UNIVERSAL EDUCATION GROUP LIMITED TRADING AS NEW ZEALAND NATIONAL COLLEGE 2008 v NEW ZEALAND QUALIFICATIONS AUTHORITY [2017] NZHC 2988

UNIVERSAL EDUCATION GROUP LIMITED TRADING AS NEW ZEALAND NATIONAL COLLEGE2008 v NEW ZEALAND QUALIFICATIONS AUTHORITY [2017] NZHC 2988 [4 December 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-835[2017] NZHC 2988BETWEEN UNIVERSAL EDUCATION GROUPLIMITED TRADING AS NEWZEALAND NATIONAL COLLEGE 2008ApplicantAND NEW ZEALAND QUALIFICATIONSAUTHORITYRespondentHearing: 4 December 2017Appearances: N Russell and S McCusker for ApplicantR Scott and M Cavanaugh for RespondentJudgment: 4 December 2017ORAL JUDGMENT OF CHURCHMAN J[1] This is an oral decision in relation to the issue of discovery. The parties to thisproceeding had agreed to undergo informal discovery, mainly due to the timeconstraints in relation to this case. Universal Education Group Ltd trading asNew Zealand National College (NZNC, the applicant) requested that the respondent,NZQA provide documents for discovery, including internal memoranda relating torelated but unchallenged decisions made in July, September and October of this year,prior to the challenged decision to cancel the applicant's registration made on14 November.Submissions[2] The grounds on which the documentation was sought by the applicant was that:(a) The decision to cancel NZNC's registration was in fact "made overseveral months", therefore internal deliberations in these early stageswas relevant. In particular, evidence of these deliberations would gotowards the applicant's claim that the 14 November 2017 decision tocancel was "pre-determined" or made with a "closed mind".(b) The information sought would otherwise be available under an OfficialInformation Act Request.(c) The respondent was not acting "quasi-judicially" when it made thedecision on 14 November, or any of the ancillary decisions. It wouldbe absurd if government entities performing administrative functionscould claim privilege on all internal deliberations. The public interestimmunity protecting deliberative materials therefore could not apply.[3] NZQA refused to provide the documents sought on the following grounds:(a) Some of the documentation sought was legally privileged.(b) Some of the documentation would be inadmissible as irrelevant, inparticular internal deliberations relating to decisions not beingreviewed by the Court in this proceeding.(c) NZQA has provided a large amount of documentation relating to the 14November decision throughout the decision-making process and duringdiscovery.(d) The internal deliberative processes of NZQA were protected under the"broad" interpretation of "judicial" laid down by the Court of Appealin ENZA v Apple and Pear Permits Committee.1(e) The internal documentation sought would not be necessarily bediscoverable under an Official Information Request, as there remains1 ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [19]–[20].an exception for protecting the free and frank deliberative exchanges ofan organisation.(f) The cause of action of pre-determination by the applicant wasinsufficient to warrant the lifting of the immunity. As pleaded, it mainlyrepeats allegations of failing to take into account relevantconsiderations and taking into account irrelevant considerations and didnot particularise sufficient detail for a finding of pre-determination bythe decision-maker.[4] The respondent had offered for the Court to review the documents incontention and review them for a decision as to their discoverability or admissibility.I requested on 1 December in a teleconference with the parties that the respondentprovide the Court with those documents.[5] The respondent filed some 165 pages of documentation on 1 December 2017.I have reviewed this documentation. I now set out my conclusions below.Analysis[6] I have difficulty with the distinction drawn by the respondent between"judicial" and "administrative" qualities of decisions made by public entities. I agreewith the applicant that it seems troubling for a decision made by NZQA to be deemedto be of a "judicial" quality merely because the empowering statute requires naturaljustice to be followed. I do not propose to resolve the dispute over discovery on thebasis of this distinction.[7] The related point, which avoids the binary distinction drawn above is that"deliberations" of agencies are rarely discoverable.2 The New Zealand JudicialReview Handbook sets out examples of cases where "deliberative privacy" has beenupheld. The examples given mainly involve deliberative documentation by theCommerce Commission and the Broadcasting Standards Authority.3 The Electricity2 CF v Attorney-General [2016] NZHC 918, [2016] NZAR 848 at [38].3 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington,2016) at [30.11.2].Commission's internal deliberations are also the subject of two relevant cases, theApple and Pear Export Permits Committee the subject of one, and the Attorney-General the subject of another. In the spectrum of public-sector decision-makers I amnot persuaded that NZQA falls in the same category as the Commerce Commission orBroadcasting Standards Authority, both of whose respective empowering legislationpermits appeals from their decisions to the High Court.[8] Having reviewed the information in contention, I do not believe makingfindings on their "deliberative" quality is the correct approach. Instead I prefer todetermine this interlocutory decision on the basis of the Court's inherent jurisdictionto determine what is "relevant and necessary" for the determination of theproceedings.4[9] The proceedings today, as pleaded, are focused on the decision made on14 November 2017 to cancel the registration. The background to the pleadings, andin particular, [47] of the amended statement of claim attempted to challenge variousdecisions made in the lead up to the cancellation decision, namely the decision to re-categorise NZNC in July and the decision to adjourn the EER in September. As eachof those decisions was made under different empowering legislative sections, I do notbelieve it is appropriate that they be challenged obliquely.[10] Mr Russell for the applicant indicated that he wished to categorise these leadup decisions as a "part of a pattern of conduct indicating pre-determination". He alsoadvised the Court that in the event the documentation was not discovered or admitted,he would be inviting the Court to draw inferences as to NZQA operating with a closedmind.[11] Having reviewed the material, being some 18 documents, much of it is draftsof reasoning and memoranda later replicated in the formal reasons provided to NZNC.The rest is emails setting out dates of internal meetings where the issues aroundNZNC's categorisation were discussed. It is not necessary to discover this materialfor the disposal of these proceedings.4 Wellington International Airport Limited v Commerce Commission HC Wellington CP151/02,25 July 2002 at [40]–[42].[12] The Supreme Court has indicated there is a "duty of candour" in relation todecision-makers and their reasonings:5 those whose decisions are challenged have a duty to explain the decision-making process, the relevant factual and other circumstances and the reasonsfor the decision – the so-called 'duty of candour'. It is not of course a legallyenforceable duty, but rather a responsibility attaching to public decisionmaking. Where such evidence is not provided, a court may well draw adverseinferences.[13] Mr Russell indicated that in the absence of discovery of the documents hesought he would invite the Court to draw such inferences. It remains open for him todo so.[14] None of the documents I reviewed appear to engage the deliberative immunity.Instead they are not discoverable on the basis of being drafts and/or relating to thetiming of internal meetings. Overall I am not persuaded that they are sufficientlyrelevant to the decision at hand, nor that they are necessary for the determination ofthe current proceedings. Accordingly I make no orders for the discovery of thedocuments._____________________________Churchman JSolicitors:Chen Palmer Public and Employment Law Specialists, Wellington for ApplicantMcElroys Litigation Lawyers, Auckland for Respondent5 Ririnui v Landcorp Farming Ltd [2016] NZSC 62 at [105].