FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2018] NZCA 27

FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2018] NZCA 27 [28 February 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA162/2017[2018] NZCA 27BETWEEN FINANCIAL SERVICES COMPLAINTSLIMITEDAppellantAND CHIEF OMBUDSMANRespondentHearing: 31 October 2017Court: Kós P, French and Winkelmann JJCounsel: K I Murray for AppellantM T Scholtens QC and D W Ballinger for RespondentJudgment: 28 February 2018 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed. The decisions of the High Court and theChief Ombudsman are set aside.B The Chief Ombudsman is directed to reconsider the appellant'sapplication under s 28A(1) of the Ombudsmen Act 1975 in accordancewith this judgment.C The respondent must pay the appellant's costs for a standard appeal on aband A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Section 28A of the Ombudsmen Act 1975 (the Act) provides:28A Protection of name(1) No person, other than an Ombudsman appointed under this Act, mayuse the name "Ombudsman" in connection with any business, trade,or occupation or the provision of any service, whether for payment orotherwise, or hold himself, herself, or itself out to be an Ombudsmanexcept pursuant to an Act or with the prior written consent of the ChiefOmbudsman.(2) Every person commits an offence and is liable on conviction to a finenot exceeding $1,000 who contravenes subsection (1).[2] Financial Services Complaints Ltd (Complaints Ltd) applied to theChief Ombudsman under s 28A(1) for approval to use the name ombudsman. TheChief Ombudsman Mr Boshier declined to give consent. His decision was upheld inthe High Court on judicial review by Simon France J.1[3] Complaints Ltd now appeals to this Court.[4] In order to understand the arguments raised on appeal, it is necessary to firsttraverse the legislative background as well as the background of the present case.Legislative background[5] The word "ombudsman" is Scandinavian in origin. It was the name given to aSwedish institution established in 1809 with the function of ensuring the executivewas observing the country's laws and statutes.2 Translated literally, it means people'srepresentative.[6] New Zealand was the first country outside of Scandinavia to adopt the conceptand the name with the passing of the Parliamentary Commissioner (Ombudsman) Act1962 (the 1962 Act).1 Financial Services Complaints Ltd v Chief Ombudsman [2017] NZHC 525, [2017] NZAR 521.2 Regeringsform (Instrument of Government) 1809 (Sweden).[7] Under the 1962 Act and the 1975 Act which replaced it, ombudsmen areindependent officers of Parliament appointed by the Governor-General on therecommendation of the House of Representatives.3 They perform an importantconstitutional role, investigating complaints about the administrative conduct ofexecutive government and of government agencies, thus enhancing the accountabilityof Ministers and officials. In effect, Parliament has delegated to the ombudsmen someof its own authority and power. The special role of parliamentary ombudsmen isunderscored by statutory provisions preventing ombudsmen from holding any otheroffice and by provisions relating to their funding and security of tenure.4[8] New Zealand's first Chief Ombudsman Sir Guy Powles (1975–1977)5 and asubsequent appointee Sir John Robertson (1986–1994) both actively sought legislativeprotection for the name ombudsman. It appears this was largely prompted bydevelopments overseas, particularly in North America and the United Kingdom,where use of the term outside the parliamentary context had become increasinglywidespread. Private entities such as universities, building societies, banks,insurance companies, and large corporations were using the name in connection withtheir own private dispute resolution processes. The concern was that unless a pre-emptive strike was taken, the same proliferation would happen in New Zealand,resulting in confusion, loss of public understanding of the ombudsman concept andloss of public confidence in the office. Its status and integrity, and thus its importantconstitutional role, would be demeaned. Sir John advocated for a complete prohibitionon the use of the name.6[9] The concerns received a mixed reaction in Government circles.[10] In 1988 a Bill amending the Ombudsmen Act was introduced into the House.7The proposed amendment made it a criminal offence to use the name ombudsmanexcept pursuant to statute or with the prior consent of the Chief Ombudsman. This was3 Parliamentary Commissioner (Ombudsman) Act 1962, s 2(2); and Ombudsmen Act 1975, s 3(2).4 Ombudsmen Act, ss 4, 5 and 9.5 Sir Guy Powles was appointed Ombudsman in 1962 before he became the first Chief Ombudsman.6 John F Robertson Protection of the Name "Ombudsman" (International Ombudsman Institute,Occasional Paper 43, February 1993) at 2 and 6.7 Law Reform (Miscellaneous Provisions) Bill 1988 (122-1), cl 152.not the complete prohibition sought by Sir John,8 but the power conferred on the ChiefOmbudsman to act as a gatekeeper did mean he or she would be able to exercise somecontrol over use. As events transpired, the Bill — the Ombudsmen Amendment Bill(No 3)9 — was in its third reading when it was halted in its tracks by opposition fromthe Minister of Consumer Affairs. She considered the term ombudsman had passedinto common usage and was not persuaded that its use in other countries for desirableconsumer protection schemes such as banking and insurance ombudsmen had causedconfusion as was being claimed.[11] As a result of the Minister's opposition, the Bill did not proceed but remainedon the Order Paper until December 1991 when it was revived by a new Governmentand passed into law. In moving the Bill, the Minister of Justice noted there were signsthat some organisations in the community might want to use the name.10[12] In 1992, after consultation with the Minister of Consumer Affairs andThe Consumers' Institute, the Chief Ombudsman of the day Sir John Robertson drewup what he described as "some basic criteria protecting the interests of consumers" toguide the consideration of applications under s 28A(1).11 The criteria (the Robertsonguidelines) were as follows:121. Unless authorised by statute, no position entitled "Ombudsman"should be established in any area where the Ombudsman has or maybe given jurisdiction under either the Ombudsmen Act 1975 or theOfficial Information Act 1982 or the Local Government OfficialInformation and Meetings Act 1987. Such a position would confusethe public and undermine the constitutional role of the statutoryOmbudsmen.2. Where it is proposed to have an "Ombudsman" type position whichdid not conflict with the position in (1) above, the holder of the name"Ombudsman" must be appointed and funded in a manner whichenables him/her operate effectively and independently of theorganisation which will be subject to the role. The position shouldalso have a publicly notified Charter in plain language which is8 As the respondent pointed out, in a letter to the Minister dated 1987, Sir John proposed thatpermission to use the name could be granted. However, writing in 1993, he unequivocally statesthat at least initially he did seek a complete prohibition.9 The Ombudsmen Amendment Bill (No 3) 1989 (122-3Zi).10 (28 November 1991) 521 NZPD 5739.11 John Robertson "Report of the Chief Ombudsman on Leaving Office" [1993–1996] I AJHR A3A,at 16.12 John Robertson and Nadja Tollemache "Report of the Ombudsmen for the year ended30 June 1992" [1991–1993] I AJHR A3 at 36–37.constantly before the consuming public. The appointed Ombudsmanshould have the right to make recommendations to change anyprovisions of the Charter.3. The role of the person proposed as an "Ombudsman" is to receivecomplaints directly from a complainant, free of charge, andimpartially investigate the facts, and conclude with a decision to notsustain or sustain and, if appropriate, achieve a remedy. The nameOmbudsman would not be agreed if the role was seen to be one ofcounsel or advocate for special interest groups. The position will needto be seen to be independent and impartial by both the consumer andthe organization to ensure maximum effectiveness and influence.4. The use of the name by a non-Parliamentary Ombudsman will be ofgreatest value to consumers when the appointee operates in ajurisdiction which is national in character. Permission to use the name"Ombudsman" will not normally be granted for unique local orregional roles.5. Where all the above criteria are met the term "Ombudsman" shouldnot be used alone, but only in conjunction with a description whichmakes the role clear, eg, "Banking Ombudsman"; the name on thisbasis is to be used in the public Charter and in correspondence andpublicity.6. All approvals will require that the approved Ombudsman will producean annual report and make it publicly available. Additionally, it willbe desirable that the Ombudsman scheme be subject to periodic publicreviews to allow consumers to indicate the degree of credibility whichthey accord the complaint system being followed.[13] As Sir John noted in a subsequent paper, he considered these criteria wouldensure to the maximum extent possible that the name would only be used inNew Zealand where the basic principles underpinning the ombudsman concept werepresent; namely independence, impartiality, and a non-adversarial investigativeapproach with the power to achieve resolutions. Further, the requirement the name beused only in conjunction with a description would minimise confusion.13[14] In his final report to Parliament dated 28 February 1995, Sir John advised thatin total he had received three applications under s 28A. One was from a smallprovincial newspaper wanting to use the name ombudsman for a role dealing withcomplaints about its articles and advertisements. Sir John declined that application.13 Robertson, above n 6, at 5.The other two applications were approved, being the Banking Ombudsman Schemeand the Insurance and Savings Ombudsman Scheme.14[15] In May 2000, Sir John's successor Sir Brian Elwood (1994–2003) issuedrevised criteria for considering applications under s 28A. The criteria (the Elwoodpolicy) were formalised in a notice dated 4 February 2002.[16] The notice detailed a two stage process to be followed when decidingapplications.[17] The first stage was to balance the public interest served by the establishmentof an additional, non-parliamentary ombudsman against the public interest in the non-proliferation of the name.[18] Secondly, having undertaken the balancing exercise in a particular case andhaving determined that the public interest in having an additional non-parliamentaryombudsman was greater than the need to limit proliferation of the name, theapplication for consent would be further considered against factors similar to theRobertson guidelines. The factors were:(a) The proposed use of the name should not be in any area where anombudsman appointed under the Act has or may be given jurisdiction.(b) The use of the name should only be used in connection with a schemethat ensures the holder of the name is able to operate effectively andindependently of the bodies or persons subject to the scheme. Thisincludes the appointment and funding of the holder of the name.(c) The holder of the name should have a publicly notified charter in plainlanguage which is available and readily accessible to the public.(d) The public charter should be subject to periodic public review to assessits credibility and effectiveness.14 Robertson, above n 11, at 16; and Robertson, above n 6, at 5–6.(e) The scheme should provide for complainants to make complaints freeof charge direct to the putative ombudsman who must impartiallyinvestigate the facts and conclude with a decision to sustain or notsustain the complaint. A remedy should be provided where appropriate.The putative ombudsman should not be or be seen to be an advocate forany particular party or group and must be publicly seen to beindependent and impartial.(f) The name should be associated with a function that is of nationalcharacter and application.(g) There must be an assurance of continuing and future resources toguarantee tenure to the putative ombudsman and his/her staff and toensure the efficient and effective administration of the scheme.(h) The system and procedures used by the putative ombudsman mustensure fair and impartial decision making.[19] The notice concluded with general conditions that would be imposed onconsents. These included a condition that the name must not be used alone, but onlyin conjunction with a description that makes the role of the putative ombudsman clear.[20] As will be apparent, the second stage considerations are very similar to theRobertson guidelines. What was new was the introduction of a first stage. In hisdecision, Simon France J described the notice as "engraft[ing]" onto the Robertsonguidelines "a public interest criteria [giving] pre-eminent weight to protecting theOffice of Parliamentary Ombudsman from confusion stemming from proliferation ofthe name".15 As the Judge also noted, Sir Brian considered the amendment wasnecessary because of the confusion he said had arisen since the initial two approvalswere given.16 There is a suggestion too in the contemporary records that the change15 Financial Services Complaints Ltd v Chief Ombudsman, above n 1, at [8].16 At [8].may have been prompted by the large number of applications Sir Brian received duringhis tenure, none of which he granted.17[21] It is clear that Sir Brian considered applications to use the name outside of theparliamentary process or public service should only be granted on rare occasions,18 aview which he expressly confirmed in his final report to Parliament in 2003.19[22] We were told that since the enactment of s 28A in 1991, only three applicationshave been granted, namely the two granted in the 1990s by Sir John and a third grantedin 2011 by the then Chief Ombudsman Dame Beverley Wakem (2009–2015). JusticeSimon France described this latter approval as an outlier.20[23] It involved a New Zealand resident Mr LaHatte obtaining a position as theInternet Corporation for Assigned Names and Numbers (ICANN) Ombudsman, a postpreviously held by a person based in Canada. ICANN is a non-profit organisationwhich at the time had a contract with the United States Department of Commerce tooversee global IP address allocation and other information necessary to the workingof the internet. Although most of Mr LaHatte's work related to overseas issues, therewas always the possibility of a complaint being made to the ICANN Ombudsman bya New Zealander and for that reason Mr LaHatte sought permission to use the namein this country.[24] Approval was granted subject to strict conditions that emphasised thedisassociation of the position from New Zealand. We agree with Simon France J thatthis approval does not shed any light on the likely exercise of the statutory discretionas regards use of the name ombudsman within New Zealand.17 Brian Elwood Report of the Chief Ombudsman On Leaving Office (Office of the Ombudsmen,2003 Parliamentary Papers Presented to the House of Representatives vol I, A3A, 30 June 2003)at [6.4].18 Brian Elwood and Anand Satyanand Report of the Ombudsmen for the year ended 30 June 2001(Office of the Ombudsmen, 2001 Parliamentary Papers Presented to the House of Representativesvol I, A3, 30 June 2001) at 32.19 Elwood, above n 17, at [6.5].20 Financial Services Complaints Ltd v Chief Ombudsman, above n 1, at [34].Background of this case[25] Under the Financial Service Providers (Registration and Dispute Resolution)Act 2008, (Financial Services Dispute Act), financial service providers providingservices to retail clients are required to join a dispute resolution scheme that has beenapproved by the Minister of Consumer Affairs.21[26] In order to gain Ministerial approval, a dispute resolution scheme must satisfythe Minister amongst other thing that the scheme is accessible, independent, fair,accountable, efficient and effective.22[27] To date, the Minister has approved four schemes including the appellantComplaints Ltd. Complaints Ltd was the first scheme to be approved under the Actand now has more than 6,500 participants. Of the four approved schemes, it has thelargest membership. It is open to all financial service providers.[28] The other approved schemes are:• the Banking Ombudsman Scheme;• the Insurance and Savings Ombudsman Scheme; and• the Financial Dispute Resolution Service.[29] As regards use of the name "ombudsman", it will be recalled that the BankingOmbudsman Scheme and the Insurance and Savings Ombudsman Scheme had alreadyreceived approval under s 28A of the Ombudsmen Act from Sir John in the 1990s foruse of the name.[30] In 2015, the Insurance and Savings Ombudsman Scheme proposed to changeits name by replacing "savings" with "financial services." It sought approval tocontinue to use the word "ombudsman" in association with its new name. The thenChief Ombudsman Dame Beverley gave her consent on 31 March 2015.21 Financial Service Providers (Registration and Dispute Resolution) Act 2008, ss 48 and 50.22 Section 52(2).[31] As mentioned, the phrase "financial services" is also part of Complaints Ltd'sname. When it heard what its competitor was proposing, Complaints Ltd wasgalvanised into seeking approval to use the name ombudsman itself, fearing amongstother things that otherwise its scheme would be perceived as inferior. Its applicationsought permission for the company to be able to describe itself as aFinancial Ombudsman Service and for its Chief Executive Officer to have the title"Financial Ombudsman". By letter dated 24 June 2015, Dame Beverley followed theElwood policy and declined the application.[32] Dissatisfied with this outcome, Complaints Ltd issued judicial reviewproceedings. There was a preliminary legal issue about whether a decision by a ChiefOmbudsman under s 28A was amenable to review. When that issue was resolved byToogood J in Complaints Ltd's favour,23 the then new Chief Ombudsman Mr Boshieragreed to reconsider Complaints Ltd's application afresh. The judicial reviewproceedings were accordingly put on hold.[33] Complaints Ltd considered it had a strong case for obtaining consent.In particular it relied on the fact that the qualities required for approval under theFinancial Services Dispute Act are akin to the qualities or characteristics ascribed toparliamentary ombudsmen as identified in the Robertson guidelines and stage two ofthe Elwood policy.Mr Boshier's decision[34] In his decision, Mr Boshier endorsed the Elwood policy and consistent withthat policy first addressed the public interest threshold. He identified the purpose ofs 28A as being to protect the public interest in ensuring that the concept of theparliamentary ombudsman's role was not undermined or diminished by permitting thename to be used more widely in New Zealand than is necessary. He said he consideredit would generally be inappropriate for the name to be used more widely than at presentunless an applicant can show significant public disadvantage as a result of the inabilityto use the name. Complaints Ltd had not been able to show that and accordingly the23 Financial Services Complaints Ltd v Wakem [2016] NZHC 634, [2016] NZAR 717.application must fail at the stage one hurdle, making it unnecessary for him to go onand consider the stage two factors.[35] In concluding that the public interest in non-proliferation of the ombudsmanname outweighed the public interest in granting Complaints Ltd's application,Mr Boshier took into account the following matters:(a) The absence of any suggestion in the Financial Services Dispute Act orits history that a dispute resolution scheme approved under it wasintended to have the status and function of an ombudsman.(b) The absence of any evidence that Complaints Ltd was in any differentposition than other consumer complaint mechanisms that operateapparently successfully without being called ombudsman, such as theIndependent Police Conduct Authority.(c) The fact that since s 28A was enacted Parliament has not attached thename to any other structure created by statute, including those whichhave similar attributes to ombudsmen.(d) The fact Complaints Ltd was the largest of the three dispute resolutionschemes under the Financial Services Disputes Act indicated it had notbeen harmed or disadvantaged in any material way by its inability touse the name ombudsman.(e) The protection of the public provided by the legislative requirementthat all financial service providers must be members of an approvedscheme has not been injuriously affected by Complaints Ltd's inabilityto call itself an ombudsman.(f) Arguments that using the name ombudsman would enhance consumerawareness of Complaints Ltd's role and status were not compelling.Under the legislative regime, the consumer had no choice but to use thedispute resolution mechanism of their service provider.(g) The experience of the parliamentary ombudsmen following the consentgiven to the two private sector schemes in the 1990s was that it createdconfusion in the minds of the public about what an ombudsman is anddoes.(h) The fact that these two previously existing industry schemes hadconsent to use the name was not of itself sufficient to justify grantingComplaints Ltd's application. Indeed, the addition of a third schemewas liable to increase rather than reduce confusion in New Zealandabout parliamentary ombudsmen.(i) Extending the use of the name to Complaints Ltd was not onlyunnecessary, it was likely to have similar detrimental effects to thosepreviously experienced.The High Court decision[36] On receipt of Mr Boshier's adverse decision, Complaints Ltd amended itsjudicial review proceeding to focus its challenge solely on Mr Boshier's decision.Dame Beverley's decision, it argues, nevertheless remains relevant because itevidences the degree of opposition by successive Chief Ombudsmen to privateombudsman schemes after Sir John's retirement.[37] The statement of claim pleads the following grounds of review:(a) The Elwood policy was unauthorised by Parliament and henceunlawful.(b) Mr Boshier made his decision for the improper purpose of preventingproliferation of the ombudsman name.(c) By applying the Elwood policy, Mr Boshier fettered his statutorydiscretion to consider Complaints Ltd's application on its merits,adopted a fixed rule of declining all applications to avoid proliferationof the name and predetermined the application by invoking a publicinterest threshold rather than considering the extent to which theapplication exhibited all the essential features of an ombudsman'sjurisdiction.(d) The decision was inconsistent with the consents already given to theBanking Ombudsman and Insurance and Savings Ombudsmenschemes, those being schemes virtually identical to Complaints Ltd'sscheme.(e) The decision was unreasonable and failed to take into account arelevant consideration, namely the consent given to Insurance andFinancial Services Ombudsman Scheme to use the name in connectionwith a scheme that incorporated part of Complaints Ltd's name.[38] As will be apparent, the various grounds of review overlap. To a significantextent, they are variations on a central theme, namely the alleged invalidity of theElwood policy.[39] In his decision, Simon France J rejected all of the grounds of review. He heldthat Mr Boshier had not misinterpreted the width and purpose of s 28A and that theElwood policy was consistent with the statutory purpose.24 The Judge relied inparticular on the fact that Parliament had made a deliberate choice to include theprovision as an amendment to the Ombudsmen Act rather than include it in generallegislation (the Flags, Emblems, and Names Protections Act 1981) as had initially beenproposed. That was significant because of the emphasis in the Ombudsmen Act on thespecial constitutional role of the parliamentary ombudsmen. It followed that matterssuch as the status and integrity of the office were relevant considerations and MrBoshier was entitled to take them into account.2524 Financial Services Complaints Ltd v Chief Ombudsman, above n 1, at [38]; relying onUnison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42; andPractical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC) at 718.25 At [28]–[30].[40] The Judge further held that on its face, the Elwood policy genuinely allowedfor approval to be given in appropriate cases and was therefore not an unlawful fetteron the Chief Ombudsman's discretion.26[41] As for the reasonableness of the decision, Simon France J consideredMr Boshier was entitled on the facts before him to decide the balance lay where hefound it did.27Arguments on appeal[42] On appeal counsel for Complaints Ltd, Mr Murray, advanced the samearguments raised in the High Court with one modification. He accepted thatproliferation and the risk of possible confusion in the minds of the public were relevantfactors to be taken into account under s 28A. However, he submitted it was unlawfulfor the Chief Ombudsman to rely in this case on proliferation per se as the solecriterion. In Mr Murray's submission, the main purpose of s 28A was to protect thename against the proliferation of organisations not exhibiting the salient features ofthe parliamentary ombudsmen.[43] Counsel for the Chief Ombudsman, Ms Scholtens QC, argued the decision wasmade with primary regard to the potential impact of consent on the integrity and valueof the office and that there were good reasons for Mr Boshier's concerns. The decisionwas consistent with the statutory purpose and the policy which it followed was lawfuland reasonable.Analysis[44] Prior to the enactment of s 28A, there was no restriction on the use of the nameombudsman. In our view, it is clear that in enacting s 28A, Parliament's purpose wasto provide a degree of protection for the name by strictly regulating its use althoughnot to the point of a complete prohibition. It is also clear that the reason Parliamentconsidered protection was necessary and desirable was because of the parliamentaryombudsmen's special constitutional role.26 At [36].27 At [40]–[41].[45] We therefore agree with Simon France J that the potential impact of anapplication under s 28A on that special constitutional role must be a relevantconsideration. More specifically, we further agree that the Chief Ombudsman isentitled to consider the possible impact that a multiplicity of non-parliamentaryombudsmen might have on the status of the role and the public's understanding of it.It also follows that like Simon France J we reject the contention that the s 28Adiscretion is confined to a consideration of the ombudsman-like qualities of anapplicant.[46] However, we part company with Simon France J when it comes to the issue ofwhether the Elwood policy improperly fettered the exercise of the s 28A discretionarypower.[47] As noted by Tipping J in Practical Shooting Institute (NZ) Inc v Commissionerof Police, the authorities identify three categories of discretionary powers:28(a) Powers that require an individual case by case examination without anypredetermined fetter other than what might be explicit or implicit insuch criteria as may be set out in the enabling instrument.(b) Powers that by dint of the nature of the subject matter justify theestablishment of a carefully articulated policy, but always with thereservation that no case is to be automatically rejected because it doesnot fit the policy.(c) Powers where the discretionary decision maker is implicitly authorisedto exercise his discretion to establish for themselves an immutablepolicy admitting of no exceptions.[48] Ms Scholtens submitted correctly in our view that the power conferred on theChief Ombudsman under s 28A(1) is a category two power. Thus although s 28A doesnot itself contain any guidelines, the Chief Ombudsmen were entitled to develop their28 Practical Shooting Institute (NZ) Inc, above n 24, at 718. The existence of the third category wasdescribed by Tipping J as having "tenuous authority". He suggested at 718 a case would only beplaced in that category if the enabling legislation clearly and necessarily implied it.own criteria and policies to guide them in deciding whether or not to grant consent.Developing guidelines was eminently sensible and appropriate in the interests ofadministrative efficiency and consistency of decision making.[49] However, while a decision maker may adopt policy rules — even restrictivepolicy rules — it may not adopt a fixed rule of policy that leaves no room for judgmentor discretion or that sets a threshold so high it constitutes an unacceptable limit on theexercise of the discretion.29[50] In our view, the Elwood policy offends against these latter principles as a resultof its two stage approach. Under the Elwood policy, the decision maker can onlyproceed to the stage two matters if stage one is satisfied. It does not admit of anyexceptions. Further, the policy artificially and irrationally excludes the stage twofactors from the assessment of the public interest at stage one. This, despite the factthat as a matter of logic, ombudsman-like qualities must bear on the potential impactconsent might have on the integrity and value of the Parliamentary office, somethingMs Scholtens accepted was an if not the primary stage one consideration.[51] The effect of the exclusion of the stage two factors is that numericconsiderations are elevated to such primacy that the policy effectively amounts to acomplete ban on the use of the name ombudsman as in fact has happened since theintroduction of the policy. Yet a complete ban was plainly not what Parliamentintended and is contrary to s 14 of the New Zealand Bill of Rights Act 1990 (the rightof freedom of expression).[52] When asked by us to identify the legislative authority for making the numberof ombudsmen the determinative factor, Ms Scholtens submitted that proliferation wasa concern about confusion, rather than about numbers as such. However, if that wereso, Mr Boshier's assessment of confusion was problematic.[53] If other similar schemes in the same sector as the applicant are already usingthe name ombudsman, it is difficult to understand how granting the application would29 Criminal Bar Assoc of New Zealand Inc v Attorney-General [2013] NZCA 176, [2013] NZAR1409 at [119].increase confusion. Indeed, there is a strong argument to the opposite effect.Arguably, it is more likely that what will increase confusion is treating very similarschemes in the same sector (including a scheme with part of the same name)differently. Yet that is the effect of denying consent in this case. This "differenttreatment" aspect of confusion was not considered by Mr Boshier and in our view wasa relevant consideration that should have been taken into account whether under therubric of confusion or simply consistency.[54] To put it another way, the Chief Ombudsman is entitled to consider the possibleimpact a multiplicity of non-parliamentary ombudsmen might have. But in doing so,he or she must have regard to existing permissions given and the need to treat likeapplicants reasonably consistently. There should not be a "first mover" advantage.[55] A related point arising out of different treatment is unfair consumer perceptionof Complaints Ltd. Mr Boshier and Simon France J rejected this argument on thegrounds of the size of Complaints Ltd's membership and the fact consumers have nochoice but to use the dispute resolution scheme of their service provider.30 Thosematters, while relevant, do not however address the public interest in consumershaving confidence in the integrity of a dispute resolution scheme and thus more readilyaccepting the outcome. It is not unreasonable to suggest that consumer confidence inthe integrity of Complaints Ltd's scheme may be reduced by the absence of the nameombudsman especially when other similar schemes including one with a similar nameare called ombudsman.[56] The errors we have identified in the decision under review are in ourassessment of a nature and degree that warrant judicial intervention. We havetherefore concluded that the decision of the Chief Ombudsman should be set aside andComplaints Ltd's application considered afresh.[57] In light of these conclusions it is unnecessary to consider the ground of reviewregarding the reasonableness of the decision.30 Financial Services Complaints Ltd v Chief Ombudsman, above n 1, at [41].Summary of findings[58] We have concluded the appeal should be allowed on two grounds, namely thatthe Chief Ombudsman:(a) Applied a policy that improperly fettered the exercise of his discretion.(b) Failed to take into account a relevant consideration, namely the effectdifferent treatment of similar schemes in the same sector might have interms of causing confusion and reducing public confidence in theintegrity of the Complaints Ltd scheme.[59] We reiterate that our objection to the Elwood policy is not that it involvesconsideration of irrelevant matters inconsistent with the statutory purpose. Rather ourconcerns centre on the policy's preliminary public interest threshold which has theeffect of:(a) unduly restricting the scope of the discretion to a degree notcontemplated by Parliament; and(b) precluding the decision maker from taking into account other relevantconsiderations in addition to proliferation and the risk of confusion.[60] For completeness, we add we have not overlooked a statement in theChief Ombudsman's correspondence that acknowledges the general principle ofallowing room for exceptions to policies. However, the policy in question did notallow for exceptions, there was no evidence the policy had ever been amended inpractice and Mr Boshier applied it without any appropriate consideration of thepossibility of an exception.Outcome[61] The appeal is allowed. The decisions of the High Court and theChief Ombudsman are set aside.[62] The Chief Ombudsman is directed to reconsider the appellant's applicationunder s 28A(1) of the Ombudsmen Act 1975 in accordance with this judgment.[63] There is no reason why costs should not follow the event. We therefore orderthat the respondent must pay the appellant's costs for a standard appeal on a band Abasis with usual disbursements.Solicitors:M J Leggat, Wellington for AppellantOffice of the Ombudsman, Wellington for Respondent