Matamu v Si'itia

[2015] NZHC 1079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000170 [2015] NZHC 1079

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, FORBES WORN AND

SALAPO RAPITI TUIA First Defendants

THE PRESBYTERIAN CHURCH PROPERTY TRUSTEES

Second Defendants

Hearing:	19 May 2015
Counsel:	O Woodroffe for the Plaintiffs R S Pidgeon for the First Defendants R J B Fowler for the Second Defendants [Abides the Decision of the Court]
Judgment:	19 May 2015

(ORAL) INTERIM JUDGMENT OF DUFFY J

Counsel:     R J B Fowler QC, Wellington

R S Pidgeon, Auckland

Solicitors:    Woodroffe Law Partnership, Auckland

Copies To:   Pidgeon Law (J M Pidgeon), Auckland

Westbury Law (P H Westbury), Wellington

MATAMU and ORS v SI'ITIA and ORS [2015] NZHC 1079 [19 May 2015]

[1]      We have reached a stage in this proceeding where I can issue an interim decision.  The parties are agreed that I adopt that course of action.  The proceeding will then be adjourned.   Timetable directions will be made, and it will then come back on for hearing in front of me.

[2]      At a meeting on 5 December 2013, a decision was made to exclude the plaintiffs from worship at a church situated at Avondale.   The plaintiffs sought a declaration from this Court that the decision was unlawful.  Their claim was based in part on an argument that notice of this meeting should have been given to members of the Parish Council. They contended that no such notice was given.

[3]      The defendants accepted that no notice of the meeting was given to the persons identified by the plaintiffs as deserving of notice.  However, the defendants contended that:

(a)       No notice was required under the relevant procedures; and

(b)The persons the plaintiffs claim were entitled to notice were not in fact members of the Parish Council.

[4]      After the luncheon adjournment, when the defendants came to address the Court, as a result of an exchange between Bench and bar, the defendants’ counsel then responsibly and helpfully acknowledged that, in principle, notice of the meeting of 5 December 2013 should have been given to the members of the Parish Council.

[5]      The plaintiffs also acknowledged that their claim was based on an assertion that notice was required to be given to members of the Parish Council.

[6]      These  acknowledgements  removed  a  clear  legal  issue  for  this  Court  to determine.  The resolution of the plaintiffs’ claim now hinges on whether the persons whom the plaintiffs assert were members of the Parish Council actually held that position as at 5 December 2013.  If they did not, it would follow that they were not entitled to notice.

[7]      The parties are in dispute over who was a member of the Parish Council as at the relevant date.  This is a factual issue.   It is not suited to determination by the present form of the proceeding, which is by way of affidavit evidence.

[8]      The parties were agreed that I should issue an interim decision recording the acknowledgement regarding the legal consequences as to notice, and then adjourn the proceeding.  That is a sensible approach and I propose to follow it.  Accordingly, the proceeding is now adjourned and is to be brought back before me.

[9]      Because the focus on the factual issue will require oral evidence, I consider that it is best if this proceeding is no longer treated as one that has been set down. Accordingly, leave will not be required for the parties to take any steps regarding amending their pleadings, filing additional evidence, or other preparation for the resumed hearing.   However, on the expiry of two months from today’s date, the proceeding will again be treated as set down, and any further steps in the proceeding will then require leave of this Court.

[10]     As matter stand, the plaintiffs have the benefit of interim relief granted by this Court, which enables them to continue to worship at the subject church.  That relief is to be continued on existing terms until further determination of the Court.

[11]     I now turn to make timetable directions to ensure the efficient progress of the proceeding.  In terms of the timetable, I make the following directions:

(a)       The plaintiffs have until Tuesday, 9 June 2015 to file any amended pleading, and any additional evidence;

(b)The defendants have until Tuesday, 30 June 2015 to file any amended pleading and additional evidence; and

(c)       The plaintiffs have until Tuesday, 7 July 2015 to file any evidence in

reply to the defendants’ evidence.

[12]     There is to be a telephone conference in the week commencing 20 July 2015 at a time that is suitable to the schedule of counsel and myself.   I expect at the

telephone conference that the parties will be able to inform me as to whether the proceeding is ready to be re-heard before me.  If it is, I will then request the Registry to allocate a hearing date to enable the hearing to recommence at the earliest possible time.  By the time of the telephone conference, we will be in a position to assess how much further hearing time will be needed.

[13]     Costs in relation to today’s hearing are reserved until the final determination of this proceeding.

[14]     Leave is reserved to the parties to come back to me on any issue, should the need arise.

Duffy J