Mau Whenua Incorporated v Mulligan - [2021] NZHC 141

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-366

[2021] NZHC 141

BETWEEN
MAU WHENUA INCORPORATED

First Plaintiff

WHAREAHURU GILBERT and MARTHA HINEONE GILBERT

Second Plaintiffs

KAREN MARAMA PARATA MABEL URU TANIRAU and

ROGAN RAWIRI HOHAPE TANIRAU
Third Plaintiffs

AND

WAYNE THOMAS MULLIGAN JOHN FREDERICK COFFEY HOLDEN HOHAIA

TOA WOODBINE POMARE MAHINA HABER-PUKETAPU KIM SKELTON

PAORA JENKINS-MEPHAM and HUIA PUKETAPU

First Defendants

SHELLY BAY INVESTMENTS LIMITED
Third Defendant

SHELLY BAY TAIKURU LIMITED

Fourth Defendant

On the papers:

Counsel:

S Rush in person

C J Curran and M W McMenamin for Plaintiffs

D J Neutze and T J Cooley for First and Second Defendants No appearance for Third and Fourth Defendants

Judgment:

12 February 2021

MAU WHENUA INCORPORATED v WAYNE THOMAS MULLIGAN [2021] NZHC 141 [12 February 2021]

JUDGMENT OF CHURCHMAN J

[1] On 17 December 2020, a notice of discontinuance was filed in these proceedings on behalf of all of the plaintiffs. Subject to any potential application by the defendants as to costs, the filing of the notice of discontinuance concluded these proceedings.

[2] However, on 8 December 2020, Enterprise Miramar Peninsula Inc (EMP) had applied to the Court pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to the statement of claim in these proceedings.

[3]The defendants all opposed that application.

[4] On 18 December 2020, the Court issued a decision rejecting the application under the Rules and setting out the reasons for that decision.1

Recent developments

[5] By email sent to the Registrar on 29 January 2021, Sean Rush made an application under the Rules “to see copies of the statement of claim and defence (and any Amendments/Supplements thereto) as well as any Reply and additional supplements” in regard to the above proceedings.

[6]The reasons advanced in support of the application were:

(a)that it was a matter of public record that the Wellington City Council recently approved the key commercial terms to the sale and lease of land adjoining the area that is subject to the proceedings. It was a controversial decision which Mr Rush says he did not support. The judicial proceedings, possible merits and remedies sought, were excluded from the briefing to councillors. He would like to assess whether this gap in information might have had relevance to the considerations of Council in consequent decisions;

(b)as an Eastern Ward councillor, Mr Rush asserted he had “duties akin to a kaitiaki”. He mentioned that he was the descendant of an early settlor family that survived its first winter due to the kindness of local Māori, and he said that he therefore had a debt to the descendants of

1 Mau Whenua Incorporated v Wayne Thomas Mulligan & Ors [2020] NZHC 3411.

Chief Te Puni and Te Atiawa, as well as a legal obligation as a councillor to ensure the wellbeing of local Māori and their tīpuna “are not impeded by Crown or other processes”. He asserted that it was arguable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 141
Decision Date: 12 February 2021

CaseChat Overview and Summary

Mau Whenua Incorporated, along with other plaintiffs, brought proceedings against various defendants, including Wayne Thomas Mulligan. The plaintiffs subsequently discontinued the proceedings, which led to an application by Sean Rush, an Eastern Ward councillor, for access to the court documents. The defendants opposed the application, arguing that the proceedings had been discontinued and that the principle of open justice did not outweigh the protection of confidentiality and privacy interests. The court considered the nature and reasons for the request, and the nature of the proceedings, which had been discontinued before a substantive hearing. The court noted that the principle of open justice has less weight prior to and after a substantive hearing, as the dispute has not been aired in public. The court found that Mr. Rush, as a non-party to the proceedings, had no legitimate interest in the dispute and that the request was not made in reliance on the principle of open justice. The application was declined.

Orders