Lama v Hope HC Auckland CIV 2004-404-1363
[2005] NZHC 1251
•30 May 2005
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2004-404-1363
BETWEEN KHYENTSE RINPOCHE LAMA
Plaintiff
AND
ROSS HOPE, LAMA KARMA SHEDRUP, THELMA BURCHELL AND ELLEN DUCKWORTH AS TRUSTEES OF THE NEW ZEALAND KARMA KAGYU TRUST
Defendants
Hearing:
12 May 2005
Appearances: D G Hurd for Plaintiff
R T Fenton and L A Lawson for Defendants Judgment: 30 May 2005
FINAL JUDGMENT OF BARAGWANATH J
Solicitors:
Patterson Hopkins, Auckland for Plaintiff Dyer Whitechurch, Auckland for Defendants
Counsel:
Mr D G Hurd, Auckland Mr R T Fenton, Auckland
LAMA V HOPE & ORS HC AK CIV-2004-404-1363 [30 May 2005]
[1] Following the interim judgment of 10 March 2005 and an informal hearing in open court on 12 May 2005 I issued a draft minute on that date and invited counsel’s submissions upon it. I now pronounce final judgment.
[2] I record at the outset my appreciation of the spirit in which counsel and the parties have approached the matter. That is evidenced by the defendants’ advice through counsel that a stay of the proposed formal orders of the Court pending appeal will not be required.
[3]The plaintiff has proposed the following relief:
(a) An order declaring that the defendants have been validly dismissed as trustees of the trust;
(b) An order appointing the Public Trustee as trustee of the trust pending further order of the Court;
(c) Reserving leave to the Public Trustee and to the plaintiff and to the defendant to apply further on appropriate notice.
[4] It is proposed further that the orders made by Venning J on 1 April 2004 and varied by Ellen France J on 17 November 2004 be discharged on the appointment of the Public Trust as trustee.
[5] It was emphasised during the course of argument by counsel on both sides that this case concerns a purpose trust. The Court’s focus must constantly be upon its purposes and other considerations are to be disregarded insofar as they are incompatible with that objection. The inevitable polarisation of litigation has not prevented the parties today from recognising the extent of common ground. The plaintiff’s position for example is not that Urgyen Trinley Dorje is an imposter, it is rather that he is a deeply respected leader of Karma Kagyü as is Thaye Dorje. His position is simply that the identity of the 17th Karmapa is not yet clear. It is consistent with that position that in time there may be recognition of Urgyen Trinley Dorje by the plaintiff even though he has not at this stage moved to that point.
[6] The plaintiff’s position is that the same equally applies in the case of Thaye Dorje.
[7] We are concerned not with a static pathological exercise of examining the past and fixing it in a freeze frame but with a dynamic process which in the plaintiff’s mind includes the process for identifying the 17th Karmapa in due time. It is therefore conceivable, even though not inevitable, that the fundamental difficulty in this case will disappear. Whatever the future may hold as to that the status quo is that the plaintiff does not assert that those of the Kaukapakapa congregation who are satisfied that Urgyen Trinley Dorje is indeed the 17th Karmapa are heretics or indeed other than members of the Karma Kagyü.
[8] The result of the judgment of 10 March 2005 is that this Court has confirmed the status of the plaintiff as the spiritual director in terms of the deed constituting the charitable trust subject of course to the decision of an appellate court. He is entitled under New Zealand law to a declaration of that status. This Court is however acutely conscious of the precept expressed in another religious context about rendering unto Caesar the things that are Caesar’s and to God the things that are God’s. The role of the Court and of the law, while necessary to ensure legality, is in the overall scheme quite insignificant. What matters is the application of the precepts of Karma Kagyü. It follows from the judgment that the plaintiff who is in law the spiritual director has both the privileges and responsibilities of discharging that important office.
[9] It is not for the Court to give directions to a spiritual guide as to how that function should be discharged. But in view of past difficulties it is perhaps worth observing that focus on the spiritual is likely better to promote the purposes of the charitable trust than inconsistent conduct that can end up in court. Since the judgment of 10 March 2005, with the assistance of the sensible and practical discharge by the Public Trustee of his responsibilities, there has been a practical accommodation at Kaukapakapa of the factors that together comprise the day to day operation of Karma Kagyü there.
[10] I was told that the plaintiff was to leave New Zealand on 16 May to attend to his international responsibilities. I do not doubt that with his broad experience and understanding of human nature he considers it preferable in the discharge of his important role to recognise the sensibilities of those who are satisfied that Urgyen Trinley Dorje is the 17th Karmapa. Equally, those members of the community I am
sure appreciate that the plaintiff has the responsibility of discharging his important role and it is their task reciprocally to be sensitive to his responsibilities and the imperative need that the community focus on the true purposes of the trust.
[11] The net position is that the plaintiff’s role as spiritual director having been confirmed, the Public Trustee being available to make the day to day decisions required of the trustee, and this Court being accessible should need arise, it is my expectation that the difficulties that have given rise to this litigation will progressively recede as the members of the community work together in the support of the Trust and with such spiritual guidance as the plaintiff considers appropriate to furnish. I can see no good reason for future distraction from the due performance of the good work at Kaukapakapa which is the ambition of everyone involved in this case.
[12] The spirit that informed the informal discussion on 12 May has extended to the subsequent submissions. There will be an order in terms of paras [3] and [4] above. There remain questions of costs.
[13] In case it is of assistance and without in any way foreclosing the arguments and decision that may be required I offer the following thoughts. It was inevitable that the difference within Karma Kagyü which has affected the entire community world-wide should have its expression in New Zealand. The particular manifestation is not I think of prime importance and little is said about that in judgment. It is always the responsibility of trustees to determine the proper operation of the trust in accordance with the principles discussed by Lightman J in Alsop Wilkinson v Neary [1995] 1 All ER 431. To the extent that that preface necessarily entailed reference to the Court one would in principle be minded to the view that the litigation was not only inevitable but in the public interest.
[14] Beyond that central core of principle there is the further aspect of the broader public interest which informs costs judgments. Some of the authorities are referred to in my judgment Helmbright and Weavers v The Environment Court HC HAM CIV-2004-463-124 6 August 2004.
[15] Beyond that again is of course the area where litigation is conducted for other purposes and the Court will normally apply the conventional rules. I have no current knowledge of the financial position of the trust or the means of the plaintiff or of the defendants. As is apparent from Mr Hurd’s submissions and from Mr Fenton’s intimation a defended hearing to identify and apply the relevant principles is likely to be demanding and to be correspondingly expensive for the parties.
[16] Against the contingency that settlement could not be achieved on 12 May I made the following timetable order:
[a]the plaintiff within 14 days to file and serve any affidavits;
[b]the defendant to reciprocate within a further 14 days; and
[c]any affidavits of the plaintiff in reply within a further seven days;
[d]the plaintiff thereupon to file and serve any further submissions;
[e]the defendants to reciprocate within seven days; and
[f]the plaintiffs to respond within a further seven days.
[17] The parties to confer with the Registrar to secure at the expiration of that timetable a fixture that will accommodate the argument. Counsel to confer for that purpose.
W D Baragwanath J
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