Matamu v Si'Itia

[2018] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-00170

[2018] NZHC 824

IN THE MATTER

of the Avondale Union Parish

BETWEEN

TUI’IMALO MATAMU, TALAOALI’I NASERI, MALIELEGAOI AUMUA, SAENI PITA and TOFA TOFA

Plaintiffs

AND

VA’AIMALU SI’ITIA, MARY MCEWING, REVEREND ALISA LASI, REVEREND

ROY CHRISTIAN (REMOVED), FORBES WORN (REMOVED and SALAPO RAPITI TUIA

First Defendants

THE PRESBYTERIAN CHURCH PROPERTY TRUSTEES

Second Defendants

Hearing:	27 April 2018
Appearances:	O Woodroffe for Plaintiffs R S Pidgeon for Defendants
Judgment:	27 April 2018

JUDGMENT OF LANG J

[on application for orders discharging interim injunction and requiring defendants to be examined as to their means before the Registrar]

This judgment was delivered by me on 27 April 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MATAMU v SI’ITIA [2018] NZHC 824 [27 April 2018]

[1]    This proceeding concerns the affairs of the Avondale Union Parish. The plaintiffs and first defendants are or were members of the Parish.

[2]    The plaintiffs filed the proceeding on 31 January 2014 alleging breach of trust and breach of fiduciary duty by the defendants. This occurred after the defendants attempted to prevent them from continuing to use the Parish facilities in or about October 2013. The defendants took that step because they believed the plaintiffs had left the Parish and formed their own Church.

[3]    The proceeding was the subject of a lengthy trial before Moore J in June 2016. On 21 October 2016, Moore J delivered a judgment in which he dismissed the plaintiffs’ claims.1 His Honour found as a matter of fact that the plaintiffs had elected to repudiate their membership of the Parish.2 The plaintiffs’ appeal to the Court of Appeal was unsuccessful,3 as was an application for leave to appeal to the Supreme Court.4 It follows that the plaintiffs have now exhausted their rights of appeal and the present proceeding is substantively at an end.

[4]    Two issues remain to be resolved. These relate to existing orders for interim injunctive relief and costs. The defendants now seek an order that the orders granting interim injunctive relief be discharged. They also seek an order requiring the plaintiffs to be examined before a Judge regarding their means. They seek this order because the plaintiffs have failed to pay costs awarded to the defendants by this Court and the Supreme Court.

The application to discharge existing orders for interim relief

[5]    The plaintiffs obtained interim relief from Courtney J on 31 January 2014.5 This was subsequently varied on several occasions. The purpose of the interim relief was to permit the plaintiffs to continue to use facilities owned by the Parish until their claims had been determined. The interim relief has remained in place throughout the

1     Matamu v Si’itia [2016] NZHC 2516.

2 At [151].

3      Matamu v Si’itia [2017] NZCA 482.

4      Matamu v Si’itia [2018] NZSC 14.

5      Matamu v Si’itia [2014] NZHC 34.

appeal process. The defendants now apply for an order that it be discharged given the fact that the proceeding is at an end.

[6]    Interim injunctive relief may be ordered to preserve the existing position where the plaintiff can demonstrate there is a serious issue to be tried and the balance of convenience favours the granting of relief.6 Ordinarily the fact that the present proceeding is at an end and the plaintiffs have been unsuccessful would automatically require the interim orders to be discharged. This reflects the fact that there no longer remains any issue to be tried, much less any serious issue.

[7]    For the plaintiffs, Mrs Woodroffe acknowledges there is no legal basis on which the orders can remain in effect. She emphasises, however, that this is not a commercial dispute. Rather, it engages intensely cultural issues and concepts. She points out that the plaintiffs, who represent more than 300 people, have been members of the Parish since 1982. The church facilities and environment are in many ways a substitute for the villages in the Pacific Islands from which the plaintiffs and their supporters originally came. She seeks time for the plaintiffs to engage the assistance of facilitators within the wider Pacific Islands community to assist in bridging the gap between the plaintiffs and the defendants so they can reunite or at least find a way of co-existing within the Parish in the future.

[8]    The plaintiffs also propose to advance their case further before the Human Rights Committee of the United Nations. Mrs Woodroffe submits the Court should find a way to leave the exiting interim relief in place until the Human Rights Committee has delivered its decision.

[9]    As Mrs Woodroffe accepts, however, any claim the plaintiffs might advance before the Human Rights Committee would have no legal force in New Zealand. Such proceedings are outside the scope of the New Zealand legal system, and cannot be regarded as an appeal against a decision of any New Zealand court.7 In particular, they could not disturb the decision of the Supreme Court to refuse leave to appeal.

6      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (HC).

7      Singh (Kulbir) v An Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [27].

[10]   I am therefore left with no option but to discharge the orders for interim relief. The most I can do to assist the plaintiffs is to direct that the discharge does not take immediate effect. This will give the plaintiffs a final opportunity to reach some form of accommodation with the defendants. I record that Mr Pidgeon for the defendants did not object to this course of action.

[11]   I therefore discharge the orders but direct that the discharge is not to take effect until 5 pm on Friday 11 May 2018.

Application for orders requiring the plaintiffs to be examined as to their means before the Registrar

[12]   Orders for costs have been made in favour of the defendants in this Court,8 the Court of Appeal9 and the Supreme Court.10 The plaintiffs have paid the costs awarded by the Court of Appeal, but have yet to pay the costs ordered by this Court ($45,174.20) and the Supreme Court ($2,500). Their liability may be reduced to some extent by any award for costs that may be made in their favour in relation to the discontinuance of a counterclaim by the defendants. Moore J is scheduled to hear argument regarding that issue on 18 May 2018.

[13]   The defendants have now applied for an order under  r  17.12(2)  of  the  High Court Rules 2016 requiring the five plaintiffs be examined regarding their means to pay the costs. They seek an order that the examination be scheduled at this point notwithstanding the fact that the final quantum of costs is not yet known.

[14]   Ordinarily the defendants would have a “cast iron” case to seek an order requiring the plaintiffs to be examined as to their means because they have failed to pay the costs awarded in this Court and the Supreme Court.11 The only factor militating against scheduling an examination at this time is the fact that costs have not yet finally been quantified.

8      Matamu v Si’itia [2016] NZHC 3137.

9      Matamu v Si’itia, above n 3, at [45].

10     Matamu v Si’itia, above n 3, at [5].

11     AMP Finance Ltd v Linecorp Investments Ltd HC Auckland CP351/90, 14 June 1991.

[15]   Mrs Woodroffe advises me that the plaintiffs acknowledge they need to pay the costs but wish that burden to be shared with those persons whom they represent. She seeks time for the plaintiffs to resolve the manner in which the debt is to be paid.

[16]   I do not consider these factors to be sufficient to justify not scheduling an examination but I propose to fix a date sufficiently in the future to give the plaintiffs an opportunity to resolve the funding issue and to allow Moore J to fix the final quantum of costs.

[17]   I therefore direct that the examination is to take place before a Judge on 29 June 2018 at 10 am (one day allocated). Any directions that need to be made in anticipation of that fixture can be made by Moore J at or following the hearing on 29 June.

Costs

[18]   The defendants have succeeded in relation to both applications the Court was required to determine. They are entitled to a single award of costs against the plaintiffs on a Category 2B basis together with disbursements as fixed by the Registrar.

Lang J

Solicitors:

Woodroffe Law Partnership, Auckland Pidgeon Law, Auckland