INTERNATIONAL ACADEMY OF NEW ZEALAND v THE NEW ZEALAND QUALIFICATION AUTHORITY [2016] NZHC 1702

INTERNATIONAL ACADEMY OF NEW ZEALAND v THE NEW ZEALAND QUALIFICATION AUTHORITY [2016] NZHC 1702 [26 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2366[2016] NZHC 1702BETWEEN THE INTERNATIONAL ACADEMY OFNEW ZEALANDPlaintiffAND THE NEW ZEALANDQUALIFICATION AUTHORITYDefendantHearing: 26 July 2016Appearances: B OʼCallaghan and M Chen for plaintiffR Scott and M Cavanaugh for DefendantJudgment: 26 July 2016JUDGMENT OF LANG J[on application for interim relief pending appeal]This judgment was delivered by me on 26 July 2016 at 12.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 12 April 2016 I delivered a judgment in this proceeding in which I upheld an application for review by the International Academy of New Zealand Limited (the Academy) of decisions made by the New Zealand Qualification Authority (the Authority).1 The Academy has now appealed to the Court of Appeal against my direction that the Authority should continue with the process to produce a new 2014 EER report. The Court of Appeal has placed the appeal on the fast track and it will be heard on 8 September 2016.[2] The Academy now applies for interim relief under r 12.3(b) of the Court of Appeal (Civil) Rules 2005 (the Rules). It asks the Court to make an order that the Authority should not continue with the process necessary to produce the 2014 EER report pending determination of the appeal.Relevant principles[3] As filed, I consider that the application is in fact an application under r 12.3(a) of the Rules for stay of execution of the judgment pending appeal.[4] Counsel for the Authority has referred me to Keung v GBR Investments, in which the Court of Appeal identified factors likely to be relevant to the exercise of the discretion to stay execution of a judgment.2 The Court is required to balance thesuccessful litigant's rights to the fruits of the judgment against the need to preserve the position in case the appeal is successful.3 Factors that may be relevant in thiscontext are:(a) Whether the appeal may be rendered nugatory by the lack of a stay.(b) The bona fides of the applicant as to the prosecution of the appeal.(c) Whether the successful party will be injuriously affected by the stay.1 The International Academy of New Zealand Ltd v The New Zealand Qualification Authority[2016] NZHC 640.2 Keung v GBR Investments [2010] NZCA 396, [2012] NZAR 17 at [11].3 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 3 PRNZ 48 (HC) at [9].(d) The effect on third parties.(e) The novelty and importance of questions involved.(f) The public interest in the proceeding; and(g) The overall balance of convenience.[5] In addition the Court may take into account the apparent strength of the appeal.Events since the judgment[6] Following delivery of my judgment the Authority has sought to carry out the directions contained within it. It appointed a new review team and provided Academy with a copy of its new draft report on 8 July 2016.[7] The Academy raises a number of concerns regarding the process the Authority has used to produce its current draft report. It is also concerned that the Authority gave it just ten days to comment on that document. The Academy says this was manifestly inadequate to enable it to give proper consideration to the draft report given the fact that it relates to 2014, but relies on material gathered in 2016. For that reason the Academy originally proposed not to make any comment in relation to the draft report. Rather, it intended to ask for the report to be reconsidered once the Authority had issued the draft report in its present form as a final report. When it filed the present application the Academy anticipated that this would occur on or about 22 July 2016.[8] The Academy would then have ten days within which to apply for reconsideration of the report. It anticipated that the Authority might reject this request. It also anticipated that the Authority would then move immediately topublish the final report without further amendment. The Academy says it would besignificantly prejudiced by this because the report would be in the public arena incircumstances where its appeal had not been heard and it has had an adequateopportunity to respond to draft versions of the report.[9] Matters have moved on since the Academy filed the present application because the parties are now in discussions regarding the period the Academy should have to provide submissions in respect of the draft report. Those discussions are ongoing, and are likely to mean that there is little prospect the report will reach the reconsideration stage before the appeal is heard. The Academy nevertheless maintains its application for stay of the judgment because the costs it will incur if the report process is required to continue will be wasted if its appeal is successful.Decision[10] I accept that the Academy is prosecuting its appeal on a bona fides basis. This is demonstrated by the fact that it has agreed to have the appeal placed on the fast track and a fixture has been allocated. I therefore do not consider the Academy is using the appeal process to further delay production of the 2014 report. I also acknowledge that any continuation of the production of the report will result in the Academy incurring further costs that will be wasted if its appeal is successful.[11] Although, strictly speaking, the Authority would not be injuriously affected by an order halting the process, I consider it to be in the public interest that the process of producing the 2014 report should continue without further delay. It is unlikely that a decision would be released by the Court of Appeal before the end of September. A stay of execution would therefore require the report process to be halted for two to three months in circumstances where there has already been considerable delay in producing the report. I do not consider it unreasonable to require the Academy to provide its response to the draft report even though the cost of doing so may ultimately be wasted if the appeal is successful. Furthermore, although I acknowledge the arguments to be made in support of the appeal, I do not consider them to be sufficiently compelling to outweigh the public interest in continuing with the process of completing the 2014 report in an expeditious yet fair manner.[12] I have therefore concluded that the production of the report should be permitted to continue notwithstanding the imminence of the appeal. As a backstop position, however, that process is not to continue further if the Authority refuses topermit the new draft report to be subject to the reconsideration process. The process should stop at that point, and await the outcome of the appeal. To avoid confusion, this direction should not be taken as preventing the Academy from taking such steps as it might consider necessary to challenge any decision by the Authority not to permit the final report from being subject to the reconsideration process.[13] The conclusion I have reached will enable the process of producing the 2014 report to continue further whilst at the same time preserving the Academy's positionin relation to the appeal and publication of the final report.Orders[14] The application for stay is granted to the extent set out at [12] above.Costs[15] Both parties have succeeded to some extent and they are endeavouring to work co-operatively regarding the new draft report. For that reason my tentative view is that costs in relation to the present application should lie where they fall. If either party disagrees, brief memoranda can be filed addressing the issue of costs and I will determine it on the papers.Leave reserved[16] Leave continues to be reserved to both parties in terms of [54] of my substantive judgment. This would permit them to seek further directions in the event that they cannot reach agreement regarding the time that should be given to the Academy to respond to the new draft report.Lang JSolicitors:Kirkland Morrison O'Callahan & Ho, AucklandMcElroys, Auckland