MARY MOODIE FAMILY TRUST BOARD (INC) v ATTORNEY-GENERAL IN RESPECT OF THE MINISTRY OF HEALTH [2015] NZHC 365

MARY MOODIE FAMILY TRUST BOARD (INC) v ATTORNEY-GENERAL IN RESPECT OF THE MINISTRY OF HEALTH [2015] NZHC 365 [5 March 2015]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-1630[2015] NZHC 365UNDER The Judicature Amendment Act 1972and/or High Court Rules, pt 30, and/orNew Zealand Bill of Rights Act 1990,s 27(1)IN THE MATTER OF An application for judicial review of adecision to terminate communityresidential support - Intellectual DisabilityAgreement No. 340645/00BETWEEN MARY MOODIE FAMILY TRUSTBOARD (INCORPORATED)ApplicantAND ATTORNEY-GENERAL IN RESPECTOF THE MINISTRY OF HEALTHRespondentHearing: 10-13 November 2014Appearances: D Wood for ApplicantE Child and M Clark for RespondentJudgment: 5 March 2015JUDGMENT OF MANDER JTable of ContentsBackground ............................................................................................................ [4]Events leading to termination of contract .............................................................. [9]Difficulties begin to emerge [13]The Developmental Evaluation Audit [16]The certification audit and meetings [25]The families approach LifeLinks [36]Appointment of temporary managers [39]Termination [59]Is judicial review available? ................................................................................. [64]Decision – Justiciability ....................................................................................... [71]Bad faith ............................................................................................................. [100]The five grounds for judicial review .................................................................. [121]Mistakes of fact .................................................................................................. [122]Relevant and irrelevant considerations .............................................................. [139]Failing to take into account relevant considerations [140]Irrelevant considerations [149]Breach of legitimate expectation ........................................................................ [154]Breach of natural justice..................................................................................... [170]Opportunity to be heard [171]Bias and predetermination [180]Unreasonableness ............................................................................................... [198]Conclusion.......................................................................................................... [205][1] The Mary Moodie Family Trust Board (Incorporated) (the Trust) operated a residential facility for people with intellectual disabilities. For a number of years a remarkable woman, Mary Moodie, cared for intellectually handicapped children in the Sumner and Redcliffs areas of Christchurch. In February 1991 the Trust was settled to formally preserve and support Ms Moodie's work.[2] In 1993, the Trust entered into a contract with the Ministry of Health (the Ministry). The Ministry provided funding in return for the Trust providing residential care services to its disabled residents. From 1993 a succession of these provider agreements were entered into between the Ministry and the Trust. The terms of the agreements made provision for a system of reviews and audits to maintain standards and ensure appropriate procedures were in place and were being followed.[3] In late 2012, the Ministry terminated the then current provider agreement. The Trust seeks judicial review of that decision, relying on various orthodox grounds. The relief it seeks is a declaration that the decision by the Ministry toterminate the provider agreement was invalid. The Ministry's position is that theproceeding, brought as a public law claim, is misconceived. It submitted that the relationship between the Ministry and the Trust was governed by contract and that the contested factual narrative of events, over an extended period, is not amenable to determination on an application for judicial review.Background[4] In March 2012, the Trust and the Ministry entered into a further provider agreement, by which the Ministry agreed to fund the Trust in providing residential and other care services to intellectually disabled individuals until 31 May 2015. This included accommodation and 24 hour support and assistance. The Trust managed two homes on a single site, which housed and cared for 12 residents.[5] The latest contract was for a three year period to commence on 1 June of that year. The amount of funding paid to a private sector organisation such as the Trustwas largely dependent on the number of residents it cared for. It is understood the Trust received Crown funding of approximately $700,000 per year to provide the agreed services.[6] The provider agreement contained detailed provisions regarding the services to be provided, quality assurance requirements (including information and reporting standards) and other terms and conditions commonly contained in service agreements of this type. These included the provision of dispute resolution processes in case of breach or termination of the contract before the end date. Inaccordance with the Ministry's responsibility for the funding of support services fordisabled people, a significant part of the agreement also provided for the monitoring, evaluation and audit of the contracted services undertaken.[7] The agreement required compliance with the Code of Health and Disability Services Consumers' Rights, the provision of complaints procedures and the effective prevention of abuse and neglect. The services to be provided needed to comply with the identified needs of individual residents, their carers and their families. The Ministry was permitted to take action to remedy failures by the provider. These included the appointment of temporary managers to take over management of the provision of services in certain circumstances.[8] The provider agreement made provision for the termination of the contract by either party upon 26 weeks' notice. The Ministry, however, had other powers to terminate summarily in relation to specific grounds, one of which was a failure to remedy breaches within 20 working days from notice of default. Another was failure to carry out obligations under the agreement which were considered material. In the event of disputes between the parties, the issue was to be referred to mediation.Events leading to termination of contract[9] The narrative of events which culminated in the Ministry issuing a notice of termination on 28 November 2012 is strongly contested between the parties. This is reflected in the affidavits filed on behalf of the Trust, and the lengthy affidavits and exhibits filed on behalf of the Ministry. In providing the following summary of the sequence of events, in the period culminating in the termination of the provideragreement, I do not attempt to resolve those detailed disputed factual issues. The conflict in the evidence is not capable of determination in the absence of oral evidence and cross-examination. Neither party applied to cross-examine deponents.[10] In September 2010, the Ministry undertook a certification audit of the Trust. A number of recommendations resulted from the audit, with 19 matters identified as having only been partially attained. The Trust was certified for a further two year period to 30 September 2012. The Ministry points to certification for less than three years as indicating some concern that warranted a closer level of future scrutiny and as an early indicator of the beginnings of problems. The Trust, on the other hand, points to the certification for a further two year period as endorsement of the service it was providing at that time, and that there were no outstanding complaints or identified issues relating to the safety of the residents.[11] In August 2010, the Trust permanently appointed Ms Yvonne Boulton to manage its operation. Difficulties had arisen earlier in the year regarding the non- reporting of an assault by a member of the staff, and the inappropriate use of Trust money by the previous manager. Ms Boulton, in her earlier capacity as a temporary manager, had undertaken an investigation of the incidents and reviewed policies and documentation, including a review of the Trust's complaints policy. The Ministrywas satisfied with the process undertaken by the Trust during this period, and that measures had been taken to resolve issues pertaining to the wellbeing and treatment of residents.[12] In September 2010 and February 2011, the significant earthquakes in Christchurch led to considerable disruption of the Trust's activities and the lives of the residents. In the wake of the earthquakes, the Trust lost the services of a number of staff who needed to be replaced and trained to the appropriate standard.Difficulties begin to emerge[13] On 6 April 2011, a group of parents and welfare guardians presented a letter to the Trust complaining about what they considered to be the inadequate standard of care provided to the residents. These included concerns about what was described as the poor training of staff, their inability to recognise health problems of the residents,poor reporting of incidents and lack of communication. The Trust met with the parents and caregivers and discussed the complaints with them. The Trust responded formally in a letter of 14 April 2011 to all parents and caregivers. In the letter, the Trust referred to a number of policies which it was required to implement in order to comply with health and disability standards required by the Ministry.[14] It is apparent that around this time, in addition to the specific concerns families had about the training of staff and the care of residents, there was a view that the Trust was becoming more institutionalised. The concern was that the residence was no longer being run as a family home, as it once was, in accordancewith the late Mary Moodie's intent and vision. This was to become of concern to theMinistry as it ran counter to the "disability philosophy" which the Ministry expectedproviders to reflect in the delivery of their services.[15] This philosophy is expressed in a high level policy document, the New Zealand Disability Strategy, which seeks to encourage and facilitate disabled people leading active lives and participating fully in the community. This philosophy was given effect to in the provider agreement, with objectives recorded in the contract to promote the care, support and independence of persons in need of the services. In particular, the provider agreement set service objectives as including support in a home-like environment, enhancement of the "service users" autonomy, control andself-reliance, and integration into community life. These and other principles,reflecting the "disability philosophy", were recorded as rights held by disabled persons, and their families and carers, and were contained in the service and quality specifications of the provider agreement.The Developmental Evaluation Audit[16] A further audit of the Trust, called a Developmental Evaluation Audit, was conducted in early 2012. The audit was carried out by an external contractor experienced in the field of intellectual disability. The Ministry submitted that the purpose of this type of audit was to evaluate whether the service was, in practice, supporting each individual and meeting their expectations. It focused on the quality of the services provided and aimed to help the service provider improve. Theauditors interviewed five family members, a number of former and current staff members, and staff from organisations connected with the Trust. A draft report was provided to the Trust for comments which were included in the final report.[17] The Trust submitted that the evaluation review did not identify any issues relating to the health and safety of residents. It took issue with a number of matters identified in the draft report, and, on 20 March 2012, through its solicitors, gave notice requiring a review of the Developmental Evaluation Report.[18] The Ministry took the view that the report highlighted serious concerns about the Trust. The audit found that confidence in the board and management was diminishing, and staff practice was not aligning with formal policies. Families expressed concern that the service was becoming less committed to a "disability philosophy" and increasingly operating like an aged care facility. Staff turnover was considered to be high, and many of those spoken to voiced concerns about the management of the Trust. There was dissatisfaction over communication, responsiveness, and the provision of information. Reference was also made to incidents of verbal and physical abuse. Families also indicated a fear of speaking out.[19] The audit report authors also consulted other services providers who were said to have experienced a lack of communication with the Trust. Day service providers reported difficulties with the Trust and that it was reluctant to share information relating to such things as medication for residents.[20] As already noted, the Trust took issue with the matters identified in the draft report and, through its solicitors, chose to give notice requiring a review of the Developmental Evaluation Report. The Trust, through its solicitors, also asked that the report be withheld from release, as a copy of the report had been requested by a member of the public under the Official Information Act 1982.[21] The Developmental Evaluation Report listed a series of "requirements",denoting matters that were required to be done, and "recommendations", which took the form of suggestions for improvement. The auditors identified a total of 11requirements, seven of which were classified as high risk areas requiring urgent attention. These related to the following matters: Staff relationships with those in management were not conducive to a well performing organisation. Documentation was not completed to the standards required. While there was a complaints system, family meetings, and processes in place, families had concerns about the service that were not being addressed to their satisfaction. The behavioural management file had some issues regarding "aversive"language, "telling people off". There were two recent complaints about health-related concerns which were being followed up, and a further concern had since been raised. There was no active monitoring to ensure that care was being provided to the necessary requirements. A board trustee was also an employee and there did not appear to be any policy to manage potential conflict. There was limited intellectual disability knowledge on the board, and the manager had limited experience/training in this area.[22] The Trust disputed these findings. It continues to strongly contest those matters, and sought to do so in this proceeding in some detail. The Trust is critical ofthe timeliness of the Ministry's acknowledgment of its request for review which was not formally recognised until a letter was sent on 10 July 2012, almost three months following its first request. The Ministry maintains, however, that the opportunity to appropriately respond was overtaken by an allegation of sexual assault at the Trust'spremises, which required deferral of the review until that investigation had beencompleted. That review was commenced in July 2012 by the Ministry formally requesting that the Trust identify its previously unspecified concerns about the report.[23] It is not necessary to review the correspondence. It is apparent, however, that a degree of antagonism had developed between the Trust and the Ministry. During this time there was also a growing antipathy between the Trust board and the majority of the residents' families and caregivers. A review was finally undertaken after a response had been received from the Trust identifying its concerns with the Developmental Evaluation Report. On 15 November 2012, the Ministry advised theTrust's legal advisors that the original findings had been upheld by an auditor within the Ministry.[24] During this period, the Ministry carried out further reviews of the Trust. The first arose out of an alleged sexual assault of a resident. The Ministry commissionedan "issues-based" audit focused on the Trust's response to the incident, its systemsand processes. This audit found that the Trust had responded appropriately to the alleged incident, although concern was expressed regarding the lack of guidelines for staff regarding events of inappropriate expressions of intimacy and sexuality, and issued requirements and recommendations for improvement.The certification audit and meetings[25] In July 2012, a routine certification audit was required to be undertaken. This review assessed compliance with mandatory minimum safety standards set under the Health and Disability Services (Safety) Act 2001, and again was undertaken by independent contractors. The audit identified 11 matters where full attainment had not been achieved. This included an expression of concern over the Trust's failure tomanage complaints made by family members and to communicate with them effectively to resolve concerns. The report also identified systemic issues, including the absence of analysis of incidents or documented improvements.[26] As part of the certification process, a meeting was held with Ministry representatives on 3 August 2012 and members of the board. Various allegations have been made by the Trust regarding representations made by members of theMinistry at this meeting. It resulted in the Trust seeking legal advice and instructing its solicitors to put the Ministry on notice regarding its concern about the meeting. The Trust, through its solicitors, also formally contested issues relating to the performance of its contractual obligations under the provider agreement. The Trustconsidered it had been "ambushed" at the meeting with no advance notice of thematters to be raised.[27] It is apparent that the meeting was no less satisfactory from the Ministry's point of view than from that of the Trust. From the Ministry's perspective, attempts to discuss the lessening "disability focus", the standard of interaction with the families, and their concerns, conflicted with the Trust's representatives wishing to focus on particular aspects of the audit report which they disputed.[28] It is the Ministry's case that the concerns of the families regarding theoperation of the Trust were sought to be discussed at the meeting. The Ministryraised the families' concerns regarding the Trust operating like an aged care facility,marginalisation of families' involvement in decision-making, and concerns regarding the management style of the Trust's manager, who also sat as a member of the board. Reference was made to the complaints from families and the high turnover of staffimpacting on the residents' health needs.[29] Following the 3 August meeting, the Ministry wrote to the Trust to recording the complaints and concerns which had been discussed and understanding of what had been agreed to take matters forward. This included its meeting to be conducted by a new board member, Mr Wilson, with the families.[30] In its letter to the Trust, the Ministry identified the following main issues: A significant loss of the disability focus and the homes being run as "an institution". A lessening of the values and philosophies of disability. Less family involvement in decision-making. Major communication issues, particularly regarding the manager's styleand attitude. Governance arrangements. Status of the Developmental Evaluation Audit from January 2012.The letter concluded by noting the Ministry's wish to work with the Trust to find a way forward that ensured that the Trust delivered a high quality service in the future.[31] It was in response to that correspondence that the Trust's legal advisorscomplained about the nature and tone of the meeting, and rejected complaints that were being made by the families. The new board member's, Mr Wilson's, initiativeto ease tensions between the Trust and the families did not result in any improvement. After Mr Wilson met with the families on 13 August, the board expressed a lack of confidence in him and he resigned.[32] On 30 August 2012, the Trust arranged a meeting between the board and parents and caregivers. The meeting also included staff members and professional advisors. The purpose of the meeting was to discuss the disagreements that were deepening between the board, parents and caregivers. Various accounts of the content and outcome of that meeting have been provided in the written evidence filed by both parties. The Trust takes the view that the outcome was positive and a level of resolution was achieved with the parents. It criticises the Ministry for not taking account of the progress the meeting represented in terms of the families working with the Trust to resolve their differences.[33] Meanwhile, the certification audit had resulted in the extension of certification to the Trust for a further period of two years. The outcome of the certification audit is considered by the Ministry to be an indication of unsatisfactory performance by the Trust, with the two year term being shorter than the average term extended to a provider. The Ministry submits that concerns were expressed regarding quality assurance and risk management processes provided by the Trust, and of a deterioration in systems, with no improvement in relationships withfamilies. The Trust, however, to the contrary, interpret its certification at this time and the result of the audit report to be favourable and positive, and that the auditorswere very complimentary of the Trust's performance.[34] Notwithstanding the parties' respective interpretations of the certification audit, it is apparent that the significant concerns of the majority of families and caregivers of residents remained unresolved. The Ministry continued to receive numerous complaints regarding the care of residents at the Trust. The Trust in response, observed that some of these complaints were anonymous and ought to have properly been characterised as localised to one or two disaffected individuals. The Ministry was copied into complaints that were made to the board or management directly. The Ministry had been obliged to prepare logs of communications it was receiving regarding the alleged problems at the Trust'shomes. The complaints included alleged assaults, including an alleged sexual assault, on Trust residents. Family members reported unexplained injuries, inadequate medical attention, neglect of residents' hygiene needs, and a lack ofcommunication with families of residents.[35] Similarly, whatever the conflicting respective views of the nature and outcome of the meeting held on 30 August, between the board, staff and families, it is apparent that no improvement in the situation resulted. Towards the end of September 2012, the Trust reported to the Ministry another alleged incident of assault involving one of the residents. Concerns were raised as to the processesfollowed to investigate the resident's allegation. The Ministry received reports from family members of residents behaving out of character. One resident was described as being very distressed at the prospect of having to return to the Trust's care after aweekend stay with her family. Families' concerns regarding the complaints process and the willingness to provide a safe and secure environment to facilitate such processes continued to be of concern. Concerns were expressed regarding the vulnerability of residents and their families should complaints be made to the management. It was apparent there was a lack of confidence in the Trust'scomplaints process.The families approach LifeLinks[36] The Trust disputes the validity of the reports being received by the Ministry at the time and the motivation of those criticising the performance level of the service it was providing. However, on 17 September 2012, the families of 10 of the 12 residents at the Trust wrote to the operations manager of LifeLinks, requesting that he urgently find alternative placements for their family members. LifeLinks is a Needs Assessment and Coordination Service (NASC), which is contracted by theMinistry to assess individuals' needs and organise services, including the provisionof residential care facilities. The families and caregivers complained to LifeLinks that they no longer received the quality of service and care which the Trust had previously provided, and expressed concerns regarding the safety and wellbeing of the residents. They noted they had made formal complaints to the Ministry and set out their major concerns as follows: Health issues of residents which were left untreated. The manager had a bullying attitude and exercised poor judgment, leading to unsafe situations for the residents. The board was ineffectual and had an attitude of refusing to hear and act on concerns of the families. There was police involvement in cases involving three different residents. Unsubstantiated allegations were made by the staff manager, regarding the residents and family members, as a form of retaliation against parents for making complaints about the service. Poor incident reporting procedures and lack of incident reports and files. Derogatory comments written in the notes of a resident.[37] These serious complaints were strongly contested by the Trust's managerwhen LifeLinks made inquiries with the Trust following receipt of the families andcaregivers' formal letter of request. The evidence filed by the Trust vehemently contests these allegations and provides a detailed case disputing the identified concerns which it considers to be groundless.[38] On 10 October 2012, the Ministry made the decision to appoint temporary managers, and, as provided for under the terms of its contract with the Trust, to take over management of the provision of services. This was formally advised to the Trust in a letter of the same date. Ministry officials met later with the Trust on that day to explain the decision in person.Appointment of temporary managers[39] In issuing formal notice to the Trust that it was appointing temporary managers to take over management of the provision of services, the Ministry relied upon cls A23.1 and A23.2 of the provider agreement. Those clauses provided as follows:A23 WE MAY REMEDY YOUR FAILURE TO MEET YOUR OBLIGATIONSA23.1 Where:a. You have, in our opinion (such opinion based on reasonable grounds), committed a breach of your obligations under this Agreement; andb. Such breach, in our opinion, requires urgent action to protect the health and safety of Service Users,we may, unless such breach is due to an Uncontrollable Event:c. Withhold some or all of our payments to you in accordance with clause A6 until you have remedied the breach or until we are satisfied on reasonable grounds that you have taken appropriate steps to ensure that a breach of that nature will not happen again; andd. Ourselves take action to remedy the breach, and recover the reasonable costs (including reasonable legal expenses if any) from you, including by deducting such costs and expenses from payments due under this Agreement in accordance with A6.1.A23.2 Temporary Manager:a. Without limiting our rights under clause A23.1(d) we may appoint as temporary manager for your premises a person who isappropriately qualified and experienced. Such temporary manager will take over management of the provision of services, in substitution for and on behalf of you and your manager for the purpose of remedying the breach referred to in clause A23.1(b).b. Where a Temporary Manager is so appointed, you must:i. Allow the Temporary Manager access to your premises;ii. Ensure that the Temporary Manager is able to carry out his or her duties without disturbance or disruption; andiii. Comply with any direction or instruction given by the Temporary Manager.[40] The notice provided that, in the opinion of the Ministry, breaches of the provider agreement had occurred which included: Failure to provide and follow appropriate processes to safeguard service users from abuse and/or neglect under cl B7.6 of the agreement; Failure to provide and allow a fair or appropriate process for management and resolution of complaints under cl B6.6 of the agreement; and Failure to comply with obligations to service users under the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996, in accordance with cl B6.5 of the agreement.[41] The Ministry set out its opinion that the accumulation of complaints from service users, families and guardians; complaints to the Health and DisabilityCommissioner's office; serious incidents that the police were currently investigating; significant staff turnover; and the failure to maintain and support relationships with family/whanau and guardians of service users, raised significant and sufficient concerns in relation to the welfare and safety of residents to warrant the appointment of temporary managers.[42] The temporary managers worked on site at the Trust with the residents and staff. They also met with external service providers and provided reports to the Ministry, regarding their observations and assessment of the situation at the Trust. Inthese reports the temporary managers expressed concerns regarding the lack of experience and understanding of intellectual disability by staff members, and a lack of training and clinical leadership for staff. Of particular concern was the Trust's relationship with the residents' families and caregivers.[43] On the one hand, it was reported that the families were observed as being hostile and disrespectful of the Trust management, while, on the other, it was apparent that the families felt the board had ignored their complaints and the present management lacked compassion for the residents. The views expressed to thetemporary managers by the Trust's manager and board chair were that some familieswere troublesome and disruptive. In the temporary managers' view, managementand some staff displayed a lack of empathy and respect for parents with a disabled family member.[44] The situation was not aided by the lack of clear demarcation between governance and management of the Trust. Ms Boulton, the Trust manager, was also a board member. This was viewed as compromising the ability of the board to deal with issues raised by parents and caregivers regarding the management and care of the residents. The confluence of governance and management roles had been raised as a concern in the Developmental Evaluation Audit (see above at [21]).[45] The Trust strongly disputes the observations and findings of the temporary managers, and did so at the time. Somewhat belatedly, on 7 November 2012, the board gave formal notice challenging the appointment of the temporary managers. They identified a series of issues relating to the content of the notice of 10 October provided by the Ministry. It is plain that the relationship between the temporary managers and the Trust manager, such as it was, broke down.[46] On 5 November, Ms Boulton advised the temporary managers that she had received legal advice that she did not need to discuss matters relating to the audit, or other matters relating to workforce structure or incidents. The temporary managers received a formal notice from the Trust requiring them to vacate their offices in orderfor "proper management" of the service to be carried out by Ms Boulton. Lockswere changed on two office doors and access to information, needed to allow the temporary managers to undertake their duties, was withheld.[47] On 9 November 2012, the temporary managers provided a draft report to the Ministry summarising their observations and the evaluation they had formed in the four week period that they had been on site at the Trust. In the temporary managers'view, family interactions with the board had continued to be "acrimonious" and wasmarked by an unwillingness to cooperate. Families had expressed concerns that complaining or disagreeing with management could result in retribution.[48] The temporary managers expressed their concerns regarding the experience of staff and managers in intellectual disability, the thoroughness with which incidents were being investigated and objectively reported, and the lack of opportunities for residents to interact with the community. The temporary managers reached the following conclusions in respect of breaches of the provider agreement which had previously been identified by the Ministry (above at [40]).(a) Failure by Trust to provide and follow appropriate processes to safeguard service users from abuse and/or neglect under cl B7.6 of the contract: The temporary managers advised that there was evidence of lack of knowledgeabout the management of residents' medication requirements and healthneeds, and there was a requirement for intensive training around the parameters of intellectual disability, in particular autism. They considered there was evidence of inadequate processes being followed to safeguard residents from abuse and neglect, noting that there were five ongoing complaints of assaults on residents currently being investigated by police.(b) Failure by Trust to provide and follow a fair process for management and resolution of complaints under cl B6.6 of the contract: The temporary managers found that there had been a "sustained failure" to provide and follow a fair process regarding the management and resolution of complaints. The relationship between the board and the families was described as"destructive and damaging". The management was described as "controlling and defensive", and that the non-acceptance of audit findings was consideredto be a barrier to families seeking to address their concerns. They noted the evident lack of differentiation between the board and management, which was perceived as a single entity that provided no forum for parents to discuss concerns about management or other service issues.(c) Failure by Trust to comply with its obligations to service users under the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996: Identified breaches of the code included the right to be treated with respect, the right to dignity and independence, the right to services of an appropriate standard, and to effective communication. Other breaches of rights were also identified. Details relating to the nature of these breaches were provided by the temporary managers in their report.[49] The temporary managers made recommendations for change which included up-skilling the knowledge of the board in terms of its understanding of intellectual disability, and to provide for parent and service user representation on the board. It was also recommended that the manager step aside and that the board chairperson step down due to a lack of confidence in her ability to support the families in respect of the future concerns that the families may raise. They also recommended that the Trust consider working cooperatively with other providers to enhance staff recruitment, education and training, and work cooperatively with day services toreinforce activities to meet joint goals of residents' lifestyle plans.[50] The Trust considered that the draft report of the temporary managers made a significant series of errors of fact and proceeded on unjustified assumptions that were unsupported by evidence. It characterised the content of the report as being biased and based upon incorrect commentary.[51] The Trust noted that investigations being conducted by the police were either unknown to the Trust, or had been resolved by the police as being unsubstantiated. The Trust considered that the narrative of some of the matters referred to in the report was incomplete and inaccurate, and that a lack of evidence had been provided by the temporary managers to support many of the conclusions. The Trust pointed tothe commentary under the heading "medical issues" as being erroneous, and that theTrust's local medical practitioners, cited as the source of such information, had denied making such representations. The Trust disputed the concerns identified in earlier audits and submitted that there remained a lack of supporting evidence to sustain the issues identified. These included allegations that families were fearful of retaliation should they complain, and that complaints and concerns said to have been identified to the Health and Disability Commissioner, particularly as they related to welfare and safety, had not been identified to the Trust. In the Trust's view, no evidence had been produced by the report writers to sustain the alleged complaints.[52] In relation to the recommendations made by the temporary managers, theTrust considered that they could not be attributable to any proper "findings" in the report which had been put to the Trust. By letter of 14 November 2012, the board, through its solicitors, requested urgent information under the Official Information Act to determine the basis of the observations and conclusions made in thetemporary manager's draft report. A further letter from the Trust's solicitors, issuedthe following day, formally challenged the draft report but did not provide details of the particulars of the report that were being contested.[53] The Trust also requested that the draft report be kept confidential. In furthercorrespondence from the Trust's solicitors, the draft report was described as"fundamentally unsound" and the process by which the draft report had been produced "flawed". It was represented to the Ministry that they should consider thedocument to be unreliable.[54] The Ministry attempted to engage with the Trust to discuss the contents of the report. It is apparent, however, that the Trust board was unwilling, given the stance that it had taken in respect of the draft report, to enter into communication with the Ministry other than through its legal representatives. By letter in reply to the Trust'slawyers, the Ministry informed the Trust that its priority was with the safety and welfare of the residents, about which it remained concerned. The Trust had refused to engage with the temporary managers, and it was therefore difficult for them togain the Trust's views when it refused to speak with them. The Ministry placed the Trust on notice that it would take action to safeguard the welfare of residents.[55] On 20 November 2012, the Ministry held a meeting with the residents'families who expressed frustration and anger at the approach being taken by the Trust. It appeared apparent to the Ministry that the families would seek to move the residents regardless of what the Ministry did.[56] On 23 November 2012, the board met with the Ministry. The board chairperson expressed the view that there were no issues with Trust management andconsidered that the temporary manager's report was not objective, referring inparticular to the medical issues referred to in the report, and that the health and safety of the residents at the Trust was never in issue. There is disagreement as between the parties as to what may have been agreed as a way forward at the conclusion of that meeting.[57] In any event, on 25 November 2012, the families of 10 of the 12 residents signed a letter formally advising the NASC that they required the immediate relocation of their family members to alternative premises. The families cited ongoing concerns regarding the safety of their family members, which the Ministry of Health had acknowledged at an earlier meeting.[58] Meanwhile, the temporary managers had earlier, on 22 November, updated their views regarding potential risks to the health and safety of the residents. This largely repeated the earlier observations and evaluation that management were impatient with residents, that staff members were inexperienced and unsupported, and that there was extremely poor communication between the staff, management, families and day service providers. This, it was said, had resulted in medication errors, mistakes regarding the collection and dropping off of residents, highly stressed staff, and general mistrust of what was occurring at the Trust. The temporary managers concluded that residents with autism and associated behavioural issues were not being adequately cared for and were at particular risk.Termination[59] On 28 November, the Ministry made the decision to terminate its contract with the Trust, and notice was given to that effect. On 30 November, the Ministry assisted residents to move to an alternative service provider, IDEA Services.[60] In giving notice of termination to the Trust, the Ministry relied upon a clause of the agreement which provided that the Ministry could terminate the agreement if the Trust failed to carry out any of its obligations under the agreement and that suchfailure was "material".1 In reliance upon that clause of the agreement, the Ministry referred to the Developmental Evaluation Audit report conducted at the beginning of the year and the reports of the temporary managers. The termination notice repeated the failures of the Trust to comply with its obligations under the provider agreement, identified by the temporary managers in their report of 9 November 2012 (see above at [48](a)-(c)).[61] Additionally, it listed the failure to comply with its obligations under cl A23.2b of the provider agreement, relating to the appointment of temporary managers. These were identified as failing to allow temporary managers access to its premises, failing to ensure that the temporary managers were able to carry out their duties without disturbance or disruption, and not complying with directions or instructions given by the temporary managers.[62] On 12 November 2013, the Trust made application seeking judicial review ofthe Ministry's decision to terminate the provider agreement. It eschewed reliance on the dispute resolution and remedial processes provided for in the provider agreement, nor did it issue any formal notice of default or seek specific performance or damages as was also provided in the contract. The decision not to rely on the terms of the contract may have been a recognition of the practical situation the Trust faced.[63] Almost all the families and caregivers were determined to remove the residents they were responsible for from the Trust's homes, and that likely would have happened regardless of any decisions or alternative approach that the Ministry took in November 2012. The families, having resolved to move their family members, the associated funding followed the individual residents. The provider contract therefore, even if left in place, would have become hollow in the absence of other families being referred to the Trust to take the place of the residents that had moved.1 Clause A27.1(c) of the provider agreement.Is judicial review available?[64] The Trust seeks a declaration that the Ministry's decision to terminate theprovider agreement was invalid. An associated claim for damages was abandoned at the conclusion of the oral hearing. The grounds for the declaration of invalidity sought by the Trust are based on alleged breaches of natural justice, legitimate expectation, mistake of fact, failing to take account of relevant considerations and taking account of irrelevant considerations, and unreasonableness.[65] The Ministry's response is that a public law remedy is not available to the Trust, and the issues sought to be raised in this proceeding are not justiciable by way of judicial review in the absence of fraud, corruption or bad faith. An important preliminary question, therefore, is whether the Trust's challenge of the Ministry'stermination of the contract is able to be determined, as pleaded, by way of judicial review.[66] The Ministry submitted that the proceeding is, in reality, a contract claim "in public law drag".2 It maintained that the parties entered into a commercial contractual arrangement governed by a detailed written agreement. The decision to terminate the contract was made pursuant to, and in accordance with, the terms of the contract and the processes it provided. It submitted what is in issue between the parties is a matter of private law and does not involve a statutory decision or the exercise of a public power capable of being the subject of judicial review.[67] The Ministry argued that the proceeding has been brought on behalf of a private provider and that the wider interests of the residents, or other users of disability services, is not engaged. In the circumstances, the Ministry submits that its actions do not give rise to breaches of public law obligations, and its relationship with the Trust is governed solely by contract. Its decision to terminate its contractual relationship with the Trust, the Ministry submitted, was a matter of judgment which cannot be reviewed for correctness by way of judicial review. It says the Ministry was entitled to make the decisions it did pursuant to the terms of its contract with the Trust, and that, in the absence of the Trust pleading any breach of the contract which2 The phrase used by Hammond J in Lab Tests Auckland Ltd v Auckland District Health Board[2008] NZCA 385, [2009] 1 NZLR 776 at [405].governed the relationship between the parties, the Trust's reliance on pleaded public law causes of action and remedies is misconceived.[68] In reply the Trust argued that this is a proper case for judicial review, and the fact the arrangements between the Trust and the Ministry were contractual does not deny the availability of judicial review. The Trust relied upon dicta of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service, where his Lordship observed that a decision-making power derived from common law, and not a statutory source, does not immunise it from judicial review.3 Reliance was also placed on two decisions of the Court of Appeal; Webster v Auckland Harbour Boardand Royal Australasian College of Surgeons v Phipps, where in the latter case it was observed that the Courts over recent decades have been increasingly willing to review exercises of power which in substance are public, or have important public consequences notwithstanding how the nature or origins of the persons or bodies exercising them may be characterised.4 The Court of Appeal further remarked that in appropriate situations, even though there may be no statutory power of decision, or"the power may in significant measure be contractual", the Courts are still willing to review the exercise of the power, including review for breaches of natural justice.5[69] The Trust emphasised that the recent approach of the Courts to the amenability of administrative action to judicial review related not to the source of the power exercised by decision-makers but whether the exercise of the power had public consequences. In the present case it was submitted on behalf of the Trust that the decision, made by the Ministry to terminate the contract did have public law consequences. Alternatively, the Trust submitted that in the case of a contracting decision by a public body in a commercial context, judicial review remained available where there was fraud, corruption or bad faith, or situations that might be considered analogous.63 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410C-D.4 Webster v Auckland Harbour Board [1983] NZLR 646 (CA); Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11.5 Phipps, above n 4, at 12.6 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) at 388; Lab Tests Auckland Ltd, above n 2; Green v Racing Integrity Unit [2014] NZCA 133.[70] In respect to that alternative argument, the Trust argued that there was evidence of bad faith on the part of the Ministry. It pointed to allegations of what the Ministry knew, or ought to have known, regarding the breaches alleged by it in its notice of termination. Particularly, it says, as it related to abuse or neglect, or health and safety issues concerning the residents. The Trust also relied upon the content ofthe temporary managers' report, alleging that it exceeded its authority. In that regard reference was made to recommendations by the temporary managers regarding the continued engagement by the Trust of its manager and chairperson. I will return to the examples of alleged bad faith put forward on behalf of the Trust later in this judgment.Decision – Justiciability[71] The exercise of a power that is in substance public or has important public consequences is potentially subject to judicial review.7 It does not, however, follow, that every time a public body exercises powers available to it as a party to a contract, that its status as a public body renders its decision subject to scrutiny by way of judicial review. The State, in all its various forms, is regularly entering into contracts relating to the provision of services and products which would not normally be considered to be subject to an overlay of public law principles and therefore amenable to judicial review.[72] In Lab Tests Auckland Ltd Arnold J, delivering the lead judgment, observed that the Courts will only intervene by way of judicial review in relation to contracting decisions made by public bodies in a commercial context in limited circumstances, and that whether other procedural obligations may be placed on a body performing a public function will depend on the context in which the decision is made.8 The Court of Appeal acknowledged that judicial review would be available where there is fraud, corruption or bad faith.9[73] The Court of Appeal further held that a public body exercising a particular statutory power may be bound by natural justice obligations, but that such7 See Phipps, above n 4.8 Mercury Energy Ltd, above n 6; Lab Tests Auckland Ltd, above n 2 at [59].9 Lab Test Auckland Ltd, above n 2, at [91].obligations may have less or no application to the same body when making another type of decision.10 The nature of the decision being made, the nature of the body making the decision and the statutory setting within which the decision is made are all critical considerations when assessing whether a decision is susceptible to judicial review.11 The procedural obligations on a decision-making body are therefore dependent on the nature of the function being exercised, the context within which the function was being performed, and what it is alleged has gone wrong.12 A contracting decision made by a public body ordinarily will not, absent fraud, or bad faith, or some relevant statutory underpinning requiring the public body to exercise its contracting power in a particular manner, be subject to judicial review. The Court of Appeal rejected a broad-based "probity in public decision-making approach" ofthe type that had been adopted by the trial Judge.13[74] In making these observations, the Court of Appeal sought to apply the observations of the Privy Council in Mercury Energy Ltd.14 In that case, the Privy Council held that decisions of state owned enterprises were not immune to judicial review, however, it considered that it was unlikely that a decision by such an entity to enter into, or determine, a commercial contract to supply goods or services would ever be the subject of judicial review in the absence of fraud, corruption or bad faith.15[75] In applying that dicta in Lab Tests Auckland Ltd, the Court of Appeal concluded that the matters in issue in that case, which concerned decisions made following a tender process by District Health Boards, were justiciable. This conclusion was reached only because they raised issues analogous to bad faith and that such allegations arose against an applicable statutory context relating to conflict of interest and the use of confidential information. The District Health Boards were subject to governing legislation that required the boards to comply with certain procedural obligations. In the absence of such factors, Hammond J, in his10 Lab Test Auckland Ltd, above n 2, at [57].11 At [58].12 At [85].13 At [85].14 Mercury Energy Ltd, above n 6.15 At 391.concurring judgment, warned that reviewability in this area should not otherwise be assumed.[76] In Southern Community Laboratories Ltd v Healthcare Otago Ltd, Eichelbaum CJ observed that whether decisions made by a public body of a contractual or commercial nature, were governed by the principles of public law, would be a matter of assessment in the individual case.16[77] Eichelbaum CJ held that a contract to purchase pathology services was essentially a commercial decision which he considered to be non-justiciable. The Court accepted that almost every administrative decision made on behalf of a Crown health enterprise might at least have the potential to impact directly or indirectly on the quality of healthcare services and therefore be considered public in nature. He contrasted, however, decisions having a major impact on the community, such as a decision to reduce acute services provided at a major regional hospital, at one end of the scale, with minor supply contracts, which lie at the other. Eichelbaum CJ held that it was sufficiently clear that the decision to purchase pathology services was not of such importance or significance as to take it out of the realm of the purely commercial.[78] Applying the principles set out in Lab Tests Auckland Ltd, I have firmly concluded that the decision by the Ministry to terminate its contract with the Trust is not amenable to judicial review in the absence of bad faith, corruption, fraud or analogous behaviour, or any applicable statutory framework, or context, requiring the Ministry to adopt certain processes or take into account particular considerations beyond those provided for in the provider agreement. My reasons are as follows.[79] The relationship between the parties is governed wholly by contract. As already observed, there is no relevant statutory context against which the Ministry'sdecision is to be evaluated, either in a procedural or substantive sense. The Trust does not rely on any other source regarding the Ministry's approach to its evaluation16 Southern Community Laboratories Ltd v Healthcare Otago Ltd HC Dunedin CP30/96, 19 December 2009.of the situation, or how it should exercise its judgment, beyond the provisions of the provider contract itself.[80] The Ministry is responsible for the administration of funding arrangements with some 900 organisations, which are engaged to provide services in discharge ofthe State's responsibilities to care and provide for disabled people. Like the Trust, most service providers are private sector organisations and their engagement to provide services to disabled persons in return for funding is governed by formal contracts which the service providers enter into with the Crown.[81] The Ministry has public responsibilities to provide for vulnerable individuals with high health needs. Those obligations include ensuring that certain standards of service and care are provided by the service providers with which it enters contractual arrangements. That obligation results in the need for a high level of review and audit to ensure that services it is purchasing are provided to the appropriate level. This is reflected in the terms and conditions of the provider agreements entered into by the Ministry. That responsibility is owed to disabled persons, their carers and families. It does not, however, create any wider or parallel public obligations to the private sector organisations with which it contracts, and which receive payment for the provision of its services.[82] The provider agreement between the parties in this case was a detailed commercial contract. It expressly recorded that the contract set out the "entireagreement and understanding" between the parties. Importantly, the contract contemplated disagreement between the parties and made available specific dispute resolution procedures to resolve issues arising out of breaches by the parties, and termination. The Trust, however, did not invoke those procedures, neither in respect of the appointment of temporary managers, nor in response to the notice of termination. Similarly, it did not seek damages as expressly provided for in the contract.[83] The nature of the body sought to be reviewed is central government, and the case involves the expenditure of public money in the public interest. The case, however, does not give rise to any issues as to how that money should be spent, norany related question regarding the provision of health or social services to a vulnerable sector of society. The Ministry is not being challenged regarding the implementation of policy, or the discharge of its public responsibilities and functions, but, rather, whether it can legitimately terminate a contract between itself as a purchaser, and the Trust as the provider of services.[84] Essentially, the Trust's complaint is that the Ministry did not have a sufficientbasis upon which to terminate the contract. Similarly, it is argued that the Ministry was wrong to appoint temporary managers. Both complaints, unavoidably, are founded on the submission that the contractual preconditions to the Ministry'sactions had not been established. Indeed, it is submitted that in the circumstances the preconditions could not be established if the particular matters relied upon by the Ministry had been fully investigated and objectively analysed. Two difficulties forthe Trust immediately become apparent. Firstly, that the Trust's complaint isfundamentally contractual in nature and, secondly, that the dispute between the parties is one which involves matters of assessment and evaluation. The Trustalleges that the Ministry's judgment regarding the Trust's performance of itscontractual obligations is flawed.[85] As is immediately apparent from the content of the evidence filed by both parties, and the extent to which the Trust sought to traverse disputed factual issues in its submissions, the Trust's case was heavily reliant upon propositions of fact that were in contest between the parties. As already observed, the broad-ranging and detailed nature of the evidential issues in dispute between the parties, were clearly not conducive to determination by way of judicial review and would necessarily require resolution by trial.[86] The primary interest at stake, identified by the Trust, is a reputational one. The Trust considers that the Ministry's actions, both as a result of the appointment oftemporary managers, and the subsequent termination of the provider agreement, reflects negatively on the Trust board and is capable of impugning the individual reputations of its board members. Through this proceeding, it has sought validation of its position. It has consistently disputed and sought to contest the findings of various audits and reviews, and in this proceeding has sought to directly challengethe evidential basis upon which the Ministry acted. That, however, does not give rise to a matter of public interest.[87] The effect of the termination of the provider agreement falls on the Trust which was funded to provide the services contracted for. No issue arises regardingthe provision of resources or funding of the disabled residents of the Trust's homes,and no broader public interest therefore arises. Funding policies remain unchanged. Similarly, no questions arise regarding the eligibility of individuals or how services are to be maintained. While the provision of public funding to provide resources and services to disabled persons is ordinarily associated with public decision-making, this case is limited to issues relating to the performance, or non-performance, of the contractual responsibilities of one particular service provider. It is limited to the conclusions reached by one party relating to the performance of the contract by another, and whether the contract could lawfully be terminated pursuant to its terms; essentially, whether the preconditions contained in the contract relating to termination were present to allow the Ministry to act as it did.[88] The present case is closely analogous to two recent decisions of this Court which came to the same conclusion regarding the availability of judicial review. Both arose in the context of disputes relating to service provider contracts in the social service sector. In Te Tai Tokerau Mapo Trust v Chief Executive of Ministry of Health, Woodhouse J considered an application to judicially review a decision by the Chief Executive of the Ministry of Health to terminate agreements providing for the provision of health and disability services for Maori people in Te Tai Tokerau.17 The Crown opposed the application on the basis that the decision by the Chief Executive was a commercial decision not to continue the contractual relationship. As here, it was submitted that in the absence of an allegation of fraud, corruption or bad faith, the decision could not be the subject of judicial review.[89] In reliance on the dicta of the Privy Council in Mercury Energy Ltd,18Woodhouse J held that where the relationship between the parties was created bycontract and the plaintiff's complaints are in substance directed to a failure to17 Te Tai Tokerau Mapo Trust v Chief Executive of Ministry of Health HC Whangarei CIV-2010- 488-307, 5 August 2011.18 Mercury Energy Ltd, above n 6.continue with the contract, the first and primary inquiry must be in contractual terms.19 While Woodhouse J found that the decision to terminate the contracts had actually been agreed to by both parties, he further observed that the claim needed to be analysed from the outset in contractual terms and was not open to judicial review.[90] After discussing the principles to be distilled from the Court of Appeal'sdecision in Lab Tests Auckland Ltd,20 Woodhouse J formulated "the proper inquiry"to be whether the relevant context in which the decision was made imposed obligations on the Chief Executive beyond those contained in the agreements. In the absence of such additional obligations, any inquiry was necessarily limited to whether the Ministry complied with its contractual obligations. Such an inquiry could only take place in the context of a cause of action giving rise to such an inquiry, such as one alleging breach of contract. As the plaintiff in that case was unable to point to any matters imposed on the Ministry, or particular obligations relating to decision-making beyond those contained in the agreements, Woodhouse J concluded that the lawfulness of the process by which the decision was made to terminate the contract was to be determined solely by the terms of the agreement between the parties, and was not amenable to judicial review.[91] In Te Whanau O Waipareira Trust v Attorney-General, Preistley J, after applying the principles set out in the Lab Tests case, concluded that the decision of the Ministry of Social Development, to terminate a funding contract with a charitable trust to support vulnerable families, could not be the subject of judicial review proceedings.21[92] The Court was concerned with the Ministry's operation of a particular programme known as Family Start. The Ministry funded providers to carry out the programme, but remained subject to the Ministry's control and supervision. The Waipareira Trust was one such provider. Priestley J described the relationship between the Ministry responsible for implementing the overarching government policy and funding of the programme and the Waipareira Trust as being contractual. The Ministry's termination of its agreement with the Waipareira Trust was19 Te Tai Tokerau Mapo Trust v Chief Executive of Ministry of Health, above n 17, at [97].20 Lab Tests Auckland Ltd, above n 2.21 Te Whanau O Waipareira Trust v Attorney-General [2012] NZHC 3107.challenged by judicial review. Citing Lab Tests Auckland Ltd, and its application in the previously discussed Te Tai Tokerau Mapo Trust case, Priestley J concluded that the orthodox position was that judicial review was not available simply because a public body was exercising the decision-making power. While a contractual power exercised by a public body was potentially amenable to judicial review, he considered there needed to be some nexus with a statute, to the extent that the power exercised could be considered a statutory rather than a private commercial power.22[93] Priestley J concluded that the decision to terminate the contract by the Ministry was not amenable to judicial review. The Ministry was exercising a contractual right, and he declined to evaluate an assessment report which the decision-maker had considered in choosing to exercise the contractual power. Similarly, Priestley J found there was no obligation on the decision-maker to seek comment from the Waipareira Trust regarding the content of the report, and, in the absence of evidence of the decision-maker being motivated by fraud, corruption or bad faith, judicial review was not available.23[94] The approach taken by this Court in these two cases, after application of the principles considered in Lab Tests Auckland Ltd, in both the Te Tai Tokerau Mapo Trust and Te Whanau O Waipareira Trust cases, is equally applicable to the present proceeding. The Trust has not identified a basis by which this Court should go beyond the terms of the contract which governed the relationship between the parties, and impose public law obligations on the Ministry.[95] The Trust sought to rely upon such cases as Green v Racing Integrity Unitand Royal Australasian College of Surgeons v Phipps.24 However, both cases are readily distinguishable, concerned as they were with the standards of procedural fairness adopted by disciplinary bodies in the context of either statutory or corporate frameworks. The former case involved a statutory scheme governing the racing industry and provided rules for the conduct of investigations and an internal racing judicial system. In the latter case, a professional body had undertaken an inquiry under the authority of its constitutional document, which was capable of constituting22 At [135]-[136].23 At [138]-[140].24 Green v Racing Integrity Unit, above n 6; Phipps, above n 4.the exercise of a statutory power as defined by s 3 of the Judicature Amendment Act 1972, and therefore was reviewable.[96] The Trust also sought support for its submission that the Ministry's decisionto terminate the contract was susceptible to judicial review from the observations of Asher J in Diagnostic Medlab Ltd v Auckland District Health Board.25 In that case, reliance had been placed on Webster v Auckland Harbour Board, to the effect that the exercise of contractual powers by public authorities was open to review on public law grounds in an appropriate case.26 The approach taken in the Diagnostic Medlab Ltd case was, however, subsequently overtaken by the Court of Appeal's decision inLab Tests Auckland Ltd.27[97] In Webster v Auckland Harbour Board, Cooke J observed that while the localauthority had entered into a contract with the plaintiff, the Harbour Board's acts weredone directly or indirectly in purported pursuance of statutory powers, and that while a contractual license was involved, the decision taken by the public body could not be treated as purely in the realm of contract, and was considered in the circumstances of that case to be a decision which was also governed by statute.28 The Court of Appeal further observed that if the applicants were able to show that in making its decision the Harbour Board violated the express or implied requirements of some statute, which could include, for example, relevant considerations of fairness, it was highly probable that they would be able to show that the decision affected their rights or privileges and would be able to argue that a statutory power of decision was sufficiently involved to render the Harbour Board's actions amenable to review.29[98] Insofar as Webster v Auckland Harbour Board was relied upon by Asher J inDiagnostic Medlab Ltd, the Court of Appeal in Lab Tests Auckland Ltd observed that the type of broad-based "probity in public decision-making approach" adopted by Asher J was not supported by the Privy Council's decision in Mercury Energy Ltd, and it declined to adopt such a course.3025 Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC).26 At [11], citing Webster, above n 4.27 Lab Tests Auckland Ltd, above n 2.28 Webster, above n 4, at 649-650.29 At 651.30 Lab Tests Auckland Ltd, above n 2, at [85].[99] In the present case, it was not contested that the relationship between the parties was contractual, nor that the plaintiff's challenge was centred on the validityof the termination of that contract by the Ministry. The Trust has not identified anystatutory matrix or framework against which the Ministry's actions might potentially be measured. Nor has it, beyond the fact that the public body involved was an organ of central government, identified a "context" which renders the Ministry's decisionto terminate, or the procedures adopted by it, subject to review beyond the rights and powers contained within the provider agreement itself. What remains to beconsidered is the Trust's submission that there remains scope for judicial review based on its allegations of bad faith.Bad faith[100] In the Trust's pleaded grounds for relief under the heading breach of natural justice, it claims that the Ministry, in making its decision to terminate the provider agreement, exhibited "both predetermination and bias and bad faith in the manner in which it approached the Trust". The Ministry submitted that if bad faith was to be relied upon by the Trust, it ought to have been clearly pleaded in its own right as a standalone ground of review.[101] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal, in the context of tort claims alleging misfeasance in public office and the malicious institution of civil proceedings, observed that when pleading an allegation of intent, recklessness or bad faith, r 5.17(2) of the High Court Rules requires that if a party alleges a particular state of mind of another party, the pleadings must give particulars of the facts relied on in alleging that state of mind.31 In the context of the tort of misfeasance in public office, it has been emphasised that an allegation of bad faith must be properly particularised and needs to be clearly pleaded.32[102] The Trust appears to have approached the allegation of bad faith as either an extension of its claim of predetermination and bias, or as an example of Wednesbury31 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [86].32 Carter v Chief Constable of the Cumbria Police [2008] EWHC 1072 (QB), [2008] All ER (D) 188 at [68]; Three Rivers District Council v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 (HL) at 248-253, 268.unreasonableness, which lies at the extreme end of what may otherwise be categorised as an irrational or unsupportable conclusion or decision, which must have been appreciated as such by the decision-maker.33[103] As is apparent from the foregoing discussion of the availability of judicial review to challenge decisions made in the exercise of contractual powers, bad faith, fraudulent, or corrupt conduct are recognised as separate and distinct grounds which are capable of extending the scope of judicial review.34 If bad faith is relied upon as a basis to extend the otherwise limited application of judicial review to disputes involving contracting parties, the expectation is that such an allegation would be pleaded separately and with some particularity.35[104] While the Trust stipulated a number of discrete grounds of review in its statement of claim, bad faith was not pleaded separately. It is indisputable that an allegation of bad faith, which is effectively an allegation of conscious misconduct, would ordinarily be expected to be pleaded as a separate ground of review. Lord Reid in Smith v East Elloe Rural District Council, when considering various grounds of judicial review, described bad faith as standing in "a class by itself".36 In East Pier Developments Ltd v Napier City Council, Wild J distinguished "bad faith" as aground for review in its own right, requiring as it does more than simply to act unreasonably, or with an improper motive.37 Bad faith is to act unreasonably, or improperly, knowingly doing so; essentially, the commission of a reviewable error, knowing that an error is being committed.3833 Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA G v 1,[1948] 1 KB 223.34 See Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259, [2009] 3 NZLR 713 at [21] and [76], where the scope of review did not extend to issues of irrationality but was available on the ground of bad faith.35 G Taylor Judicial Review: A New Zealand Perspective (3rd ed, Lexis Nexis, New Zealand, 2014) at [15.80]; Lord Woolf and others De Smith's Judicial Review (7th ed, Sweet & Maxwell, London, 2013) at [5.087]-[5.090].36 Smith v East Elloe Rural District Council [1956] AC 736 (HL) at 762.37 East Pier Developments Ltd v Napier City Council HC Napier CP28/98, 14 December 1998 at 43.38 In Lord Woolf and others, above n 35, at [5.087] and [5.089], footnote 313, the learned authors describe bad faith as acting with grossly improper motives such as dishonesty, malice, or personal interest. It involves a personal attack on the honesty of the decision-maker.[105] Insofar as bad faith was relied upon as an extension of the allegations of predetermination and bias, this was said to have arisen from the Ministry's failure to identify to the Trust particular issues alleged in complaints to the Health and Disability Commissioner, the Charities Commission and Crown Law. Similarly, it was claimed in this context that the Ministry had deliberately failed to give notice, and identify to the Trust, issues to be raised at the meetings of 3 and 30 August 2012, and, by meeting with Trust representatives on 23 November, while at the same time assisting parents and caregivers to remove the residents from the Trust's properties.[106] The Trust further alleged that such predetermination, bias and bad faith arose from presuming certain police complaints to have been proven, accepting uncritically the temporary managers' report as it related to medical issues, anddenying the Trust the right to be heard by not responding to correspondence from the Trust.[107] The Trust, in the presentation of its written submissions, sought to enlarge on the matters relied upon in its pleading, to establish what it described as significant bad faith by the Ministry. In so doing, I am unavoidably forced to the conclusionthat the extended reliance beyond that pleaded in the Trust's statement of claim is aneffort to overcome the limited basis upon which judicial review can be pursued in the context of this case.[108] The Trust submitted that the notice of termination was deeply flawed. In reliance on an allegation of bad faith, it asserted that the Ministry knew, or ought to have known, that there had been no breaches of the clauses of the provider agreement identified in the notice of termination. Similarly, it was submitted that the Ministry knew, or ought to have known, there had been no abuse or neglect, nor that there were any health and safety issues concerning residents, but rather had chosen to ignore the true position, failing to investigate and preferred to attach blame to the Trust board.[109] The Trust submitted that the Ministry knew, or ought to have known, that its notice of appointment of temporary managers was flawed, and that it refused toconsider the Trust's challenge to the incorrect notice. Further, that the Ministryrefused to consider significant errors in the temporary managers' draft report, andthat the Ministry, in holding the Trust board responsible for the matters raised in thetemporary managers' draft report, knew, or ought to have known, that a large numberof those issues were incorrectly reported or investigated. Further submissions were made that the Ministry knew, or ought to have known, that the report the temporary managers produced was deeply flawed.[110] These submissions by the Trust extended to allegations that the Ministry knew, or ought to have known, that there was no evidence to support the complaints the parents and caregivers were making, and that the Ministry continued to encourage the parents and caregivers in the view that the board was at fault when it knew, or ought to have known, that the contrary was the case. For completeness, I note two further matters emphasised on behalf of the Trust. First is the conflictingevidence of the Trust's local doctors regarding medical issues concerning the residents. Second are the recommendations made by the temporary managers relating to the engagement and employment of board members and other staff, which the Trust considered went beyond any legitimate remit the temporary managers had regarding the management of the provision of services in substitution of the Trust.[111] The identification by the Trust of these, and other matters, while capable ofproviding a basis to challenge the Ministry's evaluation of the situation, and its approach and understanding of its contractual powers, falls far short of providing a basis upon which to infer bad faith by the Ministry and its officials. The repetition of the allegation of bad faith, and the attachment of that label to the various matters contested by the Trust and put in issue between the parties, does not enhance the strength of the allegation.[112] A claim of bad faith is a very serious allegation and requires clear proof.39The approach of the Trust was effectively to "ratchet up" alleged errors by the Ministry in the exercise of its evaluation and judgment of the situation, and in its dealings with the Trust. These included the Ministry's appointment of temporary managers; its response to the families and caregivers' complaints; its acceptance of39 WEL Energy Trust v Waikato Electricity Authority HC Hamilton CP69/93, 31 August 1994 at 106.the content of the various reports authored by specialist contractors regarding the performance of the Trust, and ultimately the basis upon which it sought to terminate the provider agreement. These were steps, it was claimed, which at that time must have been deliberately taken in error and which the Ministry knew to be unreasonable or improper, or of which it was wilfully blind. Such allegations do not have a foundation in the affidavit evidence, and simply cannot be sustained on the written record.[113] Typical of the argument made is a submission that the Ministry acted precipitously in appointing temporary managers and that the "nature of its approach and manner of its acting" was an example of bad faith. The Trust argued that the deployment of temporary managers was limited to the purpose of remedying identified breaches and not to act as general managers of the Trust.[114] Whether the Ministry acted precipitously in appointing temporary managers, and whether those managers exceeded their mandate to take over the management of the provision of services in substitution of the current management, are issues for resolution on the evidence, and the interpretation of the relevant clauses of the contract. Even if it was found that the Ministry had acted precipitously, or that the temporary managers exceeded their authority, such a conclusion lies very far from proof of bad faith.[115] Similarly, allegations that the Ministry did not communicate well enough with the Trust, or were tardy in its response to the Trust's correspondence are incapable of constituting bad faith. A suggestion made by the Trust is that the Ministry paid disproportionate heed to particularly vocal family members, or were captured by certain individuals and overreacted in response to their complaints. That, likewise, is an insufficient narrative, even if made out on the evidence, upon which to make a finding of bad faith.[116] The Trust's submissions did not attempt to articulate how the Court was todraw reasonable conclusions or inferences from the state of the evidence relating to the states of mind of Ministry officials. While bad faith may be capable of being attributed to a corporate decision, proof of deliberately knowing that an organisationis acting unreasonably or improperly requires proof as to the state of mind or knowledge of individuals involved in the decision-making process. The Trust'spleadings did not include such allegations, and, unsurprisingly, on the state of the evidence, the Trust was unable to identify such conscious wrongdoing, or knowledge of unreasonableness on the part of Ministry officials.[117] The affidavit evidence filed by the parties provided a detailed, albeit conflicting, narrative of the events that led to the appointment of the temporary managers, and ultimately to the termination of the provider agreement. The Trust contests the assessments, judgments and views, reached by Ministry officials and is highly critical of the approach taken by the Ministry. As I have already observed, that evidence does not provide a sufficient basis upon which the Court couldpossibly conclude that the Ministry's dealings with the Trust were in bad faith; that is that it was acting in the knowledge that it was doing so unreasonably or improperly.[118] To the contrary, the chronology of audits, correspondence, meetings, and the appointment of the temporary managers to work on site, and their subsequent reports, involved many people from within, and contractors from outside, the Ministry, and provides a narrative of exhaustive engagement with the Trust over the course of nearly a year. The series of events discloses the Ministry's ongoing effortsto manage the difficulties, which were rooted in deeply held feelings of dissatisfaction by many, if not the majority, of family members and caregivers. TheMinistry's response and handling of that divide between the Trust and its residents'families and caregivers is open to critical scrutiny, but the various steps taken by the Ministry throughout this period reflect its efforts to manage the situation and administer the provider agreement, to ensure the services contracted for, and for which it was ultimately responsible to the service users, were appropriately provided.[119] Throughout this period, the Trust strongly contested the views expressed tothe Ministry by the residents' families or caregivers, the auditors and temporarymanagers, and members of its staff and other external providers. In the evidence filed on behalf of the Trust, various deponents have, in some detail, recorded their perspective of the events that unfolded over the course of 2012. It is, however, telling, in my view, that despite the volume of written evidence put before the Court,and the long list of allegations of bad faith alleged in the Trust's submissions, the Trust has not referenced those allegations to the evidence that would prove such claims. It has not articulated how the Court could responsibly draw the type of reasonable inferences from the evidence necessary to conclude that the Ministry'sofficials had the requisite state of mind at the time they took various actions or made particular decisions, by knowingly doing so in deliberate error, and thereby in bad faith.[120] It follows that in the absence of evidence of fraud, corruption, or, more relevantly, bad faith, the limited circumstances in which the Court will intervene by way of judicial review in relation to contracting decisions made by public bodies is not established. The Ministry, in seeking to terminate the contract with the Trust, sought to invoke its contractual right to do so upon its assessment of thecircumstances. The Ministry's reasons for terminating the contract, the quality of the information on which it acted, and its analysis of the situation, may be open to dispute and argument. However, there is no foundation in the evidence to justify a finding that the Ministry by its officials were acting in bad faith. The exercise of theMinistry's decision-making power under the contract is therefore not amenable to judicial review.The five grounds for judicial review[121] As I have found that the lawfulness of the decision made by the Ministry to terminate the provider agreement is to be determined solely by the terms of the contract between the parties, and is not susceptible to judicial review, it is not strictlynecessary to examine the grounds upon which the Trust's application was based. I will, however, for the purposes of completeness, and notwithstanding the artificiality of so doing, proceed on the assumption that such an avenue of challenge was available to the Trust, and consider whether any of its grounds for review are made out.Mistakes of fact[122] The Trust did not take issue with the Ministry's summary of the generalprinciples that apply to this ground. The error of fact relied upon must befundamental or pivotal to the decision, or obviously material to mandatory considerations, or a condition precedent.40 An error of fact may arise where it was an incontrovertible or established fact, or an established and recognised opinion.41There must be a clear mistake of fact, not simply a disagreement between two or more possible views, or a choice between two factual conclusions or opinions that are reasonably open.42 It is therefore not appropriate to just permit any conclusion of fact to be reopened upon an allegation of mistake.43[123] The Trust submits that the breach notice asserted that the Trust had failed to provide and to follow a fair process for the management and resolution of complaints, and that there was no comprehensive internal process to manage, investigate and resolve complaints. The Trust points to evidence provided by theTrust's manager, Ms Boulton, regarding the Trust's policy for the handling of complaints, and schedules of complaints received, which detailed the manner in which they were dealt with. The Trust also refers to the Audit Evaluation Report which made no adverse comment in this regard, and that the complaints policy was"congruent" with the Code of Health and Disability Services Consumers' Rights.[124] The Trust also submitted that the Ministry erroneously, in its notice of termination, referred to complaints as if they had been proved. As an associated point, the Trust submitted that the Ministry made a factual error, as it described it, by referring to complaints about which the Trust Board knew nothing and which had not been referred to it under either its complaints policy or otherwise. It was also critical of the anonymous complaints to which it submits no credibility ought to have been attached.40 NZ Fishing Industry Association Inc v Ministry of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552; Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA) at [92]; Northern Inshore Fisheries Company Ltd v Minister of Fisheries HC Wellington CP235/01, 4 March 2002 at [49];Lalli v Attorney-General [2009] NZAR 720 (HC) at [77].41 NZ Fishing Industry Association Inc, above n 40; Northern Inshore Fisheries Company Ltd, above n 40, at [47]-[49].42 NZ Fishing Industry Association Inc, above n 40, at 552; Bleakley v Environmental Risk Management Authority (2005) 11 ELRNZ 289 (HC), at [14]; Northern Inshore Fisheries Company Ltd, above n 40, at [49]; Lalli v Attorney-General, above n 40, at [78].43 Lewis v Wilson and Horton Ltd, above n 40, at [92]; Bleakley, above n 42, at [14]; Lalli v Attorney-General, above n 40, at [76].[125] Under the heading mistake of fact, the Trust further submitted that theappointment of the temporary managers was "both factually, as well as legally,improper". The Trust submitted that the Ministry did not establish a factual basis forthe appointment of the temporary managers and challenges the Ministry'sjustification for their appointment, on the basis of the Trust having failed to act on issues identified in the Audit Evaluation Report, submitting that this report was not signed off by the Ministry until 15 November 2012.[126] Finally, the Trust submitted that the Ministry's statement, contained in its notice of termination, that the Trust had breached the provider agreement by failing to provide the temporary managers access to the premises, was in error. The Trust refers to the temporary managers draft report, which makes no reference to such difficulties.[127] The Ministry, in response to the Trust's claims of mistake of fact, emphasised its overarching submission that the contract governed the relationship between the parties. Insofar as the Trust relies upon mistake of fact to challenge the decisions that it made pursuant to the contract, the power to take action to remedy a breach, including the appointment of temporary managers, required the Ministry to form an opinion as to breach. It was the Ministry's opinion (which it says was based on reasonable grounds) that the service provider was in breach of its obligations, and in that event, the contract provided the Ministry with various options to respond to the assessed breach. One available response was the appointment of temporary managers. Such a course was not dependent on a finding of fact, but rather the reaching of a concluded opinion.[128] I accept that the identification by the Ministry of what it considered to be failures by the Trust to meet its obligations were matters of evaluation for it to determine. These were questions of assessment, rather than the finding of established facts, which can plainly and objectively be established as clearly wrong and requiring judicial intervention. Whether a comprehensive internal process is being used to manage and resolve complaints in a fair and transparent manner is clearly a matter of assessment, rather than the determination of a fact. Similarly, whether there was a significant lack of trust between the service provider's managerand the families of the residents is not capable of being incontrovertibly wrong or right. Inevitably, people will form different views and have different opinions. I am satisfied there was an evidential basis, albeit a contestable one, available to the Ministry in reaching its conclusions regarding failure by the Trust to comply with its obligations under the agreement.[129] Turning to the Trust's critique of the matters relied upon by the Ministry, I do not accept the Trust's analysis as inevitably leading to a conclusion that the Ministry made mistakes of fact capable of providing grounds to judicially review its actions.[130] The Ministry did rely upon the fact that complaints were being made, including to the police and other entities. It is apparent that the frequency and number of the complaints was of concern to the Ministry. I do not accept the Ministry proceeded on the basis that they were proven. The Trust may have cause to question the reliance the Ministry could place on complaints about which it did not know in terms of its assessment of the efficacy of its own complaint procedures. However, the incidence of complaints being made could legitimately be viewed as an indicator of unresolved problems between the Trust and the families and caregivers of the residents. This is particularly so having regard to the ongoing nature of those complaints. Rightly or wrongly, the complaints being made to external agencies were capable of reflecting on the Trust's own processes, in terms of how its own complaints procedure was perceived by those whose issues it was meant to be addressing.[131] A further example of the different, but not unreasonable, positions the parties can take in terms of the evaluation or interpretation of particular factors, were the anonymous complaints that were made about the Trust. The Trust submitted that such complaints should be afforded no credibility and ought to have been ignored. On the other hand, the Ministry can point to the fact that the need for a person to complain anonymously is a cause for concern, and perhaps an indictment on the effectiveness of the internal complaints process.[132] The Trust, in its submissions, placed some emphasis on the evidence of Ms Rowanne Janes, an employee of the Ministry, regarding its response torepresentations made by family members and a welfare guardian as to their concerns about the Trust and the health of the residents, who questioned why the Ministry was not taking immediate action. Ms Janes was involved in providing a response on behalf of the Minister. In reply to formal correspondence from a family member, she acknowledged that accounts provided to the Ministry of abuse and intimidation were being taken seriously, but reiterated how detailed substantive evidence to support the accounts would provide the basis for further investigation.[133] Subsequently, Ms Janes briefed staff at the Minister's office in midSeptember 2012, to the effect that from the Ministry's perspective it was difficult togauge whether there were safety concerns, as there had not been good substantive evidence of any unsafe condition. For completeness, it should be noted that the briefing also referred to the Ministry closely watching the situation from a safety perspective and was awaiting an independent review of the January evaluation audit before meeting with the Board.[134] The Trust submitted that these statements made by Ms Janes attest to there being no evidence of any unsafe conditions, and contradicts the approach the Ministry was then adopting. The Trust submitted that the Ministry itself was not convinced that there were health and safety concerns, and this was inconsistent with the approach later taken when temporary managers were appointed.[135] In my view, the Trust's reliance on a statement by a Ministry official that "it was difficult to gauge" whether there were safety concerns as there had "not been good substantive evidence" does not provide the basis to assert an error of fact. Itdoes not amount to unequivocal and clear evidence that the Ministry did not in fact have safety concerns, nor that no evidence was available to support the views that were being expressed to it by the families. The view expressed by the official is, at best, neutral. The letter from the Minister, and the briefing note, can be interpreted as the Ministry having the situation at the Trust under active review, and remaining open-minded before reaching any conclusions on the complaints that were being made to it by family members and caregivers. It contradicts the other allegations made against the Ministry, by the Trust, of predetermination, bias or bad faith.[136] As a piece of evidence, the significance of Ms Janes statements made in mid September need to be assessed in the context of all the information available to the Ministry at the time it made its decision to terminate the contract at the end of November 2012. It is to be noted that after September, Ms Janes was no longer involved with issues relating to the Trust, but that her view at that time was that relationships between the Trust, and the families, were at a point where they could not be restored amicably. The situation, in her view, was escalating.[137] I turn now to the reliance in the notice of termination on the alleged failures by the Trust to allow the temporary managers access to its premises, to ensure that they were able to carry out their duties without disturbance or disruption, and to comply with directions or instructions in accordance with the provider agreement. These concerns clearly related to the latter period of the temporary managers involvement at the Trust, when they were required to vacate their offices, locks were changed and access to information restricted. There was no requirement that those difficulties be included in the draft report prepared by the temporary managers as a prerequisite for the alleged breaches to be included in the termination notice. The temporary managers have provided evidence of what occurred from their viewpoint.While open to contest, I am not satisfied the Ministry's reliance upon such matters inits notice of termination gives rise to any mistake of fact, or at least is one capable of providing a ground for review.[138] I therefore find that there are no reviewable mistakes of fact. The claim would fail on this ground if amenable to review.Relevant and irrelevant considerations[139] The second ground put forward by the Trust in support of its application for review, is a contention that the Ministry failed to take into account relevant considerations and took account of irrelevant considerations.Failing to take into account relevant considerations[140] In summary, the Trust submitted the Ministry failed to take into account the very substantial length of time the Trust had been caring for the residents andrunning the service, the experience of its trustees, and its management of staff. It was submitted that the Ministry had failed to consider the fact that its contract had been renewed in early 2012, and the absence of problems prior to 2010. The Trustsought to emphasise the Trust's engagement with parents and caregivers during the difficult period after the Christchurch earthquakes, the issues relating to the previous manager, and what it described as the full engagement by the manager and the Trust Board with parents and caregivers into August 2012, including the appointment of a parent representative to the Trust Board.[141] There is no evidence to conclude that the Ministry was not aware of theTrust's history or record of performance, nor the satisfactory nature of the relationship that had once existed between the families and caregivers and the Trust. The issue of engagement between the Trust and the parents and caregivers was an issue central to the dispute and the nature and quality of that engagement was a matter which was clearly in contest between the parties. There is also no basis upon which to suggest that the Ministry was not aware that the current difficulties were other than a recent phenomena. Indeed, it was the relatively sudden deterioration in that longstanding relationship which was a cause for concern. The Trust's complaintessentially is with the Ministry's perception of the nature of the dynamic between the Trust and the parents and caregivers. A related, but secondary, consideration was the reason for the difficulties. In that regard, the historic performance of the Trust was a matter of weight for the Ministry, as was the issue of the relevance of such a factor in managing the current unsatisfactory situation between the Trust, and the families and caregivers, in discharge of its obligations to disabled persons to provide effective support services.[142] The Trust's argument, as is illustrated by the foregoing example, is hinderedby it being unable to identify particular criteria against which some considerations may be considered relevant and others irrelevant. Reliance on the contract to provide a framework for what may be considered relevant and irrelevant, would only serve to highlight the centrality of the provider agreement to the relationship between the Trust and the Ministry. In any event, the contract does not provide parameters as to what one party may take into account in considering whether the other party has breached provisions of the provider agreement.[143] The Trust placed some reliance on its analysis of the temporary managers'report regarding what it considered were contradictory statements relating to theappointment and performance of the Trust's manager. Further, it questioned why theMinistry would renew its agreement with the Trust in March 2012 if it was to terminate the contract eight months later.[144] These submissions are not persuasive. As already observed, there is no reason to suggest that the Ministry was not cognisant of its decision earlier in 2012 to renew the service provider agreement, or that, in choosing to do so, there were not outstanding current issues regarding the performance of the Trust, that may deepenin the future. The reference to the temporary managers' report regarding their discussion of the "new manager", does not appear to be an objectionable piece of information for the Ministry to consider, whatever analysis or interpretation of their remarks is arguably available.[145] Under this heading, the Trust also sought to make a submission regarding theMinistry's approach to its assessment of who should take responsibility for the state of the relationship between the Trust and the families and caregivers. Lack of trust and the failure by the Board to support and strengthen those relationships was relied upon by the Ministry as a breach of the provider contract. The Trust submitted that it was unreasonable for the Ministry to take the view that this was solely the responsibility of the Trust Board, and some discernment needed to be applied by the Ministry as to the cause of those difficulties. The Trust was critical of the Ministry taking the view that this was entirely the responsibility of the Trust Board, despite what the Trust submitted was evidence to the contrary.[146] I interpret the Trust's submission as being that the Ministry failed to take intoaccount evidence which it submitted threw a different light on the relationship issue than was otherwise taken by the Ministry. Clearly an important relevant consideration was the issue of trust between the family members, the caregivers and the Trust, and the nature of the relationship that existed between them. The conclusions reached by the Ministry regarding this issue are contested by the Trust. As has become something of a theme, however, this was a matter of evaluation for the Ministry.[147] Reviewable error does not simply arise as a result of the Trust being able to identify pieces of the evidence filed which it can argue supports its view of an issue, and claim it as a relevant consideration that was not taken into account by the Ministry. The Trust's complaint was not that the Ministry had not taken into account as a relevant consideration, its view of the relationship between itself and the families and caregivers and the reasons for the difficulties. Rather, the Trust'scomplaint lay with its evaluation of that consideration, pointing to evidence which it submitted supported a different conclusion.[148] I find therefore that there was no failure to take account of relevant considerations.Irrelevant considerations[149] To establish that the Ministry took into account an irrelevant consideration, it must be demonstrated why it was legally improper or illegitimate to have regard to it. The prime submission made by the Trust under this heading was that the Ministry had taken into account indeterminate allegations by parents and caregivers, without proof that the allegation was of substance, or allegations that had not been put to, or known to, the Trust. This submission extended to the Ministry's reliance oncomplaints made to the police, without regard to the outcome of their inquiries. It was submitted on behalf of the Trust that complaints received by the Trust were investigated by it, and explanations provided to the families and caregivers. Reference was made to an employment specialist addressing family members at the 30 August meeting regarding staffing issues, and correspondence entered into regarding allegations made by a welfare guardian.[150] In response to the allegations that the police complaints were irrelevant, theMinistry submitted that none of the Ministry's documentation reveals an assumption that the reported incidents amounted to proven criminal offences. The Ministry, however, could not ignore the fact that events had occurred which required the involvement of the police. For the same reason, it was submitted that it was unrealistic to assert that other complaints could not be taken into account unless"proven" by the Ministry in its assessment of the relationship between families andcaregivers, and the Trust, and of the assessment of risk to the safety and welfare of residents and the safeguards in place to ensure their wellbeing.[151] The Ministry's ultimate responsibility was the discharge of the State'sresponsibility to provide effective support and care services for disabled persons. As a contracting party to the service provider agreement, its interest was in the satisfactory performance of that which the Trust had contracted to provide. TheMinistry's role was not a neutral one requiring it to adjudicate on the individualissues arising between family members or caregivers and the Trust. It was under no obligation to put to one side complaints or negative information received, which had not been referred to the Trust. Similarly, it was entitled to take into account and draw inferences from the nature and pattern of the complaints and the variety of sources from which they came.[152] Ultimately, it was a matter for the Ministry to assess what weight it would place on the complaints, and their nature and frequency. In the absence of the Trust being able to point to any statute or guiding prescription setting boundaries or criteria, which the decision-maker could not go beyond, the influence of information received by the Ministry, including that received in the form of complaints, on the decisions it subsequently made to exercise options available to it under the provider agreement, was a matter for its evaluation. Whether the information relied upon by the Ministry did, as a matter of fact and law, provide a sufficient foundation for it to legitimately issue contractual notices of breach, and ultimately to terminate the contract, could have been tested by the Trust pursuant to the dispute resolution processes provided by the contract, or by otherwise suing the Ministry for breach of contract by way of a private action. It chose, however, not to adopt that course.[153] On this ground too, the claim would fail. I have been taken to no evidence establishing that the Ministry had regard to irrelevant considerations.Breach of legitimate expectation[154] The Trust's third ground of challenge is based on breach of legitimate expectation. The Trust submitted under this heading that the decision by the Ministry to terminate the provider agreement took no account of the legitimateexpectation of the Trust, that the Ministry would comply with the relevant terms of the provider agreement. That submission, of course, begs the question as to whether the terms of the provider agreement were complied with by the Ministry, and bringsinto stark relief the fallacy of the Trust's reliance on a public law action.[155] The Trust argued that the Ministry procedurally did not comply with the terms of the provider agreement. It relies upon a case previously discussed, Green v Racing Integrity Unit Ltd.44 I have already identified why the case is not authority for the proposition that a commercial contract between parties can be challenged by way of judicial review. The Trust seeks to extend observations made by the Court of Appeal in that case regarding legitimate expectation. The case, however, concerned practice or policy in the context of procedures adopted by a body in the exercise of disciplinary powers, regarding investigative steps that it had taken prior to the laying of a charge. The analogy sought to be drawn is not valid.[156] The Trust sought to identify a practice between itself and the Ministry that had become established over the course of the series of provider agreements entered into between them over the previous 20 years. The Trust submitted that over that period a promise or commitment has become established, upon which the Trust relied, namely that the Ministry would continue to comply with the settled terms of the provider agreement. The Trust argued that it expected there would be no change and that the Ministry would continue to abide by the terms of the agreement.[157] The argument is yet a further reformulation of a submission which is dependent upon the issue of whether or not the Ministry has breached the contract in making the decisions that it did pursuant to its terms. This is a very clear example ofHammond J's description of a contract claim "in public law drag"; on this occasion,by clothing the argument of contractual or procedural breach of the provider agreement, with the recognised public law ground of breach of legitimate expectation.[158] The second argument made by the Trust in furtherance of its contention of a breach of legitimate expectation is the assertion that the Ministry, in dealing with the44 Green, above n 6.Trust, would only take account of relevant matters. That argument has already been considered earlier in this judgment.[159] The Trust also sought to argue, as a so-called legitimate expectation, that theMinistry would not introduce what is described as "an extra-contractualrequirement", referring to an attempt to influence the structure of the Trust board and the make up of its staff. This is a reference to some recommendations contained inthe temporary managers' report and conflates the content of that report, with the steps subsequently taken by the Ministry pursuant to the provider agreement.[160] Finally, the Trust alleges that its expectation of consultation with the Ministry was breached. Specifically, it is alleged that the Ministry failed to provide sufficient notice to the Trust when it appointed temporary managers. It is also alleged the Ministry failed to identify a specific breach which the temporary managers were to rectify.[161] In deference to the argument presented by the Trust under the heading legitimate expectation, I have set out the arguments it made in support of that ground. However, none of the matters identified are capable of providing a foundation for such a challenge. The Trust has not identified any act, promise, policy, or practice which is capable of giving rise to a legitimate expectation beyond compliance with the provider agreement itself. The Trust relies upon the relatively long period over which it had contractual relations with the Ministry. That, however, is insufficient to create some public law gloss of legitimate expectation, beyond the express provisions of the contract which govern the relationship between the parties, as indeed previous provider agreements had governed their relationship. There was no promise or commitment made by the Ministry, or which could be implied as having been made by the Ministry, which went beyond the terms of the contract.[162] The contract did not require advance notice or consultation as to a preliminary view about whether to appoint temporary managers, or terminate the contract. The contract provided the Ministry with a mechanism to move swiftly to deal with urgent or serious matters. Those provisions can be contrasted with other termination provisions that do require the provision of a formal notice period, andother provisions that required consultation between the parties, but were not relied upon by the Ministry in the present case.[163] The Trust, has not pointed to any particular undertakings or representations made on behalf of the Ministry by officials to act, or refrain from acting, or to provide particular processes or procedures beyond the terms of the provider agreement.[164] The Trust in its argument in support of a finding of legitimate expectation, relies on the recommendations of the temporary managers in their report regardingthe Trust's governance and management as having illegitimately influenced theexercise of the Ministry's power to terminate the provider agreement. It argues that it had a legitimate expectation that such matters, which were the Trust's exclusivepreserve, would not be interfered with by the Ministry, and that it was an illegitimate imposition by the Ministry to consider the type of changes being recommended by the temporary managers.[165] The suggestion made by the temporary managers regarding the Trust'sgovernance and management, provided to the Ministry in an effort to retain the Trust as a service provider, of itself was not illegitimate. The internal structure of an organisation and its personnel may on inquiry be identified as a source of difficulty to the service provider discharging its contractual obligations in the opinion of the other party to the contract.[166] The Trust in its argument sought to interpret the temporary managers' viewsand recommendations regarding these issues, as an attempt by the Ministry to intervene in matters of employment and staffing, which was a responsibility for the Trust Board alone. As was acknowledged by the Ministry, recommendations aboutchanges to the Trust's personnel could only ever be acted upon by the Trust itself andwere matters for it to determine. Such issues, however, could be matters of legitimate concern to a funding body concerned about the performance of the service provider.[167] As I have earlier observed, the Trust conflates the recommendations made inthe temporary managers' report, which the Ministry has recognised could not be imposed on it, being employment issues with potential legal implications for the Trust board, with the decision to terminate the provider agreement. Apart from thetemporary managers' report being cited in the notice of termination, as a source confirming its position that the Trust had failed to carry out its obligations under the provider agreement, and that such non-compliance was material, there is no reliance on this particular recommendation, or identification of a failure to adopt that recommendation, as justification for termination.[168] The Trust has failed to establish its claim of breach of legitimate expectation. The matters identified by it are not capable of providing the foundation necessary to establish the ground. Leaving to one side that the bulk of the Trust's argument restedon the "expectation" of the performance of the contract by the Ministry, which is at the core of the dispute, the Trust has failed to identify any practice or policy beyond the contract capable of founding a legitimate expectation, let alone capable of providing the level of commitment or undertaking on behalf of the Ministry necessary to base a legitimate expectation for the purposes of successfully reviewingthe Ministry's decision. The Trust has not established an extra-contractual practice or policy which it had always relied upon prior to the performance issues arising between the contracting parties. The only expectation which the parties could legitimately have held, was that for the period of the contract, their relationship would be governed by the provider agreement, and that disputes between them, including issues of termination, would be determined by the processes it provided.[169] From the antecedent discussion it will be clear that, had I been required to do so, the claim would have also failed on the ground of breach of legitimate expectation.Breach of natural justice[170] The Trust argued that its rights to natural justice were breached by the Ministry failing to provide it with the opportunity to be heard, and, as it was put bythe Trust, "to hear the case of one's accuser". The Trust relied upon an obligation onthe Ministry to be "fair in all of the circumstances". Secondly, that the Ministry wasbiased and operated with a closed mind. In aid of these claims, the Trust relied upon s 27(1) of the New Zealand Bill of Rights Act 1990 and the observation of the Court of Appeal in Combined Beneficiaries Union Inc v Auckland City COGS Committee, that the right was not confined to bodies making adjudicative determinations, but extended to discretionary determinations involving rights, obligations, or interests.45Opportunity to be heard[171] In reliance on the alleged breach of the Trust not being afforded the opportunity to be heard, the Trust pointed to disputed representations by the Ministry, regarding whether the Trust's legal advisor had responded tocorrespondence, and that it was not until 15 November that the Ministry replied tothe Trust's legal advisor's letter of 12 September, which detailed objections taken by the Trust to the January Evaluation Audit Report. It was submitted by the Trust that, in regard to the timing of the 15 November reply by the Ministry, and its decision to terminate the provider agreement, the Ministry could not have relied upon reported breaches contained in the January Evaluation Audit Report.[172] This submission is without merit. It is apparent that there were delays in theexchange of correspondence between the Ministry and the Trust's legal advisor, andconflicting points were raised regarding the reasons for that, including failure by the Trust to specify in some detail the particular matters it contested in the January audit report. It is, however, artificial to suggest, as the Trust has, that the Ministry was prevented from taking into account the information provided to it by its auditors because the Trust had put the Ministry on notice that it contested some of its contents. It is to be noted that the authors of that audit report, as part of the audit process, consulted with the Trust over their draft report, and included the Trust'sresponses in their final version prior to the requested review.[173] The Trust submitted that the Ministry displayed a reluctance to address its criticisms of the temporary managers' draft report. That document was provided to the Trust on 12 November 2012 with an invitation to meet with the Trust board to45 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56.discuss its contents. In the absence, at least initially, of such a meeting, the Ministry requested written feedback. On 19 November 2012, the Trust's legal advisors wroteto the Ministry, advising that it considered the draft report to be highly contestable and flawed. On 20 November, the Ministry responded, acknowledging the Trust'sposition that the report contained errors of fact, preconceptions, and hearsay observations, and that the Trust considered the report to be unsound. The Ministry, however, advised that its position was that it had been difficult for the temporarymanagers to gain the Trust's views when, on legal advice, it would not engage with them. The letter advised that, following the failure of the Trust to respond directly to issues identified in the draft report, the Ministry would be taking action to safeguard the welfare of the residents.[174] Apart from challenging the merits and the basis upon which the Ministry proceeded to make its decisions, the Trust has not identified how the processfollowed in respect of the provision of the temporary managers' draft report, itsformal efforts to engage with the Trust regarding its content, and the correspondence setting out the respective positions of the parties, denied the Trust the opportunity to put its position to the Ministry in response to the information contained in the reports.[175] The requirements of natural justice will vary depending on the individual circumstances of the particular case.46 Discharge of the obligation of providing a party the opportunity to be heard can, depending upon the context of the situation, be discharged by way of consultation. That requires listening to, and considering, the views expressed, but does not require agreement to be reached between the parties.47[176] The context in the present case relates to decisions being made by a government funding body, in respect of its commercial contract with a service provider. In the context of a contractual relationship, excepting for present purposes that there may be obligations of consultation beyond what is provided for in the contract between the parties, I am satisfied that the ongoing communication between46 Combined Beneficiaries Union Inc, above n 45, at [11]; Lab Tests Auckland Ltd, above n 2;Phipps, above n 4, at [16]; Okahu Haulage Inc v Auckland City Council [2010] NZAR 82 (HC) at [34].47 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 674.the parties from the time of the January Development Evaluation Audit, until the termination of the contract, was sufficient to discharge any overarching obligation that may have existed beyond the terms of the contract.[177] It is apparent that the relationship between the contracting parties was increasingly fraught, with the Trust making the decision to communicate with the Ministry through its legal advisors, although that was not to the exclusion of board members meeting with Ministry representatives. The nature of the interaction between the Trust and the Ministry is the subject of varying and conflicting views and opinions in the evidence filed. It is not necessary for me to resolve those conflicts, indeed, it would not be appropriate to do so in the absence of oral evidence and cross-examination. I am satisfied, however, that sufficient opportunity was provided to the Trust over the course of 2012, to enable the Trust to express any views about the various reports and related issues to the Ministry, and that it, indeed, did so.[178] In Lab Tests Auckland Ltd,48 the Court of Appeal observed that care needed to be taken to identify the source and nature of any obligation to consult, and the way in which it was said to have been breached.49 In that case, there were some statutory consultation obligations which were enforceable. However, the Court sought to distinguish between consultation as a matter of good practice and consultation undertaken in accordance with an obligation to do so. It was only the latter obligation which is enforceable through judicial review.50 In Aorangi School Board of Trustees v Ministry of Education,51 French J remarked that whether the engagement between parties in any particular case was sufficient to discharge consultation obligations was dependent on the particular facts and the significance of consultation in terms of the relevant statutory scheme. A commonsense approach was required but the consultation did not require an ongoing dialogue over a protracted period.48 Lab Tests Auckland Ltd, above n 2, at [314].49 At [296].50 At [314].51 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [36].[179] In the present case, there are no applicable statutory requirements and the context was not one of quasi-judicial adjudication. To the contrary, the context was a purely contractual one, involving the performance of contractual obligations. The case did not involve the performance of regulatory functions, but concerned a party to a contract seeking to exercise contractual rights that it considered were available to it. I have already observed that the case of Te Tai Tokearau Mapo Trust has strong similarities to the present case, and there it was held that no obligation to consult wider than that contained in the contract existed.52 I therefore conclude that, in the absence of any such obligation, the Trust cannot claim that their right to natural justice, at least in terms of being afforded the opportunity to be heard, was breached.Bias and predetermination[180] The Trust's allegation of bias and predetermination rests primarily on asubmission that the Ministry uncritically accepted what the parents and caregivers told them, and applied that criticism indiscriminately to conclude that there were failings by the Trust. Secondly, the Trust submitted that the Ministry did not identify to the Trust particular issues or breaches. In that regard, reference is made to the meeting with the Ministry on 3 August 2012, where it is claimed that Trustrepresentatives were "ambushed" with allegations about which they had received no notice. Further, it was claimed that the Ministry was duplicitous in meeting with the Trust on 23 November when, at the same time, it was taking steps to assist the parents and caregivers to move the residents.[181] In support of its allegation of bias and predetermination, the Trust repeated its submissions regarding the claimed acceptance by the Ministry of reported assaults being proven and, similarly, other complaints to other agencies. The alleged approach by the Ministry regarding complaints made by some families was sought to be contrasted with other evidence about initiatives taken by the Trust, and of other families being supportive of the Trust, and meetings and communications which the Trust entered into with families and caregivers to inform them and provide feedback. Other matters which have already been traversed in the course of this judgment were also relied upon under this heading.52 Te Tai Tokerau Mapo Trust, above n 17, at [139].[182] In response to the allegations of bias and predetermination, the Ministry submitted that the Trust, apart from listing alleged flawed acts by Ministry officials, failed to present an evidential basis for such claims. Further, that the Trust was seeking to impose process obligations which it was not required to perform having regard to the contractual nature of the relationship between the parties.[183] The allegation of bias in this case is not based on an allegation that a party had a private interest, or association, or some stake in the outcome which improperly influenced the decision-maker. The allegation of bias or predetermination is sought to be established by the Trust from drawing an inference from how the Ministry came to take a negative view of the Trust's performance. In particular, the conflict that developed between the Ministry and the Trust regarding how the families and caregivers views should be treated, the Ministry's reliance on observations made in various reports and reviews, and ultimately the opinions expressed by the temporary managers. However, the fact that a decision-maker reaches conclusions which another party does not agree, or over time reaches a position in the face of conflicting opinions regarding steps that the decision-maker decides should be taken, or disagreement as to the sufficiency of the foundation for the taking of such actions, does not provide a sound basis upon which to establish bias.[184] Moreover, the Trust's submissions appear to be premised on an acceptance that the Ministry was carrying out some type of adjudicative function, to be likened to the position of a judicial or regulatory body charged with investigating and making formal findings regarding complaints or alleged wrongs. Rather, the parties were in a contractual relationship. The approach taken by the Ministry and the legitimacy of the decisions made, were to be tested against the terms of the powers provided to the parties under the provider agreement. Two particular topics illustrate this point.[185] The first example is that the Trust complains of a lack of advance notice in respect of issues raised by the Ministry with it, the decision to appoint the temporary managers and, finally, to terminate the contract. The Ministry submitted that the contractual powers the Ministry resorted to, were designed to respond to urgent and serious situations, and did not require any warning or notice, and that, in any case,having regard to the correspondence between the parties, the Ministry's resort tothose provisions ought not to have come as a surprise to the Trust. If the Trust did consider the Ministry was in breach of the contract in the summary way it acted without notice, it is to be expected that such breach would have been claimed by reference to the terms of the contract, and notice of such breach provided to the Ministry, if not immediately, at least in a timely fashion.[186] I am satisfied that the Ministry sought to act pursuant to the provisions of the provider agreement and that it was for the Ministry to evaluate whether the circumstances entitled it to act under those contractual provisions. There was no requirement for the Ministry to refrain from so acting without involving the Trust. The Ministry did not have any fiduciary obligations which it owed to the Trust and, as contracting parties, neither party had any duties to act in each other's interest. In a contractual setting it may be expected that there is ongoing communication between the parties, particularly if they have a shared interest in maintaining the contractual arrangements. In that regard, the Trust has not identified why the Ministry would have a preconceived or ulterior motive to terminate the contract rather than maintain the arrangements that had been in place with the Trust for such a lengthy period. Indeed, having regard to the chain of events, the indicators are that this was theMinistry's objective. The chronology does not support the Trust's submission thatthe Ministry had set its mind and was determined to terminate contractual relations with the Trust.[187] While more relevant to the previous issue of legitimate expectation, I note for completeness that issues relating to the appointment of temporary managers or the termination of the contract had not previously arisen between the parties. There was no settled practice which provided a gloss on the terms of the contract which gave rise to implied obligations on the part of the Ministry and reasonable expectations to be held by the Trust.[188] The second example is the Trust's complaint that the decisions made by theMinistry were not accompanied by sufficient explanations, and that what was tendered by the Ministry in support of its decisions was insufficient to justify the actions being taken. The Trust's submission, however, continues to disregard thecontractual context in which the Ministry was acting. The Ministry submitted that it did provide notice of the particular contractual provisions which it considered the Trust had breached, and set out the underlying issues that had led it to that view. Whether that assessment is correct is dependent upon an examination of the requirements contained in the contract, with the content of the notices provided. Again, it requires an analysis of the contractual terms and conditions that existed between the parties. The Trust, however, seeks to attach additional obligations interms of the Ministry's explanation of the reasons for its decisions which, in myview, is not justified.[189] I accept the submission made by the Ministry that the purpose of the notices provided under the contract was to inform the Trust, not to persuade it that the Ministry's actions were correct or valid. Whether there was justification for the steps taken by the Ministry was to be measured against the terms and conditions of the provider agreement. The Ministry was not required to present to the Trust a comprehensive and detailed case for its decisions, nor was it required to disclose every item of information known to it and which may have been factored into the decisions it made.[190] The Trust has objected strongly to the reliance the Ministry placed on complaints made either to it or other entities which were unknown to the Trust, and that the Ministry proceeded on the basis that such complaints had been substantiated The difficulty for the Trust, however, is that there was no process or proceeding over which the Ministry was presiding, nor was it conducting any inquiry or investigation. The Ministry was in the position of a party to a contract, and made its assessment based upon the information known to it, including the nature and number of complaints, to exercise its rights to act under the terms of the provider agreement. The Ministry was not required to provide notice of allegations, or formally identify charges or allegations being made against the Trust. The Ministry was not requiredto find complaints proven, or that a "case" had been established before taking such information into account or giving it what weight it considered appropriate.[191] In any case, by late November the Trust must have been aware of the difficulties that had arisen between itself and the families and caregivers. Variousreports had been tendered and, later, the Trust was in receipt of the temporarymanagers' views. There had been a number of meetings between the parties andcorrespondence had been exchanged. Official information requests were made by the Trust at the latter end of the period in respect of which the Ministry's responses do not appear to have been the subject of any complaint. While the Trust may not have had complete knowledge of the details of all the complaints, or been privy to all the information which was informing the Ministry's decisions, the important issues,and the Ministry's views and concerns, would have been well-known to it.[192] It cannot be overlooked when evaluating the Trust's claim of "predetermination", that its complaint relates to another contracting party. It is inevitable by the very nature of a contractual relationship that a party will have formulated views about how the contract is working and whether the other party is servicing the contract and discharging its obligations under it to its satisfaction –there will always be that element of accumulated knowledge which will inform thecontracting party's views, in this instance the Ministry's.53[193] In response to the allegation that the Ministry's involvement with the familiesregarding the removal of the residents prior to formally advising the Trust of its decision to terminate the contract, the Ministry submitted that there was nothing inappropriate in its engagement with the families at that time. The Ministry accepted that its officials would have discussed with the families and caregivers moving the residents from the Trust residences, but that did not indicate some improper fixed or predetermined view.[194] LifeLinks, the needs assessment agency, was obliged to assess the residents and investigate options with the families once they had expressed a wish to remove family members. The Ministry submitted that it was only responsible for it to prepare for that contingency which was a looming outcome, and that it took practical precautions in that regard. It is not disputed that the families could insist on moving their family members from the Trust, regardless of the position taken by the53 See Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA) at 207-208.Ministry. In such an event, the Ministry would be required to work with the families and the NASC to make alternative arrangements.[195] The Trust, under the pleaded ground of breach of natural justice, sought to rely upon s 27(1) of the New Zealand Bill of Rights Act 1990. The section, however, does not create any different obligations on decision-makers above that required by the common law. The Act affirms those rights, and the content of s 27(1) is"coincident" with those rights as they exist at common law.54 The Trust's reliance ons 27(1) does not add anything to the strength of its argument, or require a different approach to the assessment of these issues. For completeness, I note that the Trust abandoned its claim for damages, initially pleaded as a remedy to claimed breaches of the New Zealand Bill of Rights Act 1990.[196] Other particulars were alleged in support of the Trust's claim of breaches ofnatural justice, particularly whether the Ministry could to take into account various disputed matters which the Ministry had wrongly accepted as true or proven without critical examination. Those matters, however, have been addressed under other grounds discussed in the course of this judgment.[197] If required to do so, I would have concluded on the written evidence tendered that the Trust had failed to make out its allegation of bias and predetermination.Unreasonableness[198] The final ground pleaded in the Trust's statement of claim was that the decision of the Ministry to terminate the provider agreement was unreasonable in all the circumstances. The Trust submitted that the Ministry's decision was one that no reasonable body could have come to.55 The Trust particularised the alleged"unreasonableness" in its pleading as being failures by the Ministry to comply with its own agreement, to produce any evidence of proven health and safety concerns against the Trust, and of failing to consult with the Trust in an adequate or measured way. The identified failures are the same allegations which were relied upon under54 Combined Beneficiaries Unions Inc, above n 45, at [50].55 Associated Provincial Picture House Ltd, above n 33.the other grounds of review earlier pleaded in the statement of claim, and previously traversed in this judgment.[199] I interpret the Trust's reliance on this ground identified as "unreasonableness"as an allegation that the Ministry's decision to terminate the contract was intrinsically perverse, absurd, or in defiance of logic.56 It is an allegation which does not go so far as bad faith because it does not purport to involve an allegation of motive or purpose on the part of the decision-maker, but rather relates to the logic or rationality of the reasoning of the decision-maker which is apparent on its face.[200] In support of this ground, the Trust repeated the same alleged failures which it had relied upon under the earlier grounds alleged in its pleadings. As an example, the Trust submitted the appointment of temporary managers without prior notice when, in its submission, the threshold for the Ministry to do so had not been met, constituted unreasonableness. It was alleged the temporary managers wereappointed with "general" powers outside the authority of the provider agreement, and that the Ministry accepted the temporary managers' report without reservation,relying upon incorrect statements, assumptions and misconceptions, and accepted their recommendations.[201] Highlighting these alleged failures does not render the decision to terminate unreasonable on its face – the decision being so absurd that the decision could not sensibly have been made. As has now repeatedly been observed, the assessment ofthe Trust's allegation requires review of the Ministry's evaluation and judgment of the situation. The state of the evidence filed by the parties is such that no conclusions of the type sought could validly be reached.[202] I have already dealt with the complaints made by the Trust regarding therecommendations contained in the temporary managers' draft report, about the makeup of the Trust board and the engagement of its present manager. Similarly, thealleged failure by the Ministry to take into account the board's efforts to engage withparents and caregivers, and the appointment of a parent representative to the board. Likewise, alleged failures by the Ministry relating to the particularisation of breaches56 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).of the provider agreement in the notice of termination have previously been canvassed. These relate to alleged failures by the Ministry in terms of the requirements of the contract. The repetition of these claims under the heading of"unreasonableness" does not add to the Trust's argument.[203] I have also already dealt with allegations of the Ministry's failure to produce evidence regarding what the Trust describes in its submissions as "proven health and safety concerns" which were matters of evaluation for the Ministry, the correctness of which could only be judged by a forensic examination of the evidence that is simply not available on the written record and which, in any case, fell to be determined by reference to whether the Ministry was entitled to take steps based upon such concerns under the provider agreement. Additionally, I note that the Trust again repeats complaints regarding a failure by the Ministry to adequately consult, and predetermination, which again is a repetition of submissions already made under the ground of breach of natural justice which has already been traversed.[204] As will be apparent from the foregoing, I am not satisfied that the Trust hasdemonstrated that the Ministry's decision to terminate the provider agreement was so unreasonable that no reasonable body could have reached that decision in the circumstances.Conclusion[205] The application for judicial review is dismissed.[206] In accordance with the general rule, the applicant would be entitled to costs but, in the circumstances of this case and the status of the Trust, costs may not in the event be sought by the respondent. If costs are sought, a memorandum should be filed and served in the usual way (not more than five pages). A response from the applicant (not more than five pages) should be filed and served within 15 workingdays of receipt of the respondent's memorandum.Solicitors:G C Knight, ChristchurchCrown Law, Wellington