Hall v Brown

[2024] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1176

[2024] NZHC 1897

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for review of a decision under Clause 6 of Schedule 2 of the Local Government (Auckland Council) Act 2009

BETWEEN

RAYMOND PHILLIP HALL

Applicant

AND

Billy Brown, Zoe Hawke, Kiwi Johnson, Mook Hohnek, David Taipari, Danella Roebeck, Taumata Toki, Nick Maaka, John McEnteer,

Riikii Minhinick, Aperahama Edwards, Michael Baker, Glenn Wilcox, Marama Royal, Karen Wilson, Edwards Ashby, William Peters, Anahera Morehu, Georgina Curtis-Conelly, Parekawhia McLean, AS MEMBERS OF THE SELECTION BODY ESTABLISHED UNDER THE LOCAL GOVERNMENT (AUCKLAND COUNCIL) ACT 2009

First Respondent

Cont:/

Hearing:

24 June 2024

Appearances:

C B Hirschfeld and J P Hickey for Applicant

P F Majurey and T S D Hoby for First Respondent

Judgment:

11 July 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 11 July 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

HALL v BROWN [2024] NZHC 1897 [11 July 2024]

…cont’d

ANDTHE INDEPENDENT MĀORI STATUTORY BOARD

Second Respondent

Solicitors/Counsel:

Hickey Law, Auckland

C B Hirschfeld, Auckland

Holm Majurey Law, Auckland

[1]    In this proceeding, Raymond Hall brings a judicial review challenge of the first respondent Selection Body’s decision that he was ineligible for appointment to the Independent Māori Statutory Board (IMSB) as a mataawaka1 representative.

[2]    Prior to the judicial review application being set down for hearing, this judgment determines an application for discovery made by the applicant, Mr Hall. The applicant has sought the following categories of tailored discovery:

2.1All relevant documents of the Selection Body, including but not limited to:

(a)the information counsel for the first respondent provided on whakapapa for all applicants, i.e., Mr Hall, Mr Henare, and Mr Kake;

(b)the report by counsel for the first respondent to  the  Selection Body  as  referred  to  in  paras   8   and   10a  of Ms Wilson’s affidavit;

(c)evidence of all whakapapa enquiries made of all candidates, i.e., Mr Hall, Mr Henare, and Mr Kake, including copies of all documents, particularly given the comment in para 10f of  Ms Wilson’s affidavit; and

(d)evidence of the whakapapa enquiries made by Ms Stones on all three candidates as referred to in para 10f of Ms Wilson’s affidavit.

1      This is the spelling adopted in the Local Government (Auckland Council) Act 2009, but it can also be spelled “matāwaka”.

2.2The following further categories:

(a)all notes of all administrative and secretarial work carried out on behalf of the first respondent, including any of its members and/or for Auckland Council in relation to the first respondent, including work carried out by Ms Stones or any others working in the same or similar capacity for Holm Majurey (Atkins Holm Majurey);

(b)a copy of all internet searches carried out and any social media regarding whakapapa for Mr Henare, Mr Kake, and Mr Hall;

(c)in accordance with the minutes of the Selection Body hui, a copy of the documents regarding the views on mataawaka on all candidates/nominees and any input on the whakapapa of all candidates;

(d)a copy of all recordings of the hui carried out by the first respondent regarding the candidates, including any recording of the hui taking place on 19 October 2022 in relation to the applicant’s nomination for mataawaka representative;

(e)details and a copy of the advice given on whakapapa to the first respondent by Atkins Holm Majurey or anyone else; and

(f)any written advice to the first respondent regarding information on the whakapapa of the applicant and all other candidates.

2.3The legal advice and reports given to the first respondent by  Atkins Holm Majurey, including advice of the “various options” given by Atkins Holm Majurey to the IMSB.

[3]    The first respondent opposes the application on the grounds that discovery is unnecessary in this judicial review proceeding. In particular:

(a)discovery in judicial review proceedings is discretionary, and the applicant has not provided any basis on which such orders should be made;

(b)the applicant has not provided an adequate evidential basis to support the orders sought;

(c)the statutory presumption in favour of tailored discovery is not satisfied;

(d)the scale of discovery requested is disproportionate in the circumstances; and

(e)this interlocutory application ultimately is tantamount to a fishing exercise.

Legislative framework

[4]    The IMSB is a body established by s 81 of the Local Government (Auckland Council) Act 2009 (the Act). One of the IMSB’s primary purposes2 is to assist Auckland Council by promoting issues of cultural, economic, environmental, and social significance for two defined groups:3

2      Local Government (Auckland Council) Act, s 81(a).

3      Te Rangi v Jackson [2015] NZCA 490, [2015] NZAR 1946 at [1].

(a)Mana whenua groups — those who are affiliated with an Auckland based  iwi  or  hapu  that  exercises  historical   and   continuing   mana whenua.4

(b)Mataawaka of Tāmaki Makaurau — those who do not enjoy such an affiliation,5 being Māori who live in Auckland and are  not  in  a  mana whenua group.6

[5]    The IMSB must consist of seven mana whenua representatives and two mataawaka representatives.7 They are appointed for a three-year term8 by a Selection Body,9 comprising 19 members who represent separate  mana  whenua  groups.10  The Selection Body’s sole function is to make these appointments.11 In discharging this duty it “must be guided only by the [IMSB’s] purpose, function and powers”.12

[6]    Clause 6 of sch 2 prescribes this process which the Selection Body must follow when appointing mataawaka representatives:

6. Selection body chooses mataawaka representatives for board —

(1)The selection   body   must   choose   the   board’s   2   mataawaka representatives.

(2)The selection body must choose the mataawaka representatives by following a process that, at a minimum,—

(a)includes public notification of the process that the body proposes to use for choosing the representatives; and

(b)provides an opportunity for nominations to be received; and

(c)requires the body to take into account the views of mataawaka when choosing the representatives.

(3)The selection body must apply clause 5 when choosing the 2 mataawaka representatives.

4      A more detailed definition of “mana whenua group” is contained in Local Government (Auckland Council) Act, s 4.

5      Te Rangi v Jackson, above n 3, at [1].

6      Definition of “mataawaka” in Local Government (Auckland Council) Act, s 4.

7      Local Government (Auckland Council) Act, s 89 and sch 2, cl 1.

8      Section 89 and sch 2, cl 9(1).

9      Established under Local Government (Auckland Council) Act, sch 2, cl 2.

10     Local Government (Auckland Council) Act, s 89 and sch 2, cls 2, 4 and 9(1).

11     Schedule 2, cl 2(3).

12     Schedule 2, cl 2(4).

Legal principles

[7]    It is well-established that judicial review claims should be progressed in a convenient, simple, and expeditious manner.13 This is consistent with the objective of judicial review as involving a “relatively simple, untechnical and prompt approach”.14

[8]    In marked contrast from the position that applies in ordinary proceedings, the power to order discovery in applications for judicial review is discretionary.15 The critical test is whether discovery is “necessary” for the fair disposal of the proceedings:16

In some judicial review cases discovery may be unnecessary. In others limited discovery may assist. In some cases it is conceivable that discovery in the nature of general discovery might be required. Issues such as these should be determined on a case by case basis in the exercise of the court’s powers …

[9]    Relevant considerations include the nature of the issues in dispute, the resources of the parties, delay to the proceedings, and the overall proportionality of making an order for discovery (weighing the prospect of finding relevant documents, their degree of relevance and the likely costs incurred).17

[10]   A “duty of candour” is owed by decision makers exercising public authority in relation to the provision of relevant background documents to the decision. This duty requires decision makers whose decisions are challenged to collate and disclose the decision-making “record” in an appropriate affidavit.18

13 Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [45] and [47]; and Judicial Review Procedure Act 2016, s 13(2)(a).

14 New Zealand Institute of Chartered Accountants v Chartered Institute  of  Management  Accountants [2015] NZHC 818, [2015] 3 NZLR 692 at [83]; Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353; Te Rūnanga o Ngāti Awa v Attorney-General HC Wellington, CIV-2006-485-1025, 28 March 2007 at [6]; and BNZ Investments Ltd v CIR (2007) 23 NZTC 21,078 (HC) at [14]–[15].

15 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [20]; and Judicial Review Procedure Act, s 14(2)(h) and the word “may” in s 14(1).

16 Air New Zealand v Auckland International Airport Ltd (2001) 16 PRNZ 783 (HC) at [35].

17 Rider v District Court [2021] NZHC 498 at [31], referencing Smith v Attorney-General [2017] NZHC 2810 at [31]; and Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726 at [12]–[13] and [18].

18 Attorney-General v Institution of Professional Engineers NZ Inc [2018] NZHC 74, [2018] NZAR 275 at [38], referencing Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [22.14].

[11]    A decision maker must make their decision based on the facts known at the time of the decision. Accordingly, documents or opinions not before the relevant decision maker are usually irrelevant.19 Facts which come to light subsequently may only be used as evidence of unreasonableness when those facts are of such a character that they can be taken to have been within the knowledge of the decision-making body at the time.20

[12]                There is a preference for contemporary material over ex post facto accounts by decision makers.21 In general, the decision should speak for itself:22

The decision must stand or fall on its own terms as written at the time. That, in my view, is both sound public law and sound resource management practice. The whole point of the principle that those exercising statutory discretions must give proper written reasons is so that those reasons can be tested on appeal or judicial review if necessary. This leads to transparent and accountable exercises of public power by public officials.

[13]   In Bain v Minister of Justice, the Court concluded that the duty of candour does not require privileged documents to be discovered.23 A decision maker is entitled to claim legal advice privilege.24 This general position was summarised as follows:25

… after the enactment of the Evidence Act in 2006, s 54 has come to predominate. It does not seem to matter that the later cases involved decisions by public sector executive agencies or (in the pre-2006 case of Tau) a tribunal. If anything, essentially private professional bodies such as IPENZ whose members’ primary nexus with the organisation is contractual, have a greater claim to privilege than truly public sector discretion holders exercising statutory powers. The existence in relation to public officials of s 9(2)(h)

19 BNZ Investments Ltd v CIR, above n 14, at [29]–[30]; Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 658; New Era Energy Inc v Electricity Commission HC Wellington CIV–2007–485–002774, 9 May 2008 at [12]; and Kaikōura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 2677 at [93].

20 Science v Tameside Borough Council [1977] AC 1014, 1076, cited in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 148.

21 Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 48.

22 Hanna v Whanganui District Council [2013] NZHC 1360, (2013) 17 ELRNZ 314 at [14].

23 Bain v Minister of Justice [2013] NZHC 2133, [2014] NZAR 892 at [38] and [152].

24 Petramont Fishing Co Ltd v Ministry of Primary Industries [2018] NZHC 676, [2018] NZAR 740 at [112].

25 Attorney-General v  Institution  of  Professional  Engineers  NZ  Inc,  above  n  18, at [48]. Section 9(2)(h) of the Official Information Act 1982 provides that legal professional privilege constitutes a good reason for withholding official information, but under s 9(1) this may be outweighed by other considerations that render it desirable, in the public interest, to make that information available. Section 7 of the Local Government Official Information and Meetings Act 1987 contains equivalent provisions.

allowing for the override of legal advice privilege and the absence of a similar broad exemption for non-public sector bodies in s 54, confirms that there is now no basis upon which the Investigating Committee can be denied the full benefit of s 54.

[14]   Section 54(1) of the Evidence Act 2006 relates to privilege for communications with legal advisers. It provides as follows:

54     Privilege for communications with legal advisers

(1)A person who requests or obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—

(a)      intended to be confidential; and

(b)      made in the course of and for the purpose of—

(i)the person requesting or obtaining professional legal services from the legal adviser; or

(ii)the legal adviser giving such services to the person.

[15]   If the tests in paras (a) and (b) are met, s 53(1) provides that the person who has the privileged communication referred to in s 54 has the right to refuse to disclose that communication in any proceeding.

[16]   There is another general principle that deliberative material may be withheld, unless it is particularly cogent to the pleaded grounds of review (such as bias):26

The record of its deliberative material, while technically relevant in terms of discovery principles, … [is] not in our view of a nature likely to inform the Court materially on the reasons for the committee’s decisions, as opposed to the dynamics of how it got to them.

… Where however the presiding member of a decision-making body makes a full affidavit concerning its reasons and procedure relevant to the issues in    a judicial review proceeding, there is a danger if the Court nevertheless requires a record of its deliberations to be produced for use in cross-examination. The party concerned may wish to cross-examine on matters having only peripheral relevance to the issues but highly invasive of the legitimate privacy of the deliberations of the committee. Indeed this Court has held that special leave to cross-examine  deponents in the  position of  Mr Jenner will only be allowed if it is clearly necessary to dispose of a case fairly … Upholding the privacy interest to that extent protects the independence of such bodies against unwarranted intrusions on members’

26     ENZA Ltd v Apple & Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [22]–[24] (citations omitted).

thought processes, including their exchanges of ideas, as they move towards their collective decisions. It also enhances the public’s perception of their independence and the integrity of their decisions.

[17]   The question of what an enactment means is a question of law for the courts.27 To the extent the issue turns on interpretation as a matter of law, a standard of correctness applies.28 A previous wrong application of the law does not justify repeating the mistake in a new decision.

[18]   However, statutes often leave a margin of appreciation within which a decision maker could apply the correct test any number of ways:29

It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination  the  decision maker misdirects itself in law.

[19]   The courts are careful not usurp a decision maker’s application of a statute unless that application falls into the “extreme category” of a decision no reasonable decision maker could have made.30

[20]   Consistency of treatment has a role to play in judicial review when issues of arbitrariness or unreasonableness are raised.31 However, in a judicial review context, the doctrine of precedent as it is applied by courts has no rigid application.32 It follows that an apparent inconsistency will not of itself amount to an error of law and that a failure to take into account any particular prior decision will not of itself amount to an error of law.33 As was observed in Singh v Minister of Immigration:34

27     Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [116] (leave to appeal to the Supreme Court was declined in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2011] NZSC 12).

28   Powerco and Vector  v Commerce Commission  HC Wellington CIV 2005-485-1066 and 1220,    24 December 2007 at [366] per Wild J.

29     Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [21].

30     Fischer v Governing Board of JAS-ANZ [2016] NZHC 378 at [30].

31     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [95].

32     Television New Zealand Ltd v West [2011] 3 NZLR 825 at [67].

33 At [67].

34   Singh v Minister of lmmigration [2000] NZAR 223 (HC) at [40], then in [41] referencing Kissun v Minister of Immigration HC Wellington, AP306/96, 17 March 1998 at 9. See also Higgs v Minister of National Security [2000] 2 AC 228 at 260, where Lord Cooke expressed the view that, while the facts of other cases may provide helpful comparisons (about the evolving concept of “inhuman treatment”), in the end the evaluation required is one of fact and degree in which other cases cannot be treated as binding precedents.

The problem with a principle of equality or of consistency in decision-making in a discretionary area is that there are many borderline cases which will have similar or superficially similar facts which different people acting perfectly honestly will decide in different ways.

Evidential material

[21]   Both the applicant and the first respondent provided initial disclosure. The applicant’s bundle is dated 6 June 2023, and the first respondent’s is dated 26 July 2023.

[22]   Four affidavits have since been filed on behalf of the Selection Body for the judicial review hearing:

(a)The affidavit of Angela Stones contains the record of the decision-making process. Ms Stones provided administrative support for the 2022 election cycle, as well as the earlier election cycles in 2013, 2016 and 2017. There were two key meetings of the Selection Body for the 2022 election cycle: the first hui on 16 September 2022 (Hui 1) and the second hui on 19 October 2022 (Hui 2) at which the decision was made about Mr Hall’s ineligibility. Except for documents containing legal advice, Ms Stones exhibits the material provided to the members for Hui 1 and Hui 2, as well as the minutes of those meetings, and some other  relevant  correspondence  (including  emails  with  Mr Hall). I will return to the substance of and alleged gaps in the exhibited materials below.

(b)Karen Wilson was the chairperson of the Selection Body  for  the  2022 process and  was  the  Te  Ākitai  Waiohua  member  on  the 2022 Selection Body. She is of Te Ākitai Waiohua, Ngāti Te Ata, Ngāti Pikiao and Ngāti Hau descent. She generally confirms the affidavit of Ms Stones and provides a further explanation of the decisions made at the two hui.

(c)David Taipari was the Ngāti Maru member on the 2022 Selection Body. After the 2022 selection process, he was appointed chairperson of the

IMSB, a position that he also held after every previous IMSB cycle since 2010.

(d)Terrence McEnteer gives evidence as a member on the 2022 Selection Body, as the Ngāti Tamaterā member on the 2022 Selection Body.

The eligibility test

[23]   The topic of “urban Māori” arose during disputes in the 1990s about the allocation of Māori commercial fishing quota and related settlements.35 In the Court of Appeal, the 1996 census figures about urban Māori were discussed in the following terms:36

…Eighty-one per cent of Maori live in urban areas. One-third of Maori live away from any tribal influence and are often the most disadvantaged of Maori. Seventy per cent live outside their tribal rohe. Thirty-four per cent live in Auckland, being the largest concentration of population in the country. A number of Maori, 112,566 to be precise, indicated in the last census taken that they did not know the name of their iwi, while another 40,917 neither specified nor identified their iwi. Twenty-five per cent of Maori either do not know their iwi or for some reason or other choose not to affiliate with it.

[24]   Traditional mana whenua groups are whakapapa-based, whereas that is not the case for urban Māori groups.37

Traditional tribes are those of people sharing common descent. They are whakapapa-based not kaupapa-based.

[25]   It follows that applying a simple genealogy or whakapapa test will identify traditional iwi and hapu, rather than prove chosen affiliation.

[26]   The key disputed issue in this proceeding will be the  meaning  of  “in  a mana whenua group”, as that phrase appears in the definition of “mataawaka” in s 4 of the Act. One of the key questions will be whether this requires an element of chosen affiliation, which goes beyond simple genealogy or whakapapa connections.

35 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [79], referencing Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 (CA); and the Māori Fisheries Act 2004.

36 Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission, above n 35 at [43].

37 At [23] per Gault J. See also at [209] per Thomas J.

[27]   If the test has been correctly interpreted by the Selection Body, then the next question will be whether it has been applied reasonably and rationally to the facts of this case, and whether the procedure followed was fair to obtain information relevant to application of the eligibility test.

Application to facts

[28]   For most of the proposed tailored discovery categories, I accept the first respondent’s position that the decision-making record has already been provided via the existing affidavits, including the factual evidence against which the statutory eligibility test has been applied. In those circumstances, it is unnecessary to order discovery under each of the proposed categories, subject to the question of the report before the Selection Body in Hui 2 (which I address separately below).

[29]   In category 2.1(a), set out above at [2], the applicant seeks all relevant information provided on whakapapa for  the  three  applicants,  namely  Mr  Hall,  Mr Henare, and Mr Kake. However, there is no basis to believe that any information in this category for the 2022 election cycle has not already been disclosed.

(a)The affidavits say that whakapapa information was not sought in respect of Mr Henare and Mr Kake because they were already selected as mataawaka representatives previously, so the Selection Body treated that as sufficient and did not carry out any further eligibility/criminal history checks.

(b)The information relied on in respect of Mr Hall is already disclosed in the first respondent’s affidavit evidence, including a copy of the internet page that was central to the eligibility assessment. There is no reason to believe that the content of that website page was different from the one which Ms Stones acknowledges she reproduced later.

(c)Mr Hall needs nothing further to advance an argument that the currently disclosed whakapapa information is insufficient to establish being “in a mana whenua group”. By its nature, ordering discovery is a fruitless exercise if the objective is to prove the negative. Even if there is further

whakapapa information that was or could have been made available, but it was not before the Selection Body, then that is irrelevant in terms of the principles discussed at [11] above.

(d)The evidential basis for the different treatment of Mr Hall, Mr Henare and Mr Kake in the 2022 election cycle has already been disclosed. To the extent that Mr Hall wishes to argue an inconsistency compared with previous selection bodies in earlier election cycles, I do not consider that this is sufficiently relevant. If the legal test has been understood correctly and applied by the Selection Body in a rational and reasonable way, then it will not assist Mr Hall to establish that the test had been interpreted incorrectly in earlier years. Notions of consistency do not override the primary questions of the correctness of the statutory interpretation, and the proper application of that test to Mr Hall’s specific facts.

[30]   For the same reasons, I do not accept that there is any basis for ordering tailored discovery of category 2.1(c), namely all whakapapa enquiries made of all candidates. On the face of the evidence, disclosure of enquiries made in the 2022 election cycle has already been provided.

[31]   Categories 2.1(c) and (d) refer to para 10f of Ms Wilson’s affidavit. However, that refers to correspondence between Ms Stones and Mr Hall, which I understand has already been disclosed and referred to in the affidavit material. In any event, Mr Hall already has that correspondence.

[32]   In respect of category 2.2(a), notes of administrative and secretarial work, I do not consider that is relevant beyond what has already been produced in initial disclosure and attached to the affidavits. Mere administrative/secretarial material, particularly if it was not before the Selection Body, is irrelevant to the lawfulness of their decision concerning ineligibility.

[33]   Category 2.2(b) of “all internet searches and any social media regarding whakapapa” is a subset of evidence of all whakapapa enquiries. Accordingly, my comments above for category 2.1(c) apply. It seems there was a relatively limited search, and the particular internet page discussed by the Selection Body and relied on for their eligibility decision has already been disclosed.

[34]   Category 2.2(c) is a copy of any documents regarding the views of mataawaka on all candidates/nominees and on the input on the whakapapa of all candidates. In Mr Hall’s case, I understand from the affidavit evidence that Mr Hall did not progress past eligibility to a selection phase. For that reason, I understand that the first respondent is taking the position that sch 2, cl 6(2)(c) of the Act did not apply. If that is not correct and/or the first respondent is alleging that the views of mataawaka were also taken into account in assessing the eligibility issue for Mr Hall, then that material must be disclosed.

[35]   In category 2.2(d), Mr Hall is seeking a copy of all recordings of the two hui in relation to the applicant’s nomination for mataawaka representative. Even if such recordings exist, I consider that this would fall in the category of deliberative material that may be withheld.38 Mr Hall already has disclosure about how the individual members of the Selection Body voted. The outcome is either lawful or not. The process of their deliberations does not seem relevant in that context, other than to understand the interpretation applied for the words “in a mana whenua group”, which I address separately below.

[36]   The final three categories 2.2(e), 2.2(f) and 2.3 seek copies of any legal advice given to the Selection Body by Atkins Holm Majurey. This also duplicates the request in category 2.1(b) seeking the report provided to the Selection Body, as referred to in paras 8 and 10a of Ms Wilson’s affidavit.

[37]   In para 8 of Ms Wilson’s affidavit, she discloses that she had discussions with Mr Majurey prior to Hui 2 on three matters. The first two refer to information and communications that have been disclosed in Ms Stones’ affidavit at the paragraphs she identifies. The final category is legal advice on those matters, which is not disclosed.

38 See [16] above.

However, para 10a says that this advice was set out in the report provided to the Selection Body for Hui 2.

[38]   Accordingly, it is evident that the report provided to the Selection Body is likely to have included:

(a)factual information relevant for the purposes of assessing Mr Hall’s eligibility;

(b)legal advice about the nature of the test to be applied to determine eligibility (i.e., “in a mana whenua group”); and

(c)options available to the Selection Body and legal advice on applying the eligibility test to the facts.

[39]   In my view, Mr Hall is correct that the report is relevant and discoverable, because it was before the Selection Body at the time it made its decision in Hui 2. However, the first respondent is entitled to claim legal privilege in accordance with the principles discussed above. I expect that this would justify redactions only — any sections of the report that pass on primary facts for the Selection Body to consider are not legally privileged in nature.

[40]   I also accept that it is important to understand the legal test that was applied by the members of the Selection Body, because a standard of correctness applies. The minutes do not disclose any detail about this. The first respondent will need to review the report to assess whether there are any portions that should be disclosed as reflecting the test that the members of the Selection Body applied when deciding on eligibility (regardless of what legal advice was received). For example, it is relevant to know whether a genealogy test was applied, or whether the term “in a mana whenua group” was interpreted as requiring chosen affiliation.

[41]   For this present discovery hearing, counsel for the applicant and the first respondent advised that there were no relevant legal authorities expanding on how the phrase should be interpreted, so this will inevitably be a matter of legal submission

and substantive determination in the judicial review proceeding. The question is whether there is sufficient evidence to assess:

(a)how the phrase was interpreted by the members of the Selection Body (a correctness standard); and

(b)whether the Selection Body’s application of that interpretation to the facts was reasonable (in the administrative law sense).

[42]   Otherwise, there may be difficulty separating the question of law from the factual question (which may itself raise a legality issue, such as whether adequate reasons were provided).

Conflict allegations

[43]   On 28 July 2023, Mr Hall filed and served an application seeking orders that the first respondent’s law firm Holm Majurey cease acting for the respondents in this proceeding and requiring them not to communicate with the lawyers acting for the respondents, other than to provide discovery.

[44]   At a case management conference on 18 October 2023, Muir J expressed a provisional view that the application was premature, but on the information currently available it was difficult to identify the extraordinary circumstances required to justify the removal of counsel. Accordingly, that application was “parked” pending provision of the respondents’ affidavits and further information as to process.39

[45]   Accordingly, that application was not before me for determination, but the underlying concerns were addressed in submissions about the discovery sought.

[46]   In the hearing, I expressed my view that it does not appear to be directly relevant to the applicant’s claim to know what advice was given to the members of the Selection Body. What matters is the legal test applied by the members for determining eligibility, not whether or not this was in accordance with legal advice. The latter does

39     Hall v Brown HC Auckland CIV-2023-404-1176, 18 October 2023 at [2]–[3].

not change the correctness of the former. Furthermore, there is no basis for considering that the legal advisers are necessary witnesses. The Selection Body members themselves can provide (and have provided) any necessary affidavit evidence, and a legal adviser cannot be compelled to waive a client’s privilege.

Result

[47]   In respect of the application for discovery, I give directions for the following to be discovered to the applicant within 15 working days:

(a)If the first respondent is alleging that the views of mataawaka were also taken into account in assessing the  eligibility  issue  in  respect  of  Mr Hall, then that material must be disclosed.40

(b)The report provided to the Selection Body, as referred to in paras 8 and 10a of Ms Wilson’s affidavit, should be discoverable in this proceeding.41 The first respondent is to provide inspection of it, but any legally privileged advice may be redacted to the extent consistent with the principles in [13] above. Leave is reserved for an application to be made for my inspection of the redacted and unredacted form of the report, to assess proper compliance.

(c)If, despite (b) above, it is still not evident precisely what type of test the members of the 2022 Selection Body applied when deciding on eligibility, then this should be addressed by further explanation in an affidavit on behalf of the members.

[48]I otherwise dismiss the application for discovery.

[49]   I reserve costs, despite r 14.8 of the High Court Rules 2016, on the basis that there has been mixed success and I consider that costs for steps on this application are most suitably determined once the substantive outcome is known (those merits should be considered relevant).

40 See [34] above.

41 See [39] above.

[50]   Meanwhile, I ask Registry to list this proceeding for case management in the week of 22 July 2024, so that it can be set down for hearing (counsel estimate that two days will be required) and to make suitable timetable orders for submissions and court bundles, with counsel requested to file a joint memorandum (or separate memoranda if necessary) containing their proposals.

O’Gorman J