Universal Education Group Limited t/a New Zealand National College 2008 v New Zealand Qualifications Authority
[2017] NZHC 2988
•4 December 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-835 [2017] NZHC 2988
BETWEEN UNIVERSAL EDUCATION GROUP
LIMITED TRADING AS NEW ZEALAND NATIONAL COLLEGE 2008
Applicant
AND
NEW ZEALAND QUALIFICATIONS AUTHORITY
Respondent
Hearing: 4 December 2017 Appearances:
N Russell and S McCusker for Applicant
R Scott and M Cavanaugh for RespondentJudgment:
4 December 2017
ORAL JUDGMENT OF CHURCHMAN J
[1] This is an oral decision in relation to the issue of discovery. The parties to this proceeding had agreed to undergo informal discovery, mainly due to the time constraints in relation to this case. Universal Education Group Ltd trading as New Zealand National College (NZNC, the applicant) requested that the respondent, NZQA provide documents for discovery, including internal memoranda relating to related but unchallenged decisions made in July, September and October of this year, prior to the challenged decision to cancel the applicant’s registration made on
14 November.
Submissions
[2] The grounds on which the documentation was sought by the applicant was that:
UNIVERSAL EDUCATION GROUP LIMITED TRADING AS NEW ZEALAND NATIONAL COLLEGE
2008 v NEW ZEALAND QUALIFICATIONS AUTHORITY [2017] NZHC 2988 [4 December 2017]
(a) The decision to cancel NZNC’s registration was in fact “made over several months”, therefore internal deliberations in these early stages was relevant. In particular, evidence of these deliberations would go towards the applicant’s claim that the 14 November 2017 decision to cancel was “pre-determined” or made with a “closed mind”.
(b) The information sought would otherwise be available under an Official
Information Act Request.
(c) The respondent was not acting “quasi-judicially” when it made the decision on 14 November, or any of the ancillary decisions. It would be absurd if government entities performing administrative functions could claim privilege on all internal deliberations. The public interest immunity protecting deliberative materials therefore could not apply.
[3] NZQA refused to provide the documents sought on the following grounds:
(a) Some of the documentation sought was legally privileged.
(b)Some of the documentation would be inadmissible as irrelevant, in particular internal deliberations relating to decisions not being reviewed by the Court in this proceeding.
(c) NZQA has provided a large amount of documentation relating to the 14
November decision throughout the decision-making process and during discovery.
(d)The internal deliberative processes of NZQA were protected under the “broad” interpretation of “judicial” laid down by the Court of Appeal in ENZA v Apple and Pear Permits Committee.1
(e) The internal documentation sought would not be necessarily be discoverable under an Official Information Request, as there remains
1 ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [19]–[20].
an exception for protecting the free and frank deliberative exchanges of an organisation.
(f) The cause of action of pre-determination by the applicant was insufficient to warrant the lifting of the immunity. As pleaded, it mainly repeats allegations of failing to take into account relevant considerations and taking into account irrelevant considerations and did not particularise sufficient detail for a finding of pre-determination by the decision-maker.
[4] The respondent had offered for the Court to review the documents in contention and review them for a decision as to their discoverability or admissibility. I requested on 1 December in a teleconference with the parties that the respondent provide the Court with those documents.
[5] The respondent filed some 165 pages of documentation on 1 December 2017. I have reviewed this documentation. I now set out my conclusions below.
Analysis
[6] I have difficulty with the distinction drawn by the respondent between “judicial” and “administrative” qualities of decisions made by public entities. I agree with the applicant that it seems troubling for a decision made by NZQA to be deemed to be of a “judicial” quality merely because the empowering statute requires natural justice to be followed. I do not propose to resolve the dispute over discovery on the basis of this distinction.
[7] The related point, which avoids the binary distinction drawn above is that “deliberations” of agencies are rarely discoverable.2 The New Zealand Judicial Review Handbook sets out examples of cases where “deliberative privacy” has been upheld. The examples given mainly involve deliberative documentation by the
Commerce Commission and the Broadcasting Standards Authority.3 The Electricity
2 CF v Attorney-General [2016] NZHC 918, [2016] NZAR 848 at [38].
3 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington,
2016) at [30.11.2].
Commission’s internal deliberations are also the subject of two relevant cases, the Apple and Pear Export Permits Committee the subject of one, and the Attorney- General the subject of another. In the spectrum of public-sector decision-makers I am not persuaded that NZQA falls in the same category as the Commerce Commission or Broadcasting Standards Authority, both of whose respective empowering legislation permits appeals from their decisions to the High Court.
[8] Having reviewed the information in contention, I do not believe making findings on their “deliberative” quality is the correct approach. Instead I prefer to determine this interlocutory decision on the basis of the Court’s inherent jurisdiction to determine what is “relevant and necessary” for the determination of the proceedings.4
[9] The proceedings today, as pleaded, are focused on the decision made on
14 November 2017 to cancel the registration. The background to the pleadings, and in particular, [47] of the amended statement of claim attempted to challenge various decisions made in the lead up to the cancellation decision, namely the decision to re- categorise NZNC in July and the decision to adjourn the EER in September. As each of those decisions was made under different empowering legislative sections, I do not believe it is appropriate that they be challenged obliquely.
[10] Mr Russell for the applicant indicated that he wished to categorise these lead up decisions as a “part of a pattern of conduct indicating pre-determination”. He also advised the Court that in the event the documentation was not discovered or admitted, he would be inviting the Court to draw inferences as to NZQA operating with a closed mind.
[11] Having reviewed the material, being some 18 documents, much of it is drafts of reasoning and memoranda later replicated in the formal reasons provided to NZNC. The rest is emails setting out dates of internal meetings where the issues around NZNC’s categorisation were discussed. It is not necessary to discover this material
for the disposal of these proceedings.
4 Wellington International Airport Limited v Commerce Commission HC Wellington CP151/02,
25 July 2002 at [40]–[42].
[12] The Supreme Court has indicated there is a “duty of candour” in relation to decision-makers and their reasonings:5
… those whose decisions are challenged have a duty to explain the decision- making process, the relevant factual and other circumstances and the reasons for the decision – the so-called ‘duty of candour’. It is not of course a legally enforceable duty, but rather a responsibility attaching to public decision making. Where such evidence is not provided, a court may well draw adverse inferences.
[13] Mr Russell indicated that in the absence of discovery of the documents he sought he would invite the Court to draw such inferences. It remains open for him to do so.
[14] None of the documents I reviewed appear to engage the deliberative immunity. Instead they are not discoverable on the basis of being drafts and/or relating to the timing of internal meetings. Overall I am not persuaded that they are sufficiently relevant to the decision at hand, nor that they are necessary for the determination of the current proceedings. Accordingly I make no orders for the discovery of the
documents.
Churchman J
Solicitors:
Chen Palmer Public and Employment Law Specialists, Wellington for Applicant
McElroys Litigation Lawyers, Auckland for Respondent
5 Ririnui v Landcorp Farming Ltd [2016] NZSC 62 at [105].
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