NEW ZEALAND STEEL LIMITED v MINISTER OF COMMERCE AND CONSUMER AFFAIRS [2017] NZHC 3232

NEW ZEALAND STEEL LIMITED v MINISTER OF COMMERCE AND CONSUMER AFFAIRS [2017]NZHC 3232 [19 December 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-714[2017] NZHC 3232UNDER the Judicial Review Procedure Act 2016and the Dumping and CountervailingDuties Act 1988IN THE MATTER of the exercise of powers under theDumping and Countervailing Duties Act1988BETWEEN NEW ZEALAND STEEL LIMITEDApplicantAND MINISTER OF COMMERCE ANDCONSUMER AFFAIRSRespondentHearing: 5 December 2017Counsel: J E Hodder QC and K E Yesberg for ApplicantJ Every-Palmer QC and N Butler for RespondentJudgment: 19 December 2017JUDGMENT OF THOMAS JTable of contentsIntroduction ............................................................................................................. [1]Background .............................................................................................................. [4]Discovery ................................................................................................................ [16]The law ................................................................................................................... [18]Analysis .................................................................................................................. [30]Relevance ............................................................................................................ [30](i) Categories 1 and 2 ...................................................................................... [53](ii) Category 3 ................................................................................................... [62]Proportionality .................................................................................................... [73]Conclusion.............................................................................................................. [77]Introduction[1] In June 2016, the applicant, New Zealand Steel Limited (NZ Steel), submittedan application to the Ministry of Business Immigration and Employment (MBIE)alleging that galvanised steel coil imports were being subsidised by the People'sRepublic of China and seeking an investigation under the Dumping andCountervailing Duties Act 1988 (the Act).1[2] On 5 July 2017, the Minister of Commerce and Consumer Affairs (theMinister) made a decision that the import of galvanised steel coil was subsidised to deminimis levels only and the subsidisation was not causing material injury to the NewZealand industry (the Decision). NZ Steel seeks judicial review of the Decision.[3] There has been some agreement between the parties as to discovery but theMinister as respondent opposes certain categories sought by NZ Steel. This decisiondeals with those disputed categories.Background[4] The Act implements aspects of New Zealand's obligations under the WorldTrade Organisation (WTO) Agreement on the Implementation of Article VI of theGeneral Agreement on Tariffs and Trade 1994 and the WTO Agreement on Subsidiesand Countervailing Measures.2[5] The Chief Executive of MBIE (referred to as the Secretary in the Act) has thediscretion to commence an investigation into an alleged subsidisation of goodspursuant to a process set out in the Act.3 If the Minister determines that goods are1 Now the Trade (Anti-dumping and Countervailing Duties) Act 1988. Amendments to the Act weremade on 29 November 2017. The provisions of the Act in force at the relevant times apply to thisjudgment.2 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 19941868 UNTS 201 (signed 15 April 1994, entered into force 1 January 1995); and Agreement onSubsidies and Countervailing Measures (interpreting arts VI, XVI and XXIII of the GeneralAgreement on Tariffs and Trade 1994) 1869 UNTS 14 (signed 15 April 1994, entered into force 1January 1995).3 Dumping and Countervailing Duties Act 1988, s 10.being subsidised and causing material injury to the New Zealand industry, the Ministermay impose countervailing duties on the subsidised goods.4 During the course of theinvestigation, the Minister may give a provisional direction for payment of duty inrespect of the goods.5 These Ministerial decisions are informed by reports from MBIE.[6] MBIE began its investigation on 19 December 2016, being satisfied NZ Steelhad provided sufficient evidence in support of its allegations (the Initiation Report).6Prior to that, as required under the Act, it had consulted with the Government ofChina.7[7] Of the seven Chinese manufacturers to whom MBIE sent a questionnaire, onlyone responded. Of eight trading intermediaries (exporters), only three responded toMBIE's request for information. Six New Zealand-based importers were identifiedand all but one provided information.[8] The Government of China provided general comments relating to the allegedsubsidy programmes. MBIE also considered investigations by other authorities inAustralia, the United States and WTO reports.[9] In the first quarter of 2017, NZ Steel provided three further submissions toMBIE. NZ Steel is the only primary steel producer in New Zealand.[10] On 10 May 2017, MBIE issued a report declining to impose provisionalmeasures on galvanised coil steel from China during the period of the investigation(the Provisional Measures Report) and gave interested parties until 23 June 2017 tomake comments on it. NZ Steel provided comments on the Provisional MeasuresReport, including on MBIE's preliminary conclusion that the galvanised steel coil wasbeing subsidised to de minimis levels only.[11] On 9 June 2017, MBIE released a draft report containing the essential facts andconclusions (the EFC Report).8 NZ Steel commented on the EFC Report. It drew4 Section 14.5 Section 16.6 Section 10.7 Section 10(9).8 Pursuant to s 10A of the Act.MBIE's attention to a June 2017 European Commission report (EC Report)concerning what it believed was a closely related product (hot-rolled steel) and amanufacturer which had cooperated with the EC investigation, but not with MBIE'sinvestigation.[12] The EC Report found an overall subsidy rate of 38.6 per cent in relation to thatmanufacturer. In its submission to MBIE, NZ Steel said the findings of the EC Reportought to be applied to that manufacturer and any other non-cooperating manufacturers.The EC Report also concluded that state-owned commercial banks were public bodies.This was relevant to the allegation that loans to manufacturers from state-ownedcommercial banks should be taken into account when deciding whether manufacturerswere in receipt of subsidies.[13] MBIE provided a briefing paper to the Minister on 3 July 2017 which wasincluded its final report (the Final Report). The Decision followed therecommendation in the Final Report, deciding that the goods were subsidised tode minimis levels only and by reason thereof the subsidisation was not causingmaterial injury to the New Zealand industry.[14] In broad terms, NZ Steel does not consider MBIE dealt sufficiently with thematerial contained in NZ Steel's submissions. It considers MBIE disregarded keyfindings in the EC Report without any meaningful consideration of the findings. Italso questions reliance on some evidence and believes it relied too heavily on otherevidence.[15] Furthermore, NZ Steel believes there is a political context to the Decision,maintaining that the Government of China had made clear and public statementsregarding its dissatisfaction with the New Zealand Government's decision to launchthe investigation.Discovery[16] The Minister has agreed to provide tailored discovery in relation to:(a) materials before the Minister in making the Decision; and(b) materials relied on by MBIE in preparing the Final Report.[17] At issue are the orders sought by NZ Steel for discovery of the following(together the further categories):(a) correspondence relating to MBIE's investigation, including internalcorrespondence and correspondence between government agencies andMinisters, and correspondence with foreign governments ororganisations (Category 1);(b) working documents, including drafts of the various reports(Category 2); and(c) material considered and/or relied on by MBIE in preparing the variousreports (the Reports), being the EFC Report, the Provisional MeasuresReport and the Initiation Report (Category 3).The law[18] The ambit of discovery in judicial review proceedings is generally notconsidered to be as wide as that which takes place in other civil proceedings. Thegeneral approach to discovery in judicial review is to ask:9 can this court fairly and effectively adjudicate upon the issues raised onthese pleadings without the additional material which is sought by thisapplication for discovery?[19] Mr Hodder QC, appearing for NZ Steel, questioned whether Hammond J'sseminal description of discovery in judicial review cases reflects the current position.In his submission, the more recent case of Northland Environmental ProtectionSociety Inc v Chief Executive of the Ministry for Primary Industries dispelled the9 Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 25 July2002 at [45].notion that discovery in judicial review proceedings was limited to what was"necessary".10[20] That case concerned an application for discovery of emails in respect of theplaintiff's application for judicial review of a range of decisions made by the Ministryof Primary Industries relating to the export of ancient swamp kauri. At issue was theplaintiff's submission the discovery would be relevant to show the actual knowledgeand belief of decision makers in respect of certain matters on the basis that knowledgewas central to the pleading of unreasonableness of the decisions. Woodhouse Jdiscussed the discovery principles relevant to a judicial review as follows:11[10] I referred earlier to the first defendant's submission that thediscovery sought must be shown to be necessary, or what is trulyrequired, and my conclusion that the discretion is not circumscribed inthese ways. Mr Martin cited cases which he submitted supported thesubmission. The foundation, at least in relation to the authorities cited,is the decision of Hammond J in Wellington International Airport Ltd vCommerce Commission. However, the requirement for "necessity",and different ways of expressing a similar concept, appears to havederived from r 300 of the High Court Rules before the 2008 amendment.As Mr Martin quite properly noted, r 300, directed to particulardiscovery, included a provision that the Court could not make an order"unless satisfied that the order is necessary", but the requirement fornecessity was not repeated in the current particular discovery rule,r 8.19. Quite apart from the changes to the High Court Rules, it doesnot seem to me to be appropriate that the wide discretion provided ins 10(1) justifies what would amount to a mandatory requirement for anapplicant to establish necessity. The only mandatory requirements arethe broad concepts in s 10(1) and relevance which arises because of thenature of the application. As Priestley J observed in the passage citedabove, discovery may be declined because it is unnecessary. But thatis a different consideration.[21] Mr Hodder stressed the reason Woodhouse J rejected the necessity test wasbecause it relied on r 300 of the old High Court Rules, which has since changed. Healso referred to Woodhouse J's confirmation of the role of the rule of law in discoveryto enable a plaintiff to be adequately equipped with the information it needs toprosecute an application for judicial review.1210 Northland Environmental Protection Society Inc v Chief Executive of the Ministry for PrimaryIndustries [2016] NZHC 406.11 Citations omitted.12 At [30] and [31].[22] I am not sure Hammond J's analysis rested solely on r 300 of the High CourtRules. For example, when discussing what he described as the critical test of whetherdiscovery was necessary for disposing fairly of the proceeding, he was not relying onthe High Court rule necessarily but also discussing "the leading appellatejudgments".13[23] In any event, a new discovery regime for the High Court was implemented in2012.14 Key reforms included a requirement on the parties to cooperate at an earlystage to seek to achieve a consent position as to the scope and method of discovery.The Peruvian Guano test for discovery was dispensed with and replaced by either anadverse documents test (standard discovery), or tailored discovery where specificdiscovery categories are ordered.[24] Tailored discovery must be ordered when the interests of justice require anorder involving more or less discovery than standard discovery will involve.15 Thereis a presumption of tailored discovery where, amongst other things, the cost ofstandard discovery would be disproportionately high in comparison with the mattersat issue in the proceeding or where the total of the sums in issue in the proceedingsexceed $2,500,000.16[25] The concept of proportionality is important, applying to the determination ofwhether tailored discovery is appropriate,17 and what the categories of tailoreddiscovery should be.18[26] As far as judicial review is concerned, the Judicial Review Procedure Act 2016provides that a judge may, at any case management conference or at any other time,require a party to make discovery, produce documents or both.19 The purpose of anycase management conference (and implicitly the purpose of any orders or directionsmade) is to ensure that any application may be determined in a convenient and13 Wellington International Airport, above n 9, at [42].14 High Court Amendment Rules (No 2) 2011.15 High Court Rules 2016, r 8.8.16 Rule 8.9.17 Rule 8.9(a) and sch 9, cl 1.18 Schedule 9, cl 3(2)(a)(i).19 Judicial Review Procedure Act 2016, s 14(2)(h).expeditious manner and that all matters in dispute may be effectively and completelydetermined.20[27] It is not apparent, therefore, that there is any real difference in respect of thetests for discovery whether the matter is one of judicial review or an ordinary civilproceeding. The reason discovery might not be appropriate in a judicial review case,or where appropriate discovery might be very limited, would simply reflect the issuesin the case and the context of judicial review proceedings which are often brought asa matter of urgency.[28] The considerations in all cases are relevance and proportionality.[29] Relevance is determined by the issues as pleaded:21The starting point in such a consideration of appropriate tailored discoveryorders must be an analysis of the issues. Discovery categories will reflect theissues and will only be ordered for the discovery of documents that arerelevant to those issues. Except in exceptional circumstances, these issueswill be discernible from a review of the pleadings. Discovery orders that areessentially of a "fishing" nature are not part of tailored discovery. Orders willnot be granted where the categories do not relate to a pleaded relevant issue,but rather a non-pleaded issue which might be pleaded should discovery revealdocuments that support such a pleading.AnalysisRelevance[30] NZ Steel is particularly concerned about the findings of several foreignregulatory investigations (FRIs), including the EC Report, to which MBIE had accessand how they were dealt with in the Reports and Decision. In the statement of claimit pleads that MBIE had access to the findings from reputable counterpart regulatorsconcerning overlapping or adjacent investigation periods, the same or similar productsand manufacturers, and the same or similar subsidy programmes. The FRIs were, withfew exceptions, made following in-country verification visits to China (which werenot undertaken in the present case) and which all found countervailable subsidisation20 Section 13(2).21 Commerce Commission v Cathay Pacific Ltd [2012] NZHC 726 at [13]. See also Commissionerof Inland Revenue v Kamal [2015] NZHC 3095 at [31]; Wellington International Airport, above n9, at [40]; and Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 1054 at [17].in the Chinese steel sector. NZ Steel claims these were not taken into account byMBIE or the Minister as relevant and material evidence, were excluded from the bestinformation available and provided an overwhelming weight of evidence which was(unreasonably) not reflected in the Final Report and the Decision.[31] The second main focus of NZ Steel's position is that the EC Report was highlyrelevant, should have been applied to manufacturers not cooperating or responding toMBIE's questionnaire and that it was misunderstood by MBIE.[32] NZ Steel claims MBIE excluded or excessively discounted indirect orcircumstantial evidence, including comparable FRI findings. This all resulted inMBIE's failing to provide the Minister with a fair, accurate and adequate Final Reporton the best available information. Furthermore, that in producing the Final Report,MBIE gave excessive and unjustified weight to material provided by the ChineseGovernment and the only cooperating Chinese manufacturer.[33] Mr Every-Palmer QC appeared for the respondent. In his submission, the FinalReport considered the EC Report and explained its views on subsidisation. He notedthe discussion of the EC Report in the Final Report and MBIE's conclusion that thefindings would not cause it to change its view. He noted the short time scale for MBIEto be able to do this. In any event, he said the Final Report observed that, even if thetax exemptions and tariff reductions claimed on behalf of one of the Chinese producerswere assumed, the total subsidy would still be significantly below the de minimis level.In Mr Every-Palmer's submission, therefore, the Final Report considered the ECReport and explained why it did not change its earlier analysis.[34] NZ Steel's statement of claim pleads that the Decision was unlawful andreviewable on the following grounds:(a) MBIE (and hence the Minister) asked the wrong question andimproperly elevated the standard of proof;(b) MBIE (and hence the Minister) failed to take account of all relevantand available evidence;(c) MBIE (and hence the Minister) erred in law in determining whether anentity "possesses, exercises or is vested with governmental authority"and incorrectly determined that certain state-owned entities were notpublic bodies;(d) the Final Report (and hence the Decision) was not based upon adequatereasoning;(e) the Final Report (and hence the Decision) contained material errors offact and law in relation to the "like goods" determination;(f) the Final Report (and hence the Decision) treated evidence in a mannerthat was incoherent and inconsistent; and(g) the Final Report (and hence the Decision) was unreasonable becausethe overwhelming weight of evidence supports a finding thatgalvanised steel coil from China is subsidised.[35] Mr Hodder emphasised the context. Whilst acknowledging that some groundsof appeal are questions of law, in his submission it was important to see how theinvestigation had evolved. He said, as pleaded in the statement of claim, the Ministeris required to ask the right question – whether the preponderance of material evidencepoints towards a finding of subsidisation – and, in answering that question, to makeappropriate use of indirect, circumstantial and inferential evidence, as well as directevidence, including comparable FRI findings.[36] In Mr Hodder's submission, MBIE and/or the Minister did not dig down intothe information available. NZ Steel is genuinely perplexed by the Decision and seeksthe information to ascertain how and why this happened.[37] In my assessment, grounds of review (a) and (c)–(e) inclusive do not requirethe additional material NZ Steel seeks. They involve questions of law and/or issueswhere the further categories will not assist. These grounds of appeal are matters forsubmission. For example, how the EC Report was dealt with, NZ Steel's contentionthat MBIE's "public bodies" analysis relied on what it considers to be an outlier reportby the Australian Anti-Dumping Review Panel without discussing the conventionalposition reflected in subsequent WTO and other domestic regulatory decisions; thereliance on generalised comments from the Government of China; and reliance uponwhat NZ Steel contends are unverified responses from a single cooperatingmanufacturer. The situation is as the Court of Appeal described in CommerceCommission v Powerco Limited:22 if the Commission's report does not adequately address these matters orexplain the Commission's approach, that is a matter Powerco can advance byway of submission. This is not a case where there is insufficient materialbefore the Court on which it can fairly resolve the matter.[38] That leaves grounds (b), (f) and (g) which essentially allege the Minister didnot properly consider all relevant matters.[39] In submitting that the documents sought in the further categories wouldprovide context, Mr Hodder referred to Air Nelson Limited v Minister of Transport.23That case concerned the substantive judicial review hearing into a challenge byAir Nelson to two separate decisions of the Minister of Transport increasing thecharges for the use of Nelson Airport. Of particular relevance was the issue of whetherone of the decisions could be impugned because information about Air Nelson'sopposition to the price increase was not made known to the Minister when he madethe decision. This required consideration of the extent to which information known toofficials of the Ministry of Transport needed to be communicated to the Ministermaking the decision. A paper had been prepared for the Minister by a Ministry advisor.22 Commerce Commission v Powerco Ltd CA123/06, 9 November 2006 at [29].23 Air Nelson Ltd v Minister of Transport [2008] NZCA 26.The paper noted Air Nelson's objection to the increase but did not set out the reasonsfor the objection. The Minister's affidavit said he had considered the paper, agreedwith the reasoning and recommendations, and therefore accepted the proposal.[40] The grounds for seeking judicial review were mistake of fact, failure to takeinto account a relevant consideration and abdication of discretionary power. The Courtof Appeal concluded the paper did not provide the Minister with a fair and accuratepicture of the matters which Air Nelson had raised during the consultation which wererelevant to the decision.24[41] The Court then considered whether the matters needed to be drawn to theMinister's attention on the basis of counsel for the Ministry arguing this wasunnecessary because the information had been taken into account by officials inpreparing their advice to the Minister. The Court said:[53] We accept Mr Gedye's submission that the failure to provide a "fair,accurate and adequate report" meant that the decision made by Mr Parker inthis case was flawed. It is not enough that officials in the Ministry were awareof Air Nelson's objections. Mr Parker needed to be given a sense of thecontext in which the first decision was made, and contents of thecorrespondence which passed between Air Nelson and the Authoritypreceding the decision. This included the bases upon which Air Nelsonopposed the need for price increases [54] The Minister needed to be apprised of these matters by his officials,at least in general terms, so that he could consider them and, if he thought itnecessary to do so, request further information about them. These matterswere in terms of CREEDNZ "so obviously material" that their omission fromthe Minster's direct consideration meant his decision was flawed.[55] The particular ground of judicial review on which this finding is madeis secondary to the finding itself. We think the failure of the Pfiffner paper tomention the matters to which we have referred is probably best characterisedas having led to the Minister's failing to take into account relevantconsiderations. This Court adopted a similar characterisation of the ground ofreview in CREEDNZ: at 172. We make it clear that we make no criticism ofthe Minister himself in this regard: the failure to take into account theseconsiderations resulted from the failure of officials to make him aware ofthem.[42] Mr Hodder relied on this decision, noting in particular the need for the Ministerto be given a sense of context from the contents of correspondence which had passed24 At [40].between Air Nelson and the Authority preceding the decision. Similarly in this case,in his submission, there was the need to know what was not in the Final Report andtherefore not referred to the Minister. He said if the issue is whether the Final Reportis fair, the answer cannot simply be determined by considering the Final Report, as therespondent in this case would have it.[43] Mr Hodder sought to distinguish the situation in Commerce Commission vPowerco Limited, a case on which Mr Every-Palmer relied.25 The respondents in thatcase were gas distributors who took judicial review proceedings against the Ministerof Energy and the Commerce Commission as a result of the Minister's actionsconcerning the imposition of a price control on gas distribution. The CommerceCommission had undertaken an inquiry and reported to the Minister. The decisionconcerned an appeal against, inter alia, the refusal to make a further discovery order.[44] There were five causes of action, three claiming the Commission had actedunlawfully and/or unreasonably in respect of the cost benefit analysis undertaken bythe Commission. Two of the causes of action raised process claims of failure to giveany or adequate reasons and failure to consult.[45] Powerco had sought documents including internal emails, internal memoranda,meeting notes, drafts of documents and correspondence in relation to the applicationof the transfer cost ratio. The documents were internal to the Commission. Powercohad made an initial application for further discovery which was unsuccessful(MacKenzie J decision). There was no appeal from that decision.26 An appeal wastaken of a later discovery decision by Wild J.27[46] The Court of Appeal said:[23] We consider that Wild J was right to decline to order further discovery.The Commission's role under s 56 is to report to the Minister on whether ornot control should be imposed. The proper focus of judicial review is on theCommission's report because that reflects the Commission's decision and itsdecision making process. What went before that is not likely to be relevant toshow that the Commission's decision was unreasonable when made. Theobservations of this Court in ENZA Ltd v Apple and Pear Export Permits25 Powerco, above n 22.26 Powerco Ltd v Commerce Commission HC Wellington CIV-2005–485-1066, 10 March 2006.27 Powerco Ltd v Commerce Commission HC Wellington CIV-2005–485-1066, 9 June 2006.Committee [2001] 3 NZLR 456 (CA) per McGrath J at [22] are accordinglyapt:In the present case we were satisfied that the committee hadput its position sufficiently before the Court to enable the issuesraised by ENZA in its proceedings to be properly addressed bythe High Court. The record of its deliberative material, whiletechnically relevant in terms of discovery principles was not inour view of a nature likely to inform the Court materially on thereasons for the committee's decisions, as opposed to thedynamics of how it got to them.[47] In Mr Hodder's submission, this was an example of a "tribunal" case. Hemaintained there is a distinction between tribunals (including bodies such as theCommerce Commission) and Ministries such as MBIE. Furthermore, in hissubmission, the issues in the case concerned an error of law and that was the real basisfor the decision to decline discovery.[48] Mr Every-Palmer said Powerco, similarly to NZ Steel in this case, sought the"how and why" documents, being the internal documents. Like NZ Steel, Powerco'spleadings incorporated the adequacy of reasons and maintained the documents soughtwould be very relevant in deciding whether the Commission (and the Minister) erred.[49] Mr Every-Palmer then referred to Air New Zealand Limited v CommerceCommission (No 4) to highlight the concerns about getting into the "how and why",noting the argument in that case was presented on a "proper context" argument, butdiscovery was refused.28[50] In the Air New Zealand case, Air New Zealand and Qantas Airways appealedagainst a Commerce Commission determination. The Commission had been assistedin reaching its determination by two economists, one who assisted during theinvestigative phase and the other who peer reviewed the Commission's model. AirNew Zealand and Qantas applied for an order requiring the Commissioner to produceall correspondence with the two economists, all reports prepared by them (includingdrafts) and all notes of telephone attendances or meetings. It was accepted thatMinutes of meetings with Commissioner members should not be produced.28 Air New Zealand Ltd v Commerce Commission (No 4) [2004] 3 NZLR 550 (HC).[51] I agree with Mr Every-Palmer that the cases on internal deliberations aredirectly analogous. The Commerce Commission in those cases was carrying out itsstatutory functions of making recommendations in exactly the same way as MBIE didin the present case.[52] Turning then to consider the further categories.(i) Categories 1 and 2[53] NZ Steel seeks internal and inter-agency correspondence (Category 1) toprovide "important context" to the investigation process and factors which influencedMBIE's reasoning and conclusions. In particular, NZ Steel believes inter-agencycorrespondence is highly likely to disclose the extent to which political considerationsimpacted upon the investigation.[54] NZ Steel says such correspondence is also likely to shed light on whetherMBIE was asking the right questions and furthermore internal correspondence woulddisclose some important procedural decisions, for example the decision by MBIE notto undertake a verification visit to China.[55] In Mr Hodder's submission, the current application could be described aslegitimate fishing on the basis NZ Steel does not know what it does not know.Mr Every-Palmer categorised this as impermissible fishing because it does not relateto any pleaded ground of review but might reveal material which could form the basisof a new ground. He referred to Mr Jones' affidavit and his reference to media reportsabout a visit to New Zealand by a Chinese official and comments on theinvestigation.29 Mr Every-Palmer pointed out there is no pleaded ground of reviewregarding political interference in the Decision, saying in any event that MBIE is nota party to the proceeding and there is no pleading to the effect it was improperlyinfluenced by any such considerations. Furthermore, the affidavit already filed onbehalf of MBIE sets out the steps taken by MBIE in accordance with the Act andfurther affidavit evidence would be filed.29 Filed on behalf of NZ Steel in support of its application for discovery.[56] The issue in this case as pleaded is in essence an alleged failure to take accountof relevant evidence. This encompasses the need for MBIE to provide a fair, accurateand adequate Final Report for the Minister. The purpose of the Final Report was toaddress whether imported galvanised steel coil was being subsidised and, if so,whether it caused or threatened material injury to the New Zealand industry. That isa factual enquiry dependent on the evidence. I do not consider the correspondencesought in Category 1 (to the extent it is not included in Category 3 – materialconsidered and/or relied on in preparation of the Reports) will assist resolution of theissues as identified by the pleadings.[57] Working documents (Category 2) are sought on the basis they will provideimportant context because the Final Report provides a summary only of MBIE'sfindings and, in NZ Steel's submission, does not adequately disclose the reasoning andjustification. For example, NZ Steel suggests the Final Report contains severalconclusory statements on critical issues, the EC Report being an example. Category 2would also shed light on material MBIE disregarded or determined was irrelevant.[58] Mr Every-Palmer suggested the drafts of various reports were sought in orderfor NZ Steel to be able to request the Judge at the substantive hearing to makeinferences. That situation could only be answered, in his submission, by directevidence. Therefore, he said, if this category of discovery is granted, then viva voceevidence will be required.[59] In Mr Every-Palmer's submission, the various MBIE reports will stand or fallon their own merits. An applicant should not be entitled to trawl through deliberativematerial to search for apparent inconsistencies or changes in approach which can thenbe used to challenge the Decision.[60] In my assessment, the material in Category 2 goes to the internal deliberativeprocess of MBIE and is not appropriately discoverable. The authorities consistentlysay that, except in special circumstances, a tribunal cannot be required to discloseevidence of its deliberative process. Those authorities are applicable by analogy tothe deliberative process of MBIE and I find no special circumstances to justify adeviation from the general rule they expound.[61] Categories 1 and 2 are not required to be discovered.(ii) Category 3[62] Material considered and/or relied on in preparing the Reports (Category 3) isclaimed to be relevant as it will disclose the development of MBIE's reasoningthroughout the course of its investigation.[63] The evidence in opposition to the application includes an affidavit fromAlexander McPhail. He was part of the MBIE Trade Remedies team and responsiblefor the investigation and preparation of all the Reports. He described each Report asbeing self-contained. In his opinion, the investigation process is clearly set out in theReports and the public file.[64] The Initiation Report primarily dealt with the information provided byNZ Steel. The purpose of the Report was to assess the accuracy and adequacy of theevidence provided to establish whether there was sufficient evidence to justifyinitiating an investigation.[65] The Provisional Measures Report dealt with NZ Steel's request that provisionalmeasures be imposed on the allegedly subsidised imports during the remaining periodof the investigation. By this stage, information had been requested from identifiedimporters, intermediary exporters, Chinese manufacturers and the Government ofChina. The provisional conclusion was that the aggregate level of subsidisation whichcould reasonably be identified was 0.02 per cent, leading to the conclusion there wereno grounds for the imposition of provisional measures in order to prevent materialinjury being caused by subsidised imports during the remaining period ofinvestigation.[66] The EFC Report concluded the levels of subsidy determined in theinvestigation was de minimis and that material injury to an industry was not beingcaused by goods which were subsidised.[67] The introduction to the Final Report noted it was based on the EFC Report. Itannexed a summary of comments made on the EFC Report and MBIE's response.[68] In Mr Hodder's submission, MBIE had essentially formed its view by the timeof the Provisional Measures Report when it concluded the level of subsidy was deminimis. The view essentially did not change from then on. It is for this reason thematerial before MBIE at that stage is sought.[69] Given the different Reports released at various stages, and that they culminatedin the Final Report, it is difficult to see the logic of discovery being considered relevantfor materials relied on by MBIE in preparing the Final Report but not relevant formaterial relied on by MBIE in preparing the earlier Reports. Indeed, the Final Reportitself says it is based on the EFC Report and it is the EFC Report which is requiredpursuant to s 10A of the Act.[70] The Reports are not simply draft reports, they are reports required by the Act.Furthermore, starting with the Provisional Measures Report, they begin analysing theevidence, including the responses to the inquiries initiated by MBIE. The ProvisionalMeasures Report conclusion that the aggregate level of subsidisation was de minimisremained effectively unchanged. Documents considered for the purposes of theProvisional Measures Report must be relevant to the Final Report.[71] It may well be that there is little further documentation to be released underthis category. It could be considered somewhat artificial for MBIE to withholdmaterials under the agreed tailored discovery which would only be released if furtherCategory 3 discovery were ordered.30[72] I am satisfied the Category 3 documents, the documents considered and/orrelied on by MBIE in preparing the Reports, should be discovered to address thegrounds of the judicial review alleging a failure to take into account relevantconsiderations. Similar to the situation in Air Nelson Limited, MBIE was required toprovide a fair, accurate and adequate report to the Minister. This requiresconsideration of the material relevant to those Reports and thus those documents arediscoverable.30 The application suggests the respondent accepts it should provide all material relied on in the FinalReport, even if it was also relied on in an earlier Report.Proportionality[73] The issue before the Court will be the judicial review of the Decision. It is notan appeal into the merits of the Decision or an inquiry into the process.[74] The discovery must be appropriate to the subject matter of the Decision.31 Thefurther categories sought relate solely to the investigation, a period from June 2016 toJuly 2017. The time period is therefore limited and a large amount of material hasalready or will be provided as per discovery earlier agreed to by the parties. AlthoughMr Hodder is concerned that the Minister will not be able to provide evidence ofMBIE's investigation process there will be further affidavit evidence as to thedecision-making process from both the Minister and those within MBIE.[75] Discovery of Category 3 documents is relevant, proportionate and in theinterests of justice.[76] If there are any issues of privilege as alluded to on behalf of the Minister, thenthey can be addressed in due course.Conclusion[77] For the reasons given, the application is granted to the extent that Category 3,the material relied on or considered by MBIE in preparing the Reports, is to bediscovered. In respect of the other two categories sought, the application is dismissed.[78] In the circumstances, it would seem appropriate for costs to lie where they fall.If the parties wish to be heard on costs, the applicant is to file and serve a memorandumby 16 February 2018, with any response 14 days thereafter. A decision will be madeon the papers.31 High Court Rules 2016, r 8.2(1)(a).Thomas JSolicitors:Chapman Tripp, Wellington for ApplicantCrown Law, Wellington for Respondent