Jeffries v The Attorney-General HC WN CIV 2006-485-2161
[2008] NZHC 2336
•20 May 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2006-485-2161
UNDER the Judicature Amendment Act 1972 and s
27 New Zealand Bill of Rights Act 1990
IN THE MATTER OF the former Overseas Investment Act 1973, the Overseas Investment Act 2005, and the Official Information Act 1982
BETWEEN WILLIAM PATRICK JEFFRIES Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Hearing: 5 and 6 May 2008
Counsel: D O'Leary for Plaintiff
H Hancock and D McDonald for Defendant
Judgment: 20 May 2008 at 2 pm
RESERVED JUDGMENT OF RONALD YOUNG J
Introduction
[1] In the first part of these proceedings Mr Jeffries, the plaintiff, challenges, by way of judicial review, a series of “decisions” made by the Overseas Investment Commission (OIC) (and its successor the Overseas Investment Office (OIO)) and the Attorney-General/Minister of Finance to give approval to Mr and Mrs Powell (American citizens) to purchase a 2012 hectare farm in the Marlborough Sounds. In the second part of the proceedings the plaintiff challenges, by judicial review and under the New Zealand Bill of Rights Act 1990, a decision by the manager of the
OIO to release, under the Official Information Act 1982, a letter and associated
JEFFRIES V THE ATTORNEY-GENERAL HC WN CIV 2006-485-2161 20 May 2008
correspondence from the plaintiff relating to the Powells’ farm purchase and subsequent events.
Background
[2] In April 1999 Mr and Mrs Powell as overseas persons applied for consent pursuant to the Overseas Investment Act 1973 to buy 2012 hectares of land known as “Waitai” on d’Urville Island in the Marlborough Sounds. The OIC referred the application to the relevant Minister for decision with a summary of the application and its analysis of how the application complied with the relevant statutory regime. Because the application involved the acquisition of “sensitive land”, it had to be “in the national interest” (s 14A(1)(d) and (2)) before the application could be granted. The OIC’s recommendation to the Minister was that he “determine that the application was in the national interest and approve it subject to the standard conditions that you have previously agreed to”. The Minister accepted the recommendation and approved the application together with “standard conditions”. The Powells were advised of the decision by letter of 21 May 1999 and by
6 July 1999 they had unconditionally purchased the land.
[3] Subsequent to the purchase of the farm the Powells hired Interact Ltd to design and construct a house on the property. The parties fell out and Interact sued the Powells for professional fees for which the Powells denied responsibility. The Powells counterclaimed, alleging the failure of Interact to perform its contractual obligations meant the Powells had to abandon their plans to live in New Zealand. Interact was represented in the litigation by the plaintiff from January 2000 to February 2005. It seems that the plaintiff’s interest in the OIC’s actions with respect to the Powells grew out of his involvement in this litigation.
FIRST PART OF PROCEEEDINGS
[4] The first part of these proceedings seeks review of what are said to be seven decisions by the OIC and its successor the OIO between 30 November 2000 and
6 December 2005 and one decision by the Attorney-General/Minister of Finance on
8 August 2005.
[5] The impugned decisions in the plaintiff’s pleadings are;
OIC’s decisions
161On 30 November 2000 OIC decided to suspend its monitoring of the Powells’ compliance or otherwise with condition 5(a), condition 5(c) and condition 7(a) of the consent.
162Between 9 May 2003 and 8 August 2003 OIC decided to suspend its monitoring of the Powells’ compliance or otherwise with condition
5(a), condition 5(c) and condition 7(a) of the consent.
163Between 11 August 2003 and 16 October 2003 OIC decided to suspend its monitoring of the Powells’ compliance or otherwise with condition 5(a), condition 5(c) and condition 7(a) of the consent.
164 On 16 October 200 OIC decided to “request further evidence of [the
Powells’] compliance [with condition 5(c)] of the consent.”
165After 24 October 2003 OIC decided to accept as evidence of compliance with condition 5(c) the Powells’ own confirmation of such “compliance” of 24 October 2003.
166Between 24 October 2003 and 25 August 2005 OIC decided to suspend its monitoring of the Powells’ compliance or otherwise with condition 5(a), condition 5(c) and condition 7(a).
Attorney-General and Minister of Finance’s decision
167On 8 August 2005 the Attorney-General and Minister of Finance decided ultra vires to vary the Powells’ continuing obligation to establish “the international branding initiative” [sic] by investing the initial capital sum of 150,000 in “Brand Development” by suspending the performance of that obligation until “the litigation matters in which [the Powells] [are] involved have ended.”
168On 6 December 2005 the current Manager of OIO purported to decide on behalf of OIO not to monitor the Powells’ compliance or otherwise with condition 5(a), condition 5(c) and condition 7(a) of the consent.
[6] These decisions are challenged by the plaintiff as; failing to take into account relevant and taking into account irrelevant matters; unreasonable; made for an improper purpose; acting under dictation and in breach of legitimate expectations.
[7] As a result the plaintiff seeks declarations identifying the failures of the OIC and OIO and quashing the decision of the Attorney-General/Minister of Finance and orders directing the OIO to perform what is said to be its monitoring function with respect to the Powells’ consent.
[8] Before I consider each ground of challenge, some brief background to the statutory regime, the OIC and its processes.
[9] The 1973 Overseas Investment Act (now superceded by the 2005 Act) regulated, amongst other matters, the purchase of sensitive land by overseas persons. Both statutes empower Ministers to grant to overseas persons consent to purchase sensitive land subject to compliance with certain statutory criteria .
[10] The criteria to be met by an overseas person proposing to purchase such land is (s 14B(2)(a)-(d)):
(i) Good character of the purchaser;
(ii) Business experience and acumen of the purchaser;
(iii) The purchaser’s financial commitment to the proposed investment;
and
(iv)And (relevant only to sensitive land) whether the investment is in the national interest (see s 14A(1)(d) 1973 Act) or “of benefit to New Zealand” see s 16(1)(e) 2005 Act.
[11] Government policy direction also plays a significant part in the operation of the Act. See for example s 9(2) of the 1973 Act, which provides as follows:
9 Functions of Commission . . .
(2)In the exercise of its functions, powers, and duties, the Commission shall comply with the general policy of the Government in relation to the functions of the Commission transmitted in writing from time to time to the Commission by the Minister or the Minister and the Minister of Lands, as the case may be.
[12] Thus the Government, through the relevant Minister, could and did provide directive letters to the OIC and OIO. There were such letters in March 1999, November 1999, July 2000 and August 2005. Of particular relevance to this case are two directives initially communicated in March 1999 and followed through in similar form in each of the subsequent directives. The relevant parts of those directives are that the Commission;
(iii) Continue to make its decisions based largely upon material supplied to it by investors. It should regard the information as having been provided in good faith unless the OIC has good reason to believe otherwise;
. . .
(iv) Continue to monitor compliance with any conditions of approval, consent, permission, or exemption granted under the regulations with an approach that seeks a balance between the objectives of ensuring compliance with any conditions and providing the Commission with more accurate statistics on investment, and the desire to maintain a welcoming approach to investment.
[13] In addition, at the instigation of the OIC, Ministers agreed, in relation to the imposition of conditions of overseas investment consent, as follows:
(13)That the Ministers of Finance and Lands agree that conditions should tend to focus on the matters set out in the Overseas Investment Regulations and to sensitive aspects of any land an overseas person is buying;
(14)That the Ministers of Finance and Lands agree that, as a general rule, no conditions should be imposed which:
(c) steer applicants into pursuing business in certain industries;
or
(d)have the effect of telling the applicant how to run their business; or
(e) are inflexible and prevent an applicant from making minor modifications to their business plans in light of economic and market developments.
Clause 5(a), 5(c) and 7(a) of OIC consent
[14] Before embarking on a consideration of the individual causes of action, it is necessary to deal with the disputed meaning of clauses 5(a), 5(c) and 7(a) of the OIC
consent to the Powells’ overseas investment application. The Powells’ application for OIC consent related to and was necessary only because of their desire to purchase the 2012 hectares on d’Urville Island, Marlborough Sounds. As I have said, it was accepted this was also “sensitive land” in terms of the OIA regime and therefore required Ministerial approval that the investment was in the national interest.
[15] The property was described as consisting of 1200 hectares of pastoral farming, 12 hectares of plantation forestry and 800 hectares of scrub. The Powells’ application did not propose that this would change. The purchase price was $5.62 million. Under “rationale for the investment” the applicants said:
Rationale for the Investment:
(i)In addition to becoming a homestead for their family’s move to New Zealand, the Applicants propose that following successful acquisition they will begin the development of a very high-end international brand based upon the Marlborough Sounds’ and New Zealand’s unique combination of natural, unspoiled coastal beauty, healthy lifestyle, and gracious people. Using the existing farming operation of lamb, sheep and beef products as a spring board, the Applicants intend to develop a brand (Waitai-D’Urville) that responds to this market demand and over time leveraging the subject property to add products which support and enhance the brand over the long-term. Acquiring the subject property is the core initial investment and is critical to the business plan. The Applicants have spent months investigating potential properties throughout the Marlborough Sounds and other coastal New Zealand areas. The subject property is ideal for the business plan based on its location, size, and operating farm operation.
(ii) The Applicants believe that New Zealand’s international reputation for clean air and water, along with a strong pastoral heritage create an exceptional opportunity to build a luxury brand for farm, horticulture and potential tourism products. World-wide demand, particularly in the US and Europe, for products perceived as pure, organic and “safe” is burgeoning as wealth increases. It is envisaged that the brand created will be extended to cover products beyond lamb, sheep and beef products to cover other products sourced from the Nelson/Marlborough region (eg. Olives, olive oil, wine, salmon, scallops, mussels, etc).
[16] In a letter of 21 April 1999, in support of the application, the Powells’ lawyers said the Powells had lodged an application for permanent residence. The application itself said that the homestead on the property was for the Powells subsequent move to New Zealand.
[17] The application then turned to the evidence that applicants claimed fulfilled the requirements of s 14A. The application said:
(l) Evidence that the proposal fulfils investment criteria set out in
Section 14A of Act
The Applicant, Mr Powell, is an experienced and successful investor and manager of rapidly growing private companies. One venture, Apex Security Group, grew from three employees to become the 60th largest (of 13,000) security firm in the United States within two years. This company is focused on luxury markets, with strong brand development, marketing and operational skills.
In addition to acquisition costs funded in cash, the Applicants have earmarked approximately $1.75 million NZD for development to the subject property in the first 12-18 months:
$75,000.00 Livestock Improvements
$125,000.00 Fencing Improvements
$50,000.00 Weed Eradication
$50,000.00 Pasture Improvement/Fertiliser
$150,000.00 Jetty Design and Build and Road Improvement
$150,000.00 Landscaping
$500,000.00 Homestead
$250,000.00 New Ancillary Buildings for both farm and
$250,000.00 Independent Eco-Friendly Power Installation
$150,000.00 Brand Development
$1,750,000.00
Continued significant development investment is expected, but budgets are not yet set beyond the initial phase.
As a supplement to the existing electricity supply to the property, the Applicants propose to install an eco-friendly commercial grade independent power generation system. The system will have the ability to feed excess generation capacity into the local grid.
(m) How the Applicants meet investor test sets out in Section
14A(1)(a)-(c)?
See (l) above
Both Applicants, with a combined 100% interest in the proposed investment, are of good character and neither such person is a person of a kind referred to in Section 7(1) of the Immigration Act 1987.
The Applicants have expended considerable resources on their Due Diligence Investigation of the subject property and in respect of their move to New Zealand.
[18] The Powells accepted they had to meet the standard criteria set out in s 14A(1)(a) to (c) and in addition, satisfy the Minister that the investment would be in the national interest given the farm was “sensitive land”. The three criteria under s 14A(1)(a)-(c) were, the Powells said, established given. There was a statement from the Powells’ solicitor as to good character, their application set out extensive business experience and acumen, and their financial commitment to the investment was illustrated by payment of the deposit together with their statement that they would be in a position to complete the purchase without borrowing and their development plans for the farm.
[19] In dealing with national interest (s 14A(1)(d)), the Powells said:
(i)They intended to create four to six new fulltime positions, further part-time positions and would use New Zealand professional advisors extensively;
(ii) As to the development of a high-end brand:
(ii) The Applicants will also add value to the development of new, high-end luxury markets for New Zealand products with a powerful and internationally marketed brand.
(iii)Their farm management strategy and capital improvement, given their strong financial resources, would mean significant increase in productivity for the farm;
(iv) They expected to return up to $1 million per annum to the
New Zealand economy.
(v) Finally, they said they intended to reside permanently in
New Zealand.
[20] The application was referred initially to the OIC who undertook an analysis and then referred the application to the relevant Ministers. On 21 May 1999 the OIC advised that the Minister had granted the application.
[21] The relevant conditions of consent were:
5 Consent has been granted subject to the following conditions:
(a)this consent will lapse if the property, specified securities or land has not been acquired and transferred [or business has not been established] by 21 May 2000;
(b)the Applicant or their agent must notify the Commission in writing as soon as practicable and no later than 21 May 2000 advising whether the investment proceeded. If the investment proceeded the notice must include:
(i) the date of settlement; (ii) final consideration paid;
(iii) the structure by which the acquisition was made (for example, advise whether a nominee of the applicant acquired the property); and
(iv) any other information which would aid the Commission in its function to monitor overseas investment in New Zealand.
If available, please provide copies of applicable transfer documents.
(c) every individual with a 25 percent or more beneficial interest in the overseas investment, or where the Applicant is not an individual, the individuals exercising control over the Applicant (as the case may be) must continue to meet the eligibility criteria specific in s 14A(1)(a)-(c) of the Act.
. . .
7 If the investment proceeds the Applicant or their agent must:
(a) report in writing to the Commission providing evidence of compliance with condition 5(c) in this letter no earlier than
21 November 1999 and no later than 21 May 2000. The
Applicant must also, if required by the Commission, provide this information at any subsequent time;
(b)notify the Commission in writing within 28 days of ceasing to be an overseas person; and
(c) notify the Commission in writing within 28 days of selling any land (or specified securities in a land-owning entity) which this letter grants them consent to acquire.
8This information is sought for the purpose of compiling statistical information about overseas investment in New Zealand and to monitor compliance with the conditions of this consent.
[22] The plaintiff says that conditions 5(a) and 5(c) of the consent required both the land to be purchased and the high-end international brand ( [15], [19](ii)) to be established or, at least, substantial progress towards the establishment of the brand by May 2000. The plaintiff accepts the Powells purchased the land before May 2000 and therefore satisfied that part of 5(a). However, he says that the Powells did nothing to establish the high-end brand by this date, in breach of condition 5(a). It is common ground the Powells did not, by May 2000, nor have they ever, developed the high-end brand.
[23] As to condition 5(c), the plaintiff argues similarly that this condition requires a continuing financial commitment (by virtue of s 14A(1)(b)) to the development of the high-end brand which is part of the overseas investment referred to in 5(c).
[24] The plaintiff says that the “overseas investment” in this case was both the purchase of the land and the development of the high-end brand. Thus it is only by illustrating a continuing financial commitment to both that compliance with conditions 5(a) and 5(c) can be achieved. Commitment to the development of the high-end brand might only have been required for 12 months in 5(a) but the plaintiff says 5(c) required a continuing commitment.
[25] The plaintiff stresses the Powells’ identification of the high-end brand development was pivotal to the application for overseas investment approval and establishing the national interest test. They say without the high-end brand development as part of the application it is doubtful it would ever have been seen as being in the national interest and the application would have failed.
Discussion on conditions 5(a) and 5(c)
[26] I do not consider that the establishment of a high-end brand was ever a condition of the consent (either by virtue of 5(a) or 5(c)) granted by the Minister for the purchase of the land by the Powells.
[27] Firstly, ministerial directions and agreements relating to the imposition of conditions on such applications must be kept in mind when interpreting the consent
(see [12] and [13]). The Ministerial agreement in [13] is designed to avoid the imposition of specific conditions on applicants relating to the development of a particular business. As the OIC recognised, in most cases it would be virtually impossible to draft adequate conditions without being narrowly prescriptive. The key components to any consent are a continuing financial commitment to the investment and, where required, continuing national interest, rather than an analysis of whether or not an applicant has precisely carried out what was proposed in the original application.
[28] Secondly, conditions 5(a)-5(c) are the standard conditions for such consents. If the OIC intended that specific conditions requiring the development of the high- end brand were required, then no doubt they would have been specifically included. To draft meaningful conditions relating to the development of a high-end brand based on the Powells’ application would no doubt have required considerable discussion between the Powells and the OIC to identify measurable goals for the Powells to achieve. The absence of any such specific conditions supports the proposition that 5(a) and 5(c) were not intended to incorporate such a condition.
[29] Thirdly, I agree with the defendant’s submissions that the OIC, after many years of experience in the receipt and analysis of such applications would have understood the context in which the proposal to develop a high-end brand was given by the Powells. The focus of the application was for a consent to buy the land. No OIA consent was necessary to develop a high-end brand. The development of the brand in the application was identified as one way in which investment in the land could be in the national interest. It was not the only way suggested. The Powells made it clear in the application that they intended to develop the farm itself irrespective of any brand development. The OIC would have understood the development of the high-end brand was at least to some degree part of “selling” the application to them.
[30] Fourthly, no consent was required to develop the high-end brand business itself. The Powells’ budget showed an intended investment of $150,000 and consent is only required if the total expenditure on development of the business is more than
$10 million (see regulation 5(1)(b), Overseas Investment Regulations 1995).
[31] Fifthly, condition 5(c) is concerned with continuing financial commitment to the overseas investment. The core investment here is the farm purchase not, as was suggested by the plaintiff, the development of the high-end brand. The development of a high-end brand was one of the ways in which the farm property might be developed. This is illustrated by the purchase price of the farm at $5.6 million and the budgeted expenditure of the brand development of $150,000. Indeed in the Powells’ farm budget for the first year the sum of $150,000 was less than 10% of the proposed expenditure on the property.
[32] For the reasons given, therefore, I am satisfied that neither conditions 5(a) or condition 5(c) required the development of the high-end brand mentioned in the Powells’ original application.
Condition 7(a)
[33] The final interpretive issue relates to condition 7(a) of the consent ([21]). That condition required the applicant or their agent to report to the Commission providing evidence of compliance with condition 5(c) by May 2000. Given my view as to the meaning of condition 5(c), condition 7(a) required the Powells to advise the Commission that they had purchased the land. Condition 7(a) also required the applicant to provide evidence of continuing eligibility, that required continuing financial commitment to the investment and that the investment continued to be in the national interest. This the Powells have done as required by the OIC. They have advised the OIC of the purchase of the farm and they have responded to OIC and OIO enquiries regarding their continued financial commitment to the farm.
[34] My conclusions as to the interpretation of condition 5(a), 5(c) and 7(a) significantly affects some of the plaintiff’s challenges to the decision-making by the OIC. I deal with each in turn.
Decision of 30 November 2000
[35] The plaintiff says when the then Assistant Secretary of Finance OIC noted “NFA” on a letter of November 2000 from the Powells’ solicitors, he was deciding that the OIC need take no further action in monitoring the Powells’ consent and therefore had decided to suspend or stop monitoring. This, the plaintiff says, was a decision based on a statutory power (s 9(1)(f)) and therefore susceptible to review.
[36] Section 9(1)(f) provides:
9 Functions of Commission
(1) The functions of the Commission shall be—
. . .
(f) To monitor compliance with any conditions of any approval, consent, permission, or exemption granted in accordance with regulations made under this Act and to advise the Minister and, in the case of any approval, consent, permission, or exemption relating to any overseas investment of the kind referred to in paragraph (b) or paragraph (c) of the definition of that term in section 2(1) of this Act, the Minister of Lands, of any failure to comply with any such condition.
[37] On 31 October 2000 the OIC wrote to the solicitors for the Powells seeking information as “part of the Commission’s post-consent monitoring function”, about the development of the farm, whether the Powells continued to meet the s 14A criteria and whether the Powells still resided on the property. The Powells’ solicitors responded in detail on 8 November including an observation that the Powells had spent $2.2 million in developing the property in the 16 months since acquisition. As to the question of residency, the letter recorded that the Powells had not taken up residency on the farm in New Zealand because of an on-going dispute regarding the construction of their house on the property. The solicitors made the point, however (in their subsequent letter of 22 November 2000 to the OIC) that residency was not a condition of consent.
[38] At the top of the letter of 22 November from the Powells’ solicitors to the
OIC the Assistant Secretary for Finance OIC wrote:
response to query satisfactory applicants have provided benefits (largely) as set out
in original application original consent/approval was not based on residency.
NFA [Signature]
30/11/00
[39] In my view, the Assistant Secretary made no decision (as alleged) to suspend or stop monitoring the Powells’ consent on 30 November 2000. The OIC in its enquiry of 31 October was undertaking monitoring of the consent as required by s
9(1)(f). The content of the letter of 31 October reflects that enquiry. As a result of the response to the enquiry the Assistant Secretary was satisfied, as he noted on the letter of 22 November, that the original benefits identified in the application for consent had “largely” been provided. He was well entitled to reach that view based on the evidence supplied. The Powells had not developed the high-end brand but this was not a condition of their consent ([14]-[32]). Consistent with the agreed approach to such matters, the OIC was concerned about continuing financial commitment to the overseas investment. The Powells illustrated such a financial commitment and indeed exceeded their forecast expenditure on the property. And so no further action was required as a result of the OIC enquiry as to whether the Powells at that time continued to meet the statutory criteria under s 14A.
[40] To assume the notation “NFA” meant, as counsel suggested, no further monitoring, flies in the face of the actual notation and the background facts giving context to the note. I therefore reject the plaintiff’s claim that on 30 November 2000 the Assistant Secretary directed that monitoring of the Powells be suspended or stopped.
[41] If the notation did mean monitoring was suspended then I consider the grounds of review. The grounds of review of failure to take into account relevant matters, unreasonableness, and improper purpose were all based on the assumption
that conditions 5(a) and 5(c) of the consent required the Powells to develop the high- end brand. I have found the consent did not require them to do so and, irrespective of any other inadequacy, these causes of action were doomed to fail for that reason alone.
[42] There were three other grounds on which the decision of 30 November was impugned. Firstly, it was said that in deciding to suspend or stop monitoring the Assistant Secretary took into account the irrelevant consideration that the Powells did not reside on the property because of the construction dispute. There was no condition of consent which required the Powells to live on the property or indeed in New Zealand. The OIC asked about the Powells residency in its letter of 31 October no doubt because the original application for consent said the Powells intended to reside in New Zealand on the farm property. The OIC received an explanation why the Powells were not doing so. There is no evidence whatsoever to suggest that somehow the Assistant Secretary took into account the reasons given for the Powells not living in New Zealand when, as the plaintiff claims (rejected by me), the Secretary decided to suspend or stop monitoring. There is simply no factual basis for the plaintiff’s claim that the Secretary took into account any irrelevant considerations.
[43] Counsel submitted that the Assistant-Secretary who made the notation ([38]) did so without properly considering the statutory requirements and for an improper purpose, namely to relieve the OIC from further monitoring. I reject this claim. There is no evidence of such an improper motive, in any event the Assistant-Secretary did not stop monitoring and did consider the appropriate statutory requirements.
[44] A claim of a breach of legitimate expectation arises in this and, in the same way in other causes of action. I deal with that issue now and my conclusions here apply equally to the other challenges to decision-making based on a breach of legitimate expectation.
[45] The plaintiff’s case is that he became aware of the prosecution of a Mr
Weller, also an overseas person who had obtained OIC consent to the purchase of
land in New Zealand in, as the plaintiff asserted, “materially identical circumstances” to the Powells. The plaintiff claims that because of this, he had a legitimate expectation that the OIC would treat the Powells and the Wellers consistently in the performance of its statutory function.
[46] The plaintiff says the OIC, and its successor the OIO, failed to perform their statutory function consistently and thereby breached his legitimate expectation that they would do so. Thus the plaintiff says the 30 November decision by the OIC to undertake no further monitoring “frustrated that legitimate expectation”.
[47] I have already concluded that the decision of 30 November was not to stop or suspend monitoring. In any event the Weller case is quite different than the present case. Mr Weller apparently obtained OIC consent to purchase 44 hectares of sensitive land. His proposal involved the development of chestnut trees and a timber export business. Instead, Mr Weller built a holiday home on the property. The OIC concluded that Mr Weller had failed to comply with condition 5(c) of his consent (the same condition 5(c) as here) and took enforcement action against him.
[48] Here, the undertaking by the Powells was for the development of the farm property. They have undertaken this development, investing millions of dollars in the farm and demonstrably improving farm productivity and increasing employment. In contrast, Mr Weller’s undertaking was for the development of chestnut trees and douglas firs for export. He undertook neither development but built himself a holiday home on the land. As is self-evident from these descriptions the cases are not in any sense materially identical and a legitimate expectation could not possibly have arisen that the Powells would be treated in the same way as Mr Weller.
[49] An essential element of legitimate expectation must be that a breach of the expectation will affect the rights or interests of the applicant Te Heu Heu v Attorney General [1999] 1 NZLR 98. Here, no such effect has been identified.
[50] For the reasons given, therefore, the review of the decision of 30 November
2000 fails.
Decisions of 9 May 2003 to 8 August 2003
[51] On 30 April 2003 the OIC wrote to the solicitors for the Powells, in part regarding a series of Official Information Act requests and in part about the Powells development plans with respect to the property. As to the latter, it said this:
A further matter that the Commission wishes to raise is that the development plans for the property appear to have not yet been implemented. The Commission is of the view that, given approximately four years has elapsed since your clients acquired the property, this raises a question about your clients’ overall intent for the property, their commitment to the investment and whether the information provided in support of the original application was genuine. Accordingly, your detailed written comments in relation to these concerns are required by the Commission by 5pm Friday 9 May 2003.
[52] The Powells’ solicitors responded both to the information issues and the development plans regarding the property on 9 May. On 8 August the OIC responded to the solicitors letter of 9 May. The OIC said it had undertaken an analysis of the material provided on 9 May. It attached a spreadsheet which identified what further information was required of the Powells. Included in these requirements was that the Powells prepare a separate spreadsheet showing expenditure on farm operations only.
[53] I note that the OIC spreadsheet showed the Powells proposed expenditure of
$1.75 million (set out in their application for overseas investment consent) and the actual expenditure at that date of $4.1 million.
[54] On 11 August the solicitors for the Powells responded providing the details requested including a detailed report from KPMG, the Powells’ accountants, on the development of the farm. Finally, on 16 October 2003 the OIC asked the Powells’ solicitors for further confirmation of compliance with condition 5(c) of the consent. It said:
Evidence of compliance with condition (c) of the consent must take the form of an unfettered statement from the client’s solicitor to the effect:
“We confirm that every individual with a 25 percent or more beneficial interest in the overseas investment, or where the Applicant is not an individual, the individuals exercising control over the Applicant (as the case may be) continues to meet the eligibility
criteria specified in section 14A(1)(a)-(c) of the Overseas Investment
Act 1973”.
[55] The OIC said if such an unfettered statement could not be given then an affidavit or statutory declaration would be required from the Powells detailing compliance with condition 5(c). On 24 October 2003 the solicitors for the Powells provided the unfettered statement sought by the OIC as to compliance.
[56] The plaintiff’s complaint is that the OIC decided between 9 May and 8
August 2003 to stop or suspend monitoring the Powells compliance or otherwise with the overseas investment consent. They point to the lack of any action from OIC between these dates. The plaintiff says the obligation to monitor the Powells (s 9(1)(f) included the obligation to advise the Minister of the Powells’ continuing failure to comply with the consent, because of their failure to develop the high-end brand.
[57] The plaintiff’s case is that the OIC should have advised the Minister that the Powells had not complied with, at least in part, condition 5(c) when they failed to develop the high-end brand. I have already concluded the Powells did not fail to comply with their consent given the development of the high-end brand was not a condition of the consent. The OIC was not required to advise the Minister.
[58] Secondly, there is no evidence whatsoever that the OIC stopped or suspended monitoring of the Powells’ consent. To the contrary, as the exchange of correspondence in [51] to [55] illustrates, the monitoring continued.
[59] Even if the OIC had made such a decision, for the reasons given in para [42]-[49]the decision did not fall within any of the judicial review grounds alleged. This ground of review fails.
Decision 11 August 2003 – 16 October 2003
[60] The third “impugned decision” is based on the allegation that the Assistant
Secretary and the OIC, between 11 August 2003 and 16 October 2003, decided to
suspend or stop monitoring the Powells’ consent or failed to report to the Minister as required pursuant to s 9(1)(f) of the Act.
[61] The evidence detailed at [51]-[55] illustrates that there was no such decision to stop monitoring nor was any report to the Minister required. The evidence establishes there was monitoring of the farm development. For reasons given ([26]-[32]) no report on the failure to develop the high-end brand was required. None of the grounds of review of this decision can succeed.
Decision of 16 October 2003
[62] The plaintiff says that on 16 October 2003 the OIC decided to “request further evidence of [the Powells’] compliance [with condition 5(c)] of the consent”. The plaintiff says that the OIC was wrong when it asked for “further” evidence of compliance because no evidence of compliance with the provision of a high-end brand had ever been given. If the plaintiff says, the OIC had taken into account the fact that the Powells had admitted they had not developed the high-end brand then “further” evidence would not have been sought.
[63] There is no merit in this ground of review. No reviewable decision has been made. In any event, the Powells had complied with condition 5(c) of the consent and continued to do so. In fact, extensive evidence of compliance with clause 5(c) was provided through the Powells’ solicitors and accountants. This illustrated significant financial commitment to the land, well beyond the $150,000 mentioned with respect to the high-end brand. This ground of review fails.
Decision of 24 October 2003
[64] On 24 October 2003 as a result of a request from the OIC ([54]) the solicitors for the Powells confirmed the Powells continued to meet condition 5(c) of the consent. The plaintiff says the decision of the OIC to accept this undertaking as sufficient evidence of compliance as part of its s 9(1)(f) monitoring obligations was the exercise of a statutory power of decision-making. The plaintiff says in making
that decision the OIC; failed to take into account relevant matters; was unreasonable; made the decision for an improper purpose; and made the decision in breach of the legitimate expectations of the plaintiff.
[65] By 16 October 2003 the OIC had detailed information that the Powells had made a substantial financial commitment to the land (s 14A(1)(b)). There was no question regarding compliance with subsections (a) and (c) of s 14A. The business experience and acumen of the Powells was as it had originally been established and the good character of the Powells, had not been impugned. The OIC was therefore not solely reliant upon the solicitors certificate as to compliance with condition 5(c).
[66] Secondly, the type of evidence the OIC required to satisfy itself of compliance was a matter for the Commission itself. This decision by the OIC was not in my view justiciable.
[67] In any event, the OIC’s decision to require either a solicitor’s certificate or an affidavit from the Powells regarding condition 5(c) compliance was unnecessary. It seems to have been inspired by the enquiries by the plaintiff regarding the overseas investment consent. The OIC had ample evidence of the Powells’ continuing compliance with the Act.
[68] In summary, therefore, the OIC did not solely base its conclusions of compliance with condition 5(c) on the solicitor’s certificate; it is for the OIC to decide what is appropriate and sufficient evidence of compliance with a condition; in any event there was evidence of compliance with the condition. This ground of review fails.
Decision 24 October 2003 – 24 August 2005
[69] The plaintiff submits that between October 2003 and August 2005 the OIC decided to stop or suspend monitoring of the consent. Again the plaintiff says the s 9(1)(f) obligation to monitor included the obligation, in appropriate circumstances, to warn the Minister that the Powells might be vulnerable to enforcement action because of their failure to comply with the consent conditions. The plaintiff says the
decision not to monitor took into account irrelevant matters, failed to consider relevant matters, was unreasonable, was made for an improper purpose and was in breach of his legitimate expectations.
[70] This complaint by the plaintiff must fail given it is essentially based on the rejected proposition that clause 5(a) and 5(c) of the consent required the Powells to develop the high-end brand as a condition of that consent. I have found it did not.
[71] In addition, the plaintiff alleges that because the OIC knew about the Weller case they failed to have regard to a relevant consideration of an obligation to treat like cases in the same way. I have already rejected the “like with like” argument as it applies to the Weller case.
[72] There is no evidence the OIC failed to monitor the Powells’ consent on an ongoing basis, commencing when consent was granted and continuing through until these proceedings commenced . The evidence from the OIC was that it continuously monitored the Powells.
[73] The plaintiff says I can infer that whenever there is no written material from the OIC, that is between the dates of written enquiry by OIC, monitoring had been stopped or suspended. I reject that approach. Monitoring does not necessarily require a constant stream of requests by the OIC to the overseas person for information and confirmation of compliance with the consent. Here, the Powells had established a proven track record of substantial investment in the property. The OIC knew of those developments as a result of its monitoring. The OIC could then reasonably conclude that, in the absence of anything suggesting the contrary, light-handed monitoring of the Powells was all that was required. It did, as it said, keep their eyes and ears open with respect to the continued development of the property. No doubt if the property had been left to rack and ruin the OIC would have, been told about it. I am satisfied the OIC did continuously monitor the Powells’ compliance with the consent in accordance with s 9(1)(f).
[74] I have already rejected the need to warn the Minister given there was nothing to warn him about.
Decision of 8 August 2005
[76] Finally in this aspect of the case, the plaintiff says a decision of the Minister of Finance and Attorney-General was a reviewable decision when;
. . . affirming the overseas person’s continuing eligibility to receive the benefit and in deciding ultra vires on 8 August 2005 to vary the overseas persons continuing obligation to materialise their core investment proposal and by suspending performance of that obligation . . .
[77] The evidence establishes the Minister made no such decision. Mr Jeffries wrote to the Minister of Finance/Attorney-General on 14 June 2005. The Minister responded on 8 August 2005. As relevant in his response he said:
You should be assured that the OIC continues to monitor this investment. The OIC is interested in whether Mr and Mrs Powell are demonstrating a financial commitment to their investment. The OIC’s watching brief will be particularly geared towards seeking an explanation from the Powells about the international branding initiative once the litigation matters in which they are involved have ended.
[78] Clearly this paragraph simply reported what the OIC was doing. It contains no decision by the Minister. The Minister was not varying the consent. The plaintiff’s claim with regard to this aspect of the case must therefore fail.
Decision of 6 December 2005
[79] On 6 December 2005 the manager of the OIO (replacing the OIC) wrote to Mr Jeffries responding to his letter of 22 November 2005. During the course of the letter she said that the Powells had, complied with their conditions of consent as they had acquired the farm prior to May 2000, advised the OIC that the purchase had proceeded, and had provided information to the Commission illustrating they met the eligibility criteria in s 14A of the OIA.
[80] The plaintiff claims that the terms of this letter was a decision to suspend or stop monitoring the overseas investment consent contrary to s 31(d) of the OIA
2005. This is no evidence that the OIO stopped monitoring the overseas investment. On the contrary the evidence established they continued to do so. The letter from the manager did no more than accurately record the current position.
[81] If I am wrong in my view that monitoring did not stop then the appellant says that this decision failed to take into account relevant considerations and took into account irrelevant considerations. Each of the relevant considerations pleaded by the plaintiff have already been dealt with by me. They include the claim that the manager should have taken into account the failure to develop the high-end brand, the failure to take into account the identical circumstances in the Weller case, and that the Powells had not applied for variation of their conditions. For reasons I have previously given, none of these were relevant considerations.
[82] The irrelevant consideration alleged is that the manager concluded that the Powells had complied with the conditions of consent. This was not irrelevant. I have concluded that the Powells did comply with the conditions of the consent and have continued to do so.
[83] As to unreasonableness, the allegations here are essentially the same as the allegations made relating to failure to take into account relevant matters and taking into account irrelevant matters. I reject them.
[84] The plaintiff also says that the manager’s purpose in deciding to stop monitoring was to relieve the OIO from its obligation to continue to monitor the high-end brand export business. Firstly, I reject the suggestion that the manager made any decision for an improper purpose. There is no evidence to support this allegation. I have already concluded that the manager was not required to consider the high-end brand development.
[85] Finally, in this aspect the plaintiff claims the OIO manager was acting under dictation because rather than exercise her own judgment she simply accepted the former Secretary’s view that condition 5(c) was complied with. There was no evidence to justify this allegation and in any event the manager’s decision, although the same as the Commission’s, was clearly correct. This ground of review fails.
SECOND PART OF PROCEEDINGS
Release of letter of 14 June 2005 and other documents
[87] On 14 June 2005 the plaintiff wrote a 57 page letter to the Hon Dr Michael Cullen, the Attorney-General and Minister of Finance regarding the Powells. Subsequently, there was further correspondence between Mr Jeffries, the Overseas Investment Commission and the Minister of Finance/Attorney-General about the Powells including a number of E-mails.
[88] On 29 November 2005 Kensington Swann (who acted for the Powells) wrote to the Overseas Investment Office requesting, under the Official Information Act, copies of
All documents in the possession of the OIC since 21 September 2004 including emails, handwritten notes, records of conversations and correspondence with the Powells and/or their solicitors and/or with third parties.
[89] The request for the release of this information was referred to Mr Jeffries for his response. He objected to the request. On 8 January 2006 the OIO wrote to Mr Jeffries advising that they believed the solicitors for the Powells were entitled to make a request for the release of the information and that no ground existed to withhold it. The OIO informed the plaintiff of his right of appeal to the Ombudsmen. The right of appeal to the Ombudsman was exercised by the plaintiff but only with respect to whether or not the information could be released direct to the Powells as overseas persons and whether Kensington Swann as their solicitors were entitled to request and have the information provided to them.
[90] The Ombudsman concluded that Mr Skelton, a partner of Kensington Swann, was entitled to make a request under s 12 of the Official Information Act both on his own behalf and on behalf of Kensington Swann. The OIO decided to release the
information to Kensington Swann there being, in its words, “no good reason pursuant to either ss 6 or 9 of the Official Information Act to withhold release of the information”.
[91] The plaintiff then commenced these review proceedings in September 2006 and the information currently has not been released. The plaintiff has never challenged the OIO decision to release the information by seeking review by the Ombudsman.
[92] The plaintiff says that the decision by the OIO to release the information failed to take into account relevant considerations and took into account irrelevant considerations. In particular that the OIO failed to have regard to the relevant consideration that there were good reasons for withholding the specified information in terms of both ss 6 and 9 of the Official Information Act. The relevant considerations were, the plaintiff says, that the plaintiff feared reprisals from the Powells if the information was released. The reprisals feared were either further requests for official information by the Powells with respect to Mr Jeffries and/or complaints under the Privacy Act that Mr Jeffries had in some way interfered with the privacy of the Powells.
[93] There is nothing in this ground of complaint. Essentially what Mr Jeffries is complaining about is that the Powells might make a request under the Official Information Act for information relating in some way to Mr Jeffries or they may complain about a breach of their privacy by Mr Jeffries. The Powells are perfectly entitled to make such requests or complain about such breaches. No doubt any such action will be dealt with on its merits as required by law. The request for information or the complaint of breach of privacy will, if made, be considered by an independent statutory body in the former case as governed by the Official Information Act and in the latter as governed by the Privacy Act.
[94] Mr Jeffries did not allege either in his affidavit or in submissions that any of the reprisals he feared would be an unlawful interference with him. Clearly then his concern about “reprisals” could not possibly be a ground to refuse to provide Official Information under either ss 6 or 9. Nor is there any evidence that the plaintiff invited
the OIO to refuse the request for the information because he feared “reprisals”. This “relevant” consideration, therefore, was not before the OIO when it made its decision.
[95] The second ground for review is based on the claim that Mr Jeffries had a duty to his client, the architectural firm in the District Court litigation, to obtain information about the Powells’ investment proposal for which overseas investment consent was obtained. The plaintiff claims that this enquiry led to him sending a “confidential” legal opinion to the Minister “recording the facts of his engagement”. The plaintiff says the OIO failed to take these relevant facts into account in deciding to release the information.
[96] The letter of 14 June 2005 was an unsolicited letter from a private citizen to a Minister of the Crown. It had no significance other than that. In the letter Mr Jeffries said:
The recipients of this letter should note that my concern is necessary to the release of this letter to the Powells’ current solicitors Kensington Swann.
[97] The plaintiff made no submissions to me on whether or not a condition of confidentiality could be unilaterally imposed on an unsolicited letter. Frankly, I doubt that it could. But more fundamentally, Mr Jeffries could not avoid the Official Information Act by claiming the letter had been sent in confidence.
[98] Thirdly, the plaintiff says that the OIO, in making the decision to allow release of the information, failed to give adequate reasons for its decision when it was obliged to do so.
[99] No authority was provided for the proposition that the OIO was obliged to give reasons for concluding that there were no “good reasons” pursuant to ss 6 or 9 of the Official Information Act to withhold the information. It was a novel proposition. If accepted by this Court it would fundamentally change the way in which the Official Information Act functions in New Zealand. At present, all that is required of the decision-maker is an assessment of whether there are proper grounds to withhold the release of the information pursuant to the relevant sections of the
Act, and advice to the applicant and any persons affected of the result. The interests of interested parties are protected by a merits-based review by the Ombudsman. I see no basis to impose, on decision-makers under the Official Information Act, the burden of providing reasons beyond the current identification of the relevant statutory provisions that must be addressed in deciding whether to withhold official information and the conclusion based on the statutory test.
[100] The fourth ground in support of the challenge is that the OIO had grounds to withhold information based on s 9(2)(g)(i) of the Official Information Act. This was effectively an argument based on unreasonableness. The relevant section provides:
9 Other reasons for withholding official information
. . .
(2)Subject to sections 6, 7, 10, and 18 of this Act, this section applies if, and only if, the withholding of the information is necessary to— . . .
(g) Maintain the effective conduct of public affairs through— . . .
(i)The free and frank expression of opinions by or between or to Ministers of the Crown [or members of an organisation] or officers and employees of any Department or organisation in the course of their duty.
[101] The unsolicited letter of 14 June to the Mr Jeffries of to the Minister was effectively an expression by a private person of his concern about the way in which the Overseas Investment Commission and the statutory regime operated at that time. It was little to do with the conduct of public affairs or about the free and frank exchange of opinions between a Minister of the Crown and others mentioned in the section. Mr Jeffries was expressing his private concern about the Powells’ case. It was properly open for the decision-maker at the OIO to conclude that s 9(2)(g)(i) did not mandate withholding of the information.
[102] In those circumstances, it has not been established that the decision-maker took into account that which was irrelevant, failed to take into account that which was relevant or made a decision that was unreasonable. The plaintiff’s claim on this part of the proceedings also fails.
Standing
[103] At para [1] of the statement of defence to the amended statement of claim the defendant in part pleaded:
that merely because the plaintiff once acted (as an officer of this Court) for Interact Architects and Designers in relation to their dispute with the Powells (applicants for statutory consent) does not give the plaintiff himself the necessary standing to bring these proceedings.
[104] This issue is relevant only to the first part of these proceedings.
[105] Ordinarily the question of standing to bring these proceedings would have been the first issue dealt with in this judgment. However, initially, neither counsel included the issue of standing in their submissions. At my invitation they prepared, filed and spoke to submissions on this point. I have decided this case on the merits of the judicial review application assuming the plaintiff has standing. However, in the particular circumstances of this case I wish to briefly discuss whether the plaintiff had standing to bring the first part of these proceedings.
[106] Locus standi to bring judicial review proceedings typically arises in two circumstances; where the applicant has a personal interest in the outcome of the proceedings in some way; or where the applicant seeks to represent the public interest. Counsel for Mr Jeffries accepts that he has no private interest in the OIC/OIO dealings with the Powells. He relies upon his representation of the public interest to establish his standing to bring these proceedings.
[107] The plaintiff submits he meets the test of “sufficient interest in the matter to which the proceeding relates” to give him standing (see Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216; Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159. He says that as a result of information received by him during the course of his representation of Interact in litigation involving the Powells, he came to know about the OIC consent. He says as a result of this knowledge he became concerned about the way the overseas investment scheme had operated as far as the Powells were concerned. He therefore wrote to the Minister in charge expressing his concern. In addition, the
plaintiff says he considered the decision of the Overseas Investment Commission in the Weller case was inconsistent with the decision of the Commission in the Powells’ case. Accordingly, the plaintiff says he has raised in these proceedings issues of genuine public importance such that standing should be accorded him.
[108] Issues of standing only rarely arise today in judicial review proceedings. The Courts have significantly liberalised the standing rules in such proceedings recognising that sufficient interest in the matter to which the proceeding relates will typically be sufficient. This “test” has been interpreted widely. Generally the Courts have been more interested in dealing with the merits of the application than in narrowly limiting standing.
[109] The test of “sufficient interest”, while relatively easily applied in personal interest cases is less easily applied in public interest cases.
[110] In South Pacific Aluminium Ltd the plaintiffs were societies concerned with environmental protection. The National Development Act 1979 had provided for a fast-track procedure for certain developments including a reference to the Planning Tribunal. The plaintiffs challenged this process as it affected a proposed aluminium smelter. The Court concluded, amongst other reasons, that the plaintiffs had standing given:
(i) They represented relevant aspects of public interest in the case;
(ii)In any event, they were entitled to appear before the Planning Tribunal as a party and therefore had a legitimate interest in the lawfulness of the process that might lead to the Planning Tribunal.
[111] In Finnigan the plaintiff challenged the defendant’s decision to send a rugby team to South Africa as being contrary to its Rules. In concluding the plaintiff had standing, the Court took into account that the plaintiffs, as members of local rugby clubs, had a link with the New Zealand Rugby Football Union. As the Court said, they were more than mere followers of the game. In addition, while the
New Zealand Rugby Football Union was a private sporting organisation the Court said it could not ignore its eminent national position.
[112] Similar to the current case is Wall v Livingston [1982] 1 NZLR 734. There the plaintiff sought a judicial review of a decision by two certifying consultants to authorise an abortion. The Court concluded the plaintiff doctor had no standing to bring the proceedings. They said in such a case an examination of the statutory scheme is vital. In Wall, the doctor was not one of the participants under the Act, nor could he claim to represent the unborn child and therefore he did not have sufficient interest to institute proceedings.
[113] Finally, in Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2001] NZRMA 209 the plaintiff sought judicial review of a resource consent. The Judge concluded in accepting standing that the plaintiffs had a genuine interest beyond the selfish. The organisation’s focus was on matters directly relating to the giving of the resource consent here.
[114] The Overseas Investment Act 1973 was, as the long title said, designed “to make better provision for the supervision and control of overseas investment in New Zealand”. The functions of the Commission are set out in s 9(1) of the Act as follows:
9 Functions of Commission
(1) The functions of the Commission shall be—
(a)To consider proposals concerning overseas investment that are to be submitted for approval, consent, permission, or exemption in accordance with regulations made under this Act:
(b)To advise the Minister and, in the case of proposals for overseas investment of the kind referred to in paragraph (b) or paragraph (c) of the definition of that term in section 2(1) of this Act, the Minister of Lands, or, as regulations made under this Act may so require, to determine, whether any approval, consent, permission, or exemption to them should be given:
(c)To advise the Minister and, in the case of any proposal for any overseas investment of the kind referred to in paragraph (b) or paragraph (c) of the definition of that term in section 2(1) of this Act, the Minister of Lands, or, as regulations made under this Act may so require, to decide, on the compatibility of any proposal for overseas investment with the policy of the Government relating to any other matter:
(d)To advise the Government on such means as will ensure that the fullest possible benefit from overseas investment will accrue to New Zealand in promoting economic growth and development by the efficient utilisation of resources, and the highest degree of production, trade, and employment:
(e)To monitor overseas investment in New Zealand, and, if regulations made under this Act so require, to control the level and extent to which overseas persons may own or control property in New Zealand, and to report from time to time on such matters to the Minister and, in the case of overseas investment of the kind referred to in paragraph (b) or paragraph (c) of the definition of that term in section
2(1) of this Act, the Minister of Lands:
(f) To monitor compliance with any conditions of any approval, consent, permission, or exemption granted in accordance with regulations made under this Act and to advise the Minister and, in the case of any approval, consent, permission, or exemption relating to any overseas investment of the kind referred to in paragraph (b) or paragraph (c) of the definition of that term in section 2(1) of this Act, the Minister of Lands, of any failure to comply with any such condition:
(g) To advise the Government on all matters relating to overseas investment in New Zealand:
(h)To exercise and perform such functions, powers, and duties in relation to overseas investment as are conferred or imposed on it under this Act or regulations made under this Act.
[115] Neither the appellant nor indeed any member of the public has any role in the functioning of the Commission unless they are directly involved in an application for overseas investment consent. Members of the public have no role in a process which considers and either grants or rejects an overseas investment application, or once such an application is granted, the monitoring and enforcement of the regime. Given
the power of Government direction, there is a high policy content in the operation of the Act. The plaintiff here has no financial, or any other, connection with the Powells other than acting as counsel for a firm of designers in dispute with the Powells. The plaintiff is not a member of a society or organisation which has, as its focus, concern with how the overseas investment regime in New Zealand operates. The litigation giving Mr Jeffries his only connection with the Powells commenced some time after the Powells obtained their overseas investment consent for the purchase of the farm.
[116] Nor does the fact that Mr Jeffries took the view that the OIC did not consistently deal with the Powells compared with the Weller case give him a sufficient interest to mount the proceedings. If that were the criteria, then any member of the public who happened to take the view of inconsistent decision- making where consistency was required, could establish standing sufficient to challenge any public decision-making.
[117] The Powells’ OIC consent and the continued monitoring by the OIC/OIO has no importance beyond its unique individual set of facts. It raises no broad policy issue. Indeed, Mr Jeffries’ case is based on little more than a claim that the Commission on the peculiar facts of this case, should have acted differently.
[118] In my view the plaintiff has no standing to bring these judicial review proceedings. He does not have a sufficient interest in the proceedings and on that ground alone I would also have dismissed the first part of the plaintiff’s action.
Costs
[119] The plaintiff’s claim on both the first and second part of the proceedings therefore fails.
[120] Should the defendant seek costs, memoranda should be filed within 14 days and the plaintiff in response within a further 14 days.
“Ronald Young J”
Solicitors:
Duncan Cotterill Lawyers, Wellington, for Plaintiff
Crown Law Office, Wellington
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