Turners & Growers Exports Limited v Thompson HC Rotorua CP7/88

[2021] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-754

[2021] NZHC 2308

UNDER

the Judicial Review Procedure Act 2016

UNDER

the Senior Courts Act 2016

IN THE MATTER

an application for judicial review under Part 1 of the Judicial Review Procedure Act 2016

BETWEEN

MANPREET SINGH

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:

On the papers

Appearances:

R J Hooker for Applicant

S Connolly and S Perera for Respondent

Judgment:

3 September 2021

JUDGMENT OF LANG J

This judgment was delivered by me on 3 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2308 [3 September 2021]

[1]                 On 8 July 2021 I issued a judgment in which I declined to make orders requiring the respondent to provide discovery of four categories of documents held in its possession.1 Mr Singh applies for leave to appeal to the Court of Appeal against my decision.

Relevant principles

[2]                 I do not accept the applicant’s submission that there is no authority regarding the approach to be taken in the present context following the enactment of the Senior Courts Act 2016. In Ngai Te Hapu Inc v Bay of Plenty Regional Council the Court of Appeal confirmed that considerations similar to the principles applicable to applications under the former 24G of the Judicature Act 1908 remain relevant.2 The Court observed:3

We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

[3]                 The principles governing interlocutory appeals were also very recently reviewed by the Court of Appeal in Tomar v Tomar.4 In that case the Court approved the approach taken by Fitzgerald in Finewood Upholstery Ltd v Vaughan.5 This recognises that the requirement for leave to appeal serves as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders do not necessarily delay the proceedings in which the orders were made. The Court of Appeal acknowledged that the following considerations have been recognised as relevant on an application for leave to appeal:6

(a)A high threshold exists.

(b)The applicant must identify an arguable error of law or fact.

1      Singh v Chief Executive of the Ministry of Business, Innovation & Employment [2021] NZHC 1695.

2      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

3 At [17].

4      Timar v Tomar [2021] NZCA 419.

5      At [6], citing Finewood Holstery Ltd v Vaughan [2017] NZHC 1679 at [13].

6 At [6].

(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d)The circumstances must warrant incurring further delay.

(e)The ultimate question is whether the interests of justice are served by granting leave.

Decision

[4]                 I do not intend to undertake a lengthy analysis of all the reasons advanced by the applicant in support of the application for leave. In essence they contend I erred in failing to require discovery to be provided because the documents may assist Mr Singh to establish his case. Mr Singh also seeks to challenge the test for discovery that I applied.

[5]                 Regardless of how the test is expressed the primary basis for any order as to discovery must be the extent to which the documents for which discovery is sought are relevant to the issues raised by the proceeding. I found that none of the documents Mr Singh sought were relevant to the issues raised by the present proceeding. By way of example, Mr Singh sought discovery of internal training records held by the respondent. As I observed in the judgment,7 such documents have no legal effect and there was no evidence in any event that the officer who made the decision had ever referred to them. Furthermore, it will be for the Court to determine the factors that were relevant to Mr Singh’s application and whether they were taken into account. Training materials will not assist determination of that issue regardless of whether the officer who made the decision relied upon them. I also determined that, for similar reasons, none of the other documents that Mr Singh sought were relevant. I do not see how it can seriously be argued that I applied the wrong test, or reached the wrong decision, when the ultimate reason for the application being declined was lack of relevance.

7 At [11].

[6]                 Mr Singh also seeks leave to appeal against the order of costs made against him. I made that order because he was the unsuccessful party. Mr Singh now seeks  to rely on the fact that, following delivery of my decision, the respondent provided him with further material from its files. Counsel for the respondent points out that this material was provided to Mr Singh on the basis that his application for discovery of these documents was treated as a request for personal information under the Privacy Act 2020. I do not need to determine whether or not this is correct. The fact remains that Mr Singh did not succeed in obtaining orders for discovery of any of the documents that he sought. This means he was the unsuccessful party in the proceeding and should therefore pay costs.

[7]                 I do not consider Mr Singh has raised any issue for leave to appeal that should delay the substantive disposition of this matter. I therefore decline to grant leave to appeal to the Court of Appeal.

Lang J