COROMANDEL WATCHDOG OF HAURAKI (INCORPORATED) v MINISTER OF FINANCE and ANOR [2020] NZHC 888

COROMANDEL WATCHDOG OF HAURAKI (INCORPORATED) v MINISTER OF FINANCE and ANOR[2020] NZHC 888 [5 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-404-0138[2020] NZHC 888UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF the Overseas Investment Act 2005BETWEEN COROMANDEL WATCHDOG OFHAURAKI (INCORPORATED)ApplicantAND MINISTER OF FINANCE andASSOCIATE MINISTER OF FINANCEFirst RespondentsOCEANA GOLD (NEW ZEALAND)LIMITEDSecond RespondentHearing: 29 April 2020Further submissions 5 May 2020Counsel: B O'Callahan, R B Enright and H Z L Krebs for ApplicantJ B M Smith QC, K G Stephen and K Anderson forFirst RespondentsJ Hodder QC, S McKechnie and S Kuper for Second RespondentJudgment: 5 May 2020JUDGMENT OF CHURCHMAN JThe proceedings[1] The applicant has applied for judicial review of a decision made by theMinister of Finance and Associate Minister of Finance under the Overseas InvestmentAct 2005 (the OIA) which had granted applications by the second respondent (Oceana)to acquire three properties in Trig Road, Waihi for the purposes of establishing atailings dam to support existing mining operations and the expansion of thoseoperations.[2] The case is unusual in that the decision under review related to the secondapplication by Oceana in respect of acquisition of the same properties.[3] The earlier application had been heard by the Minister of Land Information(Hon Eugenie Sage) and the Associate Minister of Finance (Hon David Clark).Minister Clark had approved the application but Minister Sage had declined it.Accordingly, as the decision had to be unanimous, the application was dismissed on3 May 2018.[4] Oceana brought judicial review proceedings in respect of the 3 May 2018decision. Those proceedings were resolved by agreement and Oceana submitted asecond application which, other than in respect of an amendment to the number of jobsthat would be created, was materially the same as the earlier application.[5] Pursuant to s 7 of the Constitution Act 1986, the second application wasreferred to different Ministers, the Minister of Finance (Hon Grant Robertson) andAssociate Minister of Finance (Hon David Parker).[6] The two Ministers agreed with a report from the Overseas Investment Office(OIO) which recommended granting the application.The application[7] The applicant has sought particular discovery from the first respondents. Itseeks discovery of three categories of documents. The first category is the materialthat Minister Sage had in reaching her decision. The applicant says that whatevermaterial she had available to her should also have been taken into account by theMinisters on the second application.[8] The second category of documents relate to the first set of judicial reviewproceedings. The applicant contends that there was an arrangement or understandingarising out of the judicial review application in relation to Minister Sage's decisionwhich has resulted in a fetter on the Minister's decision.[9] The third category of documents sought is advice received by the firstrespondents from Crown Law. The applicant's contention is that, because theassessment report in which the advice was contained is said to contain all or some ofthe Minister's reasons, whatever is contained within this legal advice "must also bepart of those reasons".[10] In addition to issues of discovery, the applicant also raised, in submissionsdated 27 April 2020, issues as to confidentiality. An interim confidentiality order hadbeen made in this Court on 17 March 2020 as a result of a consent memorandum ofcounsel dated 12 March 2020.[11] The confidential material has been disclosed to the applicant's counsel andsolicitors only, and the applicant says that this causes difficulties in obtaininginstructions and giving candid advice. The applicant wants the interim confidentialityorder varied so as to allow disclosure to two named members of its executive.First respondents' submission[12] The first respondents contend that they have already discovered all relevantdocuments held by the OIO and the first respondents in relation to the decision whichthe applicant seeks to judicially review. The documentation discovered includes:(a) all documents provided to the first respondents by the OIO (includingthe OIO's assessment report of Oceana's application (the AssessmentReport));(b) all documents provided by Oceana to OIO and the first respondents;(c) all correspondence between Oceana, the OIO and the first respondents(including all internal correspondence at the OIO and the firstrespondents' offices).[13] The first respondents contend that the material sought by the applicants inrelation to the first decision is irrelevant, and that whatever material the first decision-makers did or did not consider, cannot establish whether the first respondents did ordid not have regard to all relevant matters. They submit that the proper focus ofreviewing the decision is on the information before the first respondents, notMinister Sage.[14] The first respondents claim that the applicant has misunderstood their defenceand that they are not asserting that no alleged detrimental effects arise at all, but theydeny that any alleged detrimental effects were a relevant consideration under the Act.They say that the point put in issue is the relevance of the detrimental effects, not theirexistence.[15] They also point to the fact that the decision of Minister Sage makes clear whatmatters she considered, and it is not necessary to obtain discovery to establish that.[16] The first respondents make a similar submission of irrelevancy in relation todocuments relating to the judicial review of the first application. They also submitthat the application is unreasonably broad in seeking "all documents held in relationto the judicial review proceedings ".[17] In relation to the applicant's contention that the documents sought might revealwhether there was some "agreement or understanding" which acted as a fetter on thesecond decision, the first respondents point to the fact that both they and Oceana denythat there was such an agreement or understanding.[18] The respondents also submit that, quite apart from the fact there was noagreement or understanding of the type postulated by the applicant, even if there hadbeen, it would make no difference to the judicial proceedings. That is because the firstrespondents have already admitted in the pleadings what factors they took into accountin arriving at their decision, and what factors they did not. They submit that whetherdetrimental consequences of the application were not considered because they wereviewed as irrelevant under the Act, or because there was some agreement orarrangement that they would not be considered, makes no difference to the outcomeof judicial review proceedings.[19] In relation to the legally privileged documents sought, the first respondentssubmit that legal advice given to Ministers and Government departments attracts legalprofessional privilege and is accordingly protected, and that the first respondents areentitled to refuse to disclose the information.[20] The first respondents deny that there has been any waiver of the privilege andsubmit that it can only be waived by the Attorney-General.[21] The first respondents reject the applicant's contention that reliance on legaladvice in formulation of a decision made in exercise of a statutory power of decisionrenders the privilege attaching to the advice relied on waived. They submit thatprivilege will only be waived where that is done voluntarily (not inadvertently) byproducing or disclosing the significant part of privileged advice in circumstances thatare inconsistent with a claim of confidentiality, or where the decision-maker has actedso as to put the privileged advice in issue in a Court proceeding.Second respondent's position[22] The second respondent adopted the submissions of the first respondents inrelation to discovery.[23] In relation to the interim confidentiality order, the second respondent noted thatthe material in question is commercial in nature and time sensitive, and that disclosuremay be highly prejudicial to the second respondent.[24] It submitted that there had been no formal application by the plaintiff to amendthe interim order and that the first that the second respondent knew of this was whenit received the plaintiff's memorandum of submissions the day before the hearing.[25] It submitted that the material provided in the plaintiff's synopsis wasinsufficient for it to be able to properly consider the application and noted that therewas no explanation of the claimed difficulties caused in obtaining instructions orgiving advice, or as to why all of the currently redacted material needed to bedisclosed.[26] It submitted that the applicant should be required to detail the difficulties beingcaused by complying with the current interim order so that the second respondentcould consider its position and reply with evidence as to why the confidentiality ordersneeded to remain in the interim.The law on discovery[27] The principles applying to discovery in judicial review matters are wellestablished. Discovery in proceedings of judicial review is discretionary. The leadingcase is Wellington International Airport Ltd v Commerce Commission whichestablished the following principles:1(a) discovery extends to what may advance the party's case or damage theopponent's case in terms of the issues in the pleadings;(b) relevance alone is not a sufficient test for discovery;(c) discovery must also be necessary for fairly disposing of the proceeding;(d) while there is no difference in principle between discovery in civilproceedings and judicial review, the more urgent context in whichjudicial review proceedings exist is relevant with a greater judicialresponsibility to see that issues are narrowed and only what is trulyrequired is laid before the Court;(e) the ultimate question is whether the Court could fairly and effectivelyadjudicate on the issues in the proceeding without the additionalmaterial sought.1 Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 25 July2002, per Hammond J.Analysis[28] Relevance is particularly important when considering discovery in judicialreview proceedings. In this case, the applicant needs to establish that the materialconsidered by Minister Sage in reaching her decision, the material in relation to thejudicial review of the first decision, and the material in respect of which legal privilegeis claimed is relevant and that without it, the Court could not fairly and effectivelyconsider the judicial review proceeding.[29] The judicial review proceedings are focussed solely on the decision made byMinisters Robertson and Parker. They were not bound in any way by the factors whichMinister Sage took into account. No issue of estoppel arises.[30] The Court will accordingly not be assisted by knowing what factorsMinister Sage took into account and could well be distracted by being invited toundertake a detailed consideration of sustainable economics in connection withOceana's application. The issue is not the correctness or validity of Minister Sage'sviews on such matters. The issue is the legal one of the matters that were relevant inaccordance with the statute which the Ministers were obliged to take into account.[31] In any event, discovery is not necessary to establish what mattersMinister Sage took into account as these are evident from her decision itself.[32] In relation to the applicant's claim that discovery is required of all documentsrelating to the judicial review proceedings taken in respect of Minister Sage's decision,such documents are not necessary for the Court to be able to fairly and effectivelyaddress the matters in issue in these judicial review proceedings.[33] I accept the first respondents' submission that, given that the first respondentshave acknowledged in the pleadings that they did not regard allegedly detrimentaleffects as matters that were relevant in accordance with the criteria set out in the Act,there is nothing further that discovery in relation to the first judicial reviewproceedings can add.[34] The issue is essentially a legal one. If it is established that the respondentshave simply misunderstood the law by adopting the position that they were neitherrequired or permitted to consider allegedly detrimental effects in the manner thatMinister Sage had done, then they have committed the same error as they would havecommitted had they fettered their discretion by agreeing with Oceana during thecourse of the first judicial review proceedings, that it was not appropriate to considerallegedly detrimental effects.[35] For the same reasons, the applicant's request for discovery of all legal advicethe Crown had in relation to the previous judicial review application is also irrelevant.There is also no doubt that legal advice given to Ministers and Governmentdepartments attracts legal professional privilege and the first respondents are entitledto refuse to disclose it.2[36] In this case, it is clear that there has been no waiver by the Attorney-Generalas required by s 65 of the Evidence Act. An inadvertent disclosure of privilegedmaterial does not amount to a waiver.3 This is not a case such as Tau v Durie wherethere has been a positive assertion of reliance on legal advice amounting to a waiver,4or voluntary disclosure such as in Attorney-General v Institution of ProfessionalEngineers NZ Inc.5Confidentiality orders[37] The plaintiff is entitled to challenge the interim confidentiality order.However, fairness to the second respondent requires that the challenge be by way offormal application which provides detail as to why the applicant submits that theinterim order is unworkable. The second respondent will then have the opportunity toreply with rebuttal evidence.2 See Evidence Act 2006, ss 53, 54 and 56.3 See Body Corporate No. 191561 v Argent House Ltd (2008) 19 PRNZ 500.4 Tau v Durie [1996] 2 NZLR 190.5 Attorney-General v Institution of Professional Engineers NZ Inc [2018] NZHC 74.Outcome[38] The documentation sought to be disclosed by the applicant in relation to theearlier decision by Minister Sage is irrelevant to these judicial review proceedings forthe reasons detailed above. The first respondents are accordingly not required todisclose it.[39] If the applicant wishes to have the interim confidentiality order varied orrescinded, a formal application will need to be made.[40] The application is dismissed.[41] Costs are reserved.Churchman JSolicitors:K3 Legal Limited, Auckland for ApplicantCrown Law, Wellington for First RespondentsSimpson Grierson, Wellington for Second Respondent