Judicial review. New zealand. Complaint. I will be submitting an application for judicial review to the high court of NZ

Expert's Assistant chat
Customer: Judicial review
JA: What state is this in? It matters because laws vary by location.
Customer: new zealand
JA: What steps have been taken so far?
Customer: complaint
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I will be submitting an application for judicial review to the high court of NZ.
Answered by Chris The Lawyer in 2 hours 1 year ago
imglogo
Chris The Lawyer
10+ years of experience
logo

41992 Satisfied customers

Expert in: Family Law, Legal, Estate Law, Real Estate Law, Criminal Law, Employment Law, Business Law, Consumer Protection Law, Bankruptcy Law, Traffic Law, Personal Injury Law.

logoimgimgVerified lawyers, 10+ years of experience
Chat with a Lawyer in minutes, 24/7
imglogo

Verified lawyers, 10+ years of experience

Save time and money. Get specialized help.

imglogo
Chris The Lawyer
10+ years of experience
logo

41992 Satisfied customers

Jessica

Jessica

Consultant

31,131 Satisfied customers

Pearl avatar
Lawyer's, Assistant
14 Lawyers are online right now.
img

Chris The Lawyer, Expert

Hi

I am a New Zealand lawyer based in Wellington and will help you with your question today. Please wait while I read the question so I can make the most useful response.

img

Chris The Lawyer, Expert

How may I help with this?

Customer
Hi Chris, we intend to submit a Judicial Review following the Companies Office's rejection of our application to register a business. The Companies Office rejected our application because we did not provide our person identification documents. We did not provide the personal identification documents because the statutory act that we were seeking to register the business under does not stipulate a requirement to provide personal identification documents to the Companies Office. Also the Companies Office stated that our ID would not be kept confidential. We believe the Companies Office's ID request breaches section 22 of the Privacy Act 2020. Also in a separate email, a senior companies office staff member admitted that the Companies Office does not ask NZ residents for their personal ID and the request is only directed at non residents. I believe this email proves that the request for ID is discriminatory. Do we have grounds for judicial review? Further information can be provided on request.
img

Chris The Lawyer, Expert

Hi

I am a New Zealand lawyer based in Wellington and will help you with your question today. Please give me a minute to read the question

img

Chris The Lawyer, Expert

Judicial review is the remedy where there is an irrational or unlawful decision. The reason for the supply of personal ID relates to money laundering requirements rather than a provision of the Companies Act.

Customer
Hi, the Companies Office is not an AML supervisor under NZ law. The act is the Building Societies Act 1965. Under that act there is no requirement to provide id prior to or as a condition for receiving a certificate of incorporation from the registrar of building societies. Also if the request is not discriminatory then why does the Companies Office never ask NZ or Australian residents for ID? I believe we have grouds for judicial review because the request discriminates on grounds of nationality. Also under section 22 of the Privacy Act 2020 government agencies are prohibited from requesting an individuals id unless it is in connection with a lawful function. As stated previously there is no lawful function that provides a lawful basis for the companies office to request ID since the companies office is not an AML regulator. Also under section section 13-14, the rules of a building society must be registered if the rules address the matters that must be considered by the rules of a building society. Section 17 of the BSA 1965 specifies the matters that must be addressed, The proposed rules addresses all of these matters in a way that does not contravene any provision of the BSA 1965. The application also conforms to the Building Societies Regulations 1989. The procedural requirements applicable to forming a building society under NZ law as contained within these regulations. Based on the society's compliance with section 17 and the Building Societies Regulation 1989 I believe the Companies Office's refusal to register the building society also amounts to procedural impropriety, The Companies Office does not have the authority to request our ID the request is discriminatory and illegal.
Customer
Based on the information provided do you believe that we have valid grounds for judicial review?
img

Chris The Lawyer, Expert

The test will be whether this decision is disproportionate to the need to control AML. It is difficult to say if your review will succeed without considering this in full detail, but you may have a point

Customer
I have drafted the JR petition. I would like to engage your service s to obtain a legal opinion as to the merits of our petition for JR. To ensure that the opinion is accurate as possible, we will provide full disclosure with regard to our communications with the Companies Office and the reasons outlined by the Companies Office for rejecting the application, in addition to providing you with a copy of the petition.
Would this be possible?
If so, can we send the information to you directly?
Would the information disclosed be kept confidential?
img

Chris The Lawyer, Expert

I could accept a brief off the site and I would send my retainer letter. Email me at***@******.***

Customer
I am willing to move forward. However, please could you confirm whether the information I provide will be kept confidential. Thanks.
img

Chris The Lawyer, Expert

This site is anonymous. If you instruct me then lawyer's confidentiality applies

Customer
Would confidentiality apply If I instruct you directly?
img

Chris The Lawyer, Expert

Of course. It is a fundamental part of lawyer/client instructions to keep matters confidential. However filing a judicial review would mean the court proceedings would be public

Customer
Would it be possible to review the merits of the draft petition on a fixed fee basis? If so please could you provide an estimate. Thanks.
img

Chris The Lawyer, Expert

A judicial review is by Statement of Claim, Notice of Proceeding and affidavits in support. Are those the documents you have drafted?

Customer
The document I would like you to review is the statement of claim.
Customer
I will send all of the revenant documents once I receive confirmation that you can review the statement of claim. Thanks..
img

Chris The Lawyer, Expert

I can review that

Customer
Thanks for confirming. I will provide all of the relevant documents by Monday. The documents will be sent through email.
img

Chris The Lawyer, Expert

Ok

Customer
I will email the draft statement of claim and the other document shortly to your stated email address. The email will be sent from***@******.***.
img

Chris The Lawyer, Expert

Ok, I will review

Customer
Hello, I am looking for a brief opinion on what has already been written. I do not think a formal engagement is needed at this time. Can you review the documents through just answer?
img

Chris The Lawyer, Expert

I have sent an offer

Customer
Would you be able to complete within 12 hours after paying? The JR deadline is the 14th. NZ time.
img

Chris The Lawyer, Expert

Yes

Customer
I can confirm that I have sent payment.
img

Chris The Lawyer, Expert

Ok, I will respond shortly

img

Chris The Lawyer, Expert

Your document has many problems. It is not in the form of a statement of claim and does not follow the requirements of the High Court Rules in many respects. It would not be accepted for filing.

It should have a front page which sets out the parties, the fact it is being filed as a judicial review statement of claim and have your address phone and email at the foot. The next page should set out the facts in sequence, but not include evidence. It should then set out the issues of law where you require judicial review, and end with a clause stating the relief you seek and then your address for service

Those are the procedural requirements, and the statement of claim must be filed with a notice of proceeding and an affidavit in support (which is where the evidence is set out)

As for the cause of action, that is confusing in your document. Judicial review needs to plead things like a legitimate expectation. irrational decision making, something ultra vires or a wrongful exercise of of a statutory power. You appear to assert this is a form of racial prejudice  although that would need to be clearly pleaded.

For the formalities of pleading this link will be useful

https://www.justice.govt.nz/courts/going-to-court/without-a-lawyer/representing-yourself-civil-high-court/

img

Chris The Lawyer, Expert

You need to set out a clear statement of the facts, plead a proper cause of action and cite any legislation which you say has been breached. On reading your document, the main point appears to be an objection about providing personal ID which is on your assertion, not required for New Zealanders, and you say it is discriminatory. The decision to reject your application based on this would need to be challenged as irrational and ultra vires. The Registrar appears to assert that he has a general power to reject based on this, and while it is correct there is no statutory requirement, I believe it is still in his power to do so

img

Chris The Lawyer, Expert

Please feel free to ask if you do not understand this

Customer
In regards ***** ***** email I make the following further comments.This is the evidence of descrimination.Due to the importance the Registrar places on the integrity of information/data in all the registers he maintains, and the ability to check the identity and bona fides of those involved with the Bloomsbury application (unlike applications from persons living in New Zealand), the Registrar requires the requested information before the application can be assessed and progressed.
Customer
The email clearly states that the companies office does not ask ID from NZ residents.
Customer
Do you think the email strengthens the case for JR?
img

Chris The Lawyer, Expert

The test has to be whether the request is irrational. In your case if you are not a resident, then the issue is whether the Registrar has the power to require more from foreigners than residents. This comes back to the AML rules which apply to many aspects of dealing with money and investment and commercial enterprises. If those reetrictions and requirements are being applied to all foeigners then that is unlikely to be considered discrimination

Customer
The incorporator of General Equity is a non NZ resident. Yet the companies Office acknowledges that they have never asked any other incorporator of a Building Society for their ID.
Customer
Also the Companies Office is not an AML supervisor or regulator under NZ law.
Customer
The December email makes no mention of AML issues. Is not discriminatory to arbitrarily believe that all non nz residents are somehow more disposed to to engaging in criminal activity such as money laundering?
Customer
Bearing all of this in mind do you believe we have grounds for JR.
img

Chris The Lawyer, Expert

The issue may be whether the request is proportionate, having regard to the factors. You will find once the building society is set up, if that can be done, then taking funds will involve AML regulation to a considerable level

img

Chris The Lawyer, Expert

I am therefore not confident you would succeed

Customer
why does the Companies Office not ask other Building Society incorporators for their ID?
Customer
This is clearly a case of discrimination on grounds of nationality.
Customer
Why does the Companies Office's AML concerns not apply to NZ residents?
img

Chris The Lawyer, Expert

There are very few building societies these days. But it is discrimination against all foreigners rather than nationality. Is there a reason you will not provide that information? You will need to when you open a bank account in New Zealand for the building society

Customer
Quite simply because the Companies Office's ID request is illegal and discriminatory. I do not know how our personal documentation will be handled since there is no legal framework that ensures that the ID will be maintained in confidence. This is contrast to a bank which is subject to a comprehensive legal framework with regards ***** ***** collection and protection. Unlike the Companies Office, a bank has legal grounds for requesting personal ID and is subject to legal obligations to protect the data of its customers. Can I use your services to make an Official Information Act request to find out if the Companies Office has ever asked any Building Society incorporator for their personal ID?
Customer
Also, discrimination against foreigners or non NZ citizens is discrimination nonetheless. There is no provision within the BSA 1965 the permits the Registrar of Building Societies to discriminate against persons of foreign citizenship. The Official Information Act request will prove that our application is being dealt with in a discriminatory manner. Do you not find it suspicious that the Companies Office has never asked any other incorporator for their ID but they do in our case?
img

Chris The Lawyer, Expert

I see the Registrar tried to reassure you about the privacy concerns, and you may be aware that the Privacy Act does place obligations on him to protect the information. You can make the OIA request yourself-it does not need a lawyer

Customer
The Companies Office have not stated we are an AML risk. They state that they need ID in order to be satisfied that the formation of the proposed building society is bona fide or valid. My argument is that this is just an excuse and that there are other ways to prove that the formation of the proposed building society is legal and because there are other ways, the companies office cannot rely on section 22 to request our ID. Do you believe that the Companies Office's request satisfies the requirements of section 22 of the privacy act
Customer
Legally, personal opinion aside, do you believe that the December 17th email constitutes evidence of discrimination? And considering there are other ways to prove that the formation of the proposed building society is bona fide, do you believe that the Companies Office's request for ID satisfies the requirement for necessity under section 22 of the Privacy Act 2020?
img

Chris The Lawyer, Expert

I would be very surprised if the Companies Office did not have clear policies in place for protection of private information. As far as I am aware this is the policy in dealing with foreigners seeking to register entities. It is difficult to say whether this is discrimination. Normally that would be against specific nationalities or ethnic groups, but in this case it is a wider restriction on anyone not resident in New Zealand. I do consider the request can be justified as necessary under the act

Customer
It is discrimination because the founding team of General Equity now Pacific Eagle were not NZ residents. Yet they were not asked for ID. The ID request is not being applied uniformly. To prove discrimination in this matter can I use your services to make an OIA request?
Customer
Non residents cannot make a request under the OIA.
Customer
If this is a uniform policy that applies equally to all non residents then why did the Companies Office not ask for ID in the matter of the application to register General Equity/Pacific Eagle?
Customer
Also I am curious what part of the BSA 1965 do you believe permits the Registrar to request ID?
img

Chris The Lawyer, Expert

I don't know anything about Pacific Eagle, but agree there must be consistency. And there is no section of the act which requires ID of course as the Registrar conceded. If I am to be instructed on the OIA then we do need to get a retainer

Customer
I have re drafted the statement of claim. The grounds on which I base my claim for JR are Procedural Impropriety, Illegality (Ultra Vires) and error of law, and abuse of discretion/unreasonableness in relation to the matter of discrimination. Does this provide a more suitable basis for JR?
img

Chris The Lawyer, Expert

I suggest you look at the sample documents on the MOJ website to see how they are framed

Customer
With regard to the Official Information Act request, would it be possible for you to make the requests on my behalf on a fixed fee basis?I have already drafted the request. The request will simply ask whether the Companies Office has any records of the Registrar of Building Societies requesting personal ID.
img

Chris The Lawyer, Expert

Sending the letter is outside of JustAnswer, but I could do that

Customer
Please send the letter. I have drafted OIA request.
Customer
The request may be made here: https://www.mbie.govt.nz/about/open-government-and-official-information/make-a-request-for-official-information/
Customer
Will you be able to do the OIA request?
img

Chris The Lawyer, Expert

Did you send the draft?

Customer
To whom it may concern,I write to request the following information under the Official Information Act 1982:Details of any record or communication involving the Registrar of Building Societies requesting the personal ID of any person connected with any Building Society that is currently incorporated under the Building Societies Act 1965.
img

Chris The Lawyer, Expert

I have sent a draft to your email

Customer
Thanks for sending the updated letter. Please could you send the letter to Rob Rendle and MBIE directly.
img

Chris The Lawyer, Expert

OK

Customer
Thanks.
Customer
Are there any updates regarding the OIA request?
img

Chris The Lawyer, Expert

I have sent an email

Customer
A redraft has been done following the disclosure. Would it be possible to set another opinion?
img

Chris The Lawyer, Expert

Sure

Customer
Is it ok if I send the draft directly to your email?
img

Chris The Lawyer, Expert

Yes, that’s fine

Customer
I can confirm that the new draft will be sent shortly. Do you think the OIA disclosure strengthens the case for JR?
img

Chris The Lawyer, Expert

Not really, because the court is likely to agree that AML requirements should be reasonably required

Customer
why have the companies office not applied these AML requirements to others?
Customer
Are there no incidents of NZ or Australian residents engaging in money laundering?
Customer
The Companies Office is clearly discriminatory, if the companies office is asking id for AML purposes then why does it not uniformly apply its supposed AML policies? Why is not applied to certain nationalities?
Customer
If the request for ID is not discriminatory then please could you explain the aforementioned questions. Thanks.
img

Chris The Lawyer, Expert

I am unsure why they have or have not applied this to others. There certainly are New Zealanders and Australians engaged in money laundering, but perhaps they are easier to find

Customer
if you are unsure then why do you discount the possibility that the request for ID is discriminatory?
img

Chris The Lawyer, Expert

It is lack of data which makes me unsure

Customer
you cannot be sure that the request for id is not discriminatory?
img

Chris The Lawyer, Expert

Correct

Customer
The disclosure proves that the Companies Office does not have an internal policy that requires the incorporators of a building society to provide ID. Also the Companies Office is not an AML regulator. How is the request not discriminatory?
Customer
Can you explain how Michael Brosnahan's email dated December 17th 2020 is not discriminatory?
img

Chris The Lawyer, Expert

I dont think the issue is about discrimination but about reasonable requirements for applying. They cannot discriminate under the grounds in the Human Rights Act, which does include ethnic origin.

Customer
why do these supposed reasonable requirements not apply to NZ residents and Australians. If these requirements are reasonable surely they should apply to all irrespective of nationality. In NZ is it ok to discriminate against persons who do not come from Australia or NZ? Do you think that is ok?
img

Chris The Lawyer, Expert

If you can demonstrate that this is discriminatory you could use that in a judicial review

Customer
I believe Michael Brosnahan's December 17th email and and OIA disclosure proves discrimination?
img

Chris The Lawyer, Expert

They will say it is about protecting the integrity of the register

Customer
I know, but the question is why have the Companies Office never applied these requirements to others. The OIA request proves that the Companies Office have never asked any other person s seeking to incorporate a building society in NZ for their ID.
img

Chris The Lawyer, Expert

Part of the answer is that very few building societies have been set up here for many years. So your application is likely the first for a long time.

Customer
IPS building society was formed in 2018 just 2 years before our application.
Customer
Also that does not justify discrimination.
img

Chris The Lawyer, Expert

Agreed, but I still think that the answer, because judicial review is discretionary, that the court would say that AML requirements are a reasonable requirement

Customer
but why are these AML requirements not applied uniformly. If the courts cannot answer this. Then I will appeal their decision.
Customer
Very interesting, so do the courts of NZ support discriminatory policies against non NZ or Australian residents?
img

Chris The Lawyer, Expert

Judicial review can be sought, but I doubt your application will succeed. It is not about discrimination in my view

Customer
If it is not about discrimination then please explain Michael Brosnahan's December 17th email.
Customer
How is it ok to discriminate on the grounds of nationality.
Customer
In his email December 17th email Michael admits that the companies office is asking for our ID because we are not from NZ. This is clearly discriminatory. Since the request is based on nationality. Michael admits that the Companies Office does not ask nz residents for their ID.
img

Chris The Lawyer, Expert

I am not sure that debating this here adds value. If you want to bring a judicial review then you are free to do so.

Customer
The OIA disclosure proves that the Companies Office does not ask NZ and Australian residents for their ID. Again how is this not discriminatory? Do you believe its ok for you government to make discriminatory requests against non residents irrespective of law?
img

Chris The Lawyer, Expert

This site is for general information. If you want specific advice then that is beyond the scope of this site

Customer
I got a custom service. Are you against exposing xenophobic bigots at the Companies Office who believe that all foreigners (excluding Australians) are engaged in money laundering schemes?
img

Chris The Lawyer, Expert

I do not think I need to answer that

Customer
If this is not about xenophobic discrimination then please explain Michael Brosnahan December 17th email?
img

Chris The Lawyer, Expert

If you want to file a judicial review based on that you are free to do so

Customer
Ok but you seem adamant that the Companies Office are not acting discriminatorily. If you believe this is the case then please could you explain Michael Brosnahan's email dated 17th December. I believe that I have sent you a copy of the email.
img

Chris The Lawyer, Expert

The purpose of the refusal is the integrity of the register. If you think that is discriminatory, you are free to file a judicial review. I don't think debating the issue with me will clarify what you need, and if you want to file you should do so

Customer
The excuse given is that to Companies Office cannot be satisfied that the formation of the formation of the building society is valid or bona fide. I have offered to provide documentation proving that the formation of the building society is valid and in line with the Building Societies Regulations 1989. The Companies Office have refused this offer without providing any further explanation.
img

Chris The Lawyer, Expert

Then file a judicial review based on that

Customer
I can give you a redraft of the JR filing. The draft will be sent to your direct email.
Customer
Just to confirm, should the draft be sent to***@******.***?
img

Chris The Lawyer, Expert

Yes

Customer
The draft has now been sent to your email.
img

Chris The Lawyer, Expert

ok

Customer
Would it be possible to get a fixed fee?
img

Chris The Lawyer, Expert

Yes

Customer
The claim is already drafted. Ideally, I would like your advice to focus purely on the substance and the merits of the arguments offered as grounds for JR, I will deal with the presentational formalities in due course. If you believe that the claim has no merits would you be willing to answer each of the questions specified in yesterday's email?
img

Chris The Lawyer, Expert

I would be charging on a time basis, requiring 3-4 hours for an opinion on merits

Customer
Why have the terms changed? You previously provided an opinion regarding merits on a fixed fee basis.
img

Chris The Lawyer, Expert

You have supplied more background and the situation is more complex than when I first saw the problem. You are free to brief any lawyer of your choice

Customer
But you stated that you accept fixed fees less than an hour ago.
img

Chris The Lawyer, Expert

The fixed fee would be based on 3-4 hours work

Customer
Please email details of the fee.
img

Chris The Lawyer, Expert

Sent

Ask a lawyer and get your legal questions answered.
See all Legal Questions
img
Related Legal Questions
How it works
logoAsk for help, 24/7
Ask for help, 24/7
Members enjoy round-the-clock access to 12,000+ verified Experts, including doctors, lawyers, tech support, mechanics, vets, home repair pros, more.
logoExpert will respond in minutes
Expert will respond in minutes
After you reach out, we match you with an Expert who specializes in your situation. Talk, text, chat, whichever you prefer.
logoSave time & money
Save time & money
No scheduling hassles, missing time from work, or expensive consults.
A JustAnswer membership can save you significant time and money each month.
img
logo 593 Verified lawyers, 10+ years of experience
DISCLAIMER: Answers from Experts on Askalawyeroncall.com are not substitutes for the advice of an attorney. Askalawyeroncall.com is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response as proposing specific action or addressing your specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances should be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on any information received from an Expert, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from independent, freelance Experts, who are not employed by Askalawyeroncall.com . The site and services are provided “as is”. To view the verified credentials of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.
Explore law categories
Powered by JustAnswer