IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-764
[2023] NZHC 2686
BETWEEN
SIAOSI HETO PUKA
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
MURRAY McCULLY
Second Defendant
Hearing:
28 August 2023
Counsel:
J W Goddard and B J Peck for Plaintiff
B J R Keith and G Verhaeghe for Defendants
Judgment:
26 September 2023
JUDGMENT OF RADICH J
Table of Contents
Paragraphs
Introduction and summary [1]
Factual background[13]
Tokelau[13]
The Joint Statement of Principles of Partnership Between New Zealand and Tokelau [18] The plaintiff ’s employment[20] Circumstances leading to the plaintiff ’s dismissal[21] The plaintiff ’s dismissal [28]
The Tokelau High Court proceedings [35]
The plaintiff’s claim in this proceeding[40]
The strike out application [49]
PUKA v ATTORNEY-GENERAL [2023] NZHC 2686 [26 September 2023]
Legal principles on strike out application [52]
The issues [54]
First issue – the Joint Statement [57]
The positions of the parties [57]
Discussion [69]
Second issue – New Zealand or Tokelau law? [82]
The positions of the parties [82]
Discussion [86]
Third issue – is the second cause of action reasonably arguable? [102]
The positions of the parties [104]
Discussion [106]
Fourth issue – is the third cause of action reasonably arguable? [111]
Discussion [117]
Fifth issue – is the claim an abuse of process? [120]
Discussion [120]
Concluding comments and outcome [136]
Introduction and summary
[1] The defendants have applied to strike out the plaintiff’s claim on the grounds that none of its three causes of actions are legally tenable and that it is an abuse of process.
[2] Siaosi Puka (the plaintiff) was employed by the Government of Tokelau, most recently in the role of Director of Finance. In late 2016, the plaintiff and Jovilisi Suveinakama (who was then the General Manager of the Tokelau Public Service) purchased two helicopters on behalf of the Tokelau Government.1 They said that the purchases were made in accordance with instructions from the Council for the Ongoing Government of Tokelau (the Council)2 and that it was consistent with the terms of the 2016/17 Budget of Tokelau’s Legislative Assembly, the General Fono.
1 Mr Suveinakama is not a party to or involved in this proceeding.
2 The body which exercises executive authority in Tokelau and which is described further below.
[3] A review undertaken by an external consultancy found the purchases to have been unauthorised by the Tokelau Government. Following an employment investigation, it was found that there had been serious misconduct in the purchase of the helicopters. The contracts of employment of the plaintiff and Mr Suveinakama were, as a result, terminated by the Council on 24 November 2017.
[4] The plaintiff and Mr Suveinakama then brought proceedings in which they challenged the decision of the Council to terminate their employment contracts (the Tokelau High Court proceedings). In a decision of 26 July 2019, Churchman J, sitting as the High Court of Tokelau, found, among other things, that the Council had a substantive basis for concluding that there had…
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
AGLC
Puka v Attorney-General [2023] NZHC 2686
Case
[2023] NZHC 2686
Decision Date
CaseChat Overview and Summary
Siaosi Puka, the plaintiff, brought a proceeding against the Attorney-General and Murray McCully, the second defendant, seeking damages and other relief in relation to his dismissal from his employment as Director of Finance for the Government of Tokelau. The defendants have applied to strike out the plaintiff's claim. The plaintiff's claim is set out in three causes of action. The first cause of action is advanced under the Joint Statement of Principles of Partnership Between New Zealand and Tokelau. The second and third causes of action are advanced in tort. The second cause of action alleges that the defendants induced a breach of the plaintiff's employment contract. The third cause of action alleges that the defendants caused him economic loss by unlawful means. The defendants say that the plaintiff's claim is not legally tenable and that it is an abuse of process. The plaintiff opposes the strike out application. The Court found that the claim should be struck out. The first cause of action was found to be based on a non-binding political document which could not form the basis of a cause of action. The second and third causes of action were found to be subject to Tokelau law and to be time-barred. The second and third causes of action were also found to be untenable because the Tokelau High Court had already found that the plaintiff's dismissal was justified and that he had engaged in serious misconduct. The proceeding was also found to be an abuse of process because it repeated matters already determined in the Tokelau High Court decision.