Mitchell v Mitchell - [2018] NZHC 2665

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-61 [2018] NZHC 2665

BETWEEN
HAMUERA WALKER MITCHELL,

HOKIMATE KAHUKIWA, PETER STAITE AND VERONICA BUTTERWORTH Plaintiffs

AND

AND

TE KIRI WHERO EWA MAKARETA MITCHELL

First Defendant

MALCOLM TUKINO SHORT AND ALEXANDER JAMES WILSON Second Defendants

CONTINUED OVERLEAF

Hearing: 5 October 2018

Appearances:

Further submissions completed:

A Warren for the Plaintiffs
S M Kinsler and S K Shaw for Fourth Defendant
C Marks and S Hayman for First, Second, Third and Fifth
Defendants
No appearance by or on behalf of John Kahukiwa or Corban
Revell

8 October 2018

Judgment:

19 October 2018

JUDGMENT OF POWELL J [Application to restrain counsel]

This judgment was delivered by me on 19 October 2018 at 4.30 pm pursuant to
R 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:

MITCHELL & ORS v MITCHELL [2018] NZHC 2665 [19 October 2018]

ANDWARWICK MOREHU, RIMINI DENIS PAUL, KATARINA KEREAMA AND DONNA HALL
Third Defendants

ANDTE KOTAHITANGA O NGATI WHAKAUE ASSETS TRUST
Fourth Defendant

ANDBRYCE MURRAY Fifth Defendant

[1] The fourth defendant, Te Kotahitanga o Ngāti Whakaue Assets Trust (“the Assets Trust”), has applied for an order restraining John Kahukiwa and his firm Corban Revell from continuing to act as counsel for the plaintiffs, Hamuera Mitchell, Hokimate Kahukiwa, Peter Staite and Veronica Butterworth, in their proceeding against the Assets Trust.

[2] There is no dispute that Mr Kahukiwa has provided a significant contribution to his iwi Ngāti Whakaue as an iwi member, a Treaty negotiator and as a barrister and solicitor. It is in that latter capacity that the present application arises because as well as acting for the plaintiffs in this proceeding, Mr Kahukiwa was until earlier this year also one of the solicitors for the Assets Trust, and indeed drafted the current Assets Trust Trust Deed (“AT Trust Deed”).1 As such the Assets Trust alleges Mr Kahukiwa obtained not only general information about the operations of the Assets Trust but also information specifically relevant to the present proceedings.

[3] The Assets Trust submits it would be inappropriate for this Court to allow

Mr Kahukiwa and his firm to continue to represent the plaintiffs against the Assets Trust in the substantive proceedings, relying upon the line of authority commencing with Black v Taylor which determined that the High Court is empowered to restrain counsel from acting through the exercise of its inherent jurisdiction.2 The other defendants, being the trustees of the Whakarewarewa Joint Trust (“WJT”) at the relevant time, support the application. The plaintiffs’ allegations against the WJT trustees in the substantive claim largely stand or fall on whether the Ngāti Whakaue trustees on the WJT were validly appointed by the Assets Trust. In practical terms, the application requires determining whether Mr Kahukiwa and Corban Revell should be restrained from acting in any capacity in the substantive proceedings.

[4] Opposing the application the plaintiffs have raised procedural and substantive objections. First, the plaintiffs argue that the application should not…

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.

Continue reading Mitchell v Mitchell

Details

AGLC: Mitchell v Mitchell [2018] NZHC 2665
Case: [2018] NZHC 2665
Decision Date: 19 October 2018

CaseChat Overview and Summary

This case involved an application by the Te Kotahitanga o Ngāti Whakaue Assets Trust (“the Assets Trust”) to restrain John Kahukiwa and his firm Corban Revell from acting as counsel for the plaintiffs in a proceeding against the Assets Trust and others. The plaintiffs opposed the application on procedural and substantive grounds. The court considered the appropriate procedure to be used and found that the Assets Trust had used the correct procedure in bringing the application as an interlocutory application in the substantive proceedings. The court also found that the dispute resolution procedures in the Assets Trust Deed did not prevent the determination of the application. The court then considered whether Mr Kahukiwa and Corban Revell should be restrained from acting for the plaintiffs. The court found that Mr Kahukiwa was in possession of information which could be considered confidential and relevant to the proceedings, and that there was a high likelihood that he would need to give evidence in the substantive proceedings. The court concluded that the proper administration of justice required Mr Kahukiwa and Corban Revell to be restrained from acting further for the plaintiffs in the proceeding. The application was granted and Mr Kahukiwa and Corban Revell were not to act as either solicitors or counsel for the plaintiffs. The Assets Trust was entitled to costs on the application.

This decision is significant as it highlights the importance of maintaining the integrity of the justice system and the need to ensure that legal practitioners do not act in a manner that may impair the integrity of the judicial process. The court's decision also underscores the importance of considering the potential prejudice to both parties when determining whether to restrain counsel from acting in a particular matter.

Orders