DISCOVERIES EDUCARE LIMITED v SECRETARY OF EDUCATION [2019] NZHC 2507

DISCOVERIES EDUCARE LIMITED v SECRETARY OF EDUCATION [2019] NZHC 2507 [3 October 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-560[2019] NZHC 2507UNDER Judicial Review Procedure Act 2016BETWEEN DISCOVERIES EDUCARE LIMITEDApplicantAND SECRETARY OF EDUCATIONRespondentHearing: 1 October 2019Counsel: N J Russell and L G King for ApplicantK G Stephen and E G Dowse for RespondentJudgment: 3 October 2019JUDGMENT OF SIMON FRANCE J[1] On Tuesday of this week I heard under urgency an application by DiscoveriesEducare Limited for interim orders that would prevent the respondent from gazettinga Notice cancelling the applicant's early child care licence. Cancellation would haveimmediate effect. Discoveries Educare Limted intends to bring proceedingschallenging the cancellation. I granted the application. These are my reasons.[2] Discoveries Educare Limited operates as an early-childhood education centrein Auckland. At present 28 children attend, and there are six staff.[3] On 8 November 2016, a large eucalyptus tree located on the property fell.Many children were outside playing and four were hurt, two seriously. On14 November 2017 charges were laid under the Health and Safety at Work Act 2015.On 22 May 2019, so approximately two and a half years after the tree fell, Discoveriespleaded guilty. It had continued to operate the child-care centre throughout the period.[4] Discoveries were sentenced on 23 August 2019. I am unaware whetherconvictions were entered on plea or at sentencing. Whichever, the Secretary ofEducation considered the convictions have triggered Regulation 32(1)(c) of theEducation (Early Childhood Services) Regulations 2008 which provides:(1) Subject to subclause (2), the Secretary must, by notice in theGazette, cancel the licence for an early childhood service if theSecretary is satisfied that –(c) the service provider operating the service has beenconvicted of an offence against these regulations or anoffence involving harm to children, violence, or fraud; or[5] The Secretary has accordingly given notice that the Gazette Notice cancellingthe licence will be published overnight. Discoveries Educare Limited applies forinterim relief preventing the making of the Notice pending determination of itsintended judicial review proceedings. In those proceedings it will challenge theMinistry's interpretation of the Regulations, arguing that "offence" should be limitedto offences where an element of the offence requires harm to children. It is not enoughthat harm be a circumstance of the particular incident of offending.[6] The Ministry contends the argument is not tenable. Mr Stephen took me to thescheme of the Regulations, and noted the various provisions where the sameexpression is used. It is submitted it would inhibit the working of the Regulations ifthe provision were interpreted in such a narrow way.Decision[7] The Gazette Notice takes immediate effect. That will impact on the owner, thechildren and the staff.[8] The incident occurred nearly three years ago. The business has been allowedto operate in the interim. The inference must therefore be that no ongoing concernsexist, and no evidence suggesting otherwise has been filed. The cancellation comesabout because it is mandatory if the offence is indeed one involving harm to children.Conversely, there is no reason to think the licence would be cancelled if the mandatoryprovision does not apply.[9] Against that set of circumstances, I do not consider the respondent's oppositionis meritorious. A child-care centre operating satisfactorily will continue to do so forthe short period required to allow the substantive dispute to be fully argued.[10] There is no disadvantage to the respondent, given the lack of any concern aboutthe child-care centre. Mr Stephen argued relief should be denied because the argumentis not tenable. I accept that at this point the strength appears to lie with the respondent,but the balance clearly favours interim relief. An early fixture is possible.[11] The parties addressed me on the relevance of an existing agreement for saleand purchase of the business. I do not consider it affects the interim relief issue whichproperly focuses on the cancellation or otherwise of the applicant's licence, acancellation occurring solely because the Regulations arguably mandate that course ofaction.[12] I did not hear from the parties on costs. My interim view is that the applicantis entitled to an award of scale costs irrespective of the outcome of the substantiveissue. I make this indication on the basis that I consider the opposition to interim relieflacked merit. Memoranda may be filed if the parties wish.Conclusion[13] The application for interim orders is allowed. I declare that the Secretaryshould not issue the Gazette Notice cancelling the licence until the substantiveproceeding is determined.Future timetable[14] The matter should come on for an urgent fixture. Three weeks is sufficient toprepare the matter which turns on the interpretation of the Regulation. The partiesshould agree on timetable but leave is given for a telephone conference should it benecessary.____________________Simon France JSolicitors:Chen Palmer, Wellington for ApplicantCrown Law, Wellington for Respondent