance may not render a legislatively established resumption regime ineffectual.14
[36] The purpose of the circulars is to inform the public, namely parents of students in schools, school boards and principals of schools, proprietors of State-integrated schools, and sponsors of partnership schools kura Hourua, regarding the policies relating to donations and fundraising in state-integrated schools.15 The circulars ensure current practice is consistent with advice provided in the circular and reflects statutory guidance. While the circular does not constitute a “decision”, I consider the circulars are amenable to judicial review.
11 Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 at [148].
12 Public Service Act 2020, s 51(1)(c).
13 Keam v Minister of Works and Development [1982] 1 NZLR 319 (CA) at 322–323.
14 Haronga Jnr v Waitangi Tribunal [2010] NZCA 201 at [44].
15 See Ministry of Education Te Tāuhuhu o te Mātauranga “Mātārere Mātauranga 2021/03: Education Circular 2021/03 — Payments by parents of students in schools (5 December 2024) < accept the submission that the Court cannot determine the correctness of circulars published in 2012 and 2013 which are not currently in force. Those issues are now moot. My analysis will, therefore, focus on the 2021/03 Circular.
[38]I acknowledge that the Circular does not replicate the exact wording within cl
34. Nevertheless, the omission of the words “conduct” and “activities” does not significantly depart from the contents of the Act. Mr Gifford’s claim that “the Ministry
… convey[s] approval for general fundraising” is not inconsistent with the Act but reflects Parliament’s intention to provide the proprietor with a general power to conduct fundraising within the school. The Circular did not elevate the powers for the proprietor to fundraise or develop guidelines inconsistent with the statutory regime.
[39] In light of my conclusions, I find there was no reviewable error, and the Circular did not misconstrue cl 34 sch 6 of the Act.
Conclusion
[40] The respondent’s application under r. 15.1 for an order striking out the plaintiff’s claim is granted.
[41] The parties should endeavour to agree costs. However, if agreement cannot be reached within 14 days of the date of this decision, the respondent may file a memorandum, not exceeding three pages (excluding costs schedules) with Mr Gifford having 14 days to file a memorandum in reply. Costs will then be determined on the papers.
Churchman J
Solicitors:
Crown Law, Wellington for Secretary for Education
0
7
0