LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LTD v THE NEW ZEALAND QUALIFICATIONS AUTHORITY [2016] NZHC 1467

LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LTD v THE NEW ZEALANDQUALIFICATIONS AUTHORITY [2016] NZHC 1467 [30 June 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-158[2016] NZHC 1467BETWEEN LINGUIS INTERNATIONALINSTITUTE OF LANGUAGE ANDCULTURE LIMITEDPlaintiffAND THE NEW ZEALANDQUALIFICATIONS AUTHORITYDefendantHearing: 30 June 2016Appearances: B OʼCallahan and M Chen for plaintiffR Scott and M Cavanaugh for defendantJudgment: 30 June 2016[SUPPLEMENTARY] JUDGMENT OF LANG JThis judgment was delivered by me on 30 June 2016 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 14 April 2016, I delivered a judgment in which I upheld one ground of anapplication for judicial review against the plaintiff, Linguis International Institute ofLanguage and Culture Limited (Linguis), against the defendant, The New ZealandQualifications Authority (the Authority).1 The judgment reserved leave to the partiesto seek further directions on 48 hours notice should that be necessary to implement thedirections given in the judgment in relation to the successful ground of review.2[2] The Authority has now sought further directions in relation to two issues it saysit has encountered, or will encounter, in implementing the directions of the Court. Iam satisfied that the first issue falls within the scope of leave reserved but that at thisstage the second issue does not.The issuesThe scope of submissions Linguis is entitled to make in relation to the new draft report[3] This issue arises as a result of the directions given in the following paragraphsof the judgment:[77] My conclusion in relation to the first ground of review means that itwill not be possible for the review to return to the reconsideration stage. Itneeds to return to an earlier point in the EER process so that the review teamcan explain why it considers the issue of re-sits and late assessments to remainrelevant. Linguis should then have an opportunity to make submissions inrelation to that issue. If the review team concludes that the sole remainingreference to the issue should be removed from the report, it will need to go onto consider whether any of its ultimate conclusions need to be reconsidered.[78] I therefore direct the review team to provide a further draft reportexpressly stating why it considers the issue of re-sits and late assessments tobe a matter of concern having regard to the statements the Authority has madein the Policy and Guidelines document. Linguis will have 14 days to providesubmissions in response. The review team is then to produce a final reportwithin 14 days of receiving submissions from Linguis. Thereafter theprocedure set out in the EER Rules is to govern the completion of the EERprocess.[79] In the event that Linguis seeks reconsideration of the report under r 9,the person appointed to carry out that process must take into account thematerial that Mr Andrews erroneously excluded from the scope of his1 Linguis International Institute of Language and Culture Ltd v The New Zealand Qualifications Authority[2016] NZHC 691.2 At [80].reconsideration of the first final report together with such other material as heor she considers to be appropriate.(Emphasis added)[4] These directions have now been partially implemented. The Authority hascompleted a further draft report and provided a copy of it to Linguis for response.Linguis has responded by sending the Authority a 42 page letter in which it raises avery large number of issues. These include numerous alleged errors of process andsubstance on the part of the Authority in its dealings with Linguis. Several of theseappear to relate directly to issues I have found not to be the subject of any reviewableerror.[5] I consider the directions given in the judgment are unambiguous. The onlyadditional issues the Authority was required to deal with in its further draft report werethose of re-sits and late assessments. Furthermore, Linguis was only permitted tomake submissions in relation to the draft report in respect of those issues. Linguiswould obviously be entitled to make submissions relating to the effect that any changeof stance by the Authority in relation to those issues has had, or should have had, inrelation to the Authority's ultimate conclusions. Linguis is also entitled to makesubmissions regarding the reasoning process the Authority has used in reaching itsconclusions in respect of the issues of re-sits and late assessments. Linguis is notentitled, however, to make submissions on matters that are entirely unrelated to thosetwo issues.[6] The Authority has identified the matters raised by Linguis that it considersrelate directly to the issue of re-sits and late assessments. These are set out atparagraph 6 of the memorandum of counsel for the Authority dated 27 June 2016. Idid not take Mr O'Callaghan to dispute Ms Scott's submission on this point. Itherefore confirm that the Authority is only required to take those matters into accountwhen considering the form of the final report. It is not required to take into accountthe remaining issues raised by Linguis in its response to the draft report.The reconsideration process[7] The Authority has raised a further issue relating to the reconsideration process.This issue is raised prematurely, because the reconsideration process has not yetcommenced. For that reason it has not arisen in implementing the Court's directions,and is therefore outside the scope of reserved leave. Given the history of this matter,however, I accept that it is extremely likely that Linguis will ask that the final reportbe the subject of the reconsideration process in the future.[8] The Authority seeks clarification as to the interpretation to be applied to Rule9.2 of the External Evaluation Review Rules 2013. This provides:9.2 Where any request for reconsideration involves educationalperformance data, the reconsideration will only involve the data thatwere available to NZQC at the date the EER report was finalised.[9] The Authority asks the Court for guidance as to whether the term "EERReport" in clause 9.2 refers to the new final report or the original final report that theCourt has set aside. Although the Court does not have any jurisdiction to deal withthis issue I am nevertheless prepared to provide a tentative view in an effort to assistthe parties in the future.[10] I consider the meaning of the rule to be obvious. The original final report wasset aside by the Court. It is no longer in existence. The new final report is not inexistence either, because it is yet to be issued. The effect of r 9.2 is therefore to requireany future reconsideration of the final report to be restricted to the data available tothe Authority as at the date the report is ultimately finalised.Lang JSolicitors:Kirkland Morrison O'Callahan & Ho, AucklandMcElroys, Auckland