Reihana v Rakiura Titi Committee
[2025] NZHC 218
•21 February 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2014-425-102 CIV-2016-425-15 CIV-2016-425-16 [2025] NZHC 218
BETWEEN TONI COLIN REIHANA
Plaintiff
AND RAKIURA TITI COMMITTEE
First Defendant
AND AND OTHERS
Second to Seventh Defendants
Hearing: 7 November 2024 and 18 December 2024 via VMR Appearances: Plaintiff in person (via AVL)
C Lenihan for the Defendants
S Bull and M S Clearwater in attendance for the Defendants
Judgment: 21 February 2025
JUDGMENT OF HARLAND J
(Application for security for costs)
Introduction
[1] This judgment determines an application by the first defendant that the plaintiff pays security for costs in relation to his application to lift the stay of three proceedings issued in this Court against the first defendant and others, ordered by Gendall J on 31 August 2016.1
[2]The plaintiff opposes the application for security for costs.
1 Reihana v Rakiura Titi Committee [2016] NZHC 2048 [the stay decision].
REIHANA v RAKIURA TITI COMMITTEE [2025] NZHC 218 [21 February 2025]
[3] I have decided to grant the first defendant’s application but not for the amount sought. This judgment sets out my reasons for doing so.
Legal principles
[4] Rule 5.45 of the High Court Rules 2016 (HCR) outlines the matters that must be considered before an order for security for costs can be made. It provides:
5.45 Order for security of costs
(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a)that a plaintiff—
(i)is resident out of New Zealand; or
(ii)is a corporation incorporated outside New Zealand; or
(iii)is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or
(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.
(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3) An order under subclause (2)—
(a)requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i)by paying that sum into court; or
(ii)by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and
(b)may stay the proceeding until the sum is paid or the security given.
(4) A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.
(5) A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.
(6) References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document
filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.
[5] Once the threshold test in r 5.45(1) is met, I must establish whether it is just in all the circumstances to make an order. This determination is highly discretionary,2 requiring a broad overall assessment.3
[6] The parties’ interests must be carefully balanced and the fact an order may prevent a plaintiff from pursuing a claim is highly relevant. Access to the courts for a genuine plaintiff is not to be lightly denied but, as well, defendants must be protected from unjustified litigation.4 The case law stresses the importance of access to justice, with this Court noting that, where ordering security for costs would have the likely effect of terminating a proceeding, the threshold is similar to that required for strikeout.5
[7] Finally, when determining the amount of security to be paid, should I do so, I am to consider matters in the round,6 with an eye to the following circumstances:7
(a) the amount or nature of relief claimed;
(b) the nature of the proceeding, including possible complexity and novelty;
(c) the estimated duration of the proceeding; and
(d) the probable costs payable if the plaintiff is unsuccessful.
[8]As such, the issues to be determined by me on this application are:8
(a) has the first defendant satisfied the Court that the threshold test in r 5.45(1) is met?
2 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13].
3 Hamilton v Papakura District Council (1997) 11 PRNZ 333 (HC) at 335; Wishart v Murray [2016] NZHC 3132 at 4.
4 A S McLachlan v MEL Network Ltd, above n 2, at [15]–[16].
5 Deliu v Chapman [2020] NZHC 2100 at [5]–[6].
6 Red 9 Ltd v The Learning Ladder Ltd (in liq) [2021] NZCA 284 at [30].
7 McNaughton v Miller [2022] NZCA 273 at [17].
8 Jindal v Kamal [2023] NZHC 2820 at [9].
(b) if the threshold test is met, is it just in all the circumstances to make an order for security for costs under r 5.45(2)?
(c) if so, what order should I make?
Submissions
[9]The first defendant submits that its application ought to be granted because:
(a) the plaintiff is resident out of New Zealand;
(b) there is reason to believe that he will be unable to pay the first defendant’s costs if his application is unsuccessful; and
(c) it is just in all the circumstances for an order to be made.
[10]In its application for security for costs, the first defendant sought the sum of
$2,500. It now seeks $6,453 which is the full amount it calculates would be payable under the HCR should it successfully oppose the application to lift the stay.
[11] The first defendant’s application was supported by an affidavit from Stewart Bull, the chairperson of the first defendant, who has been a member for 23 years. Mr Bull notes the plaintiff resides in Australia, receives a benefit and has sought a waiver of the Court scheduling fee of $640. Mr Bull suggests the plaintiff is unlikely to be able to pay any costs awarded against him should he be unsuccessful in his application. Mr Bull claims the first defendant has been awarded $13,000 in costs over the years in proceedings against the plaintiff and has “not recovered any outstanding costs to date”.
[12] The plaintiff opposes the application. He filed a notice of opposition and affidavits outlining his reasons for this. In very broad terms, he submits:
(a) he has already paid the security for costs amounting to $2,500 in relation to the three proceedings that were subsequently stayed by Gendall J;
(b) there have been continued miscarriages of justice, meaning that the Court should take an equitable and ethical approach, preventing further security for costs being imposed; and
(c) the merits of his application to lift the stay are such that it would be unjust to impose further security for costs.
Discussion
Has the first defendant satisfied the Court that the threshold test has been met?
[13] Only one of the matters outlined in r 5.45(1) need to be met to satisfy the threshold test. The plaintiff is resident in Australia, as proven by the Australian address for service on his documentation. Although the plaintiff may spend some time in New Zealand, I am satisfied that, in the main, he resides out of New Zealand.9 The test is satisfied.
Is it just in all the circumstances to make an order for security for costs?
[14] Under this heading, I consider the matters both parties submit are relevant to the exercise of the Court's discretion. These include their assessments of the merits of the plaintiff's application to lift the stay, whether the plaintiff has paid other costs awarded against him and/or security for costs, and whether the miscarriages of justice the plaintiff alleges are relevant to the exercise of the Court's discretion.
Merits
[15] There is a very real limit as to how far the enquiry about the plaintiff's application to lift the stay can go, given that the evidence to support the application to lift the stay is not fully before the Court and the parties have not had an opportunity to develop their cases in relation to that evidence by way of submissions.10 The full assessment of the merits will be a matter for the Judge determining the plaintiff’s substantive application to lift the stay.
9 Bolton v New Zealand Insurance Co Ltd (1993) 7 PRNZ 71 at 2–3.
10 Lee v Lee [2019] NZCA 345 at [73]; McNaughton v Miller, above n 7, at [19].
[16] The first defendant submits that the plaintiff is seeking to relitigate issues that have already been decided by Gendall J in the High Court11 and affirmed by the Court of Appeal.12
[17] Gendall J held that it would be an abuse of process to hear the plaintiff's claims given that the Titi (Muttonbird) Regulations 1978 (the Regulations) provide a method of resolution for them. He found this process should be employed before the plaintiff's proceedings in the High Court could be determined.13
[18] The Court of Appeal affirmed this by stating that, in relation to Rakiura Māori, the “regulations establish a framework for self-governance by those who have the knowledge and experience to govern according to tikanga, which encompasses Māori customary law and practice".14
[19] The Regulations govern the first defendant in its capacity as a committee which is elected at an annual meeting. Each tītī island may have a supervisor who is nominated at the annual meeting by those frequenting that island. The supervisor is appointed by the first defendant.15
[20] Regulation 9 allows a beneficiary, such as the plaintiff, who is dissatisfied with a decision of the first defendant to apply for a matter to be referred to an independent decision maker for resolution.
[21] The plaintiff submits that he has complied with the reg 9 process, but the first defendant has stalled it by being unduly pedantic about what is to be referred to the independent decision maker. He submits the first defendant has unreasonably and wrongly refused to engage in the process until he pays all the costs associated with the mediation and other costs the committee says is owing to it under orders of the Court.
11 Reihana v Rakiura Titi Committee, above n 1 [the stay decision].
12 Reihana v Rakiura Titi Committee [2018] NZCA 325, [2018] NZAR 1652.
13 Reihana v Rakiura Titi Committee, above n 1, at [49] [the stay decision].
14 Reihana v Rakiura Titi Committee, above n 12, at [4].
15 At [5].
[22] In relation to the plaintiff having to pay all the costs of the independent process, the plaintiff refers to the first defendant's recent change of mind that it now agrees to pay half of those costs.
[23] But as well, based on the dissenting judgment in Tannadyce Investments Ltd v Commissioner of Inland Revenue, the plaintiff submits there is merit in the stay being lifted because it is the legality of the committee's decisions and decision-making that is being sought by him in the substantive proceedings for judicial review.16 He submits these are constitutional matters that the High Court has the jurisdiction to consider and, accordingly, the process outlined in reg 9 does not apply.
[24] Although the plaintiff agreed to use the reg 9 process, the Tannadyce argument appears to be raised as an alternative. The plaintiff's argument appears to be that the application to lift the stay has merit because the dissenting judgment in Tannadyce applies but, it if does not and the reg 9 process must proceed, the process has not been stalled by him, but by the first defendant. If I accept his submission about the first defendant's approach, he submits this is relevant to whether I should make an order for security for costs.
[25] Whether or not the correspondence from the plaintiff properly engages the reg 9 process is a matter to be determined by the Judge hearing the application to lift the stay. During this hearing, the appropriateness of the first defendant's stance can be ventilated and the relevance of it considered in an appropriate context. I remind myself that this application is not an application to strike out the plaintiff's application to lift the stay and, given the limited nature of the enquiry as to the merits on an application for security for costs, it would be unwise to make any definitive statement about it.
[26] The plaintiff’s submissions encapsulate the themes which he says are relevant to the merits of his case. I am satisfied that, on a preliminary basis and for the purposes of this application, it cannot be said that there is no basis for the application to lift the stay to proceed to be determined.
16 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153.
[27] The real issue is whether I should order security for costs given the other matters both parties raise.
Prior costs not paid and/or prior security costs paid
[28] This Court has recognised that unwillingness to pay costs weighs in favour of granting an order of security for costs.17 As Kós J observed in Highgate on Broadway Ltd v Devine, although access to justice is an essential human right, the cost of exercising that right is the payment of costs in the event of failure.18 The first defendant refers to the fact that the plaintiff has not paid costs in other proceedings, totalling around $13,000 in funds owed.
[29] Against that, as the plaintiff correctly notes, he has paid the security for costs ordered by Dunningham J on 11 December 2014 into Court, being security in the sum of $2,500.19 However, these costs do not relate to this application as the substantive proceedings for which they were ordered are still extant, albeit stayed.
Continued miscarriages of justice
[30] The plaintiff submits there have been continual miscarriages of justice associated with his three proceedings. These alleged miscarriages of justice are:
(a) the continued management of the proceedings by Associate Judge Lester when an Associate Judge does not have the jurisdiction to case manage judicial review proceedings;
(b) actions by the Judicial Complaints Commissioner for failing to uphold his complaint about Associate Judge Lester case managing his application to lift the stay when an Associate Judge has no jurisdiction to do so. The plaintiff has issued judicial review proceedings against the Judicial Complaints Commissioner out of the Wellington High Court dealing with this;
17 Taylor v Adair [2018] NZHC 1975 at [30]; Burden v Dixie Cummings New Zealand [2016] NZHC 729 at [22].
18 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [23](b).
19 Reihana v Rakiura Titi Committee [2014] NZHC 3166 at [17].
(c) the Court of Appeal wrongfully ignored a decision of the Privy Council called Miller20 so that the costs awarded against him arising out of the Court of Appeal proceedings are unjustified;
(d) an allegation that the first defendant has arbitrarily seized control of the reg 9 process and is stifling and sabotaging it; and
(e) failures by the High Court Registry:
(i)in further allocating a hearing of this application to another Associate Judge; and
(ii)to properly consider the plaintiff's application for a waiver of fees on his application to lift the stay.
[31] Although I accept the plaintiff feels strongly about these matters, it is not necessary to traverse the substance of them in any detail in this judgment suffice to say I have carefully read his detailed submissions, memoranda and affidavits about them. Ultimately, the plaintiff's point is that he considers they are relevant to the Court's discretion as to whether or not he is required to pay security for costs.
[32] Although Ms Lenihan, on behalf of the first defendant, submits that the matters outlined and alleged to be miscarriages of justice are irrelevant to its application for security for costs, I agree these are matters that the plaintiff has ventilated elsewhere and none are persuasive in relation to my decision.
[33] I am required to consider now whether it is just in the circumstances to order security for costs. I am persuaded to grant security for costs because:
(a) the plaintiff already owes $13,000 in Court costs to the first defendant in matters related to the overarching proceedings, with evidence of prior resistance to paying previous judgment debts weighing in favour of a security grant;21
20 The plaintiff submits he cannot find the Miller case now because it is archived so no case reference was provided.
21 Taylor v Adair, above n 17, at [30], citing Burden v Dixie Cummings New Zealand, above n 17, at
[22] and Mawhinney v Auckland Council [2014] NZHC 3207.
(b) the plaintiff’s application for fee waiver, his status as a beneficiary and his failure to pay court ordered amounts suggest an inability to pay. The authorities suggest, where direct evidence is lacking, it can be sufficient to adduce evidence of surrounding circumstances from which an inference of inability to pay can be reasonably drawn;22
(c) the Committee receives much of its funding through grants properly meant for other purposes — it is entitled to some protection in the case of the plaintiff’s failure; and
(d) even though I have found the case to be arguable, the manner in which the plaintiff presents material to the Court tends to confirm Dunningham J's concern about the litigious approach she considered he adopts. Some form of protection for costs to the first defendant is reasonable, as noted by the Supreme Court.23
[34] Having said this, like Dunningham J, I accept the plaintiff has some right to avail himself of the processes of the Court24 and the requirement that he pay $6,453 as security for costs would be unjust. As Dunningham J said:25
When Courts fix security for costs, they do not usually fix security for the full amount of a likely award of costs, but usually allow some element of discount.
[35]I consider $1,000 to be sufficient security for costs because:
(a) it offers some protection to the first defendant but is unlikely to set too high a bar for the plaintiff to access the court to advance his application;26 and
(b) given the interlocutory nature of this application, awarding security for costs in excess of what was required to apply to lift the stay would be disproportionate.27
22 Totara Investments v Abooth Ltd HC Auckland CIV-2007-404-990, 4 March 2009 at [28].
23 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737, at [39].
24 Reihana v Rakiura Titi Committee, above n 19, at [16]; Reekie v Attorney-General, above n 23, at [3].
25 Reihana v Rakiura Titi Committee, above n 19, at [15].
26 Clear White Investments Ltd v Otis Trustee Ltd [2016] NZHC 2837 at [13].
27 Reihana v Rakiura Titi Committee, above n 19. Dunningham J fixed security for costs at $2,500.
Result
[36] I direct that the plaintiff is to provide security for costs in the sum of $1,000, to be paid by 5.00 pm on Friday 4 April 2025.
[37] In the event the plaintiff does not provide security for costs, the proceeding will be stayed pending further order of the Court, with leave granted to the first defendant to apply to have the proceeding struck out if the default in providing security for costs continues for 30 working days after the due date.
Harland J
Solicitors:
C M Lenihan, Barrister, Invercargill.
Copy to:
R C Reihana, plaintiff.
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