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Attorney-General v Ririnui

Attorney-General v Ririnui

Case [2015] NZCA 160 12 May 2015

Constitutional Validity

Separation of Powers

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Constitutional Law

Administrative Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/2014
[2015] NZCA 160

BETWEEN	THE ATTORNEY-GENERAL Appellant
AND	MITA MICHAEL RIRINUI Respondent

CA337/2014
AND BETWEEN	LANDCORP FARMING LIMITED Appellant
AND	MITA MICHAEL RIRNUI Respondent

CA29/2015
AND BETWEEN	LANDCORP FARMING LIMITED Appellant
AND	MITA MICHAEL RIRINUI Respondent

Hearing:	10 February 2015
Court:	Harrison, Stevens and French JJ
Counsel:	D J Goddard QC, J R Gough and S J Humphrey for the Attorney-General S A Barker and B Gnanalingam for Landcorp Farming Ltd A N Isac and J B Orpin for Mita Ririnui
Judgment:	12 May 2015 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeals in CA336/2014 and CA337/2014 are allowed and the interim orders made in the High Court are set aside.
BThe cross-appeals in CA336/2014 and CA337/2014 are dismissed.
CThe appeal in CA29/2015 is allowed.
DThe cross-appeal in CA29/2015 is dismissed.
EThe costs order made in the High Court is set aside and the proceeding is remitted to that Court to fix costs in accordance with the terms of this judgment on both the interim and final applications.
FThe respondent is ordered to pay one set of costs including both its appeal and cross-appeal to each of the Crown and Landcorp for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Contents

Introduction  [1]
Facts  [4]
High Court  [12]
Appeals and cross-appeals  [17]
High Court interim judgment  [21]
(a)        Office of Treaty Settlements decision  [21]

(i)            High Court  [21]
(ii)           Justiciability  [25]
(iii)         Relief  [37]
(iv)        Summary  [40]
(b)        Minister’s decision  [42]
(i)            High Court  [42]
(ii)           Re Duomatic  [49]
(iii)          The SOE Act  [56]
(iv)          Summary  [62]
(c)        Setting aside agreement  [64]
High Court final judgment: Landcorp  [66]
(a)        Section 9 of the SOE Act  [66]
(b)        Bad faith  [72]
(i)            The Trust’s claim  [72]
(ii)           High Court  [75]
(iii)          Relevant principles  [76]
(iv)          Analysis  [79]
(v)           Summary  [99]
(c)        Legitimate expectation  [101]
(d)        Costs  [103]
Result  [106]

Introduction

As its name suggests, Landcorp is a landholding state-owned enterprise: its activities are subject to the State-Owned Enterprises Act 1986 (the SOE Act) and its shareholders are two Ministers of the Crown. In 2013 Landcorp advertised for sale by public tender one of its dairy farms at Whārere in the Bay of Plenty. Before taking this step, the corporation received advice from the Office of Treaty Settlements (OTS), an agency within the Ministry of Justice responsible for negotiating the settlement of historical Treaty of Waitangi claims, that Whārere was not of potential interest to the Crown for a future settlement. OTS’ advice was based upon an erroneous assumption that all Treaty claims to the farm had been settled. In fact the Ngāti Whakahemo tribe had an extant but unsettled claim.
In 2014 Landcorp agreed to sell the farm to the highest tenderer, Micro Farms Ltd. The Ngāti Whakahemo Claims Trust immediately challenged the sale: its objective was to set the sale aside. Through its chair, Mita Ririnui, the Trust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Ririnui

Details

AGLC: Attorney-General v Ririnui [2015] NZCA 160
Case: [2015] NZCA 160
Decision Date: 12 May 2015 at 2.15 pm

CaseChat Overview and Summary

The case of Attorney-General v Ririnui is an appeal against judicial review decisions made by the High Court of New Zealand in relation to the sale of a dairy farm located at Whārere in the Bay of Plenty. The Ngāti Whakahemo Claims Trust, through its chair Mita Ririnui, sought to challenge the sale of the farm by Landcorp Farming Limited, a state-owned enterprise, on the basis of alleged breaches of the State-Owned Enterprises Act 1986 and legitimate expectations. The Crown and Landcorp appealed against the interim orders made in the High Court, while the Trust cross-appealed against the dismissal of its substantive claim.

The Court of Appeal allowed the appeals in CA336/2014 and CA337/2014, setting aside the interim orders made by the High Court. The Court dismissed the cross-appeals in CA336/2014 and CA337/2014, upheld the appeal in CA29/2015, and dismissed the cross-appeal in CA29/2015. The Court set aside the costs order made in the High Court and remitted the proceeding to that Court to fix costs in accordance with the terms of this judgment on both the interim and final applications. The respondent was ordered to pay one set of costs to each of the Crown and Landcorp for a standard appeal on a band A basis and usual disbursements.

The Court found that the Office of Treaty Settlements' decision to disclaim any interest in the farm was not justiciable, as it did not affect any contractual or third party rights. Furthermore, the decision of the Minister for Treaty of Waitangi Negotiations was also not justiciable, as neither the Minister nor the shareholding Ministers in Landcorp were authorised by any principle of common law to intervene and override Landcorp's decision to sell Whārere to Micro. Additionally, the relevant provisions of the State-Owned Enterprises Act excluded the operation of any common law principle which might have enabled the shareholding Ministers to intervene in Landcorp's decision.

The Court further held that the Trust's claims that Landcorp acted in breach of section 9 of the SOE Act, inconsistently with Ngāti Whakahemo's legitimate expectations and in bad faith were unsuccessful. The Court found that the Trust had failed to prove that Landcorp acted in bad faith, as the decision to sell the property to Micro was made before any alleged acts of bad faith by Landcorp's deputy chair, Traci Houpapa. Furthermore, the Trust's claim of a legitimate expectation that Landcorp would not enter into an agreement to sell Whārere farm until after it met with Landcorp as scheduled on 7 March 2014 was also dismissed.

Orders