[Full judgment: ProblemGamblingFoundationvAttorneyGeneral.pdf]

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2014-404-1219
[2015] NZHC 1701
BETWEEN

PROBLEM GAMBLING FOUNDATION OF NEW ZEALAND
Plaintiff

AND

ATTORNEY-GENERAL

[…]

Introduction

[1] The Problem Gambling Foundation of New Zealand seeks judicial review of a decision of the Ministry of Health relating to provision of services to reduce problem gambling and treat problem gamblers.

[2] The Foundation is a charitable trust. It is a non-profit organisation which provides both public health and clinical problem gambling services. In broad terms, public health services are those designed to prevent or reduce the risk of problem gambling, and clinical services are those concerned with the treatment of problem gamblers. The Foundation has provided problem gambling services since 1988 and has been the largest service provider in New Zealand.

[3] Since 2004 the Ministry of Health has been the Government department with responsibility under the Gambling Act 2003 (the Act) for developing, managing and implementing an “integrated problem gambling strategy”.

[4] In July 2013 the Ministry issued a Request for Proposal (RFP). This was for provision of services in 13 regions in New Zealand, and nationally, for a 30 month period commencing on 1 January 2014 and concluding on 30 June 2016.

[5] The Foundation submitted two proposals. One was to provide services, as the sole provider, in 9 of the 13 regions. The other was to provide national services in conjunction with another provider. In March 2014 the Ministry decided that no contract should be offered to the Foundation other than two small contracts for specialised Asian services in the Auckland and Canterbury/West Coast regions.

[…]

(a) Issue 1. On what grounds, if any, can the decision be judicially reviewed? It was not disputed that, as a matter of principle, the decision is subject to the Court’s jurisdiction. The issue is the scope of review. This issue requires consideration of the Court of Appeal’s decision in Lab Tests Auckland Ltd v Auckland District Health Board.

(b) Issue 2. This corresponds to the third issue in Ms Chen’s summary, and part of the fourth: Did the Ministry fail to follow evaluation processes and criteria set out in, or indicated by, the RFP and, if so, did it breach the mandatory rules, or a legitimate expectation of the Foundation, that in the absence of notification and an opportunity to respond, those processes would be adhered to?

(c) Issue 3. This corresponds to issues 5 to 7 in Ms Chen’s summary. The Ministry used a panel of six people to evaluate proposals with a seventh person who chaired the panel. The panel’s decision making was sequential, with provisional conclusions reached at various stages. The essence of issue 3 is whether there were material errors in conclusions reached at various stages, such that the Ministry’s final decision was not the result of logical and reliable decision making. The main thrust of the Foundation’s evidence and submissions, to be considered under this heading, is that in various ways the panel’s evaluation methodology was flawed, and flawed to an extent which makes results at various stages unreliable, so that the final decision is unreliable.

(d) Issue 4. This corresponds to Ms Chen’s second issue, but incorporating issues relating to the mandatory rules. The broad issue is whether the decision should be set aside because of apparent bias, or apparent conflicts of interest, of panel members, or the panel as a whole. The mandatory rules include rules relating to conflicts of interest.

Conclusion

[10] I have concluded that the decision in this case is one which may be subject to the full scope of judicial review so that the Foundation is entitled to advance the grounds contained in issues 2, 3 and 4. I have further concluded that, on all three issues the Foundation has established grounds to set the decision aside and that the decision should be set aside.

[...]

[Full judgment: ProblemGamblingFoundationvAttorneyGeneral.pdf]

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