SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2308

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2021] NZHC 2308 [3 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-754[2021] NZHC 2308UNDER the Judicial Review Procedure Act 2016UNDER the Senior Courts Act 2016IN THE MATTER an application for judicial review under Part1 of the Judicial Review Procedure Act 2016BETWEEN MANPREET SINGHApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: On the papersAppearances: R J Hooker for ApplicantS Connolly and S Perera for RespondentJudgment: 3 September 2021JUDGMENT OF LANG JThis judgment was delivered by me on 3 September 2021 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 8 July 2021 I issued a judgment in which I declined to make ordersrequiring the respondent to provide discovery of four categories of documents held inits possession.1 Mr Singh applies for leave to appeal to the Court of Appeal againstmy decision.Relevant principles[2] I do not accept the applicant's submission that there is no authority regardingthe approach to be taken in the present context following the enactment of the SeniorCourts Act 2016. In Ngai Te Hapu Inc v Bay of Plenty Regional Council the Court ofAppeal confirmed that considerations similar to the principles applicable toapplications under the former 24G of the Judicature Act 1908 remain relevant.2 TheCourt observed:3We agree that leave to appeal should only be granted where the significanceor implications of an arguable error of fact or law, either for the particular caseor for the applicant or as a matter of precedent, warrants the further delaywhich the appeal process would involve.[3] The principles governing interlocutory appeals were also very recentlyreviewed by the Court of Appeal in Tomar v Tomar.4 In that case the Court approvedthe approach taken by Fitzgerald in Finewood Upholstery Ltd v Vaughan.5 Thisrecognises that the requirement for leave to appeal serves as a filtering mechanism toensure that unmeritorious appeals of interlocutory orders do not necessarily delay theproceedings in which the orders were made. The Court of Appeal acknowledged thatthe following considerations have been recognised as relevant on an application forleave to appeal:6(a) A high threshold exists.(b) The applicant must identify an arguable error of law or fact.1 Singh v Chief Executive of the Ministry of Business, Innovation & Employment [2021] NZHC1695.2 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].3 At [17].4 Timar v Tomar [2021] NZCA 419.5 At [6], citing Finewood Holstery Ltd v Vaughan [2017] NZHC 1679 at [13].6 At [6].(c) The alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value.(d) The circumstances must warrant incurring further delay.(e) The ultimate question is whether the interests of justice are served bygranting leave.Decision[4] I do not intend to undertake a lengthy analysis of all the reasons advanced bythe applicant in support of the application for leave. In essence they contend I erredin failing to require discovery to be provided because the documents may assist MrSingh to establish his case. Mr Singh also seeks to challenge the test for discoverythat I applied.[5] Regardless of how the test is expressed the primary basis for any order as todiscovery must be the extent to which the documents for which discovery is soughtare relevant to the issues raised by the proceeding. I found that none of the documentsMr Singh sought were relevant to the issues raised by the present proceeding. By wayof example, Mr Singh sought discovery of internal training records held by therespondent. As I observed in the judgment,7 such documents have no legal effect andthere was no evidence in any event that the officer who made the decision had everreferred to them. Furthermore, it will be for the Court to determine the factors thatwere relevant to Mr Singh's application and whether they were taken into account.Training materials will not assist determination of that issue regardless of whether theofficer who made the decision relied upon them. I also determined that, for similarreasons, none of the other documents that Mr Singh sought were relevant. I do not seehow it can seriously be argued that I applied the wrong test, or reached the wrongdecision, when the ultimate reason for the application being declined was lack ofrelevance.7 At [11].[6] Mr Singh also seeks leave to appeal against the order of costs made againsthim. I made that order because he was the unsuccessful party. Mr Singh now seeksto rely on the fact that, following delivery of my decision, the respondent providedhim with further material from its files. Counsel for the respondent points out that thismaterial was provided to Mr Singh on the basis that his application for discovery ofthese documents was treated as a request for personal information under the PrivacyAct 2020. I do not need to determine whether or not this is correct. The fact remainsthat Mr Singh did not succeed in obtaining orders for discovery of any of thedocuments that he sought. This means he was the unsuccessful party in the proceedingand should therefore pay costs.[7] I do not consider Mr Singh has raised any issue for leave to appeal that shoulddelay the substantive disposition of this matter. I therefore decline to grant leave toappeal to the Court of Appeal.Lang J