w w w . L a w y e r S e r v i c e s . i n



Financial Services Complaints Limited v/s The Chief Ombudsman


Company & Directors' Information:- K K FINANCIAL SERVICES PRIVATE LIMITED [Amalgamated] CIN = U65923MH2007PTC166978

Company & Directors' Information:- O J FINANCIAL SERVICES LIMITED [Active] CIN = U74899DL1993PLC051937

Company & Directors' Information:- I SERVICES INDIA PRIVATE LIMITED [Active] CIN = U72900DL2003PTC118851

Company & Directors' Information:- G U FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67120OR1989PTC017916

Company & Directors' Information:- S T SERVICES LTD [Active] CIN = L74140WB1989PLC047210

Company & Directors' Information:- M G F SERVICES LIMITED [Amalgamated] CIN = U65910DL1987PLC029599

Company & Directors' Information:- W G F FINANCIAL SERVICES LIMITED [Active] CIN = U65993DL1992PLC048390

Company & Directors' Information:- R S SERVICES PRIVATE LIMITED [Active] CIN = U65100DL1989PTC038061

Company & Directors' Information:- R S SERVICES PRIVATE LIMITED [Active] CIN = U74900DL1989PTC038061

Company & Directors' Information:- S J SERVICES PRIVATE LIMITED [Active] CIN = U74140DL1988PTC034427

Company & Directors' Information:- C F S FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1994PTC062182

Company & Directors' Information:- D AND A FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012709

Company & Directors' Information:- N B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65993DL2006PTC144829

Company & Directors' Information:- E M SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U93090MH2001PTC131924

Company & Directors' Information:- T H FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67120WB1997PTC082650

Company & Directors' Information:- M K G FINANCIAL SERVICES PVT LTD [Active] CIN = U74899DL1995PTC067373

Company & Directors' Information:- L M J SERVICES LTD [Active] CIN = L51226WB1983PLC035807

Company & Directors' Information:- L M J SERVICES LTD [Active] CIN = L93000WB1983PLC035807

Company & Directors' Information:- G K SERVICES PRIVATE LIMITED [Active] CIN = U65990MH1994PTC078529

Company & Directors' Information:- INDIA FINANCIAL SERVICES LIMITED [Strike Off] CIN = U65921WB1997PLC083511

Company & Directors' Information:- P C FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070768

Company & Directors' Information:- S A FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC063217

Company & Directors' Information:- A M FINANCIAL SERVICES LIMITED [Strike Off] CIN = U74140PB1993PLC013944

Company & Directors' Information:- A K SERVICES PRIVATE LIMITED [Active] CIN = U74899MH1986PTC268851

Company & Directors' Information:- AT FINANCIAL SERVICES LIMITED [Active] CIN = U67190MH2013PLC243267

Company & Directors' Information:- L N M FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65910WB1996PTC082013

Company & Directors' Information:- H T FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65999MH2012PTC225794

Company & Directors' Information:- B M FINANCIAL SERVICES INDIA PRIVATE LIMITED [Active] CIN = U65990MH2001PTC132477

Company & Directors' Information:- B V SERVICES PVT LTD [Active] CIN = U74140WB1991PTC050946

Company & Directors' Information:- I S A SERVICES PRIVATE LIMITED [Active] CIN = U74140JH1995PTC006387

Company & Directors' Information:- M L FINANCIAL SERVICES LIMITED [Strike Off] CIN = U65920TG1994PLC018846

Company & Directors' Information:- E I C SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC022426

Company & Directors' Information:- M G FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC065876

Company & Directors' Information:- T T C FINANCIAL SERVICES PVT LTD [Active] CIN = U51909WB1995PTC074992

Company & Directors' Information:- A C SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070774

Company & Directors' Information:- S & F FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U63040MH2004PTC149667

Company & Directors' Information:- R S A FINANCIAL SERVICES PVT LTD [Active] CIN = U74899DL1995PTC067328

Company & Directors' Information:- H S SERVICES PRIVATE LIMITED [Active] CIN = U74900KA2014PTC074321

Company & Directors' Information:- G V INDIA SERVICES PRIVATE LIMITED [Active] CIN = U74900DL2010PTC212026

Company & Directors' Information:- B P C FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65110MH1996PTC102267

Company & Directors' Information:- A P S FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65993PB1995PTC016819

Company & Directors' Information:- A P S FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65993HR1995PTC067843

Company & Directors' Information:- N P K FINANCIAL SERVICES PVT LTD [Active] CIN = U67120WB1995PTC073448

Company & Directors' Information:- K R B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65921TG1994PTC018711

Company & Directors' Information:- A TO Z SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2007PTC168484

Company & Directors' Information:- K S M FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67120PB1995PTC016630

Company & Directors' Information:- O P T SERVICES INDIA PRIVATE LIMITED [Active] CIN = U63013DL1996PTC083397

Company & Directors' Information:- P P SERVICES PVT LTD [Active] CIN = U70101WB1991PTC051423

Company & Directors' Information:- A P T SERVICES PRIVATE LIMITED [Amalgamated] CIN = U29219TG1999PTC031903

Company & Directors' Information:- D K S FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U74899DL1995PTC069093

Company & Directors' Information:- S S SERVICES PVT LTD [Active] CIN = U51109AS1993PTC003956

Company & Directors' Information:- G & G SERVICES PRIVATE LIMITED [Active] CIN = U45201DL2012PTC230905

Company & Directors' Information:- U D. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC068179

Company & Directors' Information:- A N Y SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071457

Company & Directors' Information:- N B SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1993PTC056484

Company & Directors' Information:- P C SERVICES PRIVATE LIMITED [Strike Off] CIN = U00894KA1985PTC006606

Company & Directors' Information:- H D FINANCIAL SERVICES PVT LTD [Active] CIN = U67120WB1992PTC056476

Company & Directors' Information:- B. K. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67100MH2010PTC210099

Company & Directors' Information:- M. V. S SERVICES INDIA PRIVATE LIMITED [Active] CIN = U93000DL2013PTC252172

Company & Directors' Information:- B R FINANCIAL SERVICES PRIVATE LIMITED [Amalgamated] CIN = U74899DL1995PTC068371

Company & Directors' Information:- B 2 B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65999MH2008PTC188501

Company & Directors' Information:- J. H. B. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74140DL1997PTC084907

Company & Directors' Information:- K K B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74900CH2010PTC032178

Company & Directors' Information:- S D SERVICES PVT LTD [Active] CIN = U51109AS1998PTC005293

Company & Directors' Information:- H AND B SERVICES LIMITED [Strike Off] CIN = U72900MH2004PTC145775

Company & Directors' Information:- D R FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U67120WB1996PTC079376

Company & Directors' Information:- R K FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC067676

Company & Directors' Information:- C & R SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74140KA1996PTC019645

Company & Directors' Information:- E AND A SERVICES (INDIA) PRIVATE LIMITED [Under Process of Striking Off] CIN = U51900MH1989PTC054373

Company & Directors' Information:- J. M. A. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65929DL1996PTC079248

Company & Directors' Information:- A. H. SERVICES PRIVATE LIMITED [Active] CIN = U74990MH2009PTC193917

Company & Directors' Information:- M E R I T SERVICES PRIVATE LIMITED [Strike Off] CIN = U51900MH1999PTC118445

Company & Directors' Information:- V A FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67190MH2003PTC138687

Company & Directors' Information:- P F P SERVICES PRIVATE LIMITED [Active] CIN = U74900MH2009PTC293633

Company & Directors' Information:- R P FINANCIAL SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U67190TZ2008PTC014376

Company & Directors' Information:- P F P SERVICES PRIVATE LIMITED [Active] CIN = U74900WB2009PTC139742

Company & Directors' Information:- J. S. P. SERVICES PRIVATE LIMITED [Active] CIN = U63040DL1996PTC075731

Company & Directors' Information:- B J FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67120GJ2005PTC046722

Company & Directors' Information:- D G FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U67110MP1995PTC009014

Company & Directors' Information:- S D S FINANCIAL SERVICES LIMITED [Strike Off] CIN = U67120PB1996PLC017964

Company & Directors' Information:- B L M FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67120CH1995PTC016606

Company & Directors' Information:- A V FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65990TG1995PTC020950

Company & Directors' Information:- D K FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65921CH1994PTC014219

Company & Directors' Information:- INDIA SERVICES LIMITED [Liquidated] CIN = U99999TN1946PLC000976

Company & Directors' Information:- J V S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65999TG1994PTC018470

Company & Directors' Information:- B A L FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65921TG1996PTC023150

Company & Directors' Information:- R T G FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190MH2005PTC150664

Company & Directors' Information:- T C G FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190MH2005PTC156330

Company & Directors' Information:- M K FINANCIAL SERVICES LIMITED [Active] CIN = U67120DL1986PLC024178

Company & Directors' Information:- U M S SERVICES LIMITED [Active] CIN = U03210TZ1982PLC001208

Company & Directors' Information:- A T E SERVICES LIMITED [Strike Off] CIN = U74140MH2001PTC132923

Company & Directors' Information:- V AND C FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TG1994PTC018781

Company & Directors' Information:- J M S FINANCIAL SERVICES LIMITED [Active] CIN = U67120DL1996PLC082705

Company & Directors' Information:- SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74140DL1996PTC078465

Company & Directors' Information:- G I SERVICES INDIA LIMITED [Active] CIN = U74140DL2008PLC184088

Company & Directors' Information:- E AND E SERVICES LIMITED [Strike Off] CIN = U65992KL1988PLC005094

Company & Directors' Information:- S R V N SERVICES PRIVATE LIMITED [Strike Off] CIN = U50200DL2004PTC124035

Company & Directors' Information:- B H SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74999MH2012FTC227035

Company & Directors' Information:- E F FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65929WB1988PTC045117

Company & Directors' Information:- L S J FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67120KA1995PTC018030

Company & Directors' Information:- A R SERVICES PRIVATE LIMITED [Active] CIN = U00000DL2001PTC109578

Company & Directors' Information:- J AND J SERVICES PRIVATE LIMITED [Active] CIN = U51900MH1995PTC092554

Company & Directors' Information:- L B D SERVICES PRIVATE LIMITED [Active] CIN = U00359BR1991PTC004694

Company & Directors' Information:- C & A FINANCIAL SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74992PB2008PTC032215

Company & Directors' Information:- G. S. D. FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67100MH2009PTC196926

Company & Directors' Information:- A J P FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900WB2013PTC192558

Company & Directors' Information:- A 2 Z E SERVICES PRIVATE LIMITED [Strike Off] CIN = U72200KA2006PTC039105

Company & Directors' Information:- A .S FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65921PB1994PTC014347

Company & Directors' Information:- V S P FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67190TN1995PTC031176

Company & Directors' Information:- T K S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TZ1991PTC003500

Company & Directors' Information:- A TO Z FINANCIAL SERVICES PVT. LTD. [Strike Off] CIN = U65999WB1995PTC075689

Company & Directors' Information:- M P SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U74999PN1999PTC013531

Company & Directors' Information:- V S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TN1995PTC030986

Company & Directors' Information:- B G FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67110DL1995PTC066466

Company & Directors' Information:- B I N A R Y SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC103072

Company & Directors' Information:- M C SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74999PN1999PTC013532

Company & Directors' Information:- D & D SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U51909DL1998PTC093967

Company & Directors' Information:- G D FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U67120PB1994PTC014142

Company & Directors' Information:- V J FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TG1994PTC018456

Company & Directors' Information:- CHIEF FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67190PB2008PTC031857

Company & Directors' Information:- S C L SERVICES PRIVATE LIMITED [Active] CIN = U63012TN2001PTC046650

Company & Directors' Information:- S. R. FINANCIAL SERVICES PRIVATE LIMITED [Converted to LLP] CIN = U67120GJ2006PTC048918

Company & Directors' Information:- H C FINANCIAL LTD [Amalgamated] CIN = U65910GJ1982PLC004967

Company & Directors' Information:- A B SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140DL1998PTC093545

Company & Directors' Information:- G P SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC037683

Company & Directors' Information:- T S SERVICES PRIVATE LIMITED [Strike Off] CIN = U85320WB2003PTC095712

Company & Directors' Information:- A. S. V. P. SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999HR2014PTC052304

Company & Directors' Information:- R AND T SERVICES PRIVATE LTD. [Strike Off] CIN = U72501DL1998PTC096640

Company & Directors' Information:- S S SERVICES PVT LTD [Strike Off] CIN = U74140WB1988PTC044009

Company & Directors' Information:- D S FINANCIAL SERVICES PVT. LTD. [Strike Off] CIN = U51109WB1990PTC048460

Company & Directors' Information:- I O P T 4 M O R E FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65999MH2009PTC192104

Company & Directors' Information:- S S D SERVICES PRIVATE LIMITED [Active] CIN = U74910RJ1996PTC012694

Company & Directors' Information:- V & V SERVICES PRIVATE LIMITED [Strike Off] CIN = U74990MH2010PTC206211

Company & Directors' Information:- D S SERVICES PRIVATE LIMITED [Strike Off] CIN = U65923MH2012PTC226482

Company & Directors' Information:- I. & I. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U93090MH2017PTC298584

Company & Directors' Information:- C. D. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190MH2012PTC230709

Company & Directors' Information:- P AND I SERVICES PRIVATE LIMITED [Active] CIN = U63090MH1981PTC024997

Company & Directors' Information:- F F C SERVICES PRIVATE LIMITED [Active] CIN = U74900PN2014PTC153348

Company & Directors' Information:- R. B. SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2017PTC302692

Company & Directors' Information:- Q C SERVICES PRIVATE LIMITED [Active] CIN = U74999PN2013PTC148110

Company & Directors' Information:- S AND N FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190TN2014PTC095802

Company & Directors' Information:- K & S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC044597

Company & Directors' Information:- U & I FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TG2011PTC072616

Company & Directors' Information:- I & A FINANCIAL SERVICES PRIVATE LIMITED [Converted to LLP] CIN = U65923TG2012PTC079262

Company & Directors' Information:- S N SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900JK2014PTC004110

Company & Directors' Information:- R N SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900CH2013PTC034757

Company & Directors' Information:- R M E-SERVICES PRIVATE LIMITED [Active] CIN = U72300DL2007PTC166470

Company & Directors' Information:- A Y SERVICES PRIVATE LIMITED [Active] CIN = U74140DL2012PTC239759

Company & Directors' Information:- V. S. SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2012PTC233958

Company & Directors' Information:- S & V SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2015PTC287145

Company & Directors' Information:- A R J SERVICES PRIVATE LIMITED [Active] CIN = U72200DL2015PTC286948

Company & Directors' Information:- R G FINANCIAL PRIVATE LIMITED [Strike Off] CIN = U65923DL1984PTC018552

Company & Directors' Information:- M K R SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000DL2012PTC242159

Company & Directors' Information:- B AND B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC068601

Company & Directors' Information:- G W SERVICES PVT LTD [Strike Off] CIN = U79140DL2001PTC111194

Company & Directors' Information:- B 2 B SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140HR2013PTC049213

Company & Directors' Information:- R K SERVICES PRIVATE LIMITED [Active] CIN = U45200HR2007PTC041783

Company & Directors' Information:- N G R B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190HR2013PTC049521

Company & Directors' Information:- K H FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140GJ2004PTC044313

Company & Directors' Information:- A. R. T. SERVICES PRIVATE LIMITED [Active] CIN = U51900GJ2009PTC056248

Company & Directors' Information:- B 9 N SERVICES PRIVATE LIMITED [Active] CIN = U74900KL2012PTC032087

Company & Directors' Information:- V J SERVICES PRIVATE LIMITED [Strike Off] CIN = U29242GJ2013PTC074510

Company & Directors' Information:- N I SERVICES PRIVATE LIMITED [Strike Off] CIN = U64202KL2000PTC014355

Company & Directors' Information:- 7-A SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2019PTC359011

Company & Directors' Information:- F I SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2001PTC113001

Company & Directors' Information:- C R D SERVICES PVT LTD [Active] CIN = U72300AS1988PTC003097

Company & Directors' Information:- D V G FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65921DL1994PTC057078

Company & Directors' Information:- B I M SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140KA1974PTC002694

Company & Directors' Information:- T Q M SERVICES PVT. LTD. [Strike Off] CIN = U74140DL1999PTC101341

Company & Directors' Information:- B AND M SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140MH1977PTC019880

Company & Directors' Information:- M K M FINANCIAL SERVICES PVT. LTD. [Strike Off] CIN = U99999DL1995PTC067375

Company & Directors' Information:- M J B E-SERVICES PRIVATE LIMITED. [Strike Off] CIN = U72400DL2006PTC150832

Company & Directors' Information:- U AND V FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140KL2008PTC021963

    CA No. 95 of 2020

    Decided On, 29 May 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE P. KÓS & THE HONOURABLE MR. JUSTICE COURTNEY

    For the Applicant: K.I. Murray, Advocate. For the Respondent: M.T. Scholtens, QC, D.W. Ballinger, Advocates.



Judgment Text


REASONS OF THE COURT

(Given by Ks P)

[1] FSCL provides independent dispute resolution services for financial services providers and their customers. It was the first approved scheme under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. Two later approved schemes had previously obtained consent from the then-Chief Ombudsman, Sir John Robertson, to use the word “ombudsman” in their names under s 28A(1) of the Ombudsmen Act 1975.

[2] In May 2015 FSCL applied to the then-Chief Ombudsman, Dame Beverley Wakem, for written consent pursuant to s 28A(1) to describe itself as a “Financial Ombudsman Service”. The application was declined. In November 2015 the applicant sought judicial review. Dame Beverley applied to strike that out. Toogood J declined her application in April 2016.[1]

[3] In May 2016 Mr Peter Boshier, by now the Chief Ombudsman, agreed to reconsider the May 2015 application and make a fresh decision. In July 2016 FSCL’s application was again declined.

[4] FSCL again applied for judicial review. Its application was dismissed by Simon France J in March 2017.[2] FSCL appealed successfully to this Court.[3] Mr Boshier was directed to reconsider the applicant’s application under s 28A(1). In June 2019 Mr Boshier again declined FSCL’s application.[4]

[5] FSCL now seeks:

(a) judicial review of this, the third declinature decision and, if successful, an order that the Court substitute its decision for that of Mr Boshier; and

(b) an order for removal and transfer of its judicial review proceeding against Mr Boshier from the High Court to this Court under s 59 of the Senior Courts Act 2016.

This judgment deals with (b).

[6] Section 59 provides:

59 Transfer of civil proceeding from High Court to Court of Appeal

(1) A party to a civil proceeding in the High Court may apply for an order transferring the proceeding to the Court of Appeal.

(2) In determining whether to make an order transferring the proceeding, the Court of Appeal must be satisfied that the circumstances of the proceeding are exceptional.

(3) Without limiting subsection (2), the circumstances may be exceptional if—

(a) the party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled:

(b) the proceeding raises an issue of considerable public importance that—

(i) needs to be determined urgently; and

(ii) is unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:

(c) the proceeding does not raise a question of fact or a significant question of fact, but raises a question of law that is the subject of conflicting decisions of the Court of Appeal.

(4) In deciding whether to make an order transferring the proceeding, the Court of Appeal must have regard to the following matters:

(a) the primary purpose of the Court of Appeal as an appellate court:

(b) the desirability of obtaining a determination of the proceeding in the High Court and a review of that determination on appeal:

(c) whether a full court of the High Court could effectively determine the question in issue:

(d) whether the proceeding raises a question of fact or a significant question of fact:

(e) whether the parties have agreed to the transfer of the proceeding:

(f) any other matter to which regard should be had in the public interest.

(5) It is not a sufficient ground that the parties agree to the transfer.

(6) The Court of Appeal has the jurisdiction of the High Court to hear and determine a proceeding transferred under this section.

(7) The Court of Appeal may transfer back to the High Court a proceeding that has been transferred to the Court of Appeal.

Submissions

[7] For FSCL, Mr Murray submits that the circumstances of the proceedings are exceptional for three reasons. First, it concerns the question of whether the respondent duly considered the applicant’s application under s 28A(1) of the Ombudsmen Act 1975 as ordered in accordance with this Court’s judgment in Financial Services Corporation Ltd v Chief Ombudsman.[5] Secondly, it also concerns the question of whether the respondent as the holder of an important constitutional office acted in bad faith when he again declined consent for the applicant to use the ombudsman name. Thirdly, it raises an important issue in administrative law, namely if a person vested with the exercise of a statutory discretion refuses to exercise the discretion in accordance with law, can the Court exercise the statutory discretion itself, or in the alternative declare that an applicant for a statutory consent is entitled to the consent?

[8] For Mr Boshier, Ms Scholtens QC and Mr Ballinger oppose the application to transfer the proceeding on several grounds. First, that the circumstances of the proceeding are not exceptional (and in particular, that none of the criteria in s 59(3) of the Senior Courts Act are satisfied). Secondly, that the Court of Appeal will benefit from factual findings made at first instance by the High Court. The issues raised on the pleadings are fact specific and will require close analysis. Thirdly, the statement of claim makes an allegation that the respondent has acted with a lack of good faith. Any adverse finding could have potential reputational consequences. The interests of justice require that there be one unqualified right of appeal, rather than an appeal avenue constrained by the Supreme Court’s leave criteria. Fourthly, the issue of whether a court can exercise a statutory discretion or direct the decision maker how to make its decision is not novel. And it is not sufficiently important that the proceeding should be heard at first instance by this Court. The legal position has been settled for many years; a court can in clear and exceptional circumstances substitute its own view of what decision should be made.

Discussion

[9] This Court dealt recently with another removal and transfer application in Borrowdale v Director-General of Health.[6] As the Court there observed:[7]

Even if the circumstances attending a proceeding are exceptional, it does not of course follow that it should be removed from the High Court and transferred to the Court of Appeal. This Court must still be persuaded that that is, in all the circumstances, the better course to follow.

In light of that observation we make six points.

[10] First, this is a proceeding of some importance. It raises issues of compliance with this Court’s prior orders and involves allegations of bad faith against a very senior Parliamentary officer. That makes it highly unusual. But it does not mean it is “exceptional” in the sense that word is used in s 59. That requires a more exacting inquiry to justify leapfrogging the High Court.

[11] Secondly, there being no challenge to any prior decision of this Court, s 59(3)(a) and (c) do not apply. In that case, and bearing in mind the injunction in s 59(4)(a) that the primary purpose of this Court is appellate rather than first instance trial work, the basis for removal might be expected to fall within s 59(3)(b): urgency. But that does not apply either. While FSCL’s judicial review plainly deserves timetabling for urgent trial, it certainly cannot be said that the case is “unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal”.[8] That suggests temporal and economic constraints, and neither apply here, at least on the evidence before us.

[12] Thirdly, it does not follow at all that the fact it is alleged this Court’s orders of February 2018 have not been complied with means this is the court to deal with the issue. Mr Murray does not exactly suggest that, in fairness. But he suggests something like it. However, in Quake Outcasts v Minister for Canterbury Earthquake Recovery the Supreme Court was faced with a leapfrog application on the basis that there had been non-compliance with a prior judgment of that Court.[9] The Supreme Court observed:[10]

We accept that this Court’s earlier judgment is an important part of the background to the Minister’s new decisions and is therefore relevant to an assessment of those decisions in judicial review proceedings. But it often happens that the resolution of a later case will depend upon the proper interpretation of an earlier decision of a court higher in the hierarchy, and that is not generally a reason for allowing a leapfrog appeal.

[13] Fourthly, we agree with Ms Scholtens QC and Mr Ballinger that the first appellate court will benefit from factual findings made by the High Court. Serious allegations are made against a statutory decision-maker and senior Parliamentary officer. The hearing may take some days. A slew of documents has been discovered and there is a lengthy paper trail to be analysed. Mr Murray tells us “six volumes of record material, including extensive Ministry of Justice documents” have been filed. There are likely to be interlocutory issues for resolution, which pre eminently is the work of trial courts. And FSCL has indicated it may want to cross examine Mr Boshier. The finding of facts at trial is an exacting and time-consuming task. It requires a single-minded sense of purpose, and a clarity of eye in detecting inconsistencies across the whole evidential record. It is more a solitary task than work for a committee. Like most solitary tasks, it is best tackled alone.

[14] Fifthly, while we therefore agree with the submission that those tasks are best addressed at first instance by the High Court, with appellate review if needed, it must also be borne in mind that appellate review may not be needed at all. In that case the allocation of two additional judges to the trial will have served little useful purpose, and simply delayed the despatch of other appellate business.

[15] Finally, if appellate review is needed, then two further points need to be made. The first is that the scope of the appeal may be much narrower than the trial. The second is the limitation on rights of appeal caused by leapfrog. In Borrowdale this Court observed:[11]

The question this application begs is whether this Court should now limit the available judicial steps to two (Court of Appeal, and perhaps Supreme Court) rather than three (High Court, Court of Appeal and perhaps Supreme Court). And behind that lies another question, which is whether we should thereby deny parties’ ordinary constitutional entitlement to a first appeal as of right (any appeal to the Supreme Court being by leave only). While leave might be anticipated, that is still a step this Court should be reluctant to take, especially where the issues are ones of such fundamental importance as these.

Preserving appellate rights is a consideration that applies equally in this case. It may be less urgent than Borrowdale was at the time (before Parliament expressly legislated for Covid-19 level 2 controls), but it nonetheless concerns significant allegations of bad faith against the present Chief Ombudsman. Each party’s as-of-right rights of appeal should be preserved unless there are exceptional reasons otherwise. Here there are not.

Result

[16] The application for tran

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sfer of the proceeding to the Court of Appeal, under s 59 of the Senior Courts Act 2016, is declined. ------------------------------------------------------ [1] Financial Services Complaints Ltd v Wakem [2016] NZHC 634, [2016] NZAR 717. [2] Financial Services Complaints Ltd v Chief Ombudsman [2017] NZHC 525, [2017] NZAR 521. [3] Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27, [2018] 2 NZLR 884. [4] It may be noted that in April 2019 the Ombudsmen (Protection of Name) Amendment Bill was introduced. It was passed and came into force in March 2020. It further restricts use of the “ombudsman” name in New Zealand, and transfers decision-making to the Minister of Justice. However, a saving applied to FSCL, allowing it to use the name “ombudsman” if its extant s 28A application was granted by Mr Boshier. Which it was not. [5] Financial Services Complaints Ltd v Chief Ombudsman, above n 3. [6] Borrowdale v Director-General of Health [2020] NZCA 156. [7] At [9]. [8] Senior Courts Act 2016, s 59(3)(b)(ii). [9] Quake Outcasts v Minister for Canterbury Earthquake Recovery [2016] NZSC 166. [10] At [3]. [11] Borrowdale above n 6, at [14].
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