Hunt v New Zealand Qualifications Authority
[2019] NZHC 1619
•11 July 2019
NOTE: PENDING FURTHER ORDER OF THE COURT, HIGH COURT ORDER OF 21 SEPTEMBER 2017 EXTENDING INTERIM NAME SUPPRESSION TO LAPSE AT 2 PM, 19 JULY 2019. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-329
[2019] NZHC 1619
BETWEEN DANIEL JONATHAN HUNT
First Appellant
THE CAREER ACADEMY LIMITED
Second AppellantAND
NEW ZEALAND QUALIFICATIONS AUTHORITY
Respondent
Hearing: 10 December 2018 Appearances:
N J Russell and A P Duncan for Appellants
M R Harborow and D M A Wiseman for Respondent
Judgment:
11 July 2019
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 11 July 2019 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors:
Chen Palmer, Wellington Meredith Connell, Auckland
HUNT v NEW ZEALAND QUALIFICATIONS AUTHORITY [2019] NZHC 1619 [11 July 2019]
Introduction
[1] This judgment determines appeals against a decision of Judge Gibson in the District Court at Auckland.1
[2] The appellants, The Career Academy Limited (“TCA”) and Mr Hunt, were before the Judge for sentence in July 2018 on charges under the Education Act 1989 (“Act”). The maximum penalty for each offence was a fine of $10,000. Each had pleaded guilty to the offending on 12 March 2018. In his decision of 25 September 2018, the Judge:
(a)convicted TCA, declined name suppression and fined the company
$56,000; and
(b)discharged Mr Hunt without conviction, declined name suppression and ordered him to pay $24,000 towards the costs of the respondent (“NZQA”).
[3] NZQA seeks leave to appeal against the decision to discharge Mr Hunt without conviction.2 TCA and Mr Hunt appeal against the Judge’s refusal to grant permanent name suppression.
Background
[4] Mr Hunt established TCA in 2009. Since then TCA has operated a private training establishment (“PTE”) in Auckland. A PTE may be registered or unregistered. TCA is unregistered. The business has grown very substantially in recent years. For instance, the number of students enrolled increased from 3,000 in August 2016 to more than 20,000 in 2018, the number of staff now employed is nearly 100, and the business now operates in five countries – New Zealand, Australia, the United States, Canada and Ireland.
1 New Zealand Qualifications Authority v Hunt [2018] NZDC 17939.
2 Criminal Procedure Act 2011, s 296.
[5] Mr Hunt was the managing director of TCA at the material time. He now lives in Australia, apparently concentrating on the TCA business there, and TCA – that is the New Zealand TCA – is managed by others with the assistance of a “Strategic Advisory Committee”.
[6] NZQA laid the charges against TCA and Mr Hunt in late-January 2017 in respect of offending between 21 December 2015 and 16 December 2016. Mr Hunt was charged in his capacity as a director of TCA pursuant to s 292B(3) of the Act, to which I refer below.
[7] One of the affidavits filed in the District Court was from Ms Caroline West of NZQA. Correspondence that Ms West attached shows a pattern throughout 2016 of NZQA identifying what it considered a breach of the Act; TCA or their solicitors giving an assurance that the issue would be remedied; TCA advising that the issue had been remedied; NZQA advising that it had not been remedied or not to its satisfaction; and TCA doing further work and finally getting the matter fixed. As a consequence of all of this, TCA had largely remedied the underlying issues by the time NZQA laid the charges.
[8] TCA and Mr Hunt pleaded not guilty and were to go to trial on 12 March 2018. Following discussions, NZQA abandoned some charges and the appellants entered guilty pleas to the others, being 17 against TCA and 16 against Mr Hunt, on the basis of an agreed and detailed summary of facts. Shortly before sentencing, counsel for Mr Hunt advised that he would seek to be discharged without conviction.
[9] The (extensive) evidence for TCA is to the effect that it is now a “completely different business” to the business it was in 2016. Two examples given in the evidence are as follows. First, TCA established the committee referred to above in or about late 2016. The committee comprises five people, several of whom are highly experienced in tertiary education. One of the committee’s functions is to ensure that there is no repetition of this offending, or indeed that there is any other offending. Secondly, after August 2016, TCA “overhauled” its enrolment processes, so that now it is simply impossible for an international student to enrol in a TCA course. As stated below,
seven charges concerned TCA enrolling international students when it was not permitted to do so.
[10] Various orders suppressing publication of the appellants’ names have been made from time to time and, despite the Judge’s refusal of permanent name suppression, suppression has continued until now.
Section 292B(3) Education Act 1989
[11]Section 292B(3), the provision under which Mr Hunt was charged, provides:
292BLiability of body corporate and directors in respect of false representations
(3)If a body corporate is convicted of an offence under section 292, 292A, 292C, … 292F … any director of the body corporate … is to be treated as having committed the same offence, if—
(a)the director … approved of the act that constituted the offence; or
(b)the director … knew the offence was to be or was being committed and failed to take all reasonable steps to prevent it.
[12] The charges against Mr Hunt did not specify s 292B(3)(a) or (3)(b), so I shall proceed on the basis that, by pleading guilty, Mr Hunt acknowledged liability under s 292(3)(b), this being the most favourable to him.
NZQA’s appeal against discharge without conviction
[13] A judge may grant a discharge without conviction if satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.3 The accepted approach is to assess the gravity of the offending taking into account all aggravating and mitigating factors relating to the offending and the offender; to identify the likely direct and indirect consequences of a conviction; and then to assess whether the latter are out of all proportion to the former. The Court must be satisfied there is a real and appreciable risk of the consequence coming to pass before it may take that consequence into account. If the Court is satisfied that the
3 Sentencing Act 2002, ss 106 and 107.
consequences are out of all proportion to the gravity of the offending, the Court must then consider whether to exercise its discretion in favour of granting a discharge.4
[14] In this case, the Judge assessed the gravity of Mr Hunt’s offending as “somewhere in the mid range”; considered the likely consequences of conviction; determined that these were out of all proportion to the gravity of the offending; and exercised his discretion in favour of granting the discharge sought.
Leave to appeal
[15] NZQA requires leave to appeal the Judge’s decision to grant the discharge, and any such appeal must be on a question of law.5 A question of law for these purposes means:6
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.
[16]An error of law also arises if the decision appealed is plainly wrong.7
[17] In R v Taulapapa, the Court of Appeal said this as regards a prosecutor’s appeal against a Judge’s decision to grant a discharge without conviction:8
[18] It follows that this appeal differs importantly from those in which a defendant appeals as of right against refusal of a discharge ... In this case we may substitute our view of the merits only if satisfied that Woodhouse J erred relevantly in law.
4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and R v Taulapapa [2018]
NZCA 414 at [22].
5 Criminal Procedure Act 2011, s 296(2).
6 R v Taulapapa, above n 4, at [17].
7 Also at [17].
8 At [18] (footnotes omitted).
Charges
Enrolling international students
[18] TCA and Mr Hunt pleaded guilty to seven charges, including one representative, of enrolling international students when not permitted to do so.9 Only a registered PTE, which has bound itself to comply with a particular code of conduct, may enrol an international student.
[19] These charges concerned TCA enrolling 18 international students between December 2015 and December 2016. This appears to have occurred because of deficiencies in TCA’s website. NZQA required TCA to bring its website into a state of compliance. That appears to have occurred sometime in 2016.
[20] The Judge accepted that TCA’s offending, subsequent to NZQA’s warnings, was relevant to the assessment of the gravity of the offending. However, he also accepted that the errors were unintentional and affected only a small number of students. The Judge considered the gravity of Mr Hunt’s offending on this category of charges to be low, with the exception of the enrolment of one student (“Ms E”). Mr Hunt corresponded with Ms E in January and February 2016 and knew that she was not living in New Zealand. That said, Mr Hunt intended that Ms E would be enrolled in a course run by another, registered, PTE which could accept international students and which TCA had an agreement to purchase. As it turned out the purchase did not proceed, but that was not known until later.
False representations
[21] Three charges concerned false representations. Wrongly, TCA stated that it had consent to assess students against NZQA unit standards (this too was linked in some way to the PTE whose assets TCA proposed to purchase and TCA’s website stated that other provider was responsible for the course); that NZQA had “approved” a particular training scheme; and, in a video compiled by a third party provider and embedded on TCA’s website, that certain TCA qualifications were listed on the New Zealand Qualifications Framework when they were not.10
9 Education Act 1989, s 292F.
10 Sections 292A(1)(a), 292(3) and 292(2).
[22] The Judge considered the gravity of Mr Hunt’s offending as to the second representation more serious than the other two, as this representation was clearly false. The Judge rejected a submission for Mr Hunt that he did not have actual knowledge of the same, given the elements of s 292B(3).
“New Zealand” or “NZ”
[23] Five charges were for granting an award which included the words “New Zealand” or “NZ”, without NZQA consent.11 For instance, TCA stated that it offered a “New Zealand Diploma in Accounting”, “accredited NZ qualifications”, a “New Zealand Certificate” in bookkeeping, “a New Zealand qualification” and “NZ Diplomas & Certificates”. These offences were committed on or about 11 January, 9 May (x 3) and 28 June 2016. The Judge considered this offending serious.
“Degree” or “bachelor”
[24] Lastly, there was a charge relating to events on 9 May 2016, of granting or purporting to grant an award which included the words “bachelor” or “degree” without NZQA consent.12
Grounds of appeal
[25]NZQA seeks leave to appeal on the following questions:
(a)Did the Judge err in allowing the application for a discharge without conviction to be heard even though it was in breach of the procedural requirements of the Criminal Procedure Rules 2012?
(b)Did the Judge err when making the factual finding that Mr Hunt’s culpability was characterised as “careless” which was unsupported by the evidence?
11 Section 292(3).
12 Section 292(2).
(c)Did the Judge speculate, without evidence, that a conviction would affect Mr Hunt’s expansion of his business?
(d)Did the Judge assume, without evidence, that Mr Hunt would be likely to lose his status as a Chartered Accountant or Certified Practising Accountant and that this would have an impact on TCA’s business?
(e)Did the Judge speculate, without evidence, about how a conviction would affect Mr Hunt’s ability to travel?
(f)Was the Judge plainly wrong in his conclusion that the consequences of a conviction were out of all proportion to the gravity of the offending?
[26] There is nothing in NZQA’s first ground. Whatever non-compliance there may have been, NZQA did not object at the time nor seek an adjournment. In those circumstances, it is not open to NZQA to complain now and I decline to grant leave. Mr Russell, counsel for TCA and Mr Hunt on appeal, did not contend the other points did not raise questions of law and I grant leave accordingly.
Carelessness
[27] Counsel for NZQA, Mr Harborow, submitted that the Judge found that Mr Hunt’s culpability “could be characterised as carelessness” and that this finding was unavailable to the Judge. Mr Harborow submitted the Judge overlooked the elements of the offence to which Mr Hunt had pleaded guilty; evidence in the agreed summary of facts; and affidavit evidence filed before sentencing regarding the appellants’ application for name suppression and particularly the affidavit of Ms West, to which I referred above. Mr Harborow submitted the only available inference was that Mr Hunt’s offending was deliberate.
[28]I do not accept these submissions for the following reasons.
[29] The important matter is the assessment of the gravity of the offending, having regard to the aggravating and mitigating factors to which I have referred. As to that, after a detailed discussion of the charges and the agreed summary, the Judge said:
[35] Looking at the charges as a whole, and taking into account that several are representative, my assessment is that gravity is somewhere in the mid range. Specific representations in respect of specific courses are limited, some representations may have been made because of poor training or poor briefing of external consultants rather than being made deliberately and, as Mr Billington QC submits, none of the representations extend to course materials, internal course correspondence, online learning platforms or the actual award or certificate obtained by students. I accept that it does not follow that most or even a substantial number of current or past students were induced, fraudulently to undertake study. Mr Hunt’s culpability is essentially based on his carelessness in managing and supervising a business that grew rapidly and was difficult to control.
[30] In this passage the Judge assessed the gravity of the offending as “mid range”, by which I think he meant of moderate gravity, and I propose to proceed on that basis.
[31] That said, it is fair to say the Judge thought Mr Hunt’s offending barely reached that level. In the passage just quoted, the Judge referred to the confined number of representations, the reasons some of them appeared to have been made, and the important fact that none had gone to the actual substance or merits of the courses being offered. The Judge also referred to the fact that Mr Hunt had not previously been convicted of a criminal offence; that the lateness of his guilty plea was a relevant matter to take into account in assessing the gravity of the offending; and to Mr Hunt’s age (32 at the time). Also, when he came to sentence TCA, the Judge said he was not satisfied TCA or Mr Hunt set out to offend and that the offending was caused by:
[49] ... muddlement, error, poorly trained staff and trying to control and oversee a business that grew rapidly. As Ms Anne Cameron deposes in her affidavit sworn 26 March 2016, and as a number of other deponents also aver the company grew so quickly the systems in place were inadequate for the new numerous enrolments and could not be fixed by one person.
[32] I do not accept Mr Harborow’s submission that the only conclusion open to the Judge was that Mr Hunt’s offending was deliberate and in the “upper range”.
[33] Mr Harborow submitted, first, that the deliberate nature of the offending is apparent from the elements of the offence, s 292B(3). Mr Russell submitted the most that can be taken from s 292B(3)(b) is that Mr Hunt knew the offence was to be or was
being committed and failed to take all reasonable steps to prevent TCA’s offending. I accept that submission.
[34] Mr Harborow next submitted that the period of offending, from December 2015 until December 2016, evidences that the offending was persistent. It is correct that the representative charges were committed over that period. However, the specific charges were largely committed on dates in the first half of 2016 and subsequently remedied.
[35] Mr Harborow also referred specifically to the advice NZQA gave Mr Hunt, several times, that TCA was enrolling international students, and the Judge’s finding as regards Ms E.
[36] Mr Russell’s response to this submission was that the correspondence evidences that TCA and Mr Hunt took the steps they believed would render it impossible for an international student to enrol through TCA’s website but that it proved more difficult to achieve this than expected. As to Ms E, Mr Russell submitted the circumstances of her enrolment were far from straightforward given the matters referred to above, and that the breach was not the deliberate flouting of the law that NZQA alleges.
[37] These submissions by Mr Russell are consistent with my own review of the correspondence annexed to Ms West’s affidavit. It follows that I do not accept NZQA’s submissions that Mr Hunt’s offending was deliberate.
Consequences
[38] The next three grounds of appeal concern the Judge’s assessment of several of the likely consequences of conviction.
[39] The first point concerns a finding that a conviction would affect Mr Hunt’s plans for expansion of the TCA business. NZQA submitted there was an insufficient evidential foundation for this.
[40] The evidence was that TCA had a presence in Australia and that, in early 2017, Mr Hunt had engaged an independent expert, Mr Peter Andersen, who has experience in this field in Australia, to assist with TCA’s registration. The Australian Skills and Quality Authority controls registration in Australia. Mr Andersen’s affidavit evidence was that, in assessing an application, the Authority considers whether a person exercising a “degree of control or influence” over the operation of the organisation is a fit and proper person to do so, and that an applicant must disclose convictions entered in Australia and elsewhere. Mr Andersen’s opinion was that the Authority would be most unlikely to consider Mr Hunt a fit and proper person if he were convicted and that a conviction would:
... potentially have a negative impact upon an application to own [a Registered Training Organisation] in Australia, and that there is a very high likelihood that [Mr Hunt] will not be considered a fit and proper person to manage an RTO in Australia.
[41] NZQA submitted that there was no evidence Mr Hunt intended to register TCA in Australia. However, Mr Hunt’s engagement of Mr Andersen is consistent with a proposal to register in Australia. NZQA also submitted that Mr Andersen’s statement that convictions could have a potentially negative impact does not meet the “real and appreciable” test. That, however, is only a part of the relevant statement. The “very high likelihood” statement in the affidavit itself is sufficient to meet the test.
[42] That said, I accept NZQA’s submission that there was no evidence that an absence of registration would require TCA to leave the Australian market as the Judge said might occur. The evidence before the Judge was that a conviction of Mr Hunt would, at the very least, constitute a significant impediment to registration, and quite possibly preclude it altogether.
[43] Secondly, NZQA submitted that the Judge speculated, without evidence, that Mr Hunt, who is a Chartered Accountant and a Certified Practising Accountant (“CA” and “CPA”), would be likely to lose his status as such if he were convicted and that such would affect TCA’s business.
[44] The Judge’s findings on this point were that, if convicted, it was likely Mr Hunt would be referred to the Disciplinary Tribunal of the New Zealand Institute of
Chartered Accountants (“NZICA”). The Judge also said that there was a real and appreciable risk that the business would suffer if, amongst other things, Mr Hunt’s status as a CA and a CPA were affected.
[45] The first of these findings was correct. The Judge referred to evidence that NZQA had adduced from Ms Rebecca Stickney who holds a senior position at NZICA. NZQA informed NZICA of the charges against Mr Hunt shortly after they were laid and it then kept NZICA informed of developments. Whether NZQA breached the interim suppression order in place at the time by doing so is in dispute but is not relevant to the issues before me.
[46] Ms Stickney’s affidavit was in opposition to TCA and Mr Hunt’s application for permanent name suppression. The gist of her detailed affidavit was that, if convicted, it was likely Mr Hunt would be referred to NZICA’s Disciplinary Tribunal. From there a disciplinary hearing would follow, and the Tribunal might impose one or more of the disciplinary sanctions provided for in NZICA’s rules. Ms Stickney also informed the Court that NZICA would be hindered by an order for name suppression as such might prevent NZICA from publishing details of the disciplinary findings and sanction(s). I add that it is likely a similar disciplinary situation applies in Australia. Mr Hunt has “self-reported” the prosecution to the equivalent Australian body, CPA Australia Limited.
[47] There are two further points to note on this topic. First, Mr Hunt may face disciplinary action from NZICA, whether or not he is convicted. However, as I read NZICA’s rules and Ms Stickney’s affidavit, that action is more likely, and more likely to be serious, if Mr Hunt is convicted.
[48] Secondly, as Mr Harborow submitted, and as the Judge said, the Court usually proceeds on the basis that it should not grant a discharge merely to conceal relevant information from a professional body or to avoid an applicant having to face the professional consequences of offending. In this case, however, there is no suggestion of keeping information from NZICA and its Australian equivalent as they are already informed. As appears below, I am dismissing the appeal against the refusal to grant name suppression. So there is no prospect that the discharge will conceal the
prosecution, TCA’s convictions and Mr Hunt’s liability as a director under s 292(B) from the professional bodies, or from the Australian registration authority for that matter.
[49] As to the second part of the finding, it is correct the Judge did not state how he perceived TCA’s business would suffer if Mr Hunt’s CA or CPA status was affected. There is substantial evidence to the effect that a major part of TCA’s business is the provision of accountancy and bookkeeping courses, with many accounting firms enrolling their graduates in these courses, as it is an efficient way to prepare them for their professional exams. It is clearly possible that disciplinary action by NZICA against Mr Hunt might deter some of those firms but there is no unequivocal evidence to that effect, and so I accept the submission that the evidence did not warrant the Judge’s finding on this score.
[50] NZQA also contends that the Judge speculated, without evidence, as to how a conviction would affect Mr Hunt’s ability to travel. The Judge accepted that Mr Hunt would need to travel to Australia, the United States and Canada and that the sheer number of convictions might make this more difficult than otherwise would be the case. The evidence before the Judge on this issue was a letter from “The Visa Machine”, which confirmed that Mr Hunt would need to disclose any convictions on entering Australia, the United States, Canada and Ireland and that convictions would make entry more difficult and time-consuming. The Judge thought this would be a further consequence “out of proportion” to the gravity of the offending.
[51] Mr Harborow referred me to the following statement by the Court of Appeal as to what will ordinarily be expected if an impediment to travel is relied upon:13
… a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
13 Edwards v R [2015] NZCA 583 at [26].
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[52] I accept Mr Harborow’s submission that the letter to which I have referred did not purport to say convictions would preclude entry. The travel consequences could not be elevated beyond a time-consuming inconvenience in each jurisdiction Mr Hunt would need to be visiting.
Out of all proportion
[53] Mr Harborow submitted the Judge was plainly wrong to find the consequences of conviction out of all proportion to the gravity of the offending which, as stated above, he contended was at the upper end and deliberate.
[54] The issue is not whether another Judge might have declined a discharge but whether I am persuaded the Judge was “plainly wrong” to conclude as he did and I am not. There was ample evidence (25 affidavits filed over 15 months) for the Judge’s conclusion that the gravity of Mr Hunt’s offending was no more than moderate and that the consequences were real and appreciable and out of all proportion.
Appeal against refusal to grant name suppression
[55] Before the Judge the appellants based their application for permanent name suppression on s 200(2)(a) (“extreme hardship”) and (c) (“undue hardship to victim”) Criminal Procedure Act 2011. The Judge was not persuaded either threshold was met and also said that he would have declined suppression in the exercise of discretion in any event.
[56] The appeal is brought on the ground that the threshold in s 200(2)(a) was met (s 200(2)(c) is no longer in issue) and that the discretion should be exercised in the appellants’ favour. It is common ground that the principles in Austin, Nicholls & Co Inc v Stitching Lodestar apply to the appeal as regards whether the threshold in s 200(2)(a) is met and the principles applicable to an appeal against the exercise of discretion to that second part of the exercise.14
14 Austin, Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[57]For present purposes the relevant parts of s 200(2) are:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
[58] The appellants’ submission is that publication would be likely to cause extreme hardship to past and present students of TCA on the (uncontested) basis that the students are “connected with” TCA for the purposes of s 200(2)(a).
[59] “Likely” in s 200(2) constitutes “a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful”.15 “Hardship” means “severe suffering or privation”, and “extreme” hardship connotes a very high level of hardship.16 Whether the threshold is met is a matter of fact.
[60] Mr Russell referred me to the evidence of Dr Pushpa Wood and Mr Nigel Sutton, both highly experienced in this field. Dr Wood’s evidence, based on her experience, is that publicity will have an adverse effect on the reputation of certificates TCA has awarded to past students and that this will be harmful to students who have obtained their qualifications and who are now in, or seeking, employment. Dr Wood’s evidence is that the credibility of the provider of education and training affects a student’s employment and further education opportunities and that the public does not differentiate between providers on the basis of the precise conduct with which they
15 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21].
16 Robertson v Police [2015] NZCA 7 at [48].
have been charged. Dr Wood concludes that the students’ interests should be foremost in making the decision regarding suppression, a statement I would fully endorse.
[61] Mr Sutton’s evidence is that negative publicity in respect of TCA will undermine and devalue qualifications that students have gained. Mr Sutton goes so far as to suggest the qualifications obtained will be “invalidated” and that employers of TCA graduates may begin second guessing the qualifications and current students may lose motivation to complete their courses.
[62] Mr Russell also submitted that the public would associate TCA with other “rogue” educational institutions prosecuted or closed down for vastly more serious offending.
[63] Mr Harborow submitted that the Judge was correct to find that s 200(2)(a) was not satisfied. He submitted that media coverage to date had been factually correct and balanced, there was nothing to suggest that would not continue, and that none of the coverage asserted that TCA’s courses were of poor quality. Mr Harborow also submitted that it was speculative for the appellants to submit that the resulting hardship would be “extreme” as they had not adduced any evidence from prospective employers as to the likely effect of publication on a student’s employment prospects. Nor was there any evidence from TCA’s students.
Discussion
[64]The Judge said this of the appellants’ argument on this ground:
[79] The argument as to the effect on students mostly centres on the opinion evidence of Dr Pushpa Wood. Regardless of her connections with the defendants Dr Wood has considerable expertise and qualifications in the education area. She deposes that publication will have a serious impact on the reputation of [TCA’s] certificates which will be harmful for its students who have obtained these awards and that current and past students will be disadvantaged if the organisation in which they are studying is considered to have a questionable reputation.
[80] That, however, does not seem to me to amount to the hardship the Act requires to be established before an order can be made. In Robertson v Police hardship was said to mean “severe suffering or privation” with the qualifier “undue” indicating something more and with “extreme” something more again. Mr Sutton’s evidence, that the failure to grant name suppression would mean past and present students “will face extreme hardship” outlines a gloomy
prophecy as to the effect publication might have on any and all qualifications gained from the defendant company. It is said that employers may not value qualifications from [TCA] and so their credibility will be damaged.
[81] I accept there will be some loss of institutional reputation which will affect qualifications offered by it and qualifications obtained by past students.
… while former and current students may suffer harm as a result of the publicity through publication there is nothing before me to indicate that harm will be long-lasting or that it would amount to sever suffering or privation. No doubt many [students] will be disappointed but again I do not accept that amounts to extreme hardship in terms of s 200(2)(a) ... They are no more than the ordinary consequences associated with publication.
[65] I accept that publication of details of TCA’s offending in 2016 may well impugn its reputation, but I also expect that any person reporting on this decision will, in the interests of accuracy, wish to inform their readers or listeners that the merits of TCA’s qualifications, and the training and education it provides, have never been in issue. Of course, some employers may recall the TCA name but not the finer detail of the nature of the offending and it is possible an employer may have reservations regarding, or even dismiss out of hand, any application for employment from a past or present student of TCA as a result of publication. I also accept that this might constitute “hardship” to past and present students in the sense to which I have referred in [59] above. Ultimately, however, and like the Judge, I am simply not satisfied that the consequences of publication are likely to cause “extreme” hardship in the sense s 200(2)(a) requires. The evidence before me falls short of that.
Result
[66]I dismiss the appeal and cross appeal.
[67] On 1 September 2017, Hinton J made an order extending interim name suppression pending further order of the Court. Subject to any further order of the Court, that is pending an application for leave to appeal, Hinton J’s order is to lapse at 2 pm, 19 July 2019.
Peters J
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