Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauroa / Health Council
[2023] NZHC 1683
•30 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-847
[2023] NZHC 1683
BETWEEN DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH
PlaintiffAND
WAKAMINENGA KAUNIHERA HAUROA | HEALTH COUNCIL
First Defendant
AND
JACQUES IMBEAU
Second Defendant
AND
ANNA GOODWIN
Third Defendant
Cont:\
Hearing: 30 March 2023 Appearances:
S C Carter and A L Prestidge for Plaintiff First to Fifth Defendants in Person
No appearance for/by Sixth Defendant
Judgment:
30 June 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 30 June 2023 at 5 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Law Office, Wellington for Plaintiff
DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUROA | HEALTH COUNCIL [2023] NZHC 1683 [30 June 2023]
AND Cont:\
MĀORI GOVERNMENT OF AOTEAROA NU TIRENI
Fourth DefendantAND
GEORGINA JOB
Fifth Defendant
AND
PIRIPI SHEEHAN
Sixth Defendant
[1] From October 2021, a group of people describing themselves as the Wakaminenga Kaunihera Hauora | Health Council (the first defendant, referred to in this judgment as WHC) purported to offer registration and certification services for health practitioners “who wish to practice under Māori jurisdiction”. In doing so, WHC made various representations to the effect that such registration and certification:
(a)would permit lawful practise within a wide range of health professions in New Zealand; and
(b)would provide immunity from prosecution or censure by competent New Zealand health authorities.
[2] In this proceeding, the Director-General of the Ministry of Health seeks summary judgment upon her claims:
(a)against WHC, for a declaration that by making the representations it breached various provisions of the Fair Trading Act 1986 (FTA), and for an order under that Act restraining WCH from repeating or making similar representations;
(b)against the other five defendants, for orders restraining them from being knowingly concerned with repeated or similar representations; and
(c)against all six defendants, for costs.
[3] By judgment dated 21 July 2022, Peters J granted the Director-General an interim injunction restraining WHC and the other defendants from similar activity. Leave was reserved to permit the defendants to apply to set the injunction aside.1 The first, fourth and fifth defendants have done so.
1 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council
[2022] NZHC 1765.
[4] In this judgment, I address the Director-General’s summary judgment application, the defendants’ setting aside application, and miscellaneous interlocutory matters described below.
Background
Regulation of health practitioners in New Zealand
[5] Under s 3 of the Health Practitioners Competence Assurance Act 2003 (HPCAA), headed “Purpose of Act”:
(1)The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
(2)This Act seeks to attain its principal purpose by providing, among other things,—
(a)for a consistent accountability regime for all health professions; and
(b)for the determination for each health practitioner of the scope of practice within which he or she is competent to practise; and
(c)for systems to ensure that no health practitioner practises in that capacity outside his or her scope of practice; and
(d)for power to restrict specified activities to particular classes of health practitioner to protect members of the public from the risk of serious or permanent harm; and
(e)for certain protections for health practitioners who take part in protected quality assurance activities; and
(f)for additional health professions to become subject to this Act.
Section 4 outlines the HPCAA. It observes, amongst other things, that:
(a)Part 1 contains provisions that prohibits persons other than registered health practitioners of a profession with current practising certificates from claiming to be practising the profession;2 and
2 Health Practitioners Competence Assurance Act [HPCAA], s 7.
(b)Part 6 constitutes certain authorities (Authorities) with the function of registration and oversight of practitioners of particular health professions (Regulated Professions).
[7]In particular, s 7 of the HCPAA provides:
7 Unqualified person must not claim to be health practitioner
(1)A person may only use names, words, titles, initials, abbreviations, or descriptions stating or implying that the person is a health practitioner of a particular kind if the person is registered, and is qualified to be registered, as a health practitioner of that kind.
(2)No person may claim to be practising a profession as a health practitioner of a particular kind or state or do anything that is calculated to suggest that the person practises or is willing to practise a profession as a health practitioner of that kind unless the person—
(a)is a health practitioner of that kind; and
(b)holds a current practising certificate as a health practitioner of that kind.
(3)No person may make an express or implied statement about another person that the other person is prohibited by subsection (1) or subsection (2) from making about himself or herself.
(4)Subsection (2) does not prohibit a person from stating his or her willingness to practise a profession for the purposes of seeking employment if the person is, or would on obtaining that employment be, qualified to be registered as a health practitioner of that profession and to hold a current practising certificate as a health practitioner of that profession.
(5)Every person commits an offence punishable on conviction by a fine not exceeding $10,000 who contravenes this section.
[8] Sections 15 to 18 of the HCPAA set out requirements for registration of health practitioners, and ss 26 to 33 set out the manner in which health practitioners are required to obtain annual practising certificates, and the conditions upon which the Authorities are required to issue such certificates.
WHC Website
[9] Towards the end of 2021, the Deputy Registrar of the Nursing Council, and the Registrar of the Midwifery Council (each Authorities under the HCPAA), raised
concerns with the Ministry of Health about a website featuring WHC’s name and branding (the WHC Website).
[10] The WHC website asserted that WHC had been established as a health authority under “sovereign native customary ture tikanga (Māori customary law)”. The WHC website offered registration with the WHC for “qualified health practitioners who wish to practice under Maori jurisdiction (i.e the Confederation of the United Tribes of Aotearoa New Zealand”. It indicated that it was comprised of various professional councils, which in turn were administered by professionals of that profession. Once an applicant health professional had been registered with the “relevant council”, the WHC would then:
… issue your WHC Annual Practicing (sic) Certificate. You can then legally practice under Māori jurisdiction as long as you clearly display in your waiting room (real and/or virtual) the He Wakaputanga, your APC from the WHC and the combined Basic Concepts/Universal Laws and Code of Ethics and Conduct. This is so that your patients/clients are fully informed.
[11]The WHC Website added that:
Our practitioners shall be immune from prosecution or censure by any authority, person, or entity, insofar as they are acting within the above stated principles, laws, and precepts in the context of their acknowledged skill set that has been vetted by the Wakaminenga Health Council (WHC) as part of their registration. The Wakaminenga Health Council shall be the sole authority to which our health practitioners are accountable.
[12] The WHC Website advised that a registration fee of $150 would apply, as would annual APC fees in amounts depending on the profession in question.
The fourth defendant (MGANT) and the MGANT Website
[13] The WHC Website appeared to be related to another website (the MGANT Website) featuring the name and branding of the fourth defendant, Te Wakaminenga Māori Government of Aotearoa Nu Tireni (MGANT), an entity describing itself as: the “de jure Government of the Chiefs of the Confederation of the United Tribes”; the “Māori Government of New Zealand or New Zealand Maori Government”; and the “governing body of the Sovereign Nation of Aotearoa Nu Tireni, which existed prior to 1840 and continues to exist in accordance with the Declaration of Independence of 1835 [He Wakaputanga]”.
Correspondence between parties
[14] In early January 2022, the Ministry of Health understood WHC to act under the authority of MGANT. By letter dated 12 January 2022, the Ministry of Health’s solicitors advised MGANT that it did not have authority to act as a health authority or to administer professional councils in relation to certain health professions, and “recommended” that MGANT stop its activities.
[15] At around this time, Authorities such as the Dental Council, Nursing Council New Zealand and Occupational Therapy Board of New Zealand updated their websites to include or adopt advice provided by the Ministry of Health; that is, WHC was not permitted to issue health practitioners with practising certificates under the HPCAA, and that only the relevant Authorities could do so.
[16] MGANT responded by letter dated 26 January 2022, signed by “Arikinui Ripekatangi” (the fifth defendant, Ms Job), denying all allegations the Ministry had made, and asserting:
(a)various faults on the part of the New Zealand Government as a consequence of its COVID-19 response;
(b)that MGANT, as a “lawfully constituted Government”, “provides protection for all health practitioners who wish to practice in accordance with the Wakaminenga Health Council (WHC), Basic Concept/Universal law and Code of Ethics & Conduct and who are firmly on the side of pro-choice”; and
(c)that in the event the Ministry did not by 2 February 2022 provide documentary evidence of the Hereditary Chiefs and Leaders of the United Tribes having consented to the HCPAA, Crimes Act 1961, FTA and COVID-19 Public Health Response Order 2021, or of the Ministry having authority over such persons, an “actionable breach” would arise, and the matter would be “closed”.
Preliminary enforcement action by Midwifery Council, ongoing referrals to Ministry
[17] By late January 2022, the Midwifery Council had written to the Director- General, amongst other health authorities, to advise it had suspended the HPCAA practising certificates of three midwifery practitioners in light of their ongoing practise despite being unvaccinated against COVID-19. These practitioners had been relying on practising certificates issued by WHC.
[18] During the early months of 2022, the Ministry was approached by other health authorities, and by other agencies and members of the public, querying the activities of health practitioners in other areas of practice. These practitioners similarly appeared to be relying upon practising certificates issued by WHC.
Update of WHC Website
[19] Sometime prior to 3 May 2022, the WHC Website was updated to assert the following:
It has come to the attention of the WHC that “Crown” (i.e the NZ Corporation) related entities have provided misinformation about the WHC to their members.
The WHC is legally structured under Maori Jurisdiction. The following information may provide clarification on this topic:
Most people are not aware that the law in New Zealand is in two streams. In September 2020 “The Supreme Court has just reminded us that our law is indeed sourced in two streams and that the legal profession ought to be prepared to engage with Māori law ... "
943/tikanga-maori-in-nz-common-law/
…
In a very recent decision (30 September 2021) of the NZ Supreme Court, it was stated that: Tikanga is applicable law, and there is no negotiation of that reality.” Recognising and respecting tikanga, says the court, is part of the Crown's obligation to give effect to the principles of the Treaty. That obligation is more than just a generalised acknowledgement of Treaty principles. Rather, there must be precise and particular legislative schemes to provide for and protect Māori interests. It follows, write two of the Supreme Court justices, William Young and Ellen France, that Treaty clauses should be interpreted with a "broad and generous construction, not a narrow, reluctant or begrudging way."
Two important principles are also at play.
A) First in time, first in Law: Ture tikanga (Māori law) and He Wakaputanga (Declaration of lndependence 1835) clearly precedes common law and instead upholds Māori customary law.
B) The international doctrine of contra proferentem: …
Many are also not aware that the NZ government is a corporation (SEC CIK #0000216105) listed on the US Security & Exchange Commission as "Her Majesty the Queen in Right of New Zealand"
…
"The Crown" is wrongfully attempting to assert its power through the statute known as the HPCA Act 2003.
"The Crown" is actually a potential conflation of one of three or 4 Crowns that formed agreements with the NZ corporation. Only one of those Crowns applies to a Māori jurisdiction, but it has no authority unless there has been consent from the United Tribes and Hereditary Chiefs.
This statute cannot be used to promote a fraudulent action that seeks to usurp our bodily sovereignty and our freedom. The HPCA Act 2003 has no authority in our jurisdiction and is not recognized in Ture Tikanga (Māori customary law).
Because successive New Zealand Governments that represent the Crown in the Treaty partnership, have failed to recognise Māori rights as te Tiriti partners, it is now necessary to assert those rights including the right of self- governance.
(Emphasis in original).
Other defendants
[20] The WHC and the MGANT are not registered as companies or incorporated societies. Their websites appear to describe unincorporated groups of people minded to assert certain forms of authority.
[21] The second defendant, Dr Jacques Imbeau, is an oral practitioner registered with the New Zealand Dental Council. On 18 October 2021, he appears to have spoken on behalf of WHC to a meeting of the “World Council for Health”, criticising the New Zealand Government’s “coercive measures” relating to COVID-19 and explaining that they informed his work with the third defendant, Dr Anna Goodwin,
to establish WHC under the authority of “the Māori government”. A transcript of Dr Imbeau’s assertions in that regard formed a part of the WCH Website.
[22] Dr Goodwin is a retired oncologist whose registration with the Medical Council has lapsed. Prior to Peters J’s judgment dated 21 July 2022 restraining Dr Goodwin from doing so, Dr Goodwin acted as the WHC’s registrar. For example,3 she signed a WHC certificate in favour of a general medical practitioner who in March 2022 certified the inability for medical reasons of a patient to wear a mask or other face covering, notwithstanding the expiry of his registration with the New Zealand Medical Council in February 2022. The certificate reads:
I hereby certify that the person named below is registered by the Wakaminenga Health Council of Aotearoa Nu Tireni under Tikanga Maori jurisdiction and is entitled to practice under the Wakaminenga Medical Council with the scope of practice listed below.
…
General Medical Practice
…
Issued pursuant to He Wakaputanga and te Tiriti o Waitangi under Maori Jurisdiction by the authority of the Wakamlnenga Health Council of Aotearoa Nu Tireni.
[23] The fifth defendant, Georgina Job, has been described on its website, under the alternate names Arikinui Ripekatangi and Georgi Marchioni, as holding the MGANT education portfolio. She corresponded on behalf of MGANT with the Ministry’s solicitors as outlined above.
[24] In May 2022, the sixth defendant, Piripi Sheehan, was listed with Domain Name Commission Limited as the sole registrant of both the WHC and MGANT Website. A residential address in New Plymouth was recorded as Mr Sheehan’s address. After the Director-General commenced this proceeding,
3 Other examples arise in respect of persons holding themselves out as a clinical psychologist and as a registered nurse. In each case, the practitioner’s website has asserted registration with WHC and attached similar certificates signed by Dr Goodwin or in her name, with areas of practise described as “Clinical Psychology Practice” and “Nursing Practice | Registered Nurse”, respectively. In the former case, the practitioner is not registered with the Psychologists Board.
Mr Sheehan’s registered residential address was updated to “21 Jump Street, New Plymouth”. No such address exists.
Apparent rift between MGANT and WHC
[25] By 3 May 2022, it appears Dr Imbeau and Dr Goodwin were seeking to incorporate the WHC under Te Ture Whenua Māori Act 1993, notwithstanding the Māori Land Court’s exclusive jurisdiction to do so.4 The WHC Website claimed (incorrectly):
The WHC-Whenua Topu Trust is also legally constituted in accordance with Te Ture Whenua Maori Act 1993 [sic] (pursuant to section 211(2), 216, 218, and 258 of the Maori Incorporations Constitutions Regulations 1995/2000).
[26] Seemingly in response, the MGANT Website was updated to assert that the decision of Drs Imbeau and Goodwin was incompatible with the concept of independence associated with application of He Wakaputanga. By 25 May 2022, the WHC Website asserted that WHC now had the full support of an alternate authorising body, the “Taumata National Wakaminenga. Ko Matou Nga Rangatira o Te Whakaminenga 1835”.
[27] Despite the apparent rift between MGANT and WHC, on 25 May 2022, the MGANT Website nevertheless maintained a degree of connection to the WHC Website, asserting the following under the heading “Professional registration”:
If you are a registered professional under the NZ Corporation - Her Majesty the Queen in Right of New Zealand - you can transfer your registration to the equivalent registration body, the Wakaminenga Health Council [WHC Website address provided] under the authority and protection of the Māori Government of Aotearoa Nu Tireni. You will maintain your right to practice freely without coercion.
Interim injunction
[28] As mentioned above, Peters J granted the Director-General an interim injunction restraining WHC and the other defendants from making representations to the effect of those set out at [2].
4 Te Ture Whenua Māori Act, s 211.
Response to interim injunction
[29] Following Peters J’s orders the WHC Website was amended, in broad terms, to limit WHC’s services to professions that are not regulated by the HPCAA. Further, it records that:
Due to evolving MoH policies the WHC has temporarily suspended new registration of HPCAA related professions.
[30] The MGANT Website no longer appears to be operational. A second MGANT website has been established at a different web address. The second MGANT website makes the same assertion as that set out at [27] above.
Parties’ applications
[31] The Director-General’s summary judgment application was brought with leave of this Court in respect of an amended statement of claim dated 22 September 2022, and is supported by affidavits of Jane Birdsall, a principal advisor at the Ministry of Health, dated 26 May, 22 September, and 17 October 2022.5
[32] As indicated above, WHC, MGANT and Ms Job applied to set aside Peters J’s orders for interim injunction. They did so, relying on affidavits of Drs Imbeau and Goodwin dated 8 August 2022, Ms Job dated 9 August 2022, and various other people. These affidavits take issue with the Director-General’s submissions on the application of the HCPAA: they assert that the HCPAA does not apply to the defendants’ activities, nor to the activities of health practitioners registered and certified by WHC. But they do not take substantial issue with the factual narrative outlined above, which is drawn from Ms Birdsall’s affidavits.
[33] The defendants have also filed or sought to file a variety of documents, challenging this Court’s jurisdiction, seeking particulars, and claiming what is described as an ‘estoppel’ together with damages, arising and payable on the basis the defendants have not been provided with documents recording their acceptance of the HCPAA and other statutes.
5 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council
HC Auckland CIV-2022-404-847, 7 October 2022.
[34] On 31 October 2022, the proceeding was called before Brewer J. On that occasion, his Honour called for submissions on the effect of the Supreme Court’s judgment in Ellis v R,6 and directed that the substantive hearing be re-scheduled. It is the re-scheduled substantive hearing that took place before me on 30 March 2023. As Brewer J observed on 31 October 2022:7
[2] It is clear that the [Director-General’s] application for summary judgment must be determined first because if it is successful then the various applications by the defendants will fall away.
Director-General’s case
[35] In essence, the case for the Director-General on the application for summary judgment was that:
(a)WHC made the following representations (Representations), pleaded in the amended statement of claim:
(i)That it was able to register people to the [Regulated] Professions, which would allow those individuals to obtain practising certificates … and ultimately, lawfully practise one or more of the [Regulated] Professions;
(ii)That it was able to provide those who are registered with WHC with [practising certificates], which would allow them to lawfully practise one or more of the [Regulated] Professions; and
(iii)That persons that [WHC] registered and to whom it provided a [practising certificate] were provided with immunity from prosecution or censure by competent New Zealand authorities and could only be held to account by [WHC].
6 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.
7 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council
HC Auckland CIV-2022-404-847, 31 October 2022.
(b)The Representations are contrary to the HPCAA and by making the Representations WHC has breached the FTA:
(i)by engaging in conduct that was misleading or deceptive or was likely to mislead or deceive in breach of s 9 of the FTA;
(ii)by engaging in conduct that was liable to mislead the public as to the nature and/or characteristics of the services it provided in breach of s 11 of the FTA;
(iii)by making a false or misleading representation with respect to:
1. the kind of services it supplies; and/or
2. the particular characteristics of the first defendant as the supplier of those services,
in breach of section 13(b) of the FTA; and
(iv)by making a false or misleading representation with respect to the benefits conferred by the services it supplies in breach of section 13(e) of the FTA.
(c)The second to sixth defendants were directly or indirectly, knowingly concerned in, or have been party to, WHC making the Representations by:
(i)in the case of Drs Imbeau and Goodwin, being involved in WHC’s administration as its Chief Health Officer and Deputy Chief Health Officer / Registrar respectively, and in the establishment of WHC;
(ii)in the case of MGANT and Ms Job, establishing and permitting WHC to operate under MGANT’s purported authority and by making representations on WHC’s behalf; and
(iii)in the case of Mr Sheehan, being the registrant of WHC’s website, the primary vehicle through which the Representations were made.
(d)As the defendants have no defence to the causes of action, the Director- General should be granted summary judgment.
[36] On the issues of jurisdiction and the effect of Ellis, the Director-General submitted that tikanga does not override statute law such as that set out in the HCPAA. Acts of the New Zealand Parliament are binding on all people within New Zealand’s geographical boundaries. Such people cannot elect not to be so bound. The judgments in Ellis do not suggest otherwise.
Defendants’ positions
[37] The arguments advanced for the first to fifth defendants in written material, and the submissions advanced orally at the hearing by Drs Imbeau and Goodwin on their behalf and for WHC, and (with exceptional leave granted on that occasion), by Ms Job’s McKenzie friend Charles Tortise for her and for MGANT, were in essence that:
(a)MGANT has a law-making function that exists independently of, and is capable of overriding, the authority of New Zealand’s Parliament exercised by way of statute. Tikanga fulfils a similarly independent function. Accordingly, MGANT is capable, whether in reliance on tikanga or otherwise, of authorising WHC to register and certify health professionals such that they may practise lawfully within New Zealand in the absence of registration and certification under HPCAA.
(b)The failure by the Ministry and the Director-General to respond substantively to MGANT’s letter of 26 January 2022 (see [16] above) implies that the Director-General is estopped from pursuing her case.
(c)Various provisions of the FTA and Te Ture Whenua Māori Act operate to undermine the Director-General’s case.
[38] Mr Sheehan’s position (as the sixth defendant) is largely unknown. He was served in accordance with directions for substituted service made by Lang J on 17 August 2022 but has taken no steps and did not appear at the hearing on 30 March 2023. As noted above, however, following commencement of this proceeding he appears to have amended his physical address as registrant of the WHC and MGANT Websites to an address that does not exist.
Analysis
[39] I start by considering the defendants’ argument as to lawful registration and certification of health professionals by WHC. I then turn to whether the Director- General’s case under the FTA is made out (including consideration of the defendants’ points regarding that statute and the Te Ture Whenua Māori Act). I consider whether the Director-General is estopped from pursuing her case. Finally, I deal with the issue of the appropriate relief.
Sovereign authority of New Zealand’s Parliament
[40]As noted above, s 7 of the HCPAA is expressed to prohibit persons from:
(a)describing themselves as health practitioners of a particular kind unless they are registered as such; and
(b)claiming to be practising a profession as a health practitioner of a particular kind unless they hold a current practising certificate as a health practitioner of that kind.
[41] By necessary implication, the type of registration and certification described in s 7 is registration and certification under the HCPAA.
[42] The defendants’ essential proposition, that MGANT is capable of authorising WHC to register and certify health professionals such that they may practise lawfully within New Zealand in the absence of registration and certification under HPCAA, requires that HPCAA does not apply to health professionals practising in New Zealand when they are registered and certified by WHC. That proposition is clearly wrong.
[43]As Peters J observed when issuing the interim injunction:8
… the contention that the first and fourth defendants operate under a different and superior jurisdiction is unsustainable. The Court of Appeal addressed a similar contention in its recent decision in Warahi v Chief Executive of the Department of Corrections.9 In [11] of that decision, the Court of Appeal confirmed that Acts of Parliament, such as the HPCAA and FTA, are binding [on] all persons and institutions within the geographical territory of New Zealand, and the Courts of New Zealand are required to uphold them as enacted. The defendants are as much bound as any other individual and body.
[44] While the Supreme Court in Ellis v R,10 as cited on the WHC Website,11 “reminded us that our law is indeed sourced in two streams”, the balance of the cited passage reads that the legal profession “ought to be prepared to engage with Māori law as part of the common law of New Zealand”.12 The phrase in italics was omitted from the WHC Website, but it is important.
[45] To explain why, it is convenient to commence with a passage from the Supreme Court’s judgment:13
[19] The Court is unanimous that tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant. It also forms part of New Zealand law as a result of being incorporated into statutes and regulations. It may be a relevant consideration in the exercise of discretions and it is incorporated in the policies and processes of public bodies.
(Footnotes omitted).
[46] As is apparent, tikanga has direct application in the development of the common law. And it has indirect application when incorporated into legislation, and otherwise as stated. But it is not superior to statute in the sense of being capable of giving rise to exceptions or occasions when (in the absence of statutory language permitting this result) the legislation is not binding.
8 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council,
above n 1, at [19].
9 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105.
10 Ellis v R, above n 6.
11 See [19] above.
12 Carwyn Jones “Tikanga Māori in NZ Common Law” (15 September 2020) New Zealand Law Society < (emphasis added).
13 Ellis v R, above n 6.
[47] On the latter topics, Glazebrook J recognised the interrelationship between legislation and tikanga when making the following observations:14
[98] The first point is that the application of tikanga in the common law can be limited or excluded by statute, although this requires an unambiguous statutory provision. This does not give the full picture, however. It is generally accepted that there is a presumption that statutes are to be interpreted consistently with Te Tiriti as far as possible. Because the tino rangatiratanga guarantee in Article Two is generally taken to import Māori rights to live by and benefit from tikanga, it has been argued that it follows that statutes should be interpreted consistently with tikanga as far as possible.
…
[117] As an overall comment, tikanga will need to be considered where it is relevant to the circumstances of the case. It will not have to be considered in cases where it is not relevant or where consideration of tikanga will not or cannot assist, such as when it would be contrary to statute, or contrary to binding precedent.
(Footnotes omitted).
[48] Accordingly, and as Venning J noted (citing Chambers J in Creeks v R) when allocating the summary judgment and setting aside applications for hearing:15
[16] While the Courts have recently acknowledged the place of tikanga in an appropriate case, the Courts have routinely rejected claims that individuals are not subject to the laws of New Zealand passed by Parliament or that the Courts have no jurisdiction over Māori or other people who decline to recognise the authority of the Court.16 Such arguments are not tenable:17
[7] The Court of Appeal has made it clear that the courts are not the forum for a fundamental challenge to the entire constitutional structure of the country or for political campaigns of the sort the appellants are waging. Māori sovereignty can be the subject of debate in Parliament. The Waitangi Tribunal may be prepared to consider it. It can be debated in public meetings or the media. It may be the subject of lawful protest. But an assertion of Māori sovereignty does not raise a justiciable question. It cannot succeed in the general courts of New Zealand. Accordingly, this point should not be submitted to the Court of Appeal.
[49] In short, and to the extent the defendants assert that the signatories of He Wakaputanga (the Declaration of Independence of 1835) did not cede, and their
14 Ellis v R, above n 6.
15 Director-General of Ministry of Health v Wakaminenga Kaunihera Hauora Health Council HC Auckland CIV-2022-404-847, 7 October 2022.
16 Creeks v R HC Auckland A138/00, 6 November 2000; Morunga v Police [2016] NZCA 599;
Wallace v R [2011] NZSC 10; Phillips v R [2011] NZCA 225; and Yates v R [2019] NZCA 155.
17 Creeks v R, above n 16.
descendants have not ceded, legislative authority, whether that is correct or not is beside the point: Parliament has acquired it.18 The two streams have now merged.
[50] The upshot is that much of the material posted on the WHC Website misrepresents the law. The HCPAA not being capable of interpretation such that it carries piecemeal application to health professionals subject to registration and certificate under an alternative regime, the defendants’ position on the application of HCPAA is in error.
Case under FTA
[51] First, it is clear WHC and MGANT are “persons” for the purposes of the FTA. “Persons” are broadly defined in s 2, to include “any association of persons whether incorporated or not”. The Court of Appeal in Edwards v Legal Services Agency interpreted the similar phrase “body of persons whether corporate or not” to require:19
… regulation of their internal affairs that there can be said to be a structure by which they can be recognised as a collective entity – the unincorporated equivalent of a body corporate.
[52] Here, the WHC Website asserts that it has an email address and a bank account into which fees for services (such as its minimum $150 registration fee) are paid. It purports to have rules and processes for registration and certification of health professionals, and office holders such as “registrar”. The MGANT Website and its second website also outline the structure by which MGANT asserts it can be recognised as a collective entity.
[53] Next, WHC made the pleaded Representations. They are an apt description of representations appearing on the WHC Website.
18 See Matthew Palmer The Treaty of Waitangi: in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008) at 167; Bruce Harris New Zealand Constitution: An Analysis in Terms of Principles (Thomson Reuters, Wellington, 2018) at [1.4.3]; Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) , especially, at [3.4] citing New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 671, 690 and Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC) at 213.
19 Edwards v Legal Services Agency [2003] 1 NZLR 145 (CA) at [28].
[54] Further, the Representations contradict the HCPAA, which applies to all health professionals in New Zealand. Accordingly, they are false, misleading, and deceptive in terms of the FTA. The latter terms carry their normal meanings, and their existence is to be determined objectively. Statements of law can amount to misleading or deceptive conduct.20 There is no requirement for the person making representations to have intended to mislead or deceive anyone, or for people to have actually been misled or deceived,21 but those who have sought and obtained “certification” by WHC are likely to have been misled or deceived. Those who appear to have practised as health practitioners without certification under the HPCAA may have exposed themselves to criminal liability and are unlikely to have done so intentionally. And publication of the Representations on the WHC Website was undertaken “in trade”, in terms of the definition of that term set out in s 2 of the FTA, bearing in mind the registration fee mentioned above.
[55] Accordingly, WHC engaged in conduct in breach of ss 9, 11, 13(b) and 13(d) of the FTA. There is considerable overlap between those provisions. Broadly, they relate to misleading or deceptive conduct in trade, misleading conduct in trade as to the nature of services, and false or misleading representations that services are of a particular quality or have certain performance characteristics or benefits, respectively. In the circumstances of this case, they have all been breached.
[56] I am satisfied that each of the second to fifth defendants were, directly or indirectly, knowingly concerned in or party to the making of the Representations:
(a)A transcript of Dr Imbeau’s address asserting that he and Dr Goodwin established WHC for the purpose of circumventing the Ministry’s COVID-19 response was linked to the WHC Website.
(b)The joint affidavit of Dr Imbeau and Dr Goodwin confirms their involvement, prior to withdrawal by Dr Imbeau as WHC’s “Chief Health Officer” in March 2022. Dr Goodwin asserted in oral
20 Sky Network Television Ltd v My Box NZ Ltd [2018] NZHC 2768, [2019] 2 NZLR 411.
21 Taylors Textile Services Auckland Ltd v Taylor Bros Ltd [1988] 2 NZLR 1 (CA).
submissions that she has resigned from the Council. I note that in this context assertions of withdrawal simply confirm prior involvement.
(c)MGANT asserted in correspondence with the Ministry that it “provides protection for all health practitioners who wish to practice in accordance with the Wakaminenga Health Council (WHC)”. And as noted above, even after the rift between WHC and MGANT, the MGANT Website asserted that health practitioners registered under HCPAA could transfer their registration to WHC, and would maintain their right to practise. Ms Job, as “Arikinui Ripekatangi”, has maintained her responsibility for MGANT’s conduct throughout.
[57] I am not satisfied that the sixth defendant, Mr Sheehan, was necessarily knowingly concerned in or party to making the Representations. His role as registrant of the WHC and MGANT websites does not imply that he was aware of their content until being served with the Director-General’s proceeding. However, as noted above the residential address recorded with the registry of the website’s domain names was updated following commencement of the proceeding to a non-existent, and apparently intentionally dismissive address. I consider it likely Mr Sheehan as sole registrant authorised that update, and therefore that representations similar to those the subject of this proceeding will continue to appear on the WHC and MGANT Website, or others, as a consequence of knowing involvement on Mr Sheehan’s part (unless that is prevented by Court order or other enforcement action).
Defendants’ responses under FTA
[58] As indicated above, the defendants suggest that various provisions of the FTA and Te Ture Whenua Māori Act undermine the Director-General’s case. In particular, Drs Imbeau and Goodwin submitted for themselves and for WHC that:
(a)s 5, which applies the FTA to every body corporate that is an instrument of the Crown engaged in trade, means the FTA does not apply them;
(b)in the course of its COVID-19 response the Ministry has breached its own obligation under s 9 not to engage in misleading or deceptive
conduct in trade, the upshot being that the Director-General’s approach in taking this proceeding is “disproportionate”, “vexatious” and accordingly without authority;
(c)s 12B, which requires the Court in proceedings concerning a contravention of s 12A to assess whether a person had reasonable grounds for a representation by reference to all of the circumstances, means the Court needs to consider whether it was reasonable that they rely on MGANT’s representations to them about its authority;
(d)s 34, which sets out a meaning of “services” for the purposes of Part 4 that does not extend to the services provided by WHC, means they did not breach ss 9, 11, or 13;
(e)s 44, which provides for various defences to a prosecution for an offence under s 40, and to enforcement proceedings for contravention of ss 28 or 36RA or by publication of an advertisement, if the defendant proves various matters of excuse, means they have a defence to the Director-General’s proceeding;
(f)s 50, which states that nothing in the FTA limits or affects the operation of any other Act, means that the FTA does not constrain their activities under the authority of the MGANT or WHC’s alternative authorising body, the Taumata National Wakaminenga Ko Matou Nga Rangatira o Te Whakaminenga 1835; and
(g)WHC has “a right to exist under” s 218B of Te Ture Whenua Māori Act.
[59] None of those submissions have merit. Section 5 extends the operation of the FTA to Crown agencies engaged in trade; it does not limit the operation of the FTA to such agencies. The defendants’ views of the Ministry’s COVID-19 response have no impact on the Director-General’s authority to pursue this proceeding: as discussed below, this Court may grant injunctions restraining breach of the FTA on the
application of the Commerce Commission “or any other person” (including the Director-General). This is not a proceeding concerning a contravention of s 12A. The s 34 definition of “services” does not apply to the meaning of “services” under ss 9, 11 and 13 (which appear in Part 1). The Director-General’s proceeding is a civil proceeding, not a prosecution for an offence under s 40, or for contravention of ss 28 or 36A, and WCH’s business is not in publishing advertisements. The defendants’ activities are not authorised under an Act other than the FTA. Section 218B of Te Ture Whenua Māori Act has no application to the activities of WHC, it not being a trust constituted under Part 12 of that Act.
Estoppel
[60] In light of the Court of Appeal’s judgment in Wilson Parking New Zealand Limited v Fanshawe 136 Limited,22 an estoppel would require:
(a)a belief or expectation on the part of the defendants, created or encouraged by words or conduct on the part of the Director-General;
(b)to the extent an express representation is relied upon, it is clearly and unequivocally expressed;
(c)the defendants reasonably relied to their detriment on the representation; and
(d)it would be unconscionable for the Director-General to depart from the belief or expectation.
[61] The circumstances outlined above raise no realistic prospect of an estoppel. Neither the Ministry, nor the Director-General in particular, created or encouraged a belief or expectation on the part of MGANT that they would accept MGANT’s assertion the HCPAA and FTA (and other legislative instruments) did not apply, much less make an express representation to that effect. The defendants did not rely on any such representation: indeed, the defendants’ lack of reliance was plain when the
22 Wilson Parking New Zealand Limited v Fanshawe 136 Limited [2014] NZCA 407, [2014] 3 NZLR 567 at [44]; see too Bailey v Auckland Council [2022] NZHC 2632 at [72].
WHC Website was later updated to assert (incorrectly) that the Crown was “wrongfully attempting to assert its power through the statute known as the HPCA Act 2003”.
Summary judgment
[62] In terms of r 12.2 of the High Court Rules, the Director-General has satisfied the Court that the defendants have no defence to the Director-General’s causes of action. I will enter judgment accordingly.
Relief
[63]The final issue for consideration is the nature of the appropriate relief.
[64]Relevantly, under s 41(1) of the FTA:
The court may, on the application of the Commission or any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute any of the following—
(a)a contravention of any of the provisions of Parts 1 to 4:
…
(e)being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of such a provision;
…
[65]Sections 9, 11 and 13 are provisions of Part 1.
[66] If considered desirable, the Court may grant such an injunction, whether or not it appears the person(s) concerned intends to engage in the conduct again.23 Here, the WHC Website asserted, following Peters J’s orders, that the WHC has merely “temporarily suspended new registration of HPCAA related professions”. Plainly, if an injunction is not granted, it will resume making the Representations, or representations to a similar effect. Given the other defendants’ historic involvement in the making of the Representations, and in the case of Mr Sheehan his apparent involvement in the continuation of the Representations following service of this
23 Section 41(3).
proceeding, I consider it desirable that each of the defendants are made the subject of an injunction.
[67] This Court has further granted relief in respect of FTA breach by way of formal declaration, relying on its inherent jurisdiction.24 However, a declaration will not be granted where the matter is moot or the relief will be of no practical utility.25 In Sky Network Television Ltd v My Box NZ Ltd, declaratory relief was refused on the basis that the defendant’s breach of the FTA would be apparent from the judgment, that past losses could be compensated by damages and future infringements would be prevented by injunctive relief.26
[68] I consider the first to third defendants’ breach of the FTA will be apparent from this judgment, and that the injunction I intend to issue in respect of each of the defendants will address the prospect of future breaches such that declaratory relief would have no practical utility.
Result
[69] For the above reasons, I order under s 41(1)(a) of the FTA that the defendants are permanently restrained from making the Representations or representations of a materially similar nature.
[70] This Court having granted the Director-General’s summary judgment application for a permanent injunction in respect of each of the defendants, the defendants’ various applications, for setting aside of Peters J’s judgment and (less formally) for various other remedies, fall away. They are dismissed.
[71] The Director-General is entitled to costs. I direct that costs memoranda be filed and served as follows:
(a)for the Director-General, by 21 July 2023;
24 For example, in Commerce Commission v ANZ Bank New Zealand Limited [2015] NZHC 1168.
25 At[18].
26 Sky Network Television Ltd v My Box NZ Ltd, above n 20.
(b)for the defendants, by 11 August 2023.
[72]I will determine the issue of costs thereafter on the papers.
Johnstone J
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