Paul v Durie - [2017] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2016-485-744 [2017] NZHC 2248

BETWEEN
CLETUS MAANU PAUL

Plaintiff

AND

SIR EDWARD TAIHAKUREI DURIE First Defendant

AND

THE NEW ZEALAND MĀORI COUNCIL Second Defendant

On the Papers

Counsel:

A N Isac for Plaintiff
F E Geiringer for First Defendant
P Cornegè for Second Defendant

Judgment:

18 September 2017

COSTS JUDGMENT OF DOBSON J

[1] On 22 May 2017, the plaintiff, (Mr Paul) discontinued these proceedings against the first and second defendants. The second defendant, the New Zealand Māori Council (NZMC), has applied for scale costs against Mr Paul. Sir Edward Taikurei Durie, the first defendant and chair of the NZMC (Sir Edward), seeks a similar discrete order, with the addition of indemnity costs for a specific period.

Mr Paul’s claims

[2] Mr Paul and Sir Edward were co-chairs of the NZMC. Mr Paul issued the proceedings seeking judicial review of several decisions of the NZMC taken in 2015
and 2016. He alleged various procedural improprieties, including improperly

PAUL v DURIE [2017] NZHC 2248 [18 September 2017]

convened meetings, improperly advanced resolutions, and undeclared conflicts of interest between Sir Edward as co-chair of the NZMC and the NZMC’s retention of a law firm associated with Sir Edward’s wife.

[3] A strike-out application on behalf of Sir Edward in early April 2017 was unsuccessful.1 However, Mr Paul was required to file an amended statement of claim on 26 April 2017. The defendants were required to file their evidence by 11
May 2017.

[4] Mr Paul filed his amended statement of claim as required. The following day, he wrote to both defendants seeking an “in-house” solution.

[5] On 29 April 2017 the NZMC passed several resolutions. These included:

(a) reaffirming the resolutions Mr Paul called into question with his proceeding;

(b) calling for this proceeding to be withdrawn;

(c) calling for the parties to resolve the dispute “in house” via hohou i te rongo (a tikanga dispute resolution process that Mr Paul translates as “bringing peace and harmony in a time of dissention”); and

(d)appointing a working party to address the issues raised in the proceeding with respect to the NZMC.

[6] Sir Edward wrote to Mr Paul on 1 May 2017, noting that the resolutions rendered Mr Paul’s claims moot, stating that his claims nonetheless lacked merit and requesting he discontinue proceedings.

[7] In an email to the working party on 3 May 2017, Sir Edward made clear he could not engage with the hohou i te rongo process while the proceedings were still on foot.

[8] On 4 May, Mr Paul advised the defendants that he supported the NZMC’s resolution on hohou i te rongo. He also requested minutes of the 29 April meeting. Those were supplied in draft on 12 May 2017. Final copies of the minutes and resolutions were provided as appendices to the affidavit of the secretary on 16 May
2017.

[9] On 17 May 2017, Mr Paul wrote…

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 Paul v Durie

Details

AGLC: Paul v Durie [2017] NZHC 2248
Case: [2017] NZHC 2248
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Dobson J considered an application for costs made by Sir Edward Taihakurei Durie and the New Zealand Māori Council (NZMC) against Cletus Maanu Paul. Mr Paul had brought a proceeding against Sir Edward and the NZMC seeking judicial review of several decisions of the NZMC. After Mr Paul discontinued the proceeding, the defendants sought scale costs and, in the case of Sir Edward, indemnity costs. The Court was required to determine whether the presumption that costs follow the event should be displaced and whether the plaintiff had achieved his ends by other means. The Court held that Mr Paul had not discharged the onus of rebutting the presumption and that the NZMC was justified in seeking modest recognition of the costs it incurred. However, the Court found that Mr Paul’s delay in discontinuing the proceeding was not the result of bad or very unreasonable behaviour. Accordingly, the Court ordered scale costs against Mr Paul in favour of Sir Edward and the NZMC, but did not award indemnity costs. The final orders were for Mr Paul to pay $12,711 plus GST and $2,889.25 in costs to Sir Edward, and $5,575 in costs to the NZMC.

Orders