Paul v New Zealand Maori Council

[2019] NZHC 784

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-674

[2019] NZHC 784

UNDER

the Declaratory Judgments Act 1908 [and pt 18 of the High Court Rules]

IN THE MATTER

of the Maori Community Development Act 1962 and the Maori Community Development Regulations 1963

BETWEEN

CLETUS MAANU PAUL AND OTHERS

First to eighth applicants

AND

THE NEW ZEALAND MĀORI COUNCIL

Respondent

Hearing:	19 March 2019
Appearances:	R Harrison QC and S Collinson for applicants F Geiringer and E O’Connor for the respondent
Judgment:	11 April 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]    The defendants apply to strike out a proceeding brought by the New Zealand Māori Council under the Declaratory Judgments Act 1908 concerning the proper interpretation of certain provisions in the Maori Community Development Act 1962 (the Act) and the Maori Community Development Regulations 1963 (the Regulations). The purposes of the Act are said to be “… to provide for the constitution of Maori Associations, to define their powers and functions, and to consolidate and amend [earlier legislation].”1

1      Maori Community Development Act 1962, long title.

PAUL v THE NEW ZEALAND MĀORI COUNCIL [2019] NZHC 784 [11 April 2019]

[2]    The Associations referred to are Māori Committees, Māori Executive Committees, District Māori Councils and the New Zealand Māori Council. For present purposes, how these entities are brought into existence is more important than the precise functions performed by them. The Act provides that persons of Māori descent are entitled, every three years, to elect the members of Māori Committees. Māori Committees appoint Māori Executive Committees. Māori Executive Committees then appoint District Māori Councils. Finally, District Māori Councils appoint members of the New Zealand Māori Council. The New Zealand Māori Council is a national body. The others are all regional. As Mr Harrison put it in the course of argument, this is a “bottom-up” structure in the sense that the triennial elections occur at the Māori Committee level, while the members of Māori Executive Committees, District Māori Councils, and the New Zealand Māori Council are appointed. The responsibilities of these Associations are set out in the legislation.

[3]    From the pleadings and the affidavit evidence, it is apparent that the genesis of this litigation is a schism within Māoridom between two factions, one seemingly connected with Sir Edward Durie and the other with Mr John Tamihere. I am not sure that it is fair to ascribe leadership to Sir Edward and Mr Tamihere, but connecting their names with the two factions will, if nothing else, enhance the readability of this judgment.

[4]    Elections and consequential nominations were due to take place in 2018. In five regions, the Durie faction was involved in arranging one set of elections and the Tamihere faction was involved in arranging another. The outcomes were different. A sort of reverse domino effect then occurred with different purported appointments being made to Māori Executive Committees, District  Māori  Councils  and  the  New Zealand Māori Council. At the New Zealand Māori Council level, the two factions are maintaining that different individuals hold office. As a result, the effectiveness of the New Zealand Māori Council is compromised.

[5]    Plainly, the position needs to be clarified. The plaintiff commenced this proceeding on 3 September 2018 in an attempt to seek clarification. The essential question for the Court on this application is whether that attempt is even capable of being efficacious.

[6]    The plaintiff asks the Court to rule that the elections and nominations that led to the Durie faction candidates holding office were lawful, and, conversely, that the Tamihere faction candidates do not hold office. At this point, it may be helpful to look at the original statement of claim.

The plaintiff’s claim

[7]    The original statement of claim begins conventionally by identifying and describing the parties. In this case, even this component of the pleading is controversial. However, it is not necessary to focus on this controversy. The plaintiff is the New Zealand Māori Council, which has statutory corporate status. The standing of the plaintiff to bring this proceeding is apparently challenged by the defendants, but that is not a matter that the Court is asked to address at this stage. The defendants are the Tamihere faction individuals who say that they are the lawful appointees to the New Zealand Māori Council.

[8]    The plaintiff then turns to the 2018 elections and nominations. It is alleged that all Associations under the Act “… are required to conduct elections on a triennial basis including in 2018”. That is wrong. As already stated, the legislation provides that only Māori Committees are elected. The processes of nomination to Māori Executive Committees, District Māori Councils and the New Zealand Māori Council follows. This mis-description of the processes involved is repeated throughout the statement of claim.

[9]    The plaintiff says that the 2018 elections and nominations conducted by the Durie faction were lawful in all respects and therefore the election of Durie faction candidates as members of the Māori Committees and the subsequent nominations of Durie faction nominees to Māori Executive Committees, District Māori Councils and the New Zealand Māori Council were all legitimate, so the Durie faction members are the lawfully appointed members of the New Zealand Māori Council.

[10]   The plaintiff pleads that the Tamihere faction also purported to conduct elections and make nominations in 2018, the lawfulness of which it puts in issue. Particulars of this allegation are provided. These include an assertion that the New Zealand Māori Council was entitled to issue directions in relation to the conduct of

elections or nominations, that it did so and that the election processes instigated by the Tamihere faction were not conducted in accordance with its directions.

[11]   Finally, the plaintiff alleges that despite this the defendants are holding themselves out as legitimate appointees to the New Zealand Māori Council and provides extensive particulars of this. It is pleaded that the actions of the defendants about which the plaintiff complains are effectively preventing the New Zealand Māori Council from functioning.

[12]The prayer for relief is in these terms:

Wherefore the plaintiff seeks:

A.     A declaration under s 3 of the Declaratory Judgments Act 1908 that the New Zealand Māori Council and the District Māori Councils have conducted lawful 2018 triennial elections in accordance with the requirements of the Māori Community Development Act 1962 and the Māori Community Development Regulations 1963 and the results of those elections are as set out in the whole of APPENDIX 1.

B.   A declaration under s 3 of the Declaratory Judgments Act 1908 that the defendants do not hold elected positions within the plaintiff or any District Māori Council.

C.   An order that the costs of, and associated with, this claim be paid by the defendants.

The defendants’ application

[13]   By interlocutory application filed on 21 December 2018 the defendants apply for an order pursuant to r 15.1 of the High Court Rules 2016 striking out the statement of claim. Alternatively, they seek an order requiring the plaintiff to provide further and better particulars of aspects of its claim. Finally, the defendants ask that this proceeding be transferred to Auckland.

[14]   By notice of opposition dated 25 January 2019 the plaintiff opposes an order striking out the proceeding. It indicates a willingness to provide further and better particulars of its claim. It opposes the transfer of the proceeding.

Some recent developments

[15]   A matter of days prior to the hearing of the defendant’s application, the plaintiff filed and served an amended statement of claim. This step on the plaintiff’s part is criticised. The criticism is justified to the extent that it is directed at the step being taken at the eleventh hour, but not otherwise. It is commonplace, in response to applications to strike out pleadings, for the party whose pleading is the subject of attack to file and serve an amended pleading, or offer a draft amended pleading, to demonstrate that any infelicities in the original pleading are capable of being corrected. That, in effect, is what the plaintiff has attempted to do here.

[16]   The plaintiff’s underlying claim has not changed. It has sought, imperfectly, to correct the inaccurate descriptions of the election and nomination processes. It has added further particulars of aspects of its case. But otherwise little has changed.

Application to strike out statement of claim

[17]   The grounds upon which the defendants seek this order (and the alternative order requiring the plaintiff to provide further particulars of its claim) are articulated in detail in their notice of application. Variously, it is said that the plaintiff’s pleading does not give rise to a tenable cause of action, that it is likely to result in prejudice or delay, that it is frivolous or vexatious and that it is an abuse of process.

[18]In the end, the primary arguments coalesce around three key points:

(a)the form of the proceeding and the appropriateness of a pt 18 proceeding having regard to the nature of the case;

(b)the inadequacy of the statement of claim; and

(c)the availability of the single remedy sought — a declaration pursuant to s 3 of the Declaratory Judgments Act.

Form of proceeding

Part 18 of the High Court Rules 2016

[19]   Parts 18 and 19 of the Rules provide for exceptional means of commencing proceedings.

[20]   Part 18 is directed at proceedings wholly within the Court’s equitable jurisdiction, including proceedings pursuant to certain statutes that have codified aspects of that jurisdiction. These expressly include proceedings in which relief is sought solely pursuant to the Declaratory Judgments Act.2

[21]   As a rule, pt 18 proceedings are commenced by notice of proceeding and statement of claim as with ordinary proceedings, but they may, where the case also falls within part 19, be commenced by originating application.3 There are special rules relating to the conduct of pt 18 proceedings. The most obvious differentiator between ordinary proceedings and pt 18 proceedings is that, unlike in the former, in pt 18 proceeding evidence — in chief at least — is usually in affidavit form. However, with the advent of case management and written proofs of evidence in chief, that difference may now be more apparent than real.

[22]   Part 19 provides for the commencement of proceedings by originating application (as opposed to notice of proceeding and statement of claim). Certain very limited categories of proceeding are identified as capable of being commenced in this way. It is, as Mr Harrison submits, a method of commencing proceedings that is directed at cases where there are no significant factual disputes. The authors of McGechan on Procedure say that pt 19 is designed to provide a speedy and inexpensive mechanism. They continue:4

As MacKenzie J has described in Fisk v X [2014] NZHC 2797 at [18], Part 19 was initially designed as an expedient for cases where there was in reality no opposing party. That narrower approach is no longer applied, but Part 19 remains a procedure generally used for cases where it is not necessary to have full pleadings and interlocutory steps … for the proper determination of the issues.

2      High Court Rules 2016, r 18.1(b)(v).

3      Rule 18.4.

4      McGechan on Procedure (online ed, Thomson Reuters) at [HRPt19.01].

[23]    Initially, the plaintiff commenced this proceeding under pt 18, but elected, instead of filing a notice of proceeding and statement of claim, to file an originating application, presumably in reliance on pt 19. That may have reflected a failure to distinguish between cases that are not seriously opposed and cases in which a plaintiff believes that his, her or its case is unanswerable and that the proper outcome is obvious. Be that as it may, in a minute dated 27 September 2018 Churchman J directed the plaintiff to file a statement of claim. In order to succeed the plaintiff will have to establish a factual foundation for the relief it seeks, and the factual background is not without its complications. To that extent, the criticism of the original form that the proceeding took is justified. But the position has now been regularised. What is proceeding to trial is a pt 18 proceeding that is now pleaded conventionally.

[24]In my view, the plaintiff’s false start is not a basis to strike out its claim.

[25]   Mr Harrison submits that pt 18 proceedings are not apt to deal with cases that raise complex factual issues. It “plainly contemplates” he submits “a much more abbreviated and factually uncontested litigation process than may and often will arise in an ordinary action”. In my judgement, that submission applies not to pt 18 proceedings but to originating application proceedings under pt 19.

[26]   For myself I can see no reason in pt 18 itself or in logic why cases that raise factual disputes should not be dealt with under the part. Indeed, it may be that where certain remedies are sought — such as a declaration — a pt 18 proceeding are the only option for a plaintiff. It may be possible to infer some general support for this from the judgment of Hammond J in Countrywide Finance Ltd v State Insurance Ltd.5 However the report of that case does not mention whether the proceeding was commenced as a pt 18 proceeding or not.

[27]   In any event, pt 18 expressly applies to any application for an order solely pursuant to s 3 of the Declaratory Judgments Act. That being so, it is difficult to see how a plaintiff may be criticised for relying on that to commence a pt 18 proceeding if indeed the relief is sought solely pursuant to s 3, irrespective of whether the case is fact heavy.

5      Countrywide Finance Ltd v State Insurance Ltd [1993] 3 NZLR 745 (HC) at 749–753.

[28]   The final point is that having now had an opportunity to review the pleadings and the affidavit evidence filed and served for this interlocutory application, it is not at all obvious to me that this is a case in which there are significant factual differences between the parties. The parties agree that two sets of purported elections were held in certain regions and that, essentially, this was a result of the New Zealand Māori Council (controlled by the Durie faction) directing that elections be held on a particular day while the Tamihere faction disputed the validity of those directions.

[29]As already said, the Court will be required to determine the factual background

— the events around the 2018 elections in the five regions and the consequential nomination processes. These matters are not without their complications, but, by and large, the parties seem to be on common ground in relation to what took place. Where they disagree is on the legal implications of those events.

A single proceeding

[30]   A further contention advanced by Mr Harrison is that it is an abuse of process, or likely to cause prejudice or delay, for the plaintiff to put in issue in this proceeding the elections and consequential nominations in five regions. In this regard, he referred to this Court’s judgment in Nehemia v Auckland District Māori Council.6 In my view, Nehemia is not authority for the proposition that it is inappropriate to include challenges in respect of elections and nominations in more than one region in one claim. Nehemia related to only one region. It is scarcely surprising that the proceeding was limited to a challenge in respect of that region. There is nothing in Collins J’s judgment that would suggest that in different circumstances the lawfulness or legitimacy of elections or nominations in more than one region could not be raised in one proceeding.

[31]   Nor, in my view, is there anything in rr 5.17(1) or 5.27(2) that requires those issues to be considered in separate proceedings, as Mr Harrison contends. Indeed, it seems to me that in a case that raises similar issues in relation to two or more regions, r 10.12 would suggest that, all other things being equal, it is preferable to deal with those challenges in one proceeding.

6      Nehemia v Auckland District Māori Council [2017] NZHC 1998.

[32]   It is in the interests of both disputant factions here, and, even more importantly, those New Zealanders who stand to benefit from well-functioning Māori Associations, to get this matter resolved. In the end, if those most directly involved are unable to resolve their differences — which one might be forgiven for expecting they would make a serious attempt to do — then the Court is the right venue for resolving them, and if all issues can be resolved in one proceeding then they should be.

The pleading issue

[33]   As Mr Harrison submits, the original statement of claim is virtually silent in relation to a contention now pursued by the plaintiff that it is entitled to rely on a record of the elected or appointed members of the various associations (from Māori Committees to the New Zealand Māori Council) as being conclusive. That, in my view, is a fair criticism. There is an obscure reference in paragraph 16.7 of the original statement of claim to such a contention. But a reader of the document could certainly not be expected to deduce that it formed a significant part of the plaintiff’s case. That has not substantially changed in the amended statement of claim.

[34]   That said, as Mr Geiringer submits, the point was certainly raised in the plaintiff’s affidavit evidence filed in support of its claim, and the gap in the pleading is one that is perfectly capable of being rectified. The Court has a discretion as to whether or not to strike out even a flawed pleading. As a general principle it will not do so where the pleading is capable of being rectified and there are no limitation or similar issues so that the net result of striking out the pleading would simply be to force the plaintiff — and any other parties — to start again with the consequential waste of time and resources. For that reason, it is difficult to see that this point goes anywhere.

Section 3 of the Declaratory Judgments Act

[35]   That brings me to what I perceive to be the substantive basis for this application. The defendants’ primary contention is that s 3 of the Declaratory Judgments Act, on which the plaintiff relies, is unavailable in the circumstances of this case. Mr Harrison submits that:

… the overall claim pleaded in the SOC necessarily falls outside the statutory language:

40.1What the defendants are alleged to have done – conduct invalid Māori Committee elections – cannot be characterised as the doing of “any act, the validity, legality or effector which depends on the construction

… of any statute, or … regulation … or any deed, will or document of title, or any agreement …”, etc;

40.2Equally, the plaintiff does not claim by means of the SOC “to have acquired any right under any such statute” etc, or “to be in any other manner interested in the construction or validity thereof”;

40.3Nor does the pleaded claim either expressly or in substance seek “a declaratory order determining any question as to the construction or validity of” any such statute, [etc] or any part thereof. No specific provisions of either the Act or the Regulations are invoked, far less identified as in need of “construction”.

[36]   In my judgement, that analysis starts from too narrow a view of the case. Essentially, the plaintiff is seeking clarification as to whether or not the elections and nominations that it says have resulted in the Durie faction nominees holding office as New Zealand Māori Council members were valid. Ultimately, that must turn on a proper construction of the Act and the Regulations. They are the governing instruments. It can turn on nothing else. On that basis alone, applying an appropriately wide interpretation to s 3 of the Declaratory Judgments Act,7 I can see no legitimate reason why the plaintiff cannot seek a ruling in relation to that issue from the Court.

[37]   With respect to the first limb of the argument, it is obvious that a key issue in the case will be the scope of the New Zealand Māori Council’s authority to issue directions to subordinate Māori Associations in relation to the holding of elections and appointments. That issue must depend upon the proper application to the facts of the legislation and, in particular, s 16(2) of the Act, which provides:8

Each District Maori Council shall be subject in all things to the control of the New Zealand Maori Council and shall act in accordance with all directions, general or special, given to it by the New Zealand Maori Council.

[38]   The second limb of the argument is that in its statement of claim the plaintiff does not claim to have acquired any right under any statute or to be in any other way

7      See Mandic v Cornwall Park Trust Board [2012] 2 NZLR 194, [2011] NZSC 135 at [5].

8      See also Maori Community Development Act 1962, ss 10(2) and 13(2), which provide corresponding powers to Māori Executive Committees and District Māori Councils.

interested in the construction or validity of a statute. For the reasons already described, the status of the plaintiff as currently constituted must turn on the proper application to the facts of the Act and the Regulations. In short, the plaintiff is claiming that, as currently constituted, it has all the rights and obligations conferred on a properly constituted New Zealand Māori Council and is asking the Court so to rule. The merits or otherwise of that contention depend on the construction the legislation, and its application to the facts.

[39]   The final limb of the argument is that, as pleaded, the plaintiff’s claim does not seek a declaration as to any question of construction of the legislation. Whilst it is probably fair to say that the plaintiff does not expressly seek such a declaration, but rather an order as to the validity or otherwise of the New Zealand Māori Council as currently constituted, that appears to me to be a distinction without a difference. The availability or otherwise of the declaration sought is heavily dependent on the proper construction of the legislation.

[40]   In short, attempting to look at these matters from a wider perspective, the merits of the plaintiff’s case, and the availability of the relief it seeks, must, in the end, depend upon an interpretation of the Act and the Regulations and the application of their provisions to the factual background as it is determined.

[41]   That, in my judgement, is enough to bring the case within the four corners of s 3 (as in the past it would have been enough to bring it with the category of case in which equity would have offered a declaratory remedy where the common law would not).

[42]   For those reasons, I dismiss the defendants’ application to strike out the proceeding.

Application for further and better particulars

[43]   The defendants’ application for further and better particulars is of course complicated by the plaintiff’s last-minute amendment of its pleadings.

[44]   As a result of this complication, Mr Harrison wisely indicated during the course of the hearing that he was unable to pursue the application for further and better particulars for the practical reason that he had not had an opportunity to properly analyse the amended pleading and determine what if any aspects of the particulars sought were now answered. As he said, this issue is best left for determination at a later stage.

Venue

[45]   As Mr Harrison correctly submitted on behalf of the defendants, this proceeding was incorrectly filed in the Court’s Wellington Registry.

[46]   Rule 5.1 materially provides that the proper registry for the commencement of a proceeding is the registry nearest by the most practicable route to the residence or place of business of the first-named defendant. In this case, assuming that the plaintiff has correctly identified the first defendant’s place of residence as Ohope, then the proceeding should have been filed in the Court’s Rotorua Registry.

[47]No one wants the proceeding transferred to Rotorua.

[48]   The defendants contend that I should make an order transferring the proceeding to the Auckland Registry, because, they say, that registry “would be more convenient to the parties” as the majority of the defendants live there or within reasonable striking distance.9

[49]   Informally, this issue has already been before the Court.   In his minute of   27 September 2018, Churchman J declined to order a transfer, effectively saying that as Wellington was where the plaintiff had its offices, there was at least that much to be said for the litigation being dealt with here, and that there was no particular reason why it should be transferred to Auckland. In relation to this I respectfully take a different view.

9      High Court Rules 2016, r 5.1(5).

[50]   Given that the plaintiff has commenced this proceeding in the wrong registry, it seems to me that there is some force in Mr Harrison’s contention that it should be transferred to the registry that is least inconvenient from the perspective of the defendants collectively, and I accept from him that that is Auckland.

[51]   I do not think it is open to the plaintiff to complain given that it filed the proceeding in the wrong registry in the first instance.

[52]   For those reasons, I propose to order the transfer of the proceeding to Auckland.

Conclusion

[53]In summary, then:

(a)the plaintiff’s application for an order pursuant to r 15.1 striking out the statement of claim is dismissed;

(b)the defendants’ application for an order for further and better particulars is also dismissed, but the defendants, to the extent that they need leave to do so, shall not be precluded from filing a second application for further and better particulars once they and their advisers have had an opportunity to review the plaintiff’s amended statement of claim dated 6 March 2019;

(c)on the defendants’ application pursuant to r 5.1(5), I order the transfer of this proceeding to Auckland;

(d)the Auckland Registrar is requested to liaise with counsel with a view to this matter being set down for a case management conference as soon as possible.

[54]Costs are reserved. In the event that counsel are unable to agree on costs — as

I would expect them to be able to do — they may come back to me by memorandum as necessary.

Associate Judge Johnston

Solicitors:

Phoenix Law Ltd, Wellington for applicants Tompkins Wake, Hamilton for respondent