FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2022] NZCA 248

FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2022] NZCA 248 [15 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA149/2021[2022] NZCA 248BETWEEN FINANCIAL SERVICES COMPLAINTSLIMITEDAppellantAND CHIEF OMBUDSMANRespondentHearing: 9 February 2022Court: Cooper, Courtney and Goddard JJCounsel: K I Murray and M J Leggat for AppellantM T Scholtens QC and D W Ballinger for RespondentJudgment: 15 June 2022 at 11 amJUDGMENT OF THE COURTA The appeal is allowed.B The decision of the High Court is set aside.C We make a declaration that FSCL is entitled to the Chief Ombudsman'sconsent to use the ombudsman name in connection with its dispute resolutionscheme.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Table of ContentsPara No.Introduction [1]Statutory scheme [9]The history of FSCL's application to use the ombudsman nameUse of the ombudsman name in the financial services sector [19]FSCL's application is refused for the first time [22]FSCL's application is refused for a second time [24]The Chief Ombudsman reconsiders – first provisional decision [30]The Chief Ombudsman investigates further – secondprovisional decision[39]The Chief Ombudsman's third provisional decision [43]The Chief Ombudsman's final decision — FSCL's application isdeclined for a third time[45]Did the Judge fail to adjudicate on grounds 7 and 9? [48]Was there only one lawful decision available to the ChiefOmbudsman?[54]Confusion leading to loss of confidence in the role of the ChiefOmbudsman[63]Treating like cases alike [75]FSCL's s 14 BORA rights [83]Was there only one lawful decision available? [92]The appropriate relief [97]Result [108]Introduction[1] This appeal concerns a decision by the Chief Ombudsman under s 28A of theOmbudsmen Act 1975 refusing permission for a private dispute resolution service touse "ombudsman" in its name. Without that permission, it is unlawful to use theombudsman name in connection with any business, or the provision of any service.The appellant is Financial Services Complaints Limited (FSCL). FSCL's disputeresolution scheme is approved under the Financial Service Providers (Registration andDispute Resolution) Act 2008 (FSP Act). Two other such schemes have permission touse the ombudsman name in connection with their schemes. FSCL wishes to dolikewise.[2] In 2015 FSCL's application for permission to use the ombudsman name wasrefused by the then Chief Ombudsman, Dame Beverley Wakem. In 2016 theapplication was reconsidered by the current Chief Ombudsman, Peter Boshier, whoalso refused permission. This Court set aside Mr Boshier's decision and directed himto reconsider the application.1[3] In 2019, Mr Boshier again refused permission. The High Court set aside thatdecision on the ground of predetermination.2 Grice J directed that FSCL's applicationbe reconsidered either by an ombudsman appointed temporarily for that purpose unders 8 of the Ombudsmen Act or by a person acting under a delegation from theChief Ombudsman under s 28(1).3[4] FSCL appeals on two grounds. The first is that the Judge failed to adjudicateon eight of the nine grounds of review raised.4 However, in advancing this ground ofappeal, FSCL focused on only two of the grounds it had relied on in the High Court:the Chief Ombudsman's failure to treat like applicants alike (ground 7) and whetherrefusing permission was a justifiable limitation of FSCL's right to freedom ofexpression under s 14 of the New Zealand Bill of Rights Act 1990 (BORA) (ground 9).[5] The second ground advanced by FSCL is that the Judge erred in referring thematter back for reconsideration rather than granting the substantive relief sought,namely a declaration that FSCL is entitled to the Chief Ombudsman's consent unders 28A.[6] In judicial review proceedings the court is concerned with the lawfulness ofthe decision under review. Whether the decision was one the court itself might have1 Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27, [2018] 2 NZLR 884[Court of Appeal judgment].2 Financial Services Complaints Ltd v Chief Ombudsman [2021] NZHC 307, [2021] 2 NZLR 475[Decision on appeal]. The Chief Ombudsman does not cross-appeal that finding.3 At [222].4 The grounds were: unreasonable delays (ground 1); breach of fairness and good faith by workingin secret towards an amendment of s 28A (ground 2); the decision was contrary to the statutorypurpose of s 28A (ground 3); acting contrary to the Robertson guidelines (ground 4); unreasonablyobjecting to FSCL's proposed use of the term "financial ombudsman service" as being too similarto the IFSO scheme (ground 5); unreasonably minimising the power of the ombudsman name ofFSCL (ground 6); failing to treat like applicants alike (ground 7); predetermination (ground 8);and unreasonable limitation on FSCL's right to freedom of expression under s 14 of the NewZealand Bill of Rights Act 1990 (ground 9).made, had it been the decision-maker, is not relevant. As a result, it is generally notfor the court to substitute its decision for that of the statutory decision-maker; theappropriate relief will be a direction that the decision-maker reconsider. Nonetheless,there are cases in which the Court might legitimately substitute its own decision. Thisincludes when the Court is satisfied that only one lawful decision was available to thedecision-maker.5[7] FSCL says that granting permission to use the ombudsman name was the onlylawful decision available to the Chief Ombudsman so it was open to the Judge tosubstitute her decision for that of the Chief Ombudsman. It says that, in thecircumstances of this case, that was the appropriate course. FSCL now seeks to havethis Court make the declaration sought.[8] The issues on appeal are therefore:a. Did the Judge fail to determine grounds 7 and 9?b. Was granting permission the only lawful decision available to theChief Ombudsman?c. Did the Judge err in referring the decision for reconsideration and, ifso, should this Court now grant the relief sought?Statutory scheme[9] The statutory scheme as enacted by the Ombudsmen Act and the response ofsuccessive Chief Ombudsmen to requests for permission to use the name was canvasedin some detail in this Court's earlier decision.6 Our much briefer description is drawnfrom that judgment.[10] The name and role of the New Zealand ombudsman are derived from theSwedish institution established in 1809 with the function of ensuring the Executivewas observing the country's laws and statutes. Translated literally, it means people's5 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 353.6 Court of Appeal judgment, above n 1, at [5]–[24].representative. New Zealand was the first country outside Scandinavia to adopt theconcept and the name in the Parliamentary Commissioner (Ombudsman) Act 1962,which was replaced with the current Act in 1975.[11] In New Zealand, ombudsmen are independent officers of Parliament appointedby the Governor-General on the recommendation of the House of Representatives.They perform an important constitutional role, investigating complaints about theadministrative conduct of executive government and of government agencies, thusenhancing the accountability of Ministers and officials. In effect, Parliament hasshared with the ombudsmen some of its own authority and power.[12] Initially, there was no constraint on the use of the ombudsman name by privateentities. However, concern over the use of the ombudsman name by private entitiesin overseas jurisdictions led New Zealand's Chief Ombudsmen to seek legislativeprotection for the name in New Zealand. They were concerned that overuse of thename would lead to confusion and lessening of public understanding of theombudsman concept and loss of public confidence in the office.[13] Early efforts to either prohibit or limit the use of the name were not successful.A 1988 Bill to amend the Ombudsmen Act by making it a criminal offence to use thename except pursuant to statute or with the prior consent of the Chief Ombudsmanfailed; the then Minister of Consumer Affairs considered that the name was in commonuse and that its use in other countries had not led to the confusion that was feared. In1991, however, the Bill was revived and s 28A enacted, precluding the use of theombudsman name without the approval of the Chief Ombudsman. Section 28Aprovided: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 summary convictionto a fine not exceeding $1,000 who contravenes subsection (1).[14] Parliament considered protection of the name was necessary and desirablebecause of the Parliamentary Ombudsman's special constitutional role. In enactings 28A, Parliament's purpose was to provide a degree of protection for the name bystrictly regulating its use, although not to the point of complete prohibition.7[15] In 1992, after consultation with the Minister of Consumer Affairs and theConsumers' Institute, the then Chief Ombudsman, Sir John Robertson, drew up whathe described as "some basic criteria protecting the interests of consumers" to guidethe consideration of applications under s 28A (the Robertson guidelines).8 There weresix criteria:91. 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 [to] 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 isconstantly 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.7 Court of Appeal judgment, above n 1, at [44].8 John Robertson "Report of the Chief Ombudsman on Leaving Office" [1993–1996] I AJHR A3A,at 16.9 John Robertson and Nadja Tollemache "Report of the Ombudsmen for the year ended 30 June1992" [1991–1993] I AJHR A3 at 36–37, cited in Court of Appeal judgment, above, n 1, at [12].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.[16] In 2000 Sir John's successor, Sir Brian Elwood, revised the basis on whichapplications under s 28A would be considered, adopting a two-stage process (theElwood policy). First, the public interest served by the establishment of an additionalnon-parliamentary ombudsman was to be balanced against the public interest in a non-proliferation of the name. Secondly, the application was to be considered againstspecified factors (which broadly reflected the Robertson guidelines).10[17] In 2020, s 28A was amended to preclude the use of the ombudsman nameoutside its parliamentary context except with the permission of the relevant Minister.The Minister may only grant permission to certain public sector agencies andorganisations; private sector service providers can no longer obtain permission to usethe name. The amendment contains a savings provision in respect of FSCL, so thebasis on which FSCL was entitled to have its application considered was not affected.11[18] The amendment was promoted by the current Chief Ombudsman, who wasconcerned that the Court of Appeal's decision setting aside his earlier refusal wouldinvite further applications for the use of the name and further litigation, which wouldrisk diminishing the status of the office of the Parliamentary ombudsman. The ChiefOmbudsman's role in promoting the amendment was a focus of FSCL's case in theHigh Court, with assertions of unfairness in the Chief Ombudsman's ongoingcommunications with the Speaker of the House of Representatives, the Hon TrevorMallard. Although these communications led the Judge to conclude that theChief Ombudsman had pre-determined his decision to refuse FSCL's application, shefound no impropriety in his promotion of the amendment.12 There is no challenge to10 Court of Appeal judgment, above n 1, at [17]–[18].11 Ombudsmen (Protection of Name) Amendment Act 2020, cl 14 of Sch 1AA.12 Decision on appeal, above n 2, at [182].that aspect of the judgment. Therefore, our record of the Chief Ombudsman'sdecision-making process largely omits reference to this aspect.The history of FSCL's application to use the ombudsman nameUse of the ombudsman name in the financial services sector[19] Following the introduction of s 28A, Sir John granted two applications for theuse of the ombudsman name in connection with private ombudsmen schemes. Thesewere the Banking Ombudsman Scheme (BOS) and the Insurance and SavingsOmbudsman Scheme (ISOS). The purpose of these schemes was to provide a meansby which banking and insurance companies could offer their customers an independentdispute resolution service in respect of complaints made about their products andservices.[20] From 2010 all financial service providers were required by the FSP Act to bea member of an approved dispute resolution scheme in respect of any financial serviceprovided to a retail client.13 The FSCL scheme, established in 2010, was the firstscheme approved under the FSP Act. Subsequently, the BOS and ISOS schemes werealso approved.14[21] There was, and continues to be, competition among the schemes for customers.In 2011 FSCL wrote to the then Chief Ombudsman, Dame Beverley, expressingconcern about the terms in which ISOS was using the ombudsman name to promoteits scheme. FSCL proposed the continued use of the ombudsman name in relation toprivate schemes be reconsidered, or ISOS be required to stop using the ombudsmanname as a marketing tool, or consideration be given to allowing FSCL to also use theombudsman name. Dame Beverley advised that she would not be approving anyfurther use of the name in the near future and FSCL did not pursue the matter.13 Section 48.14 There is a fourth scheme that has FSP approval, but it is significantly smaller than the IFSO, BOSand FSCL's schemes and appears never to have sought permission to use the ombudsman name.FSCL's application is refused for the first time[22] Nothing further happened until 2015, when Dame Beverley allowed ISOS tochange its title to "Insurance and Financial Services Ombudsman Scheme Inc" (IFSO).FSCL's view was not sought, even though the inclusion of "financial services" wouldresult in a name very similar to its scheme. The development prompted FSCL to applyfor approval to use the ombudsman name itself. In May 2015 it submitted a detailedapplication based on the Robertson guidelines. The application was refused. TheChief Ombudsman regarded the approvals given to the IFSO and BOS schemes as an"accident of history" and saw no public interest in allowing FSCL to use the name.[23] FSCL began judicial review proceedings. Mr Boshier was appointedChief Ombudsman later in 2015. The following year, after an unsuccessful applicationby Ombudsman Wakem to strike out the judicial review proceedings, Mr Boshieragreed to consider the application afresh.FSCL's application is refused for a second time[24] In its letter to the Chief Ombudsman of 27 May 2016, FSCL explained that itsaim in seeking to use the ombudsman name was to raise consumer awareness and trustin its scheme. It noted that there had been some consumer confusion as a result of twoother schemes operating in the financial services sector being able to use the namewhile it was not. There was also concern that consumers viewed the FSCL scheme asinferior to the others because it was not described as an ombudsman scheme.[25] The Chief Ombudsman considered FSCL's application by reference to theElwood policy, on the basis that the purpose of s 28A was to protect the public interestin ensuring that the concept of the parliamentary ombudsman's role was notundermined or diminished by allowing the name to be used more widely thannecessary. He concluded that it would be generally inappropriate for the name to beused more widely unless there was a significant public disadvantage as a result of theinability to use the name. He was not satisfied that was the case. FSCL's applicationtherefore failed at the first stage of the Elwood policy and there was no considerationof other criteria.[26] FSCL sought judicial review of this decision. The application for judicialreview failed in the High Court, but the Court of Appeal set aside the decision andordered that it be remade.15[27] This Court gave two reasons for setting aside the Chief Ombudsman's decision.First, although the Chief Ombudsman was entitled to consider the possible impact thata multiplicity of non-parliamentary ombudsmen might have on the status of the rolein the public's understanding of it, the two-stage Elwood policy created anunacceptable limit on the exercise of the discretion; it precluded consideration of thestage two factors unless stage one was satisfied, despite the obvious relevance of thestage two factors (which largely related to the ombudsman-like qualities required ofany private ombudsman).16[28] Secondly, the Chief Ombudsman had failed to consider the effect that differenttreatment of similar schemes might have in terms of causing confusion about the roleand status of the Parliamentary ombudsmen:[53] If other similar schemes in the same sector as the applicant are alreadyusing the name ombudsman, it is difficult to understand how granting theapplication would increase confusion. Indeed, there is a strong argument tothe opposite effect. Arguably, it is more likely that what will increaseconfusion is treating very similar schemes in the same sector (including ascheme with part of the same name) differently. Yet that is the effect ofdenying consent in this case. This "different treatment" aspect of confusionwas not considered by Mr Boshier and in our view was a relevantconsideration 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 considerthe possible impact a multiplicity of non-parliamentary ombudsmen mighthave. But in doing so, he or she must have regard to existing permissionsgiven and the need to treat like applicants reasonably consistently. Thereshould not be a "first mover" advantage.[29] The Chief Ombudsman was directed to reconsider his decision.1715 Financial Services Complaints Ltd v Chief Ombudsman [2017] NZHC 525; [2017] NZAR 521;and Court of Appeal judgment, above n 1.16 Court of Appeal judgment, above n 1, at [50].17 At [62].The Chief Ombudsman reconsiders — first provisional decision[30] The Court of Appeal's decision was delivered in February 2018. In March2018 the Chief Ombudsman approached a former Chief Ombudsman, Dr McGee QC,for assistance in drafting legislation to increase the protection of the ombudsmanname, and then commenced his communications with the Speaker regarding theamendment to s 28A. While that was on foot, he began work on the reconsiderationof his decision.[31] On 24 July 2018 the Chief Ombudsman wrote to FSCL with a "provisionalview" that he was "inclined not to grant FSCL's application". The Chief Ombudsmanacknowledged that FSCL and its Chief Executive Officer had all the significantqualities set out in the Robertson guidelines. He accepted FSCL's concern thatconfusion among consumers who contacted its office might damage public confidencein FSCL's services, including the risk that consumers might view FSCL as an inferiorservice and be less willing to refer a complaint to it or less willing to accept theoutcome recommended by FSCL. Against that, he noted that FSCL could take stepsitself to reduce the confusion between it and the other schemes. He also consideredthat there would still be confusion between the different schemes even if FSCL wereable to use the ombudsman name because there would be three schemes using thelabel, two of which had "financial" in their name.[32] The Chief Ombudsman was more concerned that confusion between the roleof the Parliamentary and non-parliamentary ombudsmen could lead to a loss of publicunderstanding of the ombudsman concept and a loss of public confidence in theparliamentary office. Although he acknowledged that both his office and the privatedispute resolution schemes could do more to clarify the various roles and reduce theconfusion, and he was committed to taking steps in that regard, he neverthelessconsidered that this kind of confusion would increase if FSCL were entitled to use theombudsman name. This conclusion was based on the fact that FSCL had a muchgreater number of participants — 7,000 compared to IFSO's 4,600 and BOS's 19.[33] In terms of treating applicants reasonably consistently the Chief Ombudsmandid not regard FSCL as directly comparable to BOS and IFSO. He identified twodifferences. The first was that the BOS and IFSO schemes obtained approval to use"ombudsman" at a time when private dispute resolution schemes were unregulated.Their success therefore depended on customers being confident that thedecision-making process was independent, impartial, fair and binding. He regardedthat as a strong factor in favour of granting approval for the schemes to use theombudsman name. In comparison, FSCL's application was made at a time when ithad the benefit of ministerial approval under the FSP Act.[34] The second distinction was that FSCL's determinations were made by panelscomprising the Chief Executive Officer, a consumer representative and an industryrepresentative, which he regarded as inconsistent with the exclusive personalresponsibility of an ombudsman, noting that the decision of BOS or IFSO is a personaldecision of the ombudsman in question.[35] The Chief Ombudsman acknowledged FSCL's rights under s 14 of BORA butconsidered that interference with that right was demonstrably justified.[36] The Chief Ombudsman invited further information or submissions.FSCL responded on 6 August 2018. It did not accept that there was any validdistinction between the schemes based on the timing of the approval. In relation tothe fact that the FSCL scheme was based on panels FSCL pointed out that, in fact, noFSCL panel had ever been convened; the CEO had been the sole decision-maker onall complaints since it began investigating in 2011. In any event, the previous monththe FSCL Board had resolved, subject to consultation with its stakeholders, to removethe panel procedure.[37] Nor did FSCL accept as valid the Chief Ombudsman's fear that approval ofFSCL's application could adversely affect the parliamentary office. FSCL pointed outthat Parliament had not prohibited the use of the name but had instead provided forstatutory discretion to consent to the use of the name because doing so was in thepublic interest. In any event, proliferation of non-parliamentary ombudsmen was veryunlikely because of the decision-making criteria that the ombudsman was entitled toapply in giving consent.[38] The next day the Chief Ombudsman sent a copy of his first provisional decisionand FSCL's response to the Speaker. His covering letter and subsequentcorrespondence were couched in terms that the High Court viewed as evidence ofpredetermination.18The Chief Ombudsman investigates further - second provisional decision[39] Nearly two weeks later the Chief Ombudsman wrote to FSCL seeking to"advance the conversation on the "confusion" aspects that are relevant to [his]decision". The Chief Ombudsman wanted to "more fully investigate the nature anddegree of confusion that arises, and the steps that might be taken to mitigate it". Heproposed to meet with FSCL to gain more information and to write to IFSO, BOS andFDRS to obtain further information from them.[40] On 23 October 2018 the Chief Ombudsman issued a second provisionaldecision. This letter discussed, extensively, the Chief Ombudsman's views about theconfusion likely to be engendered by allowing FSCL to use the ombudsman name.This included references to information the Chief Ombudsman had obtained fromBOS and IFSO (which he provided to FSCL). In relation to his concern that grantingpermission to FSCL would lead to a loss of public confidence in the parliamentaryoffice, the Chief Ombudsman considered that calls to his office relating to complaintsproperly referred to FSCL were "evidence of damage to the public understanding ofthe Parliamentary Ombudsmen".[41] The Chief Ombudsman did not consider that the Court of Appeal's statementsregarding treating like applicants alike meant this was an absolute requirement andinstead considered that his concerns over confusion about the role of the ParliamentaryOmbudsman outweighed the desirability of consistency in this case. In any event, heconsidered that FSCL could be distinguished from BOS and IFSO so as to justify adifferent approach. Specifically, the former schemes pre-dated the FSP Act and theirsuccess had depended on ensuring consumer confidence in the independence,impartiality and fairness of the schemes. He also regarded FSCL's proposed names"Financial Ombudsman" and "Financial Ombudsman Service" as indicating too broad18 Decision on appeal, above n 2, at [200].a coverage in the financial services area, which would cause confusion and overlapwith the existing schemes.[42] The Chief Ombudsman invited further comments and FSCL responded in early2019 in robust terms. It pointed out what it considered to be deficiencies in theChief Ombudsman's reasoning from an administrative law perspective and providedmore information to support its concern that consumers regarded the FSCL scheme asinferior to those who were using the ombudsman name. Relevantly, FSCL questionedthe evidence the Chief Ombudsman had to support his concerns that granting consentwould affect the status and public understanding of the Parliamentary Ombudsman,pointing out that this aspect of public interest needed to be balanced with the strongpublic interest in ensuring consumer awareness of FSCL's scheme. It also pointed outthat in the response the Chief Ombudsman had received from IFSO, the Insurance andFinancial Services Ombudsman had expressly stated that the IFSO scheme had noempirical evidence of any confusion in the minds of the public about the role orjurisdiction of the Parliamentary Ombudsman.The Chief Ombudsman's third provisional decision[43] In early May 2019 the Chief Ombudsman issued a third provisional decision.He confirmed his earlier conclusion that the types of confusion that had been ofconcern to FSCL (confusion among consumers leading to a belief that FSCL was aninferior service to that of BOS and IFSO and uncertainty as to which dispute resolutionservice to complain to) were of no real concern. He emphasised his view thatconfusion about the role of the Parliamentary Ombudsman compared with industryombudsmen would significantly increase if FSCL were permitted to use the name.[44] FSCL responded on 17 May 2019, critical of the delay, the Chief Ombudsman'ssupport of the proposed amendment to s 28A and his failure to respond to the reasoningof this Court's earlier decision.The Chief Ombudsman's final decision — FSCL's application is declined for a thirdtime[45] On 20 June 2019, some 15 months after being directed to reconsider theapplication, the Chief Ombudsman delivered his final decision, refusing permission.His refusal rested mainly on his concern that granting consent to FSCL to use theombudsman name would likely increase the level of confusion among members of thepublic between the roles of the Parliamentary Ombudsman and industryombudsmen.19 Such confusion would undermine the effectiveness and integrity of theParliamentary Ombudsman's processes and lead to a loss of confidence in thatinstitution. The Chief Ombudsman set out his reasons in detail and we address thosereasons later.[46] The Chief Ombudsman also acknowledged the need to treat like applicantsalike and referred to this Court's earlier decision. However, he maintained his viewthat FSCL was not in a directly comparable situation to that of BOS and IFSO whenthey were granted approval for the use of the ombudsman name. Whilst recognisingthat FSCL competed in the same market as those schemes and that consistency andfairness made it desirable for FSCL to be able to use the ombudsman name, hereasoned that the public interest considerations are different now to when BOS andIFSO obtained their consent. Any problems over the similarity between the use of"financial services" in the IFSO scheme and FSCL's name was a matter for theRegistrar of Incorporated Societies.[47] Finally, the Chief Ombudsman considered the effect of refusing permission onFSCL's BORA right to freedom of expression. Whilst acknowledging that refusingpermission would be a limit on that freedom the Chief Ombudsman did not considerthe free speech interest of an organisation in using the ombudsman name asparticularly strong because its use for marketing purposes and competitive advantagewas not "a form of expression which contributes in any significant way to themarketplace of ideas or social and political decision making". He concluded that the19 The Chief Ombudsman had, in both his provisional and final decisions, also identified thepossibility of consumers perceiving FSCL's scheme as inferior to those of IFSO and BOS and alsoconfusion among consumers as to which dispute resolution scheme to complain to. However, heconcluded that neither presented a significant concern.interference with FSCL's free expression was demonstrably justified in a free anddemocratic society to avoid additional confusion among members of the public aboutthe different role of Parliamentary and industry ombudsmen.Did the Judge fail to adjudicate on grounds 7 and 9?20[48] From the outset the Judge regarded predetermination as the main issue.Although she noted the various grounds advanced in support of the judicial reviewapplication she considered that "the crux of FSCL's case is that the Chief Ombudsmandid not act in good faith and in particular he predetermined that he would refuse togrant approval for the use of the name "Ombudsman"".21 Early on, she signalled herconclusion that the decision had been predetermined and would therefore be setaside.22 Although the Judge briefly recorded the other grounds of review23 only theissue of predetermination was the subject of analysis of the relevant principles24 andthe evidence.25[49] The only substantive reference to grounds 7 and 9 appeared in the context ofthe Judge's review of the three provisional decisions and the final decision:[142] On the issue of s 14 of BORA (freedom of expression) the ChiefOmbudsman found that the free speech rights in FSCL using the labelOmbudsman was not particularly strong. He considered the real interest forFSCL was in using a name for marketing purposes and competitive advantagerather than being an expression which contributed "in any significant way tothe marketplace of ideas or social and political decision making". The ChiefOmbudsman concluded the interference with FSCL's free expression such asit was, was demonstrably justified for the reasons given for refusing consent.He specified, in particular, the need to avoid additional confusion amongstmembers of the public as to the different roles of Parliamentary Ombudsmenand industry ombudsmen.[143] The Court of Appeal had recognised that the constitutional importanceof the Parliamentary Ombudsman role was a relevant consideration to be takeninto account, as was the multiplicity of non-Parliamentary ombudsman, thesize of FSCL's membership and the fact that consumers had no choice but touse the dispute resolution service of their financial service provider. It was20 Ground 7 was failure to treat like applicants alike and ground 9 was unreasonable limitations onFSCL's rights to freedom of expression under s 14 of the New Zealand Bill of Rights Act.21 Decision on appeal, above n 2, at [10].22 At [20].23 At [64]–[65].24 At [73]–[88].25 At [93]–[213].for the Chief Ombudsman to weigh the considerations and reach a conclusion.The weight he attached to the considerations was a matter for him.[144] The Court of Appeal had also directed that the Chief Ombudsman takeinto account the need to treat similar applicants consistently. The ChiefOmbudsman specifically took that into account. In his provisional decisionsand in his final decision the Chief Ombudsman accepted that as a basicprinciple "like cases should be treated alike". He accepted that FSCL and theindustry ombudsman schemes were alike, and all had been approved by theMinister under the FSP Act.[145] The difference he isolated was that the two ombudsman schemes hadbeen approved when the banking insurance dispute resolution schemes werevoluntary and so needed a special "mark of quality assurance" which wasotherwise unavailable. This was the use of the name ombudsman so at thatstage there was an important reason to give the schemes the use of the name.It was a recognition of the public interest in and consumer confidence in thevoluntary schemes needed at the time. Given the "mana and gravitas" of (sic)name, the Chief Ombudsman recognised some inherent unfairness in refusingFSCL approval, but the public interest considerations were not the same nowas at the time the two industry ombudsmen were approved. He noted FSCLhad attracted a significant market share and established a reputable schemewithout the name.[146] The Chief Ombudsman said the similarity of name between theInsurance and Financial Services Ombudsman and FSCL's name was a matterfor the Registrar of Incorporated Societies under ss 11 and 11A of theIncorporated Societies Act 1908.[147] On the face of the decisions and the Chief Ombudsman's findings, theconclusions regarding s 14 of BORA were supportable.(Footnotes omitted.)[50] The Judge made no further reference to grounds 7 and 9 until the end of heranalysis of the predetermination issue where she said:[212] It follows that once I have found predetermination it is not necessaryto consider the implications of BORA. By definition predetermination thatthe application would be refused is not a justified interference with freedomof expression.[213] In light of my finding of predetermination, it is not necessary tocanvass the grounds for judicial review or particulars claimed in any furtherdetail. Each of the issues raised in the particulars has been touched upon inmy decision.[51] Ms Scholtens QC, for the Chief Ombudsman, submitted that the way the Judgehad dealt with ground 7 meant that, in substance, the ground for review was dismissed.However, we consider that the Judge merely recorded the Chief Ombudsman'sstatements regarding the need to streat like applicants alike, without any independentanalysis or reasons. This did not amount to adjudication of the issue.[52] In relation to ground 9, Ms Scholtens submitted that the Judge's statement thatthe Chief Ombudsman's findings were supportable amounted to a finding on whetherthere had been a breach of FSCL's s 14 rights. Again, we do not accept that the Judge'sconclusion, reached without any analysis, amounted to an adjudication of the issue.We also note that in the High Court, FSCL had explicitly submitted that the assertedbreach of its s 14 BORA rights stood independently of the first eight grounds of review.For that reason, it was not open to the Judge to proceed, as she did, on the basis thather finding of predetermination meant that it was not necessary to consider the BORAissue.[53] Ms Scholtens submitted that if we were to decide (as we have done) that theJudge did not adjudicate on these issues, the case should go back to the High Court fordetermination. We do not accept that would be the proper course. These issues weresquarely before the Judge. It would be unfair to expect FSCL to return to theHigh Court to rerun the argument. We therefore address the grounds substantively aswe consider the next issue: whether there was only one lawful outcome.Was there only one lawful decision available to the Chief Ombudsman?[54] FSCL's case depends on showing that the only conclusion available to theChief Ombudsman, if he was acting lawfully, was to grant FSCL's application. Thiswould lay the foundation for the argument, in reliance on Fiordland Venison, that thecase was one in which the Court could properly substitute its decision for that of theChief Ombudsman.26 Although the Judge referred to the Chief Ombudsman's decisionto refuse permission as being within the range of available outcomes, she did so in thecontext of her conclusion on pre-determination and without any reference to FiordlandVenison.27 As a result, FSCL's argument appears not to have been fully considered.26 Fiordland Venison Ltd, above n 5.27 Decision on appeal, above n 2, at [211].[55] Ms Scholtens submitted, relying on R (Lord Carlile of Berriew) v Secretary ofState for the Home Department, that the present case is one where the decision torefuse approval would depend for its justification on a judgment about the futureimpact of alternative causes of action.28 Thus, there may not be a single correct answeras to whether interference with the subject right is justified. Mr Ballinger, who alsomade submissions on this aspect for the Chief Ombudsman, argued that the presentcase is different from Fiordland Venison, and, instead, comparable to Grant vRestructuring Insolvency & Turnaround Association New Zealand Inc29 and Te PouMatakana v Attorney-General,30 in which the impugned decisions were remitted forreconsideration.[56] We agree that the facts of Fiordland Venison are different to those in the presentcase. In Fiordland Venison the Minister was obliged under the Game Regulations1975 to grant a pack-house licence if satisfied on five specified matters. There was noresidual discretion.31 This Court held that there was no evidence on which the Ministercould reasonably or properly have determined that he was not satisfied as to thosematters. On that basis, it granted a declaration that the appellant was entitled to alicence.32[57] In comparison, there is no statutory obligation on the Chief Ombudsman togrant permission under s 28A — the giving of permission to use the ombudsman nameinvolves the exercise of a discretion. Nevertheless, it is possible for a decision-makerexercising a discretion to find themselves with only one available decision if they haveacted in accordance with the purpose of the statutory discretion conferred and takeninto account all of the relevant considerations. In Fiordland Venison, the Courtdiscussed Padfield v Minister of Agriculture,33 which concerned the power of aMinister to refer a complaint to a statutory committee of investigation. The Courtsaid:3428 R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015]AC 945 at [32].29 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc [2020] NZHC2876, [2021] 2 NZLR 65.30 Te Pou Matakana v Attorney-General [2021] NZHC 3319, [2022] 2 NZLR 178.31 Fiordland Venison Ltd, above n 5, at 344.32 At 353.33 Padfield v Minister of Agriculture [1968] AC 997; [1968] 1 All ER 694 (HL).34 Fiordland Venison, above n 5, at 350–351.The House of Lords held that mandamus should go to the Minister to considerthe complaint of the appellants according to law, notwithstanding that thestatute merely empowered the Minister to refer such a complaint to thecommittee, as opposed to requiring him to do so, and did not specify anyconsiderations that he must take into account. The principles were stated byLord Reid:It is implicit in the argument for the Minister that there are only twopossible interpretations of this provision — either he must refer everycomplaint or he has an unfettered discretion to refuse to refer in anycase. I do not think that is right. Parliament must have conferred thediscretion with the intention that it should be used to promote thepolicy and objects of the Act; the policy and objects of the Act mustbe determined by construing the Act as a whole and construction isalways a matter of law for the court. In a matter of this kind it is notpossible to draw a hard and fast line, but if the Minister, by reason ofhis having misconstrued the Act or for any other reason, so uses hisdiscretion as to thwart or run counter to the policy and objects of theAct, then our law would be very defective if persons aggrieved werenot entitled to the protection of the court. I do not agree that a decision cannot be questioned if no reasonsare given. If it is the Minister's duty not to act so as to frustrate thepolicy and objects of the Act, and if it were to appear from all thecircumstances of the case that that has been the effect of the Minister'srefusal, then it appears to me that the court must be entitled to act.The order there did not go as far as directing the Minister actually to refer thecomplaint to the committee, but the House accepted, applying what had beensaid in Julius v Bishop of Oxford, that situations can arise in which there is alegal duty to exercise what is apparently only a statutory power. Moreover itwas also accepted, as we read the speeches, that such a situation can arisewhen the statute expressly or impliedly limits the reasons for which an exerciseof the power can be refused and on the particular facts the considerations allpoint one way.(Citations omitted and emphasis added.)[58] In the present case the statute does not expressly limit the reasons for which anexercise of the power could be refused, but it is clear that Parliament intended thatpermission could be granted in an appropriate case. In our view, the Robertsonguidelines can be taken as expressing the kinds of consideration that the legislaturemust have thought would be relevant in deciding whether permission should begranted or refused. Further, as we come to shortly, save for the Chief Ombudsman'sconcern over whether confusion would arise between the Office of the ParliamentaryOmbudsman and industry ombudsmen, those considerations all point one way here.[59] We see the cases of Grant and Te Pou as quite different to the present case.The former required an evaluative judgment of character requirements for membershipof a professional body. Muir J considered the decision was far from clear-cut and, forthat reason, regarded it as appropriate to remit the decision for reconsideration.35 InTe Pou Gwyn J remitted the Ministry of Health's decision not to provide vaccinationinformation to a Māori organisation for the purposes of assisting with vaccine rollout.The decision was remitted notwithstanding a significant number of factors said tofavour the release of the information. The Judge did not regard the case as being asclear-cut as Fiordland Venison because, even where the relevant statutory factors hadbeen satisfied, the decision-maker retained a residual discretion.36 But that was notthe basis on which substantive relief was refused. Rather, it was the fact that anongoing consultation process between the parties that post-dated the decision inquestion was too valuable to waste.37 Instead, the Ministry was directed, within a shorttime, to complete its consideration of further data and review its decision.38[60] It is open to FSCL to advance the argument that none of theChief Ombudsman's reasons for refusing permission were supportable and that, as aresult, the only decision he could lawfully make was to grant the permission. Thatsubmission requires a careful consideration of the reasons given by theChief Ombudsman for deciding as he did.[61] Mr Ballinger argued that the Chief Ombudsman's decision requiredconsideration of a number of factors, which all pointed in different directions.He accepted that FSCL satisfied the Robertson guidelines, which favoured approval.However, he argued that the decision otherwise required a broad evaluative assessmentwhich involved weighing intangible factors as well as these specific factors.[62] The reasons given by the Chief Ombudsman for his decision were:a. allowing FSCL permission to use the ombudsman name would increasethe level of confusion between industry and Parliamentary Ombudsmen35 Grant, above n 29, at [96]–[98].36 Te Pou Matakana, above n 30, at [176].37 At [177]–[178].38 At [179].and lead to loss of confidence in the role of the ParliamentaryOmbudsman;b. the FSCL scheme differed from the IFSO and BOS schemes in a waythat justified treating them differently; andc. refusing permission was a justified limitation on FSCL's s 14 BORArights.Confusion leading to loss of confidence in the role of the Chief Ombudsman[63] The Chief Ombudsman's main reason for refusing FSCL's application was thatit would lead to a level of confusion that risked undermining public understanding ofand confidence in the role of the Parliamentary Ombudsman:3951. My office regularly sees evidence of the confusion between the roleof the Parliamentary Ombudsmen and the two industry ombudsmen. Wereceive approximately 25 calls per month relating to banking, insurance orfinancial services that need to be referred to the relevant agency. Some ofthese are requests to review decisions of the industry ombudsmen. We alsoreceive about 80 formal complaints per year that are out of the Ombudsmen'sjurisdiction and relate to banks, finance companies and insurance companies.52. In my assessment, granting consent to FSCL to use the name'ombudsman' would likely increase the third type of confusion. Consumersexposed to the industry ombudsman will be less likely to understand that theParliamentary Ombudsmen:a. have a very different inquisitorial and investigative role;b. use recommendatory processes, which are seen as a strength; andc. occupy an important constitutional position in addressing issues andenhancing accountability within executive government.53. In addition, I am concerned that the third type of confusion mightdamage the understanding and integrity of the Parliamentary Ombudsmen'srole in the whistleblowing process under the Protected Disclosures Act 2000,and the public's confidence in the Parliamentary Ombudsmen as NewZealand's National Preventive Mechanism under the Convention AgainstTorture. None of these roles are dispute resolution roles of the natureexercised by the industry ombudsman.39 The "third type" of confusion referred to by the Chief Ombudsman refers to confusion betweenthe industry ombudsmen and the Parliamentary Ombudsmen.55. People's experience of one ombudsman can colour their views ofanother ombudsman. They will reasonably assume that they have much thesame function, or will act in a similar way. Thus the numbers of people whomay be affected is relevant. To get a sense of scale of the potential increaseof exposure to the industry ombudsman concept, I have considered thefollowing numbers:a. FSCL has nearly 7,000 participants and answered more than 4,300inquiries and complaints in the 2017 year.b. IFSO has around 4,600 participants and received 3,541 complaintsand inquiries in the 2017 year.c. BOS has 19 participants and received 2,741 complaints in the 2017year.56. I appreciate I need to assess the impact of one body joining twoexisting "ombudsman services". However the reach of FSCL's services ispotentially very broad. I remain concerned that large numbers of members ofthe public would be less likely to appreciate the constitutional significance oftheir right to bring complaints to the Parliamentary Ombudsmen againstexecutive government, and the Ombudsmen's ability to investigate and makerecommendations to improve democratic accountability.57. I note your view that some of the telephone calls to the ParliamentaryOmbudsmen relating to banking, insurance and financial services come fromwould-be complainants against members of FSCL's scheme because they areunaware that FSCL's scheme has the status of an ombudsman in every aspectexcept name. I accept your point that calls to my office relating to financialservice complaints that should be referred to FSCL may in some cases be dueto the first or second type of confusion. My concern remains that these callsare evidence or symptoms of undesirable confusion around the publicunderstanding of the very different roles of the industry and ParliamentaryOmbudsmen.(Footnotes omitted.)[64] Ms Scholtens submitted that there was ample evidence to support theChief Ombudsman's decision. However, having reviewed the facts relied on by theChief Ombudsman we do not accept that there was any objectively reliable evidenceto support his decision.[65] We start with the Chief Ombudsman's reference to the approximately 25 callshis office fielded each month relating to financial services that needed to be referredto the relevant agencies. We agree that an inference may be drawn that this shows alevel of confusion in the community about the role of the Parliamentary Ombudsman.We do not accept, however, that this modest number of misdirected telephone callsprovides any basis for an inference that the use of the term "ombudsman" by FSCL,or for that matter by the existing private "ombudsman" schemes, would materiallyundermine public understanding of and confidence in the role of the ParliamentaryOmbudsman.[66] The second fact relied on was that the Chief Ombudsman's office wasreceiving about 80 formal complaints per year that related to financial services, whichwere outside the Chief Ombudsman's jurisdiction. Again, we agree that this suggestsa level of confusion about the Chief Ombudsman's role, but it does not follow that theconfusion is attributable to people being exposed to industry ombudsmen. Indeed, inhis final decision, the Chief Ombudsman accepted FSCL's point that some of the callsrelating to financial services came from would-be complainants against members ofFSCL's scheme who were unaware that FSCL's scheme has the status of anombudsman in every aspect except name. And again, we do not accept that this modestnumber of misdirected complaints provides any basis for an inference that the use ofthe term "ombudsman" by FSCL would materially undermine public understanding ofand confidence in the role of the Parliamentary Ombudsman.[67] Further, the Chief Ombudsman did not appear to recognise, or at least giveweight to, the possibility of a general lack of understanding among members of thepublic about the office and powers of the Parliamentary Ombudsman that is unrelatedto the existence of the industry ombudsmen, and would not be affected by the decisionmade in relation to FSCL's application. In her article New Zealand's OmbudsmenLegislation: The Need for Amendment After Almost 50 Years, Mai Chen noted thewidespread ignorance of the ombudsman's office, inconsistent application of theParliamentary Ombudsman's jurisdiction and confusion generated by the fact that theParliamentary Ombudsman does not have jurisdiction to investigate administrativedecisions, recommendations or acts done or omitted by local authorities at full councilmeetings.40 Although the Chief Ombudsman drew on this article in his final decision,he did not refer to these observations.40 Mai Chen "New Zealand's Ombudsmen Legislation: The Need for Amendment After Almost 50Years" (2010) 41(4) VUWLR 723 at 746, noting the provision in s 32 allowing the Governor-General by Order-in-Council to add or remove the departments or organisations subject to theombudsmen's jurisdiction. See also at 740 and 749–750.[68] Thirdly, although we accept the Chief Ombudsman's point that those exposedto industry ombudsmen might reasonably assume that the Parliamentary Ombudsmanwill function in the same way and thus misunderstand the very different nature of theParliamentary Ombudsman's role and processes, we do not accept that the scale of theproblem is nearly as significant as the Chief Ombudsman suggests. TheChief Ombudsman relied on figures taken from FSCL's, IFSO's and BOS's annualreports for the 2016–2017 year. In 2017 the IFSO and BOS schemes combined had4,619 participants and received 6,282 complaints. In 2017, FSCL had nearly 7,000members who generated approximately 4,300 enquiries and complaints —proportionately less than IFSO and BOS. Assuming that FSCL's use of theombudsman name led to a corresponding increase in calls to the Chief Ombudsman'soffice, the increase, less than a doubling, would still be very small in relation to NewZealand's population. Moreover, the Chief Ombudsman himself acknowledged thatthere was more that could be done to avoid confusion in the mind of the public. Andeven if there is confusion of this kind, that does not (as already mentioned) necessarilyimply any undermining of public understanding of and confidence in the role of theParliamentary Ombudsman.[69] Fourthly, in identifying the risk of increased confusion between industry andParliamentary Ombudsmen in the event of FSCL being permitted to use the name, theChief Ombudsman made no reference to two pieces of credible information indicatingthe risk of confusion regarding the role of Parliamentary ombudsmen from privateombudsman schemes is low. This information came from IFSO and from the Ministryof Justice.[70] As part of his further investigations into the level of confusion that might begenerated by allowing FSCL to use the ombudsman name, the Chief Ombudsmanmade enquiries of IFSO and BOS. The ombudsman of the IFSO scheme, althoughopposed to FSCL being permitted to use the ombudsman name, advised that: the IFSO scheme has no empirical evidence that there is any confusion oroverlap in the minds of the public about respective roles, or a potential overlapin jurisdiction with the Parliamentary Ombudsman.Our complaints enquiries data does not capture complaint enquiries fromconsumers which are intended for the Parliamentary Ombudsman, because wereceive so few. Nor is the IFSO scheme aware of any evidence that "confusion potentiallydamages the status and mana of the Parliamentary Ombudsmen and thepublic's understanding of it."41[71] When FSCL responded to the Chief Ombudsman's second provisional decisionit drew these comments to the Chief Ombudsman's attention, setting out the passageabove in full.[72] As part of his ongoing contact with the Ministry of Justice over the proposedamendment to s 28A, the Chief Ombudsman was provided with a regulatory impactreport prepared by the Ministry, which advised that:The evidence of need for any significant change in approach is inconclusive.The Parliamentary Ombudsman's long-standing public profile and statusalready affords a high degree of public confidence and trust. To the extentthere is public confusion over the role or jurisdiction of the ParliamentaryOmbudsman this does not appear solely, or even mostly, attributable to the useof the name 'ombudsman' by the two existing private-sector bodies.[73] We conclude that there is no objectively supportable basis for theChief Ombudsman's view that allowing FSCL to use the ombudsman name wouldlead to such confusion in the mind of the public and to undermine the office of theParliamentary Ombudsman. This conclusion is consistent with the Ombudsman'sjurisdiction, which is stated at s 13(1) of the Ombudsmen Act:it shall be a function of the Ombudsmen to investigate any decision orrecommendation made, or any act done or omitted relating to a matter ofadministration and affecting any person or body of persons in his or herpersonal capacity, in or by any of the public service agencies or organisationsnamed in Parts 1 to 1C and 2 of Schedule 1 or by any committee (other than acommittee of the whole) or subcommittee of any organisation named orspecified in Part 3 of Schedule 1, or by any officer, employee or member ofany such public service agency or organisation in his capacity as such officer,employee or member.[74] The statutory function makes it clear that the Ombudsman's jurisdiction affectsonly central and local government bodies and public agencies. The industryombudsmen have a completely different role. Any possible confusion could bequickly dispelled.41 This was a reference to the Chief Ombudsman's inquiry of IFSO in which the Chief Ombudsmanidentified, as a matter of concern, confusion between the roles of the Parliamentary Ombudsmanand the financial dispute resolution schemes which could potentially damage the status and manaof the Parliamentary Ombudsman and the public's understanding of it.Treating like cases alike[75] The Chief Ombudsman was required to adhere to the principle of treating likecases alike, stated by the Privy Council in Matadeen v Pointu:42As a formulation of the principle of equality, the court cited Rault J in Policev Rose: "Equality before the law requires that persons should be uniformlytreated, unless there is some valid reason to treat them differently". TheirLordships do not doubt that such a principle is one of the building blocks ofdemocracy and necessarily permeates any democratic constitution. Indeed,their Lordships would go further and say that treating like cases alike andunlike cases differently is a general axiom of rational behaviour. It is, forexample, frequently invoked by the courts in proceedings for judicial reviewas a ground for holding some administrative act to have been irrational (Footnotes omitted.)[76] In his final decision the Chief Ombudsman acknowledged this principle andexpressly noted the signal from this Court in its earlier decision that he was to "haveregard to existing permissions and the need to treat like applicants reasonablyconsistently". However, although the Chief Ombudsman accepted that the FSCL,IFSO and BOS schemes are similar because they were all approved under the FSP Act,he nevertheless considered that FSCL was not directly comparable to IFSO and BOSbecause their schemes pre-dated the FSP Act so that the context in which they hadsecured permission to use the ombudsman name was different:69. The success of those schemes depended on the customers beingconfident that decisions would be made in a way that was independent,impartial, fair and binding on the members against whom a decision wasmade. There was no regulated means to achieve that at the time. It was theemergence of the voluntary, industry-backed Banking Ombudsman Scheme atthe same time that s 28A was enacted, and the recognition of this publicinterest in consumer confidence attaching to the name 'ombudsman', that [led]primarily to the qualification on the prohibition on the use of the name. 70. FSCL's application is made against a very different background.It has Ministerial approval under the FSP Act, which provides a statutoryassurance that these qualities exist. It is subject to ongoing regulation underthat Act. This has enabled it to attract a significant market share and establisha reputable scheme. So that aspect of the rationale for granting approval toBOS and IFSO is not present for FSCL.71. Rather, the key benefit to FSCL would be the mana and gravitas thatcomes from the name. I also accept there may be an inherent unfairness in thefact that, by dint of historical circumstances, FSCL must operate in42 Matadeen v Pointu [1999] 1 AC 98 (PC) at 109, cited in Ririnui v Landcorp Farming [2016] NZSC62, [2016] 1 NZLR 1056 at [94].competition with two other approved schemes who have the benefit of thename. I take this into account.[77] The Chief Ombudsman concluded that:72. In summary, I accept that FSCL competes in the same market as BOSand IFSO and that it would be desirable as a matter of consistency and fairnessfor FSCL also to be able to use the label ombudsman. That is an importantfactor that favours granting approval. However I do not consider the publicinterest considerations for this application to be the same as existed when BOSand IFSO were granted consent.[78] FSCL submitted that the Chief Ombudsman's decision was unreasonablebecause the distinction he identified — IFSO and BOS having secured theirpermission prior to the FSP Act — did not justify treating FSCL differently andaccorded a "first mover" advantage to BOS and IFSO, which this Court had expresslycautioned against.43[79] Ms Scholtens submitted, first, that FSCL's argument that the final decision wassubstantively unreasonable because it accorded a "first mover" advantage to BOS andIFSO, was new and should not be taken into account. However, in FSCL's writtensubmissions in the High Court, it expressly submitted that the Chief Ombudsman'sreasoning was unreasonable because this Court had made it clear that the IFSO's andBOS's status as "first movers" did not provide any basis for treating FSCL differently.The argument is therefore not new in this Court.[80] Ms Scholtens' second response was that the decision was not unreasonablebecause, but for the Chief Ombudsman's predetermination of the applicationgenerally, the difference relied on by the Chief Ombudsman would have compliedwith this Court's direction to have regard to existing permissions and the need to treatlike applicants reasonably consistently. We respectfully think that this approachmisunderstands the effect of the Court's statements. The reference to existingpermissions having to be taken into account must be read together with the observationthat there should not be a "first mover" advantage, meaning that the fact that someschemes obtained permission at an earlier stage ought not count against a subsequentapplicant where the schemes are substantially similar. Where parties are otherwise43 Court of Appeal judgment, above n 1, at [54].similar, their historically different circumstances should not affect the decision. To dootherwise risks arbitrariness.[81] Ms Scholtens also submitted that FSCL's argument that the absoluterequirement for consistency of treatment would be inconsistent with this Court'searlier finding that the s 28A discretion is not confined to a consideration ofombudsman-like qualities; to do so, she argued, would lead to all approved financialdispute resolution schemes being entitled to use the name under s 28A (as it stoodbefore the 2020 amendment), which would have been contrary to Parliament'sintention to protect the use of the name.[82] We do not understand FSCL to be arguing for an absolute standard ofconsistency. The principle requires consistency unless there is a valid reason fortreating otherwise similar parties differently. FSCL simply says that there is no validreason to do that in this case. For the reasons just canvassed, we agree with FSCL.FSCL's s 14 BORA rights[83] Section 14 of BORA protects all forms of expression.44 This includes theexpression of information for commercial purposes. However, as this Court noted inTaylor v Chief Executive of the Department of Corrections, not all types of speechhave an equal value.45 This difference is relevant in the assessment of whether adecision limiting the right is demonstrably justifiable in a free and democraticsociety.46[84] The Chief Ombudsman accepted that the use of the ombudsman name inconnection with FSCL's scheme engaged s 14. But he regarded the value of theproposed use as "not particularly strong" and, when made against the value ofprotecting the role of the Parliamentary Ombudsman, considered refusal to be ademonstrably justifiable limitation:75. The interest for FSCL is in using the name for marketing purposesand competitive advantage. This is not a form of expression which contributes44 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].45 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477 at [70], citing R vSecretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 127.46 New Zealand Bill of Rights Act 1990, s 5.in any significant way to the marketplace of ideas or social and politicaldecision making. I consider that the interference with FSCL's free expressionis demonstrably justified in a free and democratic society, essentially for thereasons I have already identified.76. The justification for interfering with FSCL's free speech in thesecircumstances is to avoid additional confusion amongst members of the publicas to the different role of the Parliamentary Ombudsmen compared to industryombudsmen. If I were to approve FSCL's application, there would be asignificant increase in the numbers of people exposed to industry ombudsmen.Thus there would be a significant potential increase in confusion as to the roleof the Parliamentary Ombudsman, which in my experience will undermine theeffectiveness and integrity of the Parliamentary Ombudsman.[85] Any limitation on a BORA right must be rationally connected to its objectiveand impair the right or freedom as little as possible.47 The approach to the question ofproportionality in relation to administrative decisions has, in recent times, settled onthe balancing of the right against countervailing considerations in the mannerdiscussed in Taylor and in Moncrief-Spittle v Regional Facilities Auckland Ltd andAuckland City Council.48 Both counsel proceeded on the basis that this was theappropriate approach in this case and we agree.[86] We start with the nature of the right FSCL seeks to protect. Ms Scholtensacknowledged that there is room for debate about whether FSCL's right to determinehow it names and promotes itself ought to be framed as a commercial marketingexercise or otherwise. But she resisted any comparison with Moncrief-Spittle on thebasis that the Council's decision in that case affected rights of members of the publicand was therefore not a strictly commercial decision whereas the decision facing theChief Ombudsman would affect only FSCL. The effect of Ms Scholten's submissionwould be that the balancing exercise would start from the position that, while FSCL'sright to freedom of expression is protected, any limitation on that right is more easilyjustified than would be the case if the expression engaged forms of expressionconnected to political views, as was the case in Moncrief-Spittle.47 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [64] per Blanchard J, [120]–[124] per Tipping J,[203]–[204] per McGrath J and [272] per Anderson J.48 Taylor, above n 45, at [83]–[84]; Moncrief-Spittle v Regional Facilities Auckland Ltd andAuckland City Council [2021] NZCA 142, [2021] 2 NZLR 795 at [117]–[122].[87] Mr Murray, for FSCL, submitted that the decision should be regarded asengaging a level of public interest and that the reasons advanced by theChief Ombudsman do not demonstrate a justifiable limitation on its rights.[88] It is common ground that FSCL is a commercial entity which competes forclients. But it cannot be said that the schemes operated by FSCL and its competitorsoccupy a purely commercial space in the market. These dispute resolution schemescan only operate with ministerial approval.49 Approved schemes underpin the disputeresolution provisions of the FSP Act, which require every financial service provider tobe a member of an approved dispute resolution scheme in respect of a financial serviceprovider to a retail client.50 The stated purpose of the dispute resolution provisions ofthe FSP Act are:51 to promote confidence in financial service providers by improvingconsumers' access to redress from providers through schemes to resolvedisputes. The schemes are intended to be accessible, independent, fair,accountable, efficient, and effective.[89] The Chief Ombudsman's view of FSCL's free speech interest as "notparticularly strong" failed to recognise that, although FSCL is a commercial entity, itoperates its scheme within a statutory framework that exists for the public interest.The interest of a commercial entity in using the ombudsman name may not beparticularly strong when viewed only through a commercial lens, but when thestatutory purpose of the scheme is taken into account the interest is much stronger byvirtue of the associated public interest in the scheme being available to consumers inthe financial services sector.[90] It is implicit that accessibility to these schemes, one of the stated purposes ofthe dispute resolution provisions, means accessibility in a broad sense. In our view,confusion as to the nature and quality of the competing schemes must be regarded asa barrier to accessibility. If comparable schemes appear different, there is a risk of thepublic being deprived of the opportunity to make a fully informed decision as to whichto use.49 Financial Service Providers (Registration and Dispute Resolution) Act 2008, s 50(1).50 Section 48(1).51 Section 47.[91] The countervailing interest identified by the Chief Ombudsman is the risk thatmembers of the public seeking access to an industry dispute resolution scheme willend up confused about the status and role of the Parliamentary Ombudsman whichwould undermine the effectiveness and integrity of that office. We agree that there isa strong public interest in the continued effectiveness of the ParliamentaryOmbudsman's role. That requires a good level of understanding in the communitygenerally and of public confidence in that office. However, for the reasons we havegiven, we do not consider that there is any objectively supportable evidence on whichto conclude that FSCL's use of the ombudsman name would lead to a lessening inpublic understanding of and confidence in the role of the Parliamentary Ombudsman.It follows that there is no rational connection between refusing FSCL's application touse the ombudsman name and the risk that the office of the Parliamentary Ombudsmanwill be undermined. The refusal of permission was therefore an unreasonablelimitation on FSCL's s 14 BORA right.Was there only one lawful decision available?[92] We have reached the point that, in our view, there was no objectively reliablebasis for the Chief Ombudsman's final decision.[93] The facts on which the Chief Ombudsman relied to demonstrate a genuine riskof confusion in the public mind leading to a lessening of confidence in theParliamentary Ombudsman do not support that conclusion. It is true that, asMs Scholtens argued, there is an element of the unknown about the effect grantingpermission to FSCL to use the ombudsman name will have. However, judgmentsabout the future almost invariably rest on an assessment of what is currently known.What is currently known strongly suggests that the risk to the ParliamentaryOmbudsman's role and status is negligible.[94] Nor was there any rationally justifiable basis on which to distinguish FSCLfrom the IFSO and BOS schemes.[95] Refusing FSCL permission to use the ombudsman name was an unreasonablelimitation on its s 14 BORA right, given FSCL's moderately strong s 14 BORA interestand the low countervailing risks.[96] As there were no factors that, objectively, justified refusing FSCL'sapplication, the discretion to refuse permission was only of the most residual kind.We consider that the only lawful decision the Chief Ombudsman could have made wasto grant FSCL the permission it sought.The appropriate relief[97] The Judge declined to make a declaration that FSCL was entitled to theChief Ombudsman's consent under s 28A of the Ombudsmen Act because:52[216] The decision is important. It involves matters of policy which areoutside the expertise of the Court and are not appropriate for it to assess. Theimportance of the role of the Parliamentary Ombudsman, and the fact that thedecision was entrusted to the Chief Ombudsman, support my view that it isnot for this Court to make the decision on the merits. I am aware this has beena long process for FSCL. However, on balance it is important to ensure thesubstantive decision is made as envisaged by the legislation, albeit withappropriate safeguards.[217] In those circumstances I consider the decision should be set aside andbe referred back for reconsideration.[98] In light of the finding of predetermination, the Judge accepted that it was notappropriate for the Chief Ombudsman himself to undertake any reconsideration of thedecision without putting in place arrangements to manage the risk ofpre-determination in any further reconsideration.53 The Judge was neverthelesssatisfied that there were practical options to address this problem. She identified theprovision under s 8(1) for the appointment of an ombudsman for a temporary purposeand the provisions of s 28 for the Chief Ombudsman to delegate any of his powers toanother person.54[99] Relevantly, s 28 of the Ombudsmen Act provides:(1) Any Ombudsman may from time to time, by writing under his hand,delegate to any person holding any office under him any of his powersunder this Act, except this power of delegation and the power to makeany report under this Act.52 Decision on appeal, above n 2.53 At [218].54 At [220]–[221].(4) Any such delegation may be made subject to such restrictions andconditions as the Ombudsman thinks fit, and may be made eithergenerally or in relation to any particular case or class of cases.[100] The Judge ordered that the decision be referred back for reconsideration:[222] I therefore order the Chief Ombudsman's decision of 20 June 2019 beset aside and refer the matter back for reconsideration under s 28A. Suchreconsideration to be undertaken on the report and recommendation of anombudsman appointed for that purpose or under a delegation from the ChiefOmbudsman.[101] In a subsequent decision granting a stay pending determination of this appealthe Judge recorded that the Chief Ombudsman had "already taken steps to commencethe reconsideration by preparing a delegation to a suitable person and approaching twoQCs and a former Supreme Court Judge who each indicated willingness to act".Before us, Mr Ballinger, who carried this aspect of the argument for theChief Ombudsman, referred only to the Chief Ombudsman's office having approachedtwo Queen's Counsel with significant public law experience who were available forappointment and did not have any conflict of interest.[102] However, FSCL says that the mechanism settled on by the Chief Ombudsmanfor reconsideration of the decision is impractical. That fact, coupled with the longdelays to date and (it says) the persistent and serious unlawfulness of theChief Ombudsman in deliberately disregarding this Court's earlier decision, meantthat the appropriate course for the Judge was to substitute her own decision for that ofthe Chief Ombudsman and grant the substantive relief sought. It now seeks that relieffrom this Court.[103] Mr Ballinger defended the appropriateness of the Judge's refusal to grantsubstantive relief, objecting to FSCL's characterisation of the Chief Ombudsman'sconduct and the suggestion that it ought to justify this Court substituting its own view.Mr Ballinger described the conduct as merely a legitimate predisposition that fell intopredetermination, but which could not be characterised as serious unlawfulness.He also submitted that inviting the Court to express a view on the seriousness of theerror of law or process in question risks expanding the scope of judicial review in away that is both unnecessary and undesirable.[104] We agree that it is unnecessary for us to formally characterise the seriousnessof the error in this case beyond the findings of the Judge. The greater concern is themanner in which the decision is to be reconsidered. Given that theChief Ombudsman's decision was set aside for predetermination, it is recognised byall concerned that independence of the decision-making process now is of the utmostimportance. Mr Ballinger submitted that the process for reconsideration directed bythe Judge was appropriate.[105] However, we have a number of concerns with the proposed process. First,under s 28, the delegate must be a person "holding any office under [the ChiefOmbudsman]". Thus, although Mr Ballinger submitted that the proposed processwould avoid the matter being dealt with again by the Chief Ombudsman, the statutorybasis for delegation is contrary to genuine independence. Moreover, we were told thatthe Chief Ombudsman proposed to brief the person engaged to undertake thereconsideration himself. We cannot see how any decision reached by a delegateholding office under the Chief Ombudsman and briefed by the Chief Ombudsmancould be described as a genuinely independent decision. The statutory basis fordelegation and the proposed approach to the briefing of the delegate carries anunacceptable risk of the independence of the process being undermined or, at least,having that appearance. This is, of course, no reflection on those proposed for the task(whose identity is unknown to us).[106] Mr Ballinger also pointed out that the Chief Ombudsman's decision-makingprocess was inquisitorial and that the QC engaged could, likewise, undertake their owninquiries, whereas this Court could not. We accept this point. It does however engageone of the objections raised by Mr Murray, that if the decision is made by a QCengaged for the purpose, FSCL will find itself in a position of having to put its caseagain to that person which, given the long history of this matter, would be unfair.We make the additional observation that, given the exhaustive process to date, it isdifficult to see what further inquiries are left to be made.[107] The remaining factor is the long delay in resolving this matter. FSCL firstmade its application in 2015. Seven years on, and with two decisions having been setaside by this Court, it is now proposed that the decision be revisited not by the statutorydecision-maker but by a delegate in a process that, for the reasons just discussed, risksbeing subject to further judicial review proceedings. It is not in FSCL's interests, norin the interests of justice generally, to allow this matter to continue. In all thecircumstances, we consider that there is no reasonably viable alternative to the Courtsubstituting its own view.Result[108] The appeal is allowed.[109] The decision of the High Court is set aside.[110] We make a declaration that FSCL is entitled to the Chief Ombudsman's consentto use the ombudsman name in connection with its dispute resolution scheme.Solicitors:Michael Leggat, Wellington for AppellantOffice of the Ombudsman, Wellington for Respondent