SHARIFI v UNIVERSITY OF AUCKLAND [2021] NZHC 1955

SHARIFI v UNIVERSITY OF AUCKLAND [2021] NZHC 1955 [30 July 2021]THIS IS A REDACTED VERSION OF THE JUDGMENT FOR PUBLICATION.AN UNREDACTED VERSION HAS BEEN DELIVERED TO THE PARTIES.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000396[2021] NZHC 1955UNDER Judicial Review Procedure Act 2016Part 30 of the High Court Rules 2016IN THE MATTER of an application for review of decisionsmade under the University of Auckland'sStatute and Guidelines for the Degree ofDoctor of Philosophy 2016BETWEEN SEYED MORTEZA SHARIFIApplicantAND UNIVERSITY OF AUCKLANDRespondentHearing: 29 June 2021Appearances: N Pender for ApplicantsI Rosic and Z Brentnall for RespondentJudgment: 30 July 2021JUDGMENT OF VENNING JPRODUCTION AND CONFIDENTIALITYThis judgment was delivered by me on 30 July 2021 at 3.00 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Robinson Legal, WellingtonGilbert Walker, AucklandIntroduction[1] Seyed Sharifi was registered and enrolled for over four years with theUniversity of Auckland (the University) as a Doctor of Philosophy (PhD) candidate ineducation.[2] On 6 March 2020 Mr Sharifi submitted his PhD thesis for examination. Afterconsidering the examiners' reports, the University's Board of Graduate Studiesaccepted a recommendation from Mr Sharifi's examination committee that he shouldproceed to an oral examination. Following the oral examination the Board of GraduateStudies informed Mr Sharifi that it had resolved not to award a degree.Judicial review[3] Mr Sharifi has issued judicial review proceedings against the University. Heaccepts that his thesis does not yet meet the requisite standard for the award of a PhD.However, he says that usually a PhD student will be given an opportunity to amendtheir thesis before final examination and rejection. Mr Sharifi currently challengestwo decisions of the University:(a) first, the decision to proceed to oral examination. On this ground healleges error of law and unfairness; and(b) second, the decision not to permit him to revise and resubmit his thesisfor examination on another occasion. On this ground he alleges failureto take account of relevant considerations and irrationality.This application[4] During the course of the proceedings the University has discovered certainmaterials relating to the supervision of Mr Sharifi's thesis and the examinationprocess. It has claimed confidentiality in relation to 22 of those discovered documents.While claiming confidentiality it has disclosed those documents to Mr Sharifi'scounsel.[5] Mr Sharifi now seeks orders for the production of those 22 documents to himunder s 14(2)(h) of the Judicial Review Procedure Act 2016 on the basis they are:(a) relevant;(b) not confidential as they contain Mr Sharifi's personal information; and(c) even if they were confidential any harm in disclosing them isoutweighed by public interest in disclosure.1[6] Some of the 22 documents in issue disclose the identity of the examiners of MrSharifi's thesis. The remainder consist of sections of the examiners' reports whichwere withheld, communications between internal staff members of the Universityconcerning Mr Sharifi, comments by Mr Sharifi's supervisors, communicationsbetween the examiners and the examining committee, discussions between membersof the examining committee, communications between the examining committee andthe Board of Graduate Studies, and a record of the discussions between members ofthe oral examination committee.Preliminary matters[7] While discovery and production of documents is discretionary in judicialreview proceedings (as opposed to the general rules that apply to discovery in ordinaryproceedings), the University has discovered the documents in issue and has producedcopies of them to Ms Pender as counsel for Mr Sharifi. As the documents have beendiscovered it follows that the University considered them to be relevant.2[8] As noted, Mr Sharifi also relies on the fact the documents contain personalinformation concerning him. Ms Pender submitted that Mr Sharifi would be entitledto the documents under the Privacy Act 2000.1 Evidence Act 2006, s 69.2 For the reasons that follow, while the emails relate to Mr Sharifi's case a number of them areinconsequential and so are not directly relevant to the matters in issue in the proceeding.[9] This is not an application for orders under the Privacy Act. The Privacy Actprovides specific procedures under Part 4 to enable a person to obtain their informationand Part 5 sets out the process for complaints, investigation and proceedings beforethe Human Rights Review Tribunal in the event an application is declined. This Courthas no role to play in that process. Section 50 of the Privacy Act may however berelevant as a general consideration under s 69(4) of the Evidence Act 2006 to the extentthat section confirms that if the information is in the nature of evaluative material thatmay provide grounds for refusing to disclose it.[10] The principal issue in this case is whether the University can make out its claimto confidentiality in the documents under s 69 of the Evidence Act 2006 to preventfurther disclosure and particularly disclosure to Mr Sharifi.The examination process[11] To set the context, more detail of the examination process adopted in MrSharifi's case is required. As noted, Mr Sharifi submitted his PhD thesis forexamination on 6 March 2020. The Board of Graduate Studies appointed twoexaminers on 12 March 2020 (one an overseas academic, the other a New Zealandacademic) and sent copies of his thesis to those examiners.[12] Examiner 1 considered the thesis was an original contribution to knowledge orunderstanding in its field and met internationally recognised standards for such work,recommended minor corrections and revisions and provided a list of questions for theoral examination. Examiner 1 recommended the degree be awarded after revisions.Examiner 2 considered the thesis was not an original contribution to knowledge orunderstanding in its field and did not meet internationally recognised standards forsuch work. Examiner 2 declined to list any corrections or revisions and considered anoral examination was not warranted. Examiner 2 recommended not to award anydegree.[13] On 12 June 2020 the Board of Graduate Studies noted the reports of the twoexaminers were in serious conflict and appointed an additional examiner(Examiner 3). Examiner 3 considered the thesis did not explicitly make a compellingargument as to how it was an original contribution to knowledge and should be revisedso that the original contribution – theoretical and/or methodological was explicitlystated at least in the abstract and the conclusions. Examiner 3 considered the thesismet internationally recognised standards for such work to some extent but still neededsubstantial revision to meet international standards for a PhD thesis. Examiner 3recommended the degree be awarded after revision.[14] On or about 1 September 2020 the Board of Graduate Studies received andapproved a recommendation from Mr Sharifi's examination committee that he shouldproceed to an oral examination. The examination committee comprised the AssociateDean, Professor Gavin Brown (as Chair); the Head of Department, Professor JohnMorgan; and [redacted], nominated by the Head of Department.[15] On 24 September 2020 Mr Sharifi appeared at the oral examination. The oralexaminers were [redacted]. Mr Sharifi's supervisor also appeared by zoom.[16] On completion of the oral examination the oral examination panel was requiredto provide a written report to the Board of Graduate Studies including itsrecommendation. The recommendations available to it were:(a) to award the degree; or(b) to award the degree after specified minor corrections had been made tothe thesis, to the satisfaction of the Oral Examiner or nominee; or(c) to award the degree subject to revising part of parts of the thesis to thesatisfaction of the Oral Examiner or Head of Department; or(d) to permit the candidate to revise the thesis and resubmit it forexamination on one further occasion only, but only if the candidate hadnot already been permitted to revise and resubmit; or(e) to refer the thesis to the appropriate authority within the University forconsideration of the award of another degree; or(f) not to award the degree.[17] On 28 September 2020 the oral examination panel recommended not to awardthe degree.[18] On 30 September 2020 the Board of Graduate Studies informed Mr Sharifi thatit had resolved not to award the degree. On 6 October written reasons were providedfor the decision.[19] On 8 October 2020 Mr Sharifi appealed to the Board of Graduate Studies. TheDeputy Dean, who was deputed to the position by the Chair of the Board of GraduateStudies, undertook a preliminary investigation and on 13 November 2020 determinedthere were no grounds for the appeal to be taken to a further stage.[20] Mr Sharifi subsequently issued the judicial review proceedings.Applicant's case for disclosure[21] Ms Pender submits that the information disclosed in the documents willsupport further causes of action in the review proceedings, including bias, pre-determination, breach of natural justice, taking account of irrelevant considerations,and the improper input and influence of Mr Sharifi's supervisor, [redacted]. Sheargues that it would not be practical to replead Mr Sharifi's case and to present itwithout Mr Sharifi being aware of the relevant documents.[22] Ms Pender submitted that the public interest in disclosing the documents in theproceeding to enable Mr Sharifi to vindicate his rights to information concerning himand to fully understand the basis of any repleaded claim on his behalf was notoutweighed by the public interest issues claimed by the University as:(a) the material all constituted Mr Sharifi's personal information;(b) the documents shine light on the decision-making process and arematerially relevant to the decisions under review and support additionalgrounds of review;(c) the existing statement of claim will need to be amended and furtherevidence gathered which cannot realistically be undertaken without MrSharifi being shown the documents and aware of the information;(d) the following passage from the decision of the Court of Appeal inNorrie v Senate of the University of Auckland supported disclosure toMr Sharifi:3[he] should be entitled on personal grounds to know that anend to his potential career has been decided upon by theUniversity for reasons that are entirely justified and bymethods that are demonstrably fair and appropriate. As wellthere is the very distinct public interest in seeing that the verylarge investment of public money in taking him so far will notbe thrown away except for good and substantial reasons.The University's case for confidentiality[23] The University resists the application for disclosure on the basis the documentsare confidential and that the public interest in disclosing the documents to Mr Sharififor the purpose of this proceeding is outweighed by a countervailing public interest.[24] In support of the opposition the University filed an affidavit from Dr CarolineDaley, the Dean of Graduate Studies at the University.[25] Dr Daley says she would be concerned about the harm that could result if theinformation sought was disclosed to Mr Sharifi, both to the individuals who authoredthe communications, to the University's relationship with external examiners, and theUniversity's supervision and examination processes generally. Disclosure woulddemonstrate the University could not be assured the communications it believed weremade in confidence would be kept confidential.Section 69, Evidence Act 2006[26] The focus in this case is on the University's claim to confidentiality under s 69of the Evidence Act. That section provides:69 Overriding discretion as to confidential information3 Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 135.(1) A direction under this section is a direction that any 1 or more of thefollowing not be disclosed in a proceeding:(a) a confidential communication:(b) any confidential information:(c) any information that would or might reveal a confidentialsource of information.(2) A Judge may give a direction under this section if the Judge considersthat the public interest in the disclosure in the proceeding of thecommunication or information is outweighed by the public interestin—(a) preventing harm to a person by whom, about whom, or onwhose behalf the confidential information was obtained,recorded, or prepared or to whom it was communicated; or(b) preventing harm to—(i) the particular relationship in the course of which theconfidential communication or confidentialinformation was made, obtained, recorded, orprepared; or(ii) relationships that are of the same kind as, or of a kindsimilar to, the relationship referred to in subparagraph(i); or(c) maintaining activities that contribute to or rely on the freeflow of information.(3) When considering whether to give a direction under this section, theJudge must have regard to—(a) the likely extent of harm that may result from the disclosureof the communication or information; and(b) the nature of the communication or information and its likelyimportance in the proceeding; and(c) the nature of the proceeding; and(d) the availability or possible availability of other means ofobtaining evidence of the communication or information; and(e) the availability of means of preventing or restricting publicdisclosure of the evidence if the evidence is given; and(f) the sensitivity of the evidence, having regard to—(i) the time that has elapsed since the communicationwas made or the information was compiled orprepared; and(ii) the extent to which the information has already beendisclosed to other persons; and(g) society's interest in protecting the privacy of victims ofoffences and, in particular, victims of sexual offences.(4) The Judge may, in addition to the matters stated in subsection (3), haveregard to any other matters that the Judge considers relevant.(5) A Judge may give a direction under this section that a communicationor information not be disclosed whether or not the communication orinformation is privileged by another provision of this subpart orwould, except for a limitation or restriction imposed by this subpart,be privileged.Reasonable expectation of confidentiality[27] The Evidence Act does not provide a definition of confidential communicationor confidential information. The Court of Appeal has confirmed that information willbe confidential for the purposes of s 69 if the party claiming confidentiality could havea reasonable expectation of confidentiality.4 Dr Daley's affidavit establishes that theUniversity, its employees and the external examiners would have a reasonableexpectation of confidentiality given the relationships between them and the tasks theywere undertaking.[28] The current application concerns both confidential information andconfidential communications. The identity of the examiners, particularly identifyingthem as the authors of their particular examination reports is confidential information,5and the communications between the University, the examiners, the supervisors, andthe Board of Graduate Studies are confidential communications.6[29] It is relevant that Mr Sharifi seeks the documents for the purpose of legalproceedings. The Court of Appeal have also confirmed that there is a public interestin all relevant information, confidential or not, being disclosed in a legal proceeding.All concerned, not least the Court, should have and be able to refer to all relevantinformation when litigating disputes. This public interest in disclosure prevails and adirection for non-disclosure will be refused unless another public interest of the nature4 R v X (CA553/2009) [2009] NZCA 531 at [48]; and Greenbaum v Southern Cross Hospitals Ltd[2019] NZCA 438 at [28].5 Evidence Act 2006, s 69(1)(b).6 Evidence Act 2006, s 69(1)(a).identified in s 69(2) exists and outweighs the public interest in disclosure havingregard to the matters in s 69(3) and any other matters considered relevant (s 69(4)).7Confidential information[30] I deal first with the information concerning the examiners' identities.[31] I discount the very general suggestion in Dr Daley's affidavit that there is a riskof personal harm to the examiners and supervisors if the information is disclosed.There is no ground for that concern on the basis of the material before the Court. Thesuggestion is speculative and at best, overly cautious.[32] Dr Daley also says that the doctoral examination process relies on a free flowof information between the University and its examiners. To help ensure that free flowof information the University will only disclose an examiner's identity to the candidateif the examiner has agreed to waive confidentiality over their identities and then onlyafter the examination process has concluded. If the University is unable to honour thepromise it has made of confidentiality to examiners it will encounter greater difficultyin securing examiners and those it does secure may not feel able to be frank in theirassessments.[33] In the present case Examiner 1 did agree to allow their name to be released toMr Sharifi. Examiners 2 and 3 did not agree to have their names released to Mr Sharifi.[34] I accept there is a public interest in preventing harm to the relationship betweenthe University and external examiners of doctoral theses. However, whileacknowledging that general proposition, the situation is rather more nuanced than that.Where the examination process has been completed the argument for confidentialityis more difficult to support.[35] The University's practice of maintaining the anonymity of examiners is notfollowed by all universities in New Zealand. For example, the University of Otagowebsite records that while the identities of the examiners are not initially released to7 Greenbaum v Southern Cross Hospitals Ltd, above n 4, at [29].the candidate, if an oral examination is held the examiners' identities are divulged atthat time, and after the examination result is made known to the Doctoral Office, theexaminers' identities are disclosed in any event. Victoria University of Wellingtonkeeps the identity of examiners confidential until such time as the examiners' reportsare released. There is no suggestion that practice has caused any difficulty for thoseUniversities.[36] The identity of the examiners is directly relevant and important to the proposedpleading of bias and predetermination. It is at least potentially relevant thatExaminer 2, who recommended that no degree be awarded, was the Oral Examiner.In making that observation, I say nothing about the merits of that proposed pleading.[37] Ms Rosic submitted it was relevant that the University had undertaken it wouldkeep the examiners' identity confidential. That is a factor but it is not determinative.As Lord Diplock said in D v National Society for the Prevention of Cruelty toChildren:8The fact that information has been communicated by one person toanother in confidence, however, is not of itself a sufficient ground forprotecting from disclosure in a court of law the nature of the information orthe identity of the informant if either of these matters would assist the courtto ascertain facts which are relevant to an issue upon which it is adjudicating.The private promise of confidentiality must yield to the general public interestthat in the administration of justice truth will out, unless by reason of thecharacter of the information or the relationship of the recipient of theinformation to the informant, a more important public interest is served byprotecting the information or the identity of the informant from disclosure ina court of law.[38] Ms Rosic also suggested that it was unnecessary for Mr Sharifi to be providedwith details of the examiners' names for his case to be repleaded. She referred to theobservation of Asher J as to how confidential information could be dealt with in thecase of Intercity Group (NZ) Ltd v Naked Bus (NZ) Ltd.9 I do not consider this is anappropriate case for the sort of approach discussed in the Naked Bus case. Theinterests of Mr Sharifi are personal. He has a prima facie right to be fully appraisedof relevant information concerning him. His interest is personal and is quite different8 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (HL) at 218(footnote omitted) (emphasis added).9 Intercity Group (NZ) Ltd v Naked Bus (NZ) Ltd [2013] NZHC 2261.to the interests of parties to commercial litigation where the issue is how to deal withconfidential commercial information.[39] Ms Rosic also relied on the decision in Greenbaum v Southern Cross HospitalsLtd, where the Court of Appeal accepted that the identity of the referees and referencesgiven by clinicians in a private hospital during a credentialing process should remainconfidential.10 The Court concluded significant harm would be caused to therelationship between the private hospitals and those providing references for thatprocess if the communication or information was disclosed (in the absence of maliceor other improper purpose).[40] The case of Greenbaum can be distinguished. While the references addressedmatters personal to the subjects of those reports they went to their suitability as aclinician at a private hospital. Patients' safety was a key consideration. In this casethe comments about the personal attributes or skills of a particular student are of norelevance in the doctoral examination process – the examiner is only sent the text ofthe student's thesis to assess it objectively. The safety of members of the public isobviously not a consideration.[41] The University, the examiners (and for that matter the supervisors) need not beembarrassed or concerned by the prospect of public disclosure of their identity. If theiridentities are disclosed, the disclosure can be restricted to Mr Sharifi and his counselsolely for the purposes of these judicial review proceedings. The Court will be in aposition to manage any further dissemination of their identity during the hearing.[42] On balance, for the above reasons, I do not consider that the important publicinterest in the disclosure of the examiners' identity for the limited purpose of enablingMr Sharifi to replead his case is outweighed by the public interest considerations ofpreventing harm to the relationship under s 69(2)(b).[43] The examiners' reports are in three parts. Part 1 is the recommendation andconfidentiality waiver. Part 2 is the evaluation. Part 3 contains the examiners'confidential comments. For the purposes of disclosing the examiners' identities, Part10 Greenbaum v Southern Cross Hospitals Ltd, above n 4.1 of the reports are to be disclosed to Mr Sharifi. As I understand it, the substance ofthe evaluation in Part 2 has already been disclosed. If not, it should be disclosed.However, Part 3 deals with potentially extremely personal comments and is not to bedisclosed. I accept that the public interest considerations against disclosure of theconfidential communications in Part 3 outweigh the public interest in disclosure ofthose comments to Mr Sharifi.Confidential communications[44] Dr Daley deposed that:(a) the University does not expect communications between thesupervisors [redacted] and the Associate Dean (Professor Brown), theBoard of Graduate Studies or any other third party about a candidate tobe disclosed to the candidate. If the supervisor's communications wereto be disclosed to candidates, supervisors would become more cautiousabout who they agreed to supervise. They may only be willing tosupervise candidates they had taught before. That would be particularlydetrimental to international candidates who generally had no existingrelationship with the University. Disclosure would also inhibit thefrankness with which supervisors discussed matters concerningcandidates when seeking advice;(b) the University does not expect the Associate Dean's communicationsabout specific candidates to be disclosed to the candidate. TheAssociate Dean is in regular communication with supervisors aboutissues or matters facing candidates. The Associate Dean needs to beable to discuss matters brought to his or her attention frankly. If theAssociate Dean's communications could be disclosed to candidates thatwould inhibit the frankness of those communications and lead to pooreroutcomes for specific candidates;(c) the University expects the examination committee's internaldeliberations and communications with examiners, supervisors and theBoard of Graduate Studies will be kept confidential vis-à-vis thecandidate. It is crucial the examination committee be frank in itsinternal deliberations and communications with examiners, supervisorsand the Board of Graduate Studies;(d) it is important that the Dean of Graduate Studies can be frank incommunications with her team and other staff members. She does notexpect the communications to be disclosed to candidates;(e) it is crucial that deliberations among the members of the oralexamination committee be conducted frankly and that the committeespeak frankly in its report to the Board of Graduate Studies.[45] I accept that the nature of the communications as internal communicationswithin the University supports an expectation of privacy.[46] A number of the internal University emails simply attach other more relevantdocuments or discuss matters of process generally. While they refer to Mr Sharifi orhis case, they have little relevance to the proceedings. Ms Pender accepted that someat least were inconsequential and not relevant. I accept that, given that lack ofrelevance to the matters in issue the public interest in maintaining confidentiality insuch internal emails outweighs the public interest in them being provided. Theirdisclosure is unnecessary for Mr Sharifi to be fully advised of the basis for hisproposed amended claim.[47] The same however cannot be said for at least aspects of the communicationsinvolving [redacted], the examination reports, the text of the recommendation of theexamination committee to proceed to oral examination, the record of the oralexamination and the report by the Oral Examination Committee. Those documents orparts of them are potentially all relevant to the decisions under challenge.[48] It is relevant that the deliberative process has concluded in this case. But Iacknowledge that the harm Dr Daley relies on also includes harm to the relationshipsin the future. In the case of AQJ v University of New South Wales,11 while accepting11 AQJ v University of New South Wales [2013] NSWADT 306.the deliberative process was completed, the Tribunal considered that academics mightbe reluctant to express views if they were aware the views would be made public.However, that case can also be distinguished. The applicant had been provided witha summary of the content of the emails. The Tribunal was satisfied that the content ofthem would not assist the applicant in ascertaining how his work was assessed.[49] In Mr Sharifi's case, the emails generally will not assist him in his case either,but the other information will inform him about the process of assessment of his workand it is relevant to his proposed amended pleading.[50] Ms Rosic sought to distinguish the case of Norrie on the basis that, unlike MrNorrie, Mr Sharifi knows why he was not awarded a degree.12 I accept the centralissue in Norrie was whether the decision of the University Visitor was reviewable, butthe statement of principle referred to in that case has general application.[51] It is also arguable that disclosure of relevant communications after thedeliberative process is complete will enhance rather than harm the public interest inrelationships central to the University's doctoral examination process by enhancingconfidence in the process. Further, disclosure of the communications to Mr Sharifimight assist him to accept that the University had undertaken a careful and thoroughexamination process.[52] It is also relevant that the information would not be publicly disclosed. Theinformation has already been disclosed to Mr Sharifi's counsel. Any further disclosurewould be limited to Mr Sharifi and the use it could be put to would also be limited inaccordance with r 8.30(4) of the High Court Rules. The information could only beused for the purposes of this proceeding and on condition it was not to be madeavailable to any other person.13 To the extent that the University's concernsconcerning disclosure are about inconvenience and embarrassment suchconsiderations can be of little, if any significance in weighing the relevant publicinterests.12 Norrie v Senate of the University of Auckland, above n 3.13 High Court Rules 2016, r 8.30(4).[53] Mr Sharifi's rights to seek his private information under the Privacy Act couldbe a relevant consideration under s 69(4). I consider the fact that Mr Sharifi couldseek part, if not all of the information, under the Privacy Act to be a relatively evenlybalanced factor. As the Court observed in Greenbaum, the fact an agency can withholdevaluative material supplied in confidence raises similar considerations to those unders 69(2) of the Evidence Act.14 Counsel referred the Court to Westwood v University ofAuckland, a decision of the Complaints Review Tribunal, which considered theapplication of s 29 of the former Privacy Act 1993.15 The University had resolved notto award Ms Westwood a PhD. She sought copies of various documents, including areport of the oral examination from the supervisor, and the supervisor's report.[54] Initially she had also sought copies of the examiners' reports but she acceptedthe University's argument they were evaluative material and did not need to bedisclosed under the provisions of the Privacy Act.[55] The issue in the case was whether the internal reports of the supervisors couldbe said to have been supplied to the University. However the Tribunal accepted thatthe supervisors' reports and the supervisors' examiners' reports were evaluativematerial. The Tribunal was influenced by the promise of confidentiality. As noted, inlegal proceedings such as these, such a promise is relevant but is not determinative.Further, it is also relevant that a court can control the use of the information it permitsdisclosure of. In Ms Westwood's case the Court did direct provision of certain otherinformation held by the supervisors.[56] In the present case the fact the evaluative or deliberative stage of the currentprocess has passed is also a relevant factor.[57] While the information and communications could not be said to be critical tothe likely success or otherwise of Mr Sharifi's proceedings they could enable him toplead further causes of action. The information has already been disclosed to MrSharifi's counsel and reasonably they seek his input for the purpose of completingamended pleadings.14 Greenbaum v Southern Cross Hospitals Ltd, above n 4.15 Westwood v University of Auckland 4 HRNZ 107.[58] Overall, the public interest in a litigant having sufficient information tounderstand and participate in their own case, and to enable the Court to openlyconsider the same information the parties have, to enable it to deal properly with theissues is high. The harm that may be caused to the University's relationships in thefuture by limited further disclosure of the information to Mr Sharifi restricted solelyfor the purposes of the hearing, does not outweigh it, particularly when theexamination process is completed, and when the disclosure can be appropriatelylimited to relevant documents (or excerpts from them).The documents in issue[59] I apply the above reasoning to the documents in issue. There is a large degreeof overlap in that several of the categories of documents contain repetitive chains ofemails and attach copies of the same documents.C1[60] C1 contains a chain of email communications originating with an email to MrSharifi on 5 February at 12.35 pm. The emails were ultimately passed by LeighBeever, the Doctoral and Postgraduate Research co-ordinator, to the supervisors.Obviously the applicant has copies of his emails. The only communication of anyrelevance is [redacted] response on behalf of himself and [redacted]. While in generalterms the University and its staff will have an expectation of confidentiality incommunications between a supervisor and the Associate Dean of the PostgraduateResearch concerning a candidate, the following aspect of [redacted] response ispotentially relevant to the substantive issue in the proceeding and is to be disclosed:The date and confirmation of the email from [redacted] and the followingcontent:We are trying to manage Morteza's clear anxiety about his PhD as sensitivelyas possible and to work with him to get his thesis to a standard at which itcould be submittedHe seems to believe that I am now holding him back from submitting. The factis that his work is not up to standard, but could, I believe, get there with morework.[61] The balance of [redacted] email is not to be disclosed.C2 – C6[62] C2 is an email from Professor Brown to Dr Daley commenting on the thirdexaminer's report and questioning the way forward. The nature of the communicationand its limited relevance to the proceeding do not support its disclosure. TheUniversity and staff have a reasonable expectation of confidentiality in internalcommunications of this nature. The communication is contextual and of very limitedimportance and relevance to the proceeding.C3[63] The applicant accepts that the email in C3 is not significant. It is not to bedisclosed.C4, C5 and C6[64] C4, C5 and C6 are all internal emails. C4 is a record of the examiners'positions, but the examiners' reports are to be disclosed for the reasons given so thesummary of their position in the email adds nothing of substance. I agree with theUniversity's submission that initial reactions to the examiners' reports are not relevantas that is not in issue. The emails have some limited relevance to how the decision-making process evolved but the more formal documents that are to be disclosed recordit more fully. The emails are not to be disclosed.C7[65] C7 is an email from Professor Brown to John Morgan confirming thearrangements for the establishment of the examination committee. The applicantaccepts the email itself is inconsequential but seeks to rely on the draft examinationcommittee report and supervisors' comments on the examiners' reports attached to it.[66] The draft examination committee report and the supervisors' comments on theexaminers' reports are potentially relevant. However, the draft report was replaced bya final report in identical terms on 1 September. Further, the supervisor's commentsare recorded elsewhere as well. It is not necessary to produce C7.C8[67] C8 is an email from Professor Brown to [redacted] confirming that she is theHeads of Department nominee for the oral examination. The applicant accepts it isinconsequential, but seeks disclosure of the draft examination committee reportattached. Again, as the final examination committee report signed by all members isto be disclosed there is no need for disclosure of C8.C9[68] C9 is an email from Professor Brown to [redacted] providing her with the threeexaminers' reports plus a supervisor's report. The email confirms that [redacted] wasmade aware of the supervisor's report which, for the reasons given above, I agree ispossibly relevant to the claims of bias, pre-determination, breach of natural justicewithout in any way suggesting such claims have any merit. The supervisor's report isalso relevant to the pleading. At this stage the more personal comments about MrSharifi are relevant to the proposed amendments to the pleading as they areincorporated into the supervisors' comments on the examiners' reports, as opposed tothe earlier response by [redacted] as to the relationship. Subject to the redaction of thesummary of confidential comments from Part 3 of the examiners' report, the materialin C9 is to be disclosed.C10 – C14[69] C10 to C14 are emails between [redacted] and Professor Brown and othersconfirming [redacted] position as a member of the oral examination committee. Theemail chain has little relevance to Mr Sharifi's claim. The applicant submits one emailincludes a veiled criticism that Mr Sharifi may have been putting unreasonablepressure on the University members dealing with him. Ms Pender submitted that isrelevant to the issue of bias and pre-determination. I do not read the email in that way.It could not be relevant to an allegation of bias and pre-determination. The emails arenot to be disclosed.C15[70] C15 is an email of 31 August 2020 from Leigh Beever to the group mailing listentitled 'SGS – Advisers' attaching a draft PhD examination report for Mr Sharifi.The applicant accepts the email is inconsequential but seeks production of theexamination committee report as it is relevant to understanding how the decision-making process evolved. The examination committee report is still a draft. It neednot be disclosed.C16[71] C16 is an email attaching the final version of the examiners' reports of1 September with attachments of the examiners' reports. It also includes thenominations to the Senate for the appointment of the Examiners. The University saysthat it and its staff have a reasonable expectation of confidentiality in examinationcommittee reports as disclosure would cause harm to members of the committee andthe examiners and the relationship between the University and the examiners, and theexamination process which relies on the free-flow of information between theexamination committee and the Board of Graduate Studies. It is said the relevance ofthe report is limited to providing context to the Board of Graduate Studies' decisionMr Sharifi should proceed to oral examination. It argues the public interest in thereport being disclosed is outweighed by the public interest in maintaining theexamination process.[72] However, for the reasons given above I accept the examination committeereport of 1 September is directly relevant to the decision in issue in the proceeding andis to be produced. The examiners' reports have already been produced under C9.There is no need for nomination forms to the Senate to be produced. They are largelyadministrative in nature.C17[73] C17 is an email from Dr Daley accepting the recommendation of theexamination committee to proceed to an oral examination with [redacted] as their oralexaminer. It is not in dispute that the University went to an oral examination. Theemail, unlike the report, does not provide the reasons. It is not sufficiently relevant toovercome the University's interest in maintaining confidentiality in suchcommunications.C18[74] C18 is an email of 7 September 2020 from [redacted] to Professor Brownseeking guidance about the examination. The applicant submits it is relevant to thenew claim of bias and predetermination, breach of natural justice and taking intoaccount the relevant considerations. [Redacted] was seeking guidance from theAssociate Dean Postgraduate Research and is entitled to expect a reasonable degreeof confidentiality in such general communications. It would be speculative at best tosuggest the email provides any basis for allegations of bias or pre-determination. Itneed not be produced.C 19[75] The email in C19 is inconsequential.C20[76] C20 is an email from [redacted] to Naomi Kelly [redacted]. The email is saidto be relevant to the claims – bias and the decision-making. On balance I agree. Againwithout any comment as to the merit of such a claim. For transparency it shouldhowever be produced as the public interest in Mr Sharifi being properly informed inrelation to his claim outweighs the public interest in the University relationships.C21[77] C21 is an email attaching the final oral exam report, the examiners' reports,and the examination committee's recommendation. The email is inconsequential. Theonly fresh material is the oral exam report which is to be produced.C22[78] C22 is an email from Dr Daley to Naomi Kelly and group mailing 'SGS –Exams' said to be relevant as evidence of the Board of Graduate Studies' decision notto award the degree. The attachments have all been considered already. It is an emailin which the Dean communicates her decision that Mr Sharifi will not be awarded thedegree. It is an internal email which discusses a matter which is not in issue. It neednot be produced.Result[79] For the above reasons I uphold the claims to confidentiality for the internalcommunications in the University with the exception of the principal documents notedabove. In the case of those documents, I accept that the public interest in Mr Sharifi'sfully informed participation in his legal proceedings outweighs the public interest inmaintaining the confidentiality in the documents. It is relevant that Mr Sharifi willonly be able to use the documents for the purpose of these proceedings.Timetable[80] The following timetable is to apply:(a) Mr Sharifi is to file and serve an amended statement of claim withinfive working days of receiving a copy of the confidential material;(b) the University is to file and serve a statement of defence to anyamended statement of claim and any supplementary disclosure arisingfrom the amended statement of claim within 15 working days ofreceiving the amended statement of claim;(c) Mr Sharifi is to file and serve supplementary affidavit evidence within10 working days of receiving the amended defence;(d) the University is to file and serve its affidavit evidence in response tothe applicant's evidence within 20 working days of receiving MrSharifi's supplementary evidence;(e) Mr Sharifi is to provide any affidavit evidence in reply within fiveworking days of receiving the respondent's evidence;(f) the matter is to be allocated a two day hearing on the first available dateafter 4 October 2021;(g) the applicant to file and serve written submissions, common bundle andany authorities relied on 10 working days prior to the hearing;(h) the respondent to file and serve written submissions and any additionalauthorities relied upon five working days prior to the hearing.[81] Although I have fixed the above timetable at the request of counsel I observethat it should be possible for the relevant documents to be put before the Court eitheras agreed or attached to a pro forma affidavit. There should be no need for any furthersubstantive affidavits in this case, bearing in mind the nature of the case and the issues.Further, I consider two days to be extremely generous for a judicial review fixture. Ifcounsel were able to agree a process for the production of relevant documents and alsoaccept that a one day hearing would be sufficient they can file an amended timetablewhich will facilitate the allocation of an earlier fixture.Costs[82] At the request of counsel costs are reserved. Any application for costs is to beby memorandum filed and served within 10 working days of this judgment. Anyresponse is to be filed and served within 5 working days. I will then deal with theissue of costs on the papers.__________________________Venning J