Ririnui v Landcorp Farming Ltd (No 1)

[2014] NZHC 732

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-2915 [2014] NZHC 732

UNDER  the J udicature Amendment Act 1972

BETWEEN  MITA MICHAEL RIRINUI Plaintiff

ANDLANDCORP FARMING LIMITED First Defendant

THE MINISTER FOR STATE-OWNED ENTERPRISES and THE MINISTER OF FINANCE

Second Defendants

THE ATTORNEY-GENERAL Third Defendant

Counsel:                  A N Isac and G Richards for Plaintiff

S A Barker, B Gnanalingan and L Brazier for First Defendant
J Gough and D Soper for Second and Third Defendants

Judgment:                9 April 2014

JUDGMENT (NO. 1) OF WILLIAMS J

[1]      This matter is set down to be heard on 16 and 17 April 2014.  The plaintiff challenges the legality of decisions by Landcorp and its shareholding Ministers to sell   Wharere   Farm   instead   of   making   it   available   in   settlement   of   Ngati Whakahemo’s Treaty of Waitangi claims.

[2]      It seems accepted that Wharere Farm is within Ngati Whakahemo’s mana whenua.   Heads of claim revolve around s 9 of the State-Owned Enterprises Act. The allegation is that Landcorp and shareholding Ministers each breached the section in their own respective spheres by failing actively to protect Ngati Whakahemo

interests,  by failing to  act  with  utmost  good  faith,  by breaching their  duties  to

RIRINUI v LANDCORP FARMING LIMITED & ORS [2014] NZHC 732 [9 April 2014]

address past wrongs, and by taking steps that would hinder or render more difficult the grant of redress for past Treaty breach.   There is also an argument against Landcorp in legitimate generated (it seems) in discussions between Landcorp and Ngati Whakahemo interests in February/March this year.  Appropriate declarations are sought together with an order by way of injunction in relation to the sale.

[3]      The plaintiff now seeks discovery orders relating to:

(a)      communications between  Landcorp and/or its solicitors and Micro Farms Limited (the purchaser) or its solicitors with respect to the sale and purchase of the Wharere Farm between 27 February 2014 and

6 March 2014 inclusive; and

(b)      any other documents within Landcorp’s control relating to the terms of the agreement  for sale and  purchase signed  with  Micro  Farms Limited, and the timing of the sale to Micro Farms Limited.

[4]      The plaintiff says these documents are relevant because they will or could shed light on the allegation that Landcorp acted contrary to its obligations under the Treaty of Waitangi particularly that of utmost good faith.  A second argument is they go to the question of relief and Landcorp’s claim to prejudice.

[5]      Discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary.   Public authorities usually disclose relevant documentation in affidavit evidence without the need for specific orders.  And, as it is often said, judicial review is intended to be a short and simple means by which to test the legality of public sector decision-making affecting ordinary citizens.  But on the face of it, such documents as are sought here are within the penumbra of the claim as put by the plaintiff. They are prima facie relevant.

[6]      In this case, Mr Barker for Landcorp opposes discovery orders as sought.  In a short but comprehensive memorandum, he argued that the plaintiff’s case cannot possibly succeed on the authorities because neither s 9 nor Treaty obligations bind

Landcorp.   He cited extensive authority:   Te Heuheu v Attorney-General1  and the recent decision in New Zealand Māori Council v Attorney-General (the Water case)2 to make his point.   Mr Barker indicated that it had been his intention to apply to strike the case out but because an urgent two day fixture had been granted for the

substantive application, he agreed to save his powder until then.

[7]      In response, Mr Isac simply said these are cases about which he will be making argument on the day.  He says they are not fatal to his case at all.

[8]      So Mr Barker’s opposition boils down to the following proposition: the case cannot   possibly  succeed   so   the   documents   sought   cannot   be   relevant   and discoverable.   It is wrong in principle in considering a discovery application, to decide whether the substantive case can succeed.   If Mr Barker wanted an early finding about arguability, he needed to make the application.   I do not know how Mr Isac  will  be  mounting  his  argument.    He  is  no  doubt  aware  that  he  faces significant obstacles.  But as his case is currently constructed, the documents sought are plainly relevant and must be discovered unless privileged.

[9]      There will be an order accordingly.

Williams J

1      Te Heuheu v Attorney-General [1999] 3 NZLR 646

2      New Zealand Māori Council v Attorney-General (the Water case) [2013] 3 NZLR 31.