FINANCIAL SERVICES COMPLAINTS LIMITED v THE CHIEF OMBUDSMAN [2020] NZCA 199

FINANCIAL SERVICES COMPLAINTS LIMITED v THE CHIEF OMBUDSMAN [2020] NZCA 199 [29 May2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA95/2020[2020] NZCA 199BETWEEN FINANCIAL SERVICES COMPLAINTSLIMITEDApplicantAND THE CHIEF OMBUDSMANRespondentCourt: Kós P and Courtney JCounsel: K I Murray for ApplicantM T Scholtens QC and D W Ballinger for RespondentJudgment:(On the papers)29 May 2020 at 11 amJUDGMENT OF THE COURTThe application for transfer of the proceeding to the Court of Appeal, under s 59 ofthe Senior Courts Act 2016, is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] FSCL provides independent dispute resolution services for financial servicesproviders and their customers. It was the first approved scheme under the FinancialService Providers (Registration and Dispute Resolution) Act 2008. Twolater-approved schemes had previously obtained consent from the then-ChiefOmbudsman, Sir John Robertson, to use the word "ombudsman" in their names unders 28A(1) of the Ombudsmen Act 1975.[2] In May 2015 FSCL applied to the then-Chief Ombudsman, Dame BeverleyWakem, for written consent pursuant to s 28A(1) to describe itself as a "FinancialOmbudsman Service". The application was declined. In November 2015 theapplicant sought judicial review. Dame Beverley applied to strike that out. Toogood Jdeclined her application in April 2016.1[3] In May 2016 Mr Peter Boshier, by now the Chief Ombudsman, agreed toreconsider the May 2015 application and make a fresh decision. In July 2016 FSCL'sapplication was again declined.[4] FSCL again applied for judicial review. Its application was dismissed bySimon France J in March 2017.2 FSCL appealed successfully to this Court.3Mr Boshier was directed to reconsider the applicant's application under s 28A(1).In June 2019 Mr Boshier again declined FSCL's application.4[5] FSCL now seeks:(a) judicial review of this, the third declinature decision and, if successful,an order that the Court substitute its decision for that of Mr Boshier;and(b) an order for removal and transfer of its judicial review proceedingagainst Mr Boshier from the High Court to this Court under s 59 of theSenior Courts Act 2016.This judgment deals with (b).[6] Section 59 provides:1 Financial Services Complaints Ltd v Wakem [2016] NZHC 634, [2016] NZAR 717.2 Financial Services Complaints Ltd v Chief Ombudsman [2017] NZHC 525, [2017] NZAR 521.3 Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27, [2018] 2 NZLR 884.4 It may be noted that in April 2019 the Ombudsmen (Protection of Name) Amendment Bill wasintroduced. It was passed and came into force in March 2020. It further restricts use of the"ombudsman" name in New Zealand, and transfers decision-making to the Minister of Justice.However, a saving applied to FSCL, allowing it to use the name "ombudsman" if its extant s 28Aapplication was granted by Mr Boshier. Which it was not.59 Transfer of civil proceeding from High Court to Court of Appeal(1) A party to a civil proceeding in the High Court may apply for an ordertransferring the proceeding to the Court of Appeal.(2) In determining whether to make an order transferring the proceeding,the Court of Appeal must be satisfied that the circumstances of theproceeding are exceptional.(3) Without limiting subsection (2), the circumstances may beexceptional if—(a) the party to the proceeding intends to submit that a relevantdecision of the Court of Appeal should be overruled:(b) the proceeding raises an issue of considerable publicimportance that—(i) needs to be determined urgently; and(ii) is unlikely to be determined urgently if the proceedingis heard and determined by both the High Court andthe Court of Appeal:(c) the proceeding does not raise a question of fact or a significantquestion of fact, but raises a question of law that is the subjectof conflicting decisions of the Court of Appeal.(4) In deciding whether to make an order transferring the proceeding,the Court of Appeal must have regard to the following matters:(a) the primary purpose of the Court of Appeal as an appellatecourt:(b) the desirability of obtaining a determination of the proceedingin the High Court and a review of that determination onappeal:(c) whether a full court of the High Court could effectivelydetermine the question in issue:(d) whether the proceeding raises a question of fact or asignificant question of fact:(e) whether the parties have agreed to the transfer of theproceeding:(f) any other matter to which regard should be had in the publicinterest.(5) It is not a sufficient ground that the parties agree to the transfer.(6) The Court of Appeal has the jurisdiction of the High Court to hear anddetermine a proceeding transferred under this section.(7) The Court of Appeal may transfer back to the High Court a proceedingthat has been transferred to the Court of Appeal.Submissions[7] For FSCL, Mr Murray submits that the circumstances of the proceedings areexceptional for three reasons. First, it concerns the question of whether the respondentduly considered the applicant's application under s 28A(1) of the OmbudsmenAct 1975 as ordered in accordance with this Court's judgment in Financial ServicesCorporation Ltd v Chief Ombudsman.5 Secondly, it also concerns the question ofwhether the respondent as the holder of an important constitutional office acted in badfaith when he again declined consent for the applicant to use the ombudsman name.Thirdly, it raises an important issue in administrative law, namely if a person vestedwith the exercise of a statutory discretion refuses to exercise the discretion inaccordance with law, can the Court exercise the statutory discretion itself, or in thealternative declare that an applicant for a statutory consent is entitled to the consent?[8] For Mr Boshier, Ms Scholtens QC and Mr Ballinger oppose the application totransfer the proceeding on several grounds. First, that the circumstances of theproceeding are not exceptional (and in particular, that none of the criteria in s 59(3) ofthe Senior Courts Act are satisfied). Secondly, that the Court of Appeal will benefitfrom factual findings made at first instance by the High Court. The issues raised onthe pleadings are fact-specific and will require close analysis. Thirdly, the statementof claim makes an allegation that the respondent has acted with a lack of good faith.Any adverse finding could have potential reputational consequences. The interests ofjustice require that there be one unqualified right of appeal, rather than an appealavenue constrained by the Supreme Court's leave criteria. Fourthly, the issue ofwhether a court can exercise a statutory discretion or direct the decision maker how tomake its decision is not novel. And it is not sufficiently important that the proceedingshould be heard at first instance by this Court. The legal position has been settled formany years; a court can in clear and exceptional circumstances substitute its own viewof what decision should be made.5 Financial Services Complaints Ltd v Chief Ombudsman, above n 3.Discussion[9] This Court dealt recently with another removal and transfer application inBorrowdale v Director-General of Health.6 As the Court there observed:7Even if the circumstances attending a proceeding are exceptional, it does notof course follow that it should be removed from the High Court and transferredto the Court of Appeal. This Court must still be persuaded that that is, in allthe circumstances, the better course to follow.In light of that observation we make six points.[10] First, this is a proceeding of some importance. It raises issues of compliancewith this Court's prior orders and involves allegations of bad faith against a very seniorParliamentary officer. That makes it highly unusual. But it does not mean it is"exceptional" in the sense that word is used in s 59. That requires a more exactinginquiry to justify leapfrogging the High Court.[11] Secondly, there being no challenge to any prior decision of this Court,s 59(3)(a) and (c) do not apply. In that case, and bearing in mind the injunction ins 59(4)(a) that the primary purpose of this Court is appellate rather than first instancetrial work, the basis for removal might be expected to fall within s 59(3)(b): urgency.But that does not apply either. While FSCL's judicial review plainly deservestimetabling for urgent trial, it certainly cannot be said that the case is "unlikely to bedetermined urgently if the proceeding is heard and determined by both the High Courtand the Court of Appeal".8 That suggests temporal and economic constraints, andneither apply here, at least on the evidence before us.[12] Thirdly, it does not follow at all that the fact it is alleged this Court's orders ofFebruary 2018 have not been complied with means this is the court to deal with theissue. Mr Murray does not exactly suggest that, in fairness. But he suggests somethinglike it. However, in Quake Outcasts v Minister for Canterbury Earthquake Recoverythe Supreme Court was faced with a leapfrog application on the basis that there had6 Borrowdale v Director-General of Health [2020] NZCA 156.7 At [9].8 Senior Courts Act 2016, s 59(3)(b)(ii).been non-compliance with a prior judgment of that Court.9 The Supreme Courtobserved:10We accept that this Court's earlier judgment is an important part of thebackground to the Minister's new decisions and is therefore relevant to anassessment of those decisions in judicial review proceedings. But it oftenhappens that the resolution of a later case will depend upon the properinterpretation of an earlier decision of a court higher in the hierarchy, and thatis not generally a reason for allowing a leapfrog appeal.[13] Fourthly, we agree with Ms Scholtens QC and Mr Ballinger that the firstappellate court will benefit from factual findings made by the High Court. Seriousallegations are made against a statutory decision-maker and senior Parliamentaryofficer. The hearing may take some days. A slew of documents has been discoveredand there is a lengthy paper trail to be analysed. Mr Murray tells us "six volumes ofrecord material, including extensive Ministry of Justice documents" have been filed.There are likely to be interlocutory issues for resolution, which pre-eminently is thework of trial courts. And FSCL has indicated it may want to cross-examine MrBoshier. The finding of facts at trial is an exacting and time-consuming task. Itrequires a single-minded sense of purpose, and a clarity of eye in detectinginconsistencies across the whole evidential record. It is more a solitary task than workfor a committee. Like most solitary tasks, it is best tackled alone.[14] Fifthly, while we therefore agree with the submission that those tasks are bestaddressed at first instance by the High Court, with appellate review if needed, it mustalso be borne in mind that appellate review may not be needed at all. In that case theallocation of two additional judges to the trial will have served little useful purpose,and simply delayed the despatch of other appellate business.[15] Finally, if appellate review is needed, then two further points need to be made.The first is that the scope of the appeal may be much narrower than the trial.The second is the limitation on rights of appeal caused by leapfrog. In Borrowdalethis Court observed:119 Quake Outcasts v Minister for Canterbury Earthquake Recovery [2016] NZSC 166.10 At [3].11 Borrowdale above n 6, at [14].The question this application begs is whether this Court should now limit theavailable judicial steps to two (Court of Appeal, and perhaps Supreme Court)rather than three (High Court, Court of Appeal and perhaps Supreme Court).And behind that lies another question, which is whether we should therebydeny parties' ordinary constitutional entitlement to a first appeal as of right(any appeal to the Supreme Court being by leave only). While leave might beanticipated, that is still a step this Court should be reluctant to take, especiallywhere the issues are ones of such fundamental importance as these.Preserving appellate rights is a consideration that applies equally in this case. It maybe less urgent than Borrowdale was at the time (before Parliament expressly legislatedfor Covid-19 level 2 controls), but it nonetheless concerns significant allegationsof bad faith against the present Chief Ombudsman. Each party's as-of-right rightsof appeal should be preserved unless there are exceptional reasons otherwise. Herethere are not.Result[16] The application for transfer of the proceeding to the Court of Appeal, under s 59of the Senior Courts Act 2016, is declined.Solicitors:Michael Leggatt, Wellington for ApplicantOffice of the Ombudsman, Wellington for Respondent