Linguis International Institute of Language and Culture Limited v New Zealand Qualifications Authority [2016] NZHC 1467 (30 June 2016)

Last Updated: 29 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-158 [2016] NZHC 1467

BETWEEN	LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LIMITED Plaintiff
AND	THE NEW ZEALAND QUALIFICATIONS AUTHORITY Defendant

Hearing:	30 June 2016
Appearances:	B OʼCallahan and M Chen for plaintiff R Scott and M Cavanaugh for defendant
Judgment:	30 June 2016

[SUPPLEMENTARY] JUDGMENT OF LANG J

This judgment was delivered by me on 30 June 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LTD v THE NEW ZEALAND QUALIFICATIONS AUTHORITY [2016] NZHC 1467 [30 June 2016]

[1] On 14 April 2016, I delivered a judgment in which I upheld one ground of an application for judicial review against the plaintiff, Linguis International Institute of Language and Culture Limited (Linguis), against the defendant, The New Zealand Qualifications Authority (the Authority).¹ The judgment reserved leave to the parties to seek further directions on 48 hours notice should that be necessary to implement the directions given in the judgment in relation to the successful ground of review.²

[2] The Authority has now sought further directions in relation to two issues it says it has encountered, or will encounter, in implementing the directions of the Court. I am satisfied that the first issue falls within the scope of leave reserved but that at this stage the second issue does not.

The issues

The scope of submissions Linguis is entitled to make in relation to the new draft report

[3] This issue arises as a result of the directions given in the following paragraphs of the judgment:

[77] My conclusion in relation to the first ground of review means that it will not be possible for the review to return to the reconsideration stage. It needs to return to an earlier point in the EER process so that the review team can explain why it considers the issue of re-sits and late assessments to remain relevant. Linguis should then have an opportunity to make submissions in relation to that issue. If the review team concludes that the sole remaining reference to the issue should be removed from the report, it will need to go on to consider whether any of its ultimate conclusions need to be reconsidered.

[78] I therefore direct the review team to provide a further draft report expressly stating why it considers the issue of re-sits and late assessments to be a matter of concern having regard to the statements the Authority has made in the Policy and Guidelines document. Linguis will have 14 days to provide submissions in response. The review team is then to produce a final report within 14 days of receiving submissions from Linguis. Thereafter the procedure set out in the EER Rules is to govern the completion of the EER process.

¹ Linguis International Institute of Language and Culture Ltd v The New Zealand Qualifications Authority

[2016] NZHC 691.

² At [80].

[79] In the event that Linguis seeks reconsideration of the report under r 9, the person appointed to carry out that process must take into account the material that Mr Andrews erroneously excluded from the scope of his reconsideration of the first final report together with such other material as he or she considers to be appropriate.

(Emphasis added)

[4] These directions have now been partially implemented. The Authority has completed a further draft report and provided a copy of it to Linguis for response. Linguis has responded by sending the Authority a 42 page letter in which it raises a very large number of issues. These include numerous alleged errors of process and substance on the part of the Authority in its dealings with Linguis. Several of these appear to relate directly to issues I have found not to be the subject of any reviewable error.

[5] I consider the directions given in the judgment are unambiguous. The only additional issues the Authority was required to deal with in its further draft report were those of re-sits and late assessments. Furthermore, Linguis was only permitted to make submissions in relation to the draft report in respect of those issues. Linguis would obviously be entitled to make submissions relating to the effect that any change of stance by the Authority in relation to those issues has had, or should have had, in relation to the Authority’s ultimate conclusions. Linguis is also entitled to make submissions regarding the reasoning process the Authority has used in reaching its conclusions in respect of the issues of re-sits and late assessments. Linguis is not entitled, however, to make submissions on matters that are entirely unrelated to those two issues.

[6] The Authority has identified the matters raised by Linguis that it considers relate directly to the issue of re-sits and late assessments. These are set out at paragraph 6 of the memorandum of counsel for the Authority dated 27 June 2016. I did not take Mr O’Callaghan to dispute Ms Scott’s submission on this point. I therefore confirm that the Authority is only required to take those matters into account when considering the form of the final report. It is not required to take into account the remaining issues raised by Linguis in its response to the draft report.

The reconsideration process

[7] The Authority has raised a further issue relating to the reconsideration process. This issue is raised prematurely, because the reconsideration process has not yet commenced. For that reason it has not arisen in implementing the Court’s directions, and is therefore outside the scope of reserved leave. Given the history of this matter, however, I accept that it is extremely likely that Linguis will ask that the final report be the subject of the reconsideration process in the future.

[8] The Authority seeks clarification as to the interpretation to be applied to Rule
9.2 of the External Evaluation Review Rules 2013. This provides:

9.2 Where any request for reconsideration involves educational performance data, the reconsideration will only involve the data that were available to NZQC at the date the EER report was finalised.

[9] The Authority asks the Court for guidance as to whether the term “EER Report” in clause 9.2 refers to the new final report or the original final report that the Court has set aside. Although the Court does not have any jurisdiction to deal with this issue I am nevertheless prepared to provide a tentative view in an effort to assist the parties in the future.

[10] I consider the meaning of the rule to be obvious. The original final report was set aside by the Court. It is no longer in existence. The new final report is not in existence either, because it is yet to be issued. The effect of r 9.2 is therefore to require any future reconsideration of the final report to be restricted to the data available to the Authority as at the date the report is ultimately finalised.



Lang J

Solicitors:

Kirkland Morrison O’Callahan & Ho, Auckland McElroys, Auckland