Royal Caribbean Cruises Limited v Tourism New Zealand Limited
[2024] NZHC 2265
•13 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1278
[2024] NZHC 2265
IN THE MATTER of civil proceedings commenced in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida
AND
IN THE MATTER
of a letter of request for examination in New Zealand
BETWEEN
ROYAL CARIBBEAN CRUISES LIMITED
Applicant
AND
TOURISM NEW ZEALAND LIMITED
First Respondent
Continued:…/2
Hearing: 16 July 2024 Appearances:
G K Holm-Hansen for Applicant
D A Campbell and D Durovich for First Respondent
G Carter and G Gallaway for Second, Sixth, Seventh, and Eighth Respondents
Judgment:
13 August 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 13/08/2024 at 1pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel: Hesketh Henry, Auckland Dentons, Auckland
Chapman Tripp, Auckland
ROYAL CARIBBEAN CRUISES LTD v TOURISM NEW ZEALAND & ORS [2024] NZHC 2265 [13 August 2024]
Continued:… AND INSTITUTE OF GEOLOGICAL AND NUCLEAR SCIENCES LIMITED
Second RespondentWORKSAFE NEW ZEALAND (Discontinued) Third Respondent
CASEY BROAD (Discontinued) Fourth Respondent
CAROLYN DEUCHAR (Discontinued) Fifth Respondent
MICHAEL ROSENBERG
Sixth RespondentGILLIAN JOLLY
Seventh RespondentBRAD SCOTT
Eighth Respondent
Table of Contents Para No.
Introduction[1]
Preliminary matters[12]
Background[16]
Evidence for use in civil proceedings overseas [35]
Issues [45]
Discussion [46]
Section 187[63]
TNZ[68]
GNS[79]
The sovereignty issue[90]
Result[110]
Introduction
[1] This matter concerns the compellability of witnesses to give evidence in a civil proceeding overseas. The litigation arises out of the tragic events of 9 December 2019 when passengers on the Ovation of the Seas, a Royal Caribbean Cruises Ltd (RCCL) cruise ship undertook a shore excursion to Whakaari/White Island.
[2] On the afternoon of 9 December 2019 there was a volcanic eruption on the island. At the time, 47 people were on the island in three separate groups. Two of those groups, comprising 37 passengers and one crew member, were part of the shore excursion from the Ovation of the Seas. Of the 47 people on the island, 22 people
died as a result of injuries sustained during the eruption. The remaining 25 suffered various injuries, most of them severe or critical.
[3] A number of victims and families of victims have made claims against RCCL in Florida, United States (US Proceedings). The first of these is set to be heard in the United States in September 2024.
[4] RCCL wishes to obtain evidence for the US Proceedings from the New Zealand Tourism Board known as Tourism New Zealand (TNZ) and the Institute of Geological and Nuclear Sciences Ltd (GNS) together with three employees of GNS (together, the GNS Respondents).
[5] In May 2024, letters requesting judicial assistance (Letters of Request) were certified by a clerk of the Circuit Court of the Eleventh Judicial Circuit for Miami- Dade County, Florida (Eleventh Judicial Circuit Court).
[6] The Letters of Request seek the deposition under oath of evidence from each of the respondents and the production of documents. The deposition would be governed and taken in conformity with the Florida Rules of Civil Procedure and videotaped for the purpose of presentation to a jury. The jury trial is scheduled to commence on 16 September 2024.
[7]RCCL seeks orders from this Court giving effect to the Letters of Request.
[8] The Evidence Act 2006 (the Act) provides for the High Court to give effect to an application for assistance in obtaining evidence for civil proceedings overseas. Essentially a witness in New Zealand can be compelled by this court to give evidence for the purpose of overseas civil proceedings.
[9] The originating application for orders giving effect to the judicial request is made in reliance on ss 184 and 185 of the Act. Those sections give the Court a discretion to provide judicial assistance to a requesting court to obtain evidence for civil proceedings overseas. Section 187 of the Act provides that no such order may be
made that is binding on the Crown or any person “in his or her capacity as an officer or servant of the Crown”.
[10] TNZ opposes the application and says it is not compellable by reason of s 187 of the Act.
[11] The GNS Respondents also oppose the applications and say they are not compellable by reason of s 187 of the Act.
Preliminary matters
[12] The first respondent was named in the application as Tourism New Zealand Ltd (TNZL). TNZL is a shell that exists to protect its shareholder, the New Zealand Tourism Board, against others registering the name “Tourism New Zealand”. The Board is known as, and carries out its functions, using the name “Tourism New Zealand” (TNZ). The request for judicial assistance makes no reference to TNZL and instead refers to TNZ. The request concerns documents produced by TNZ (and not TNZL) pursuant to the Official Information Act 1982.
[13] At the hearing the applicant and the first respondent agreed that the proper first respondent should be TNZ. TNZL and TNZ consented to TNZL being struck out and TNZ being joined pursuant to r 4.56(1) of the High Court Rules 2016 and I made the orders accordingly.
[14] The second preliminary matter was an application for leave to commence the proceeding by way of originating application. TNZ indicated that it will abide the decision of the Court in respect of the leave application. GNS acknowledged that leave to commence proceedings by way of originating application has been previously granted in respect of applications to give effect to Letters of Request. It says, however, if there is no jurisdiction to make the orders sought in relation to any of the respondents, the interests of justice would not be served by granting leave.
[15] At the hearing I granted leave to bring the proceedings by way of originating application. There is no detriment to GNS in granting leave to commence by way of originating application. The opposition was entirely based on the merits of the
substantive application. There is no factual complexity or requirement for discovery. The issues are well defined and no witness was required for cross-examination.
Background
[16] RCCL is subject to a number of civil claims in the Eleventh Judicial Circuit Court by victims and families of victims of the Whakaari/White Island eruption. One of those is a claim for damages by Stephanie Browitt (individually) and Marie Browitt (individually and as personal representative for the late Paul Browitt and Krystal Browitt).
[17] The Browitts were passengers on the Ovation of the Seas. Marie Browitt remained on the ship while her family went on the excursion to Whakaari/White Island. Stephanie, Paul and Krystal Browitt were on Whakaari/White Island at the time of the eruption. Stephanie Browitt was injured. Paul and Krystal Browitt were killed.
[18] Litigation against RCCL was commenced on 3 December 2020 in the Eleventh Judicial Circuit Court. On 14 February 2024, a trial date of 16 September 2024 was set. The time estimate for trial is approximately one month.
[19] On 15 February 2024, RCCL filed an application for the issuance of Letters of Request to New Zealand.1 The Eleventh Judicial Circuit Court granted the application although noting extreme concern that the issuance of the Letters of Request may have the effect of unduly delaying the specially set trial date of 16 September 2024. The Eleventh Judicial Circuit Court said that this would be prejudicial to the plaintiffs, who have been waiting for the trial for over three-and-a-half years and would reward the defendant for waiting until 15 February 2024 to file the application and until 9 May 2024 to have the application heard. The application was granted subject to conditions including that the trial will not be adjourned and will remain set for 16 September 2024.
1 Also called Letters Rogatory.
[20] Each of the Letters of Request states that the Eleventh Judicial Circuit Court is satisfied that the testimony of the proposed witness is relevant, reasonably likely to lead to admissible evidence, and required for the just determination of the issues. Each letter states that RCCL’s request is narrow and calls only for testimony and documents related to the central issues. RCCL is unable to obtain the evidence by other means.
[21] The Letter of Request in respect of TNZ was issued on 16 May 2024. The specific assistance requested was that the appropriate judicial authority of New Zealand compel the appearance of the Chief Executive of TNZ to give evidence under oath and produce relevant documents for use at the trial.
[22] TNZ is described as “the Crown agency overseen by the Ministry of Business, Innovation and Employment and tasked with marketing New Zealand as an international tourism destination”. The areas of inquiry include:
1. All documents produced and topics covered in response to RCCL's Official Information Act ("OIA") request to by Tourism New Zealand, including but not limited to the following:
a.Detail related to advice received by Tourism New Zealand from any third parties regarding tours to White Island, including their operation, feasibility, safety, and risks, in the period from December 9, 2014, to December 9, 2019.
b.All Tourism New Zealand promotions and promotional material that featured or mentioned White Island from December 9,2014, to December 9, 2019.
c.Details of promotional trips to White Island hosted by Tourism New Zealand, including how many trips took place, when the trips took place, who the guests were and what entities they represented from December 9, 2014, to December 9, 2019.
d.Details of documents and correspondence relating to the provision of certifications for tours to White Island from December 9, 2014, to December 9, 2019.
e.Details of correspondence between TNZ and the Institute of Geological and Nuclear Sciences ("GNS Science") from December 9, 2014, to December 9, 2019.
2. Details related to testimony and other evidence provided by representatives of Tourism New Zealand and/or its employees for the WorkSafe New Zealand proceedings and/or other investigations into the 2019 eruption at White Island.
[23] A similar Letter of Request was issued in respect of GNS. GNS is described as “the New Zealand Crown agency charged with monitoring volcanic activity within New Zealand including at White Island”. The areas of inquiry in respect of GNS include:
1. The procedural guidelines and methods used for monitoring White Island.
2. An explanation of what is monitored at White Island and the reason for such monitoring.
3. Roles and requirements of volcanologists at GNS Science with respect to White Island.
4. Results from routine monitoring between November 1, 2019, to December 10, 2019.
5. Details of all reported incidents related to adventure tourism on Whakaari / White Island including "seven near misses from Whakaari (White Island)."
6. Details relating to the decision to upgrade the Volcanic Alert Level, including any results from gas flights, infrared surveys, or other tests from November 1, 2019, to December 10, 2019.
7. Details related to communications with tour operators and/or other entities or individuals in relation to the increased Volcanic Alert Level between November 1, 2019, and December 10, 2019.
8. Details related to communications with tour operators or other entities promoting tourism to New Zealand since 2016 regarding the suitability of taking tourists onto the volcano.
9. Details related to the decision to suspend sending scientists to White Island in the months leading up to the December 2019 eruption.
10. Details related to communications with media regarding White Island since January l, 2019.
11. Details related to testimony and other evidence provided by representatives of GNS Science and/or its employees for the WorkSafe New Zealand proceedings and/or other investigations into the 2019 eruption at White Island.
(italics in original)
[24] GNS’s representative would be asked to produce all documents in its possession, custody or control relating to the following:
1.Written procedural guidelines for monitoring White Island.
2.Correspondence (including emails, letters, meeting minutes, and notes from phone or video calls) between GNS Science and the following entities regarding Whakaari White Island between January 1, 2016, and December 9, 2019:
a.Whakaari Management Limited and/or the Buttles;
b.White Island Tours Limited;
c.Volcanic Air Safaris Limited, Aetius Limited. and Kahu New Zealand Limited;
d.Tourism New Zealand;
e.Bay of Plenty Civil Defence Emergency Management Group ("BOP.CDEM");
f.Emergency Management Bay of Plenty (the operational arm of BOP CDEM) ("EM BOP");
g.AdventureMark;
h.QualMark;
i.WorkSafe New Zealand.
3.Correspondence between GNS Science staff in relation to BOP CDEM and/or EM BOP and tours to White Island from January 1, 2016, to December 9, 2019.
4.All internal GNS Science correspondence and documentation related to visitor safety at White Island between January 1, 2016, to December 9, 2019.
5.All internal GNS Science correspondence and documentation relating to the Volcanic Alert Bulletins posted between November 1, 2019, and December 9, 2019.
6.All documentation related to GNS Science's decision to suspend its scientists from visiting White Island in the months prior to the eruption.
7.All communications with media from January 1, 2019, to present.
8.All documents submitted as part of the WorkSafe New Zealand proceedings related to White Island.
[25] Letters of Request were issued in respect of three GNS employees namely Dr Michael Rosenberg, Dr Gillian Jolly and Dr Brad Scott.
[26] The Letter of Request issued in respect of Dr Rosenberg states that on 18 November 2019, Dr Rosenberg published a Volcano Alert Bulletin raising
GNS’s Volcanic Alert Level for White Island from Level 1 to Level 2. The areas of inquiry include:
I.The procedural guidelines and methods used for monitoring White Island.
2.An explanation of what is monitored at White Island and the reason for such monitoring.
3.Roles and requirements of volcanologists at GNS Science with respect to White Island.
4.Results from routine monitoring between November 1, 2019, to December 10, 2019.
5.Details relating to the November 18, 2019, Volcanic Activity Bulletin, including its preparation and underlying data.
6.Details relating to any communications with tour operators or other entities or individuals in relation to the increased Volcanic Alert Level between November 1, 2019, and December 10, 2019.
7.Details relating to communications with media regarding White Island since January 1, 2019.
In this regard, Dr. Rosenberg would be asked to produce all documentation in his possession, custody, or control related to the following:
1.All correspondence and documentation relating to the Volcanic Alert Bulletins posted on November 18, 2019.
2.All correspondence with media related to GNS and/or White Island from January 1, 2019, to present.
3.All correspondence with tour operators or other entities or individuals related to visiting White Island from January 1, 2019, to present.
[27] The Letter of Request in respect of the seventh respondent, Dr Jolly, describes Dr Jolly as “the Chief Science Advisor for the Ministry of Business, Innovation and Employment” (MBIE). It describes MBIE as:
the public service department of New Zealand charged with, among other things, the monitoring of the Institute of Geological and Nuclear Sciences Ltd (GNS Science) and the New Zealand Tourism Board (TNZ).
[28] The letter states that Dr Jolly provided an abundance of testimony in the criminal proceedings relating to the eruption, White Island, and the efforts by the New Zealand Government to audit, certify, monitor and promote tourists to
White Island in the years leading up to the 2019 eruption. The evidence sought from Dr Jolly in the Letter of Request includes:
1.The procedural guidelines for monitoring White Island.
2.An explanation of what is monitored at White Island and the reason for such monitoring.
3.Results from routine monitoring between November 1, 2019, to December 10, 2019.
4.Details of all reported incidents related to adventure tourism on Whakaari / White Island including "seven near misses from Whakaari (White Island)."
5.Documents relating to the decision to upgrade the Volcanic Alert Level, including any results from gas flights, infrared surveys or other tests from November 1, 2019, to December 10, 2019.
6.Any communications with WIT and/or Ngati Awa in relation to the increased Volcanic Alert Level between November 1, 2019, and December 10, 2019.
7.Any communications with other parties (including helicopter tour operators) in relation to the increased Volcanic Alert Level between November 1, 2019, and December 10, 2019.
8.Any communications with tour operators or other entities promoting tourism to New Zealand since 2016 regarding the suitability of taking tourists onto the volcano.
9.Any communications with media regarding White Island since January 1, 2019.
I 0. Testimony and other evidence provided by representatives of GNS Science and/or its employees for the WorkSafe New Zealand proceedings and/or other investigations into the 2019 emption at White Island.
(italics in original)
[29] Dr Jolly would be asked to produce all documents in her possession, custody or control relating to the following:
1.Written procedural guidelines for monitoring White Island.
2.Correspondence (including emails, letters, meeting minutes, and notes from phone or video calls) between GNS and/or MBTE and the following entities regarding Whakaari White Island between January 1, 2016. and December 9, 2019:
a.Whakaari Management Limited and/or the Suttles:
b.White Island Tours Limited:
c.Volcanic Air Safaris Limited, Aerius Limited. and Kahu New Zealand Limited
d.Tourism Nev.· Zealand
e.Bay of Plenty Civil Defence Emergency Management Group (“BOP CDEM”)
f.Emergency Management Bay of Plenty (the operational arm of BOP CDEM) ("EM BOP'')
3.Correspondence between GNS Science staff and/or MBIE in relation to BOP CDEM and/or EM BOP and tours to White Island from January I. 2016. to December 9.2019.
4.All internal GNS Science and MBTE correspondence and documentation related to visitor safety at White Island between January, I. 2016, to December 9, 2019.
5.All internal GNS Science and internal MBTE correspondence and documentation relating to the Volcanic Alert Bulletins posted between 'November 1.2019, and December 9, 2019.
6.All communications with media related to White Island from January 1, 2019, to present.
7.All documents submitted as part of the WorkSafe New Zealand proceedings related to White Island.
[30] The Letter of Request in respect of the eighth respondent, Dr Scott, states that on 3 December 2019 prior to the eruption, Dr Scott published a Volcano Alert Bulletin stating:
While activity is contained to the far part of the lake, the current level of activity does not pose a direct hazard to visitors.
[31]The evidence sought from Dr Scott is:
1.The procedural guidelines and methods used for monitoring White Island.
2.An explanation of what is monitored at White Island and the reason for such monitoring.
3.Roles and requirements of volcanologists at GNS Science with respect to White Island.
4.Results from routine monitoring between November 1, 2019, to December I 0, 2019.
5.Details relating to the December 3, 2019, Volcanic Activity Bulletin.
6.Details relating to any communications with tour operators or other entities or individuals in relation to the increased Volcanic Alert Level between November 1, 2019, and December 10, 2019.
7.Details relating to communications with media regarding White Island since January 1, 2019.
[32] Dr Scott would be asked to produce all documents in his possession, custody or control relating to the following:
1.All correspondence and documentation relating to the Volcanic Alert Bulletins posted on December 3, 2019.
2.All correspondence with media related to GNS and/or White Island from January 1, 2019, to present.
3.All correspondence with tour operators or other entities or individuals related to visiting White Island from January I, 2019, to present.
[33] RCCL says that since the eruption it has made multiple attempts to obtain evidence for the US Proceedings from TNZ and from the GNS Respondents. It states that GNS has been unwilling to provide any assistance. TNZ has provided some assistance.
[34] RCCL seeks the evidence to support RCCL’s affirmative defences in the US Proceedings. RCCL seeks to apportion liability to GNS and TNZ as “Fabre defendants”. A Fabre defendant (named after the 1993 Florida Supreme Court case Fabre v Marin) is a non‑party which the defendant alleges was responsible for the plaintiff’s damages such that liability/damages should be apportioned to the non- party and recorded on the jury verdict as such.2 Damages against RCCL would be accordingly reduced. In the application to give effect to the Letters of Request, and in the earlier approaches by RCCL to TNZ and GNS, that purpose was not made clear to TNZ or GNS. That issue is relevant to whether the discretion to grant the application should be exercised. This decision concerns the jurisdiction to grant the application.
2 Fabre v Marin 623 So 2d 1182 (FLA 1993).
Evidence for use in civil proceedings overseas
[35] Sections 184 and 185 of the Act permit the Court to give effect to an application for assistance in obtaining evidence for civil proceedings overseas. Section 184 provides that:
The High Court or a Judge may exercise the powers conferred by section 185(1) if an application is made to the High Court or a Judge for an order for evidence to be obtained in New Zealand and the court or Judge is satisfied—
(a)that the application is made to implement a request issued by or on behalf of a requesting court; and
(b)that any requirements prescribed in rules or regulations made under section 200 as to the form of the application and the manner in which it must be made are satisfied; and
(c)that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.
[36] The power to give effect to a Letter of Request is discretionary. Section 185 of the Act provides:
(1)If this section applies, the High Court or a Judge may—
(a)order that any provision for the taking of evidence in New Zealand that the High Court or the Judge considers appropriate for giving effect to the request to which the application relates, be made:
(b)include in that order a requirement for any specified person to do any specified thing that the High Court or the Judge considers appropriate for that purpose.
[37] An order made under s 185(1) may be enforced in the same manner as if it were an order made in respect of New Zealand proceedings.
[38] In considering an application to give effect to a Letter of Request, it has been held that the principle of most importance is that of comity. Applications for assistance from foreign courts are to be treated with sympathy and respect and should be positively accommodated where possible. But comity will not prevail at the expense of compliance with statutory requirements prescribed in the Act.3
3 Fairbank v Hagaman HC Christchurch CIV-2010-409-2070, 5 October 2010 at [23].
[39] Courts have declined to exercise the discretion available in s 185(1) where the request is oppressive. In First American Corp v Zayed a request from an American to an English court for the oral examination of accountants employed by an international accountancy firm was declined on the grounds of oppression.4 The witnesses were potential defendants in the proceeding. No undertaking was given by the plaintiff not to seek their joinder. Especially in the context of a fraud case it was considered inappropriate to obtain evidence which may subsequently be used against the witnesses as defendants.5
[40] No order may be made under ss 184 and 185 in respect of the Crown or a “servant of the Crown”.6
[41]Section 187 of the Act provides as follows:
187 Orders not to bind the Crown or Crown servants
No order may be made under this subpart that is binding on the Crown or on any person in his or her capacity as an officer or servant of the Crown.
[42] The Crown is not defined in the Act. Defining the Crown and identifying those entities that fall within the definition has been described as no easy task. In Stafford v Accident Compensation Corporation Courtney J said:7
Efforts by both commentators and the judiciary have produced an array of confusing propositions … the legislative treatment of what constitutes the Crown is inconsistent.
[43] The respondents challenge the jurisdiction of the Court to make the orders and rely on s 187 of the Act (the Jurisdiction Issue). The respondents also say that, even if they could be compelled to give evidence, the Court should exercise its discretion to decline to grant the orders (the Discretion Issue).
[44] At the first call of the proceedings, Powell J determined that the Jurisdiction Issue would be heard separately to the Discretion Issue.
4 First American Corporation v Zayed [1999] 1 WLR 1154 (CA).
5 As discussed in Fairbank v Hagaman, above n 3, at [38].
6 Evidence Act 2006, s 187.
7 Stafford v Accident Compensation Corporation [2020] NZCA 164, [2020] 3NZLR 731 at [118].
Issues
[45] Does the Court have the jurisdiction to make the orders sought and in particular:
(a)Is TNZ the Crown or a “servant of the Crown” for the purpose of s 187?
(b)Is GNS the Crown or a “servant of the Crown” for the purpose of s 187?
(c)Are all or any of the named GNS employee respondents “a servant of the Crown” for the purpose of s 187?
Discussion
[46] In the narrowest sense, TNZ and GNS are not “the Crown” because they are not a government Ministry or department. Both TNZ and GNS are Crown entities. Pursuant to the Crown Entities Act 2004 there are five categories of Crown entity:
(a)statutory entities;
(b)Crown entity companies;
(c)Crown entity subsidiaries;
(d)school boards; and
(e)tertiary education institutes.
[47] Statutory entities include Crown agents which are listed in pt 1 of sch 1 of the Crown Entities Act. TNZ is a Crown agent.
[48] GNZ is a Crown Research Institute (CRI). CRIs are Crown entity companies under s 7(1)(b) and sch 2 of the Crown Entities Act. Crown entity companies are incorporated under the Companies Act 1993 and are “wholly owned” by the Crown.
[49]Section 15 of the Crown Entities Act notes that a statutory entity is:
(a)a body corporate; and
(b)accordingly, a legal entity separate from its members, office holders, employees, and the Crown; and
(c)continues in existence until it is dissolved by an Act.
[50] Despite having a status separate from the Crown, statutory entities have been held to be the Crown for some purposes.8
[51]In Earthquake Commission v Krieger it was held:
[66] EQC is a Crown agent within the meaning of the Crown Entities Act 2004. As such, EQC's board members are appointed by the Minister and are accountable to the Minister. The board of EQC is paid at a rate determined by the Minister who may also remove a member of the board at any time and entirely at the Minister's discretion. EQC must also give effect to government policy when directed to do so by the Minister.
[67] The statutory mechanisms through which EQC is accountable to the executive and can be directed by the executive lead me to conclude that while EQC is not a government department as defined in s 27 of the State Sector Act 1988 it is nevertheless an integral part of New Zealand's central government.
(footnotes omitted)
[52] Where there is no express stipulation that a body is or is not “the Crown” for the purpose of particular legislation, the Courts apply a “control test” to determine whether an entity is part of the Crown. This requires enquiring into the nature and degree of control of the entity by the Crown, its Ministers, or departments.9
[53] In Stafford v Accident Compensation Corporation, it was acknowledged that the control test is easy to state but not so easy to apply and there is a continuum between full control and no control. There can be control for some purposes but not others. A broad assessment is required which can involve weighing competing factors.
8 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056; and Earthquake Commission v Krieger [2013] NZHC 3140, [2014] 2 NZLR 547.
9 Stafford v Accident Compensation Corporation, above n 5, at [307]; and Commissioner of Inland Revenue v Medical Council of New Zealand [1997] 2 NZLR 297 (CA) at 327.
Context is important.10 Williams J said that defining the Crown with any precision is difficult due to its “somewhat obscure” nature as a corporation, its elasticity as a concept “from medieval times … to today’s constitutional monarchy” and both inconsistent use in statute and confusing case law.11
[54] The leading text Joseph on Constitutional and Administrative Law concluded that Crown agents (such as TNZ) fall squarely under the Crown’s umbrella because:12
The responsible minister may direct a Crown agent to give effect to government policy, and the entity is under a statutory duty to comply. This power and correlative duty subject Crown agents to the degree of governmental control needed to satisfy the control test.
(citations omitted)
[55] According to Joseph, even Crown agents may not be “the Crown” for all purposes depending on the degree of ministerial control exercised over a particular activity or function. TNZ submits that the control test relates to the degree of control that the Minister or department is legally entitled to exercise. It is not the degree of control that is in fact exercised in a specific situation which is relevant.13
[56] The Courts have taken a more expansive view of what constitutes “the Crown” than Joseph. In Ririnui v Landcorp Farming Ltd the Supreme Court considered state- owned enterprises to be part of the Crown on the basis that the shareholding Ministers exercise sufficient indirect control so as to make them part of the Crown.14 The factors referred to included that the directors of the state-owned enterprise must provide their shareholding Ministers with a draft of the entity’s Statement of Corporate Intent (SCI), must consider any comments on the draft, and may give directions on its contents.
[57] In Stafford v Accident Compensation Corporation when determining whether ACC purchased land as a Crown agent or not, the Court said that:15
10 Stafford v Accident Compensation Corporation, above n 5, at [329].
11 At [302] citing Alison Quentin-Baxter and Janet McLean This Realm of New Zealand (Auckland University Press, Auckland, 2017) at 40.
12 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, 2021) at [18.4.3(6)].
13 Commissioner of Inland Revenue v Medical Council of New Zealand, above n 9, at 298.
14 Ririnui v Landcorp Farming Ltd, above n 8.
15 Stafford v Accident Compensation Corporation, above n 5, at [130].
ACC is properly regarded as under the control of the Crown to the extent that ministerial control exists under the relevant legislative provisions. But the Minister does not control operational aspects of the ACC’s operations, including the investment function. On an orthodox analysis, there is no basis on which to find that the ACC’s decision to either buy or sell an investment property can be regarded as subject to ministerial control sufficient to treat the ACC as an instrument of the Crown in that respect.
[58] The Court went on to consider whether that view was affected by the specific context of the case. The majority concluded that the ACC could not be characterised as the Crown in relation to one of its core operational functions over which there was no Ministerial control.16
[59] A broad range of criteria can be considered when assessing control including: the power of the Minister to appoint members to a governing body or a board of directors; what sources of funding or other financial support the entity has; and the level of Ministerial involvement over control and operational functions.17 Also relevant to control is the extent to which the entity is required to comply with policy direction and guidance from the Minister or Government and the extent to which the entity’s decisions are coloured by Government policy.18
[60] Crown entity companies, such as GNS, are not subject to Ministerial power of direction in relation to Government policy. They must have regard to Government policy. GNS says that there is nevertheless a significant degree of statutory control and oversight exercised over CRIs such as GNS.
[61] In Stafford v Accident Compensation Corporation, it was said that context is important, and the issue is primarily one of statutory interpretation. Williams J said:19
Determining what Professor Joseph describes as the “Crown’s reach” is therefore primarily a matter of statutory interpretation. It requires the Court to determine the intention of the relevant legislation by looking to the form and substance of the relationships it establishes between the entity and (usually) ministers. As I discuss below, there are a number of cases in which the courts, when confronted by an entity distinct from the core Crown, choose for one reason or another to treat the entity as if it is the Crown. The cases sometimes apply terms such as emanations or instrumentalities of the Crown as a
16 At [133].
17 At [150] and [219]–[223].
18 Joseph on Constitutional and Administrative Law, above n 12, at [18.4.3].
19 Stafford v Accident Compensation Corporation, above n 5, at [306].
shorthand for the proposition that for the relevant purpose, the entity is to be treated as the Crown even when it plainly is not. The law makes that possible because the Crown has never been a static concept.
(emphasis in original, footnotes omitted)
[62] Whether or not TNZ and GNZ should be accorded the protection of s 187 of the Act requires consideration of the purpose of s 187.
Section 187
[63] Section 187 is based on its UK equivalent, s 9(4) of the Evidence (Proceedings and Other Jurisdictions) Act 1975 (the UK Act). Section 9(4) provides:
Nothing in this Act shall be construed as enabling any court to make an order that is binding on the Crown or on any person in his capacity as an officer or servant of the Crown.
[64]The UK Act also does not include a definition of the Crown.
[65] Section 9(4) was discussed in Re Pan American Airways Inc.20 It has parallels to the present case being an application by the United States District Court to examine a retired senior scientist previously employed in the Forensics Explosives Laboratory of the Royal Armament Research and Development Establishment in relation to the investigation of the Lockerbie crash. The Court held that, because the whole of the evidence sought from the retired scientist related to matters which came to his notice in his capacity as an officer or servant of the Crown, s 9(4) applied and the Court had no power to order him to give evidence.
[66] The Royal Armament Research and Development Establishment was part of the Ministry of Defence and there was no dispute that the scientist worked for the Crown. The only issue was that he was retired at the time that the Letters of Request were issued. The Court briefly discussed the purpose of s 9(4) as it related to art 12(b) of the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1977). The Court did not accept that a broad construction of s 9(4) was inconsistent with the convention. Article 12 provides that the execution of
20 Re Pan American Airways Inc [1992] QB 854.
a Letter of Request may be refused only to the extent that the State addressed considers that its sovereignty or security would be prejudiced. The Court said that s 9(4) was enacted in anticipation of the Convention and should be interpreted consistently but the protection in s 9(4) is not inconsistent with art 12. The Court held that:21
..nothing in the Act or Convention prevents the Crown from facilitating the giving of evidence by its present or former officers or servants, subject to such conditions if any as it may deem appropriate, but the courts have no power to order anyone to give evidence in circumstances in which section 9(4) applies.
[67] Section 9(4) in the UK Act is related to the protection of sovereignty as is s 187 in the Act. The sovereignty of New Zealand is not subject to the oversight of the civil jurisdiction of overseas courts.
TNZ
[68]Section 6 of the New Zealand Tourism Board Act 1991 provides:
6Object of New Zealand Tourism Board
The New Zealand Tourism Board's object is to ensure that New Zealand is so marketed as a visitor destination as to maximise long-term benefits to New Zealand.
[69]And to achieve that object, s 7(2) provides:
7Functions of New Zealand Tourism Board
…
(2)The New Zealand Tourism Board’s functions are—
(a)to develop, implement, and promote strategies for tourism;
and
(b)to advise the Government and the New Zealand tourism industry on matters relating to the development, implantation, and promotion of those strategies.
[70] The object and functions are achieved through adherence to a statement of intent.22 Section 49 of the Crown Entities Act provides that boards of statutory entities:
21 At 862.
22 Crown Entities Act 2004, ss 49, 138, 139 and 141.
must ensure that the entity acts in a manner consistent with its objectives, functions, current statement of intent, and current statement of performance expectations under Part 4.
[71] As a statutory entity, TNZ owes a duty to the responsible Minister as set out in the Crown Entities Act:
58 Accountability for collective board duties
(1)The duties of the board and members of a statutory entity under sections 49 to 52 (collective duties) are duties owed to the responsible Minister.
(2)If a board does not comply with any of its collective duties, all or any of the members may be removed from office (subject to any requirements in sections 36 to 42, or in the entity’s Act, that are applicable to the member).
(bold in original)
[72] The extent to which the Minister can exercise control extends beyond the removal power in s 58(2). Section 60(1) and (2) provide that:
(1)A responsible Minister or a member of a statutory entity may apply to a court for an order—
(a) restraining the board or a member of the board from engaging in conduct that would contravene any requirement under this Act or the entity’s Act; and
(b) granting any consequential relief.
(2)A responsible Minister may apply to a court for an order—
(a) requiring the board or a member to take any action that is required to be taken under this Act or the entity’s Act:
(b) granting any consequential relief.
[73] TNZ’s statement of intent for the period in which Whaakari/White Island erupted records that, to put TNZ in the “best position possible to support the Government’s objectives for New Zealand”, TNZ was:
(a)To “boost New Zealand’s economy by the value of international visitors”.
(b)To focus “on driving the dispersal of visitors – across the year and around the country in order to support a more sustainable sector”.
(c)To focus “its efforts on encouraging travellers to experience more of New Zealand’s lesser visited regions”.
(d)To “manage its portfolio of markets and sectors as a strategic investor would, adopting a flexible approach to funding and delivery, making changes as markets develop”.
(e)To seek to work “more closely to improve the experiences of both visitors and host communities”.
[74]The statement of intent also included as key priorities:
(a)strategically managing TNZ’s portfolio of markets and sectors; and
(b)working with others to sustain and improve the experience of tourism for all.
[75]Consistent with this statement of intent the Government represents that:23
Tourism New Zealand is the organisation responsible for marketing New Zealand to the world as a tourist destination.
They:
·develop, implement and promote strategies for tourism
·give advice to the Government and the tourism industry.
[76] Compliance by TNZ with the statutory object and functions, and the statement of intent is monitored. Each year the Economic Development, Science and Innovation Committee completes a review which is presented to the House of Representatives.
23 New Zealand Government “New Zealand Tourism Board Manaakitanga Aotearoa” (20 December 2023)
< as annexed to the affidavit of Duane Craig Trembath in opposition to originating application for orders giving effect to request for judicial assistance sworn 5 July 2024 at ‘DT1-028’.
[77] TNZ is subject to the Official Information Act 1982. The evidence sought in this case relates to documents supplied pursuant to an Official Information Act request. TNZ submits that the documents sought are central to TNZ’s objectives, functions, and statement of intent. All relate to developing, implementing, and promoting strategies for tourism, including marketing New Zealand as a visitor destination. Promoting tourism is the fundamental obligation in the objectives, functions and statement of intent and is subject to Ministerial control. Conformance with the objectives and functions and with the statement of intent is mandatory and capable of enforcement by the Minister through the Courts.
[78] RCCL acknowledges that under Professor Joseph KC’s analysis, TNZ as a Crown agent comes under the “Crown umbrella”. RCCL says, however, that a Crown agent may be an instrument of the Crown for some but not all purposes. RCCL says that the factors relied on by TNZ as showing control are prescribed in statute for all Crown entities. The objectives set out in the relevant statement of intent are broad parameters. They set the general direction for TNZ to follow but they are not prescriptive. RCCL says that TNZ chose Whaakari/White Island as a destination to promote. The specific actions TNZ took to achieve the objectives was not subject to Ministerial control. RCCL says there is a difference between work or activities that are carried out in accordance with objectives and work that is carried out with or under Ministerial control.
GNS
[79] Crown Research Institutes including GNS were formed in 1992 from parts of the former Crown science research agency, the Department of Scientific and Industrial Research (DSIR). Upon introduction of the Crown Research Institutes Bill the Minister for Crown Research Institutes, then the Hon Simon Upton, said:24
The Crown Research Institutes Bill brings the structural reform of New Zealand science to its final phase. This has been inevitably a period of uncertainty. That period is about to come to an end. It is the end of a restructuring process that goes back to the mid-1980s, and I think everybody will be pleased to see the process brought to an end. I make the point that it seems to me that this framework, whilst anchoring our public research institutions firmly in the public sector, puts them on a footing that enables
24 (7 April 1992) 523 NZPD 521.
them to interface much more easily and expeditiously with the private sector. It also enables us to monitor the ownership interest much better than in the past.
[80] CRIs were set up to enable them to interface with the private sector, however a core function of CRIs was that they would provide research and science that was in the public good. GNS’s cabinet approved statement of core purpose is:25
GNS Science’s purpose is to undertake research that drives innovation and economic growth in New Zealand’s geologically-based energy and minerals industries, that develops industrial and environmental applications of nuclear science, that increases New Zealand’s resilience to natural hazards and that enhances understanding of geological and earth-system processes.
[81] Its purpose and function were recently described by Judge EM Thomas as follows:26
The Institute of Geological and Nuclear Sciences Limited (GNS) is a Crown research institute and Crown-owned company. Its purpose is to undertake research that, among other things, increases New Zealand’s resilience to natural hazards and enhances our understanding of geological and Earth- system processes. GNS does this by conducting research and sharing information and technology with stakeholders and the public. It monitors all New Zealand’s volcanos (including Whakaari) on a 24/7 basis through the GeoNet and the National Geohazards Monitoring Centre. A multidisciplinary team of volcanologists is employed to carry out the work of obtaining and interpreting various volcanological monitoring data. This requires GNS to regularly visit volcanic fields, including Whakaari.
[82] GNS is required to provide an annual SCI to its shareholding Ministers in draft. The shareholding Ministers are the Minister of Finance and the Minister of Science, Innovation and Technology. GNS’s Board provides an annual report of operations to the shareholding Ministers, along with audited financial statements, an auditor’s report, a statement of responsibility and half-yearly reports. GNS’s SCI, annual report, audited financial statements, auditor’s report and statement of responsibility must be presented to the House of Representatives. GNS’s Board members are accountable to the shareholding Ministers for its performance of accountability obligations under the Crown Research Institutes Act 1992.
25 Affidavit of Anna-Marie Jellie, dated 5 July 2024, at 14.
26 WorkSafe New Zealand v Institute of Geological Nuclear Sciences Ltd [2024] NZDC 4149 at [1].
[83] The shareholding Ministers are restricted from selling or otherwise disposing of any shares in GNS or otherwise permitting shares to be allocated or issued to anyone else.27
[84] The shareholding Ministers have various powers under the Crown Entities Act and the Crown Research Institutes Act over GNS. These include to:
(a)appoint and remove board members;28
(b)participate in the process of setting GNS’s strategic direction and performance expectations and monitoring its performance;29
(c)direct the board to include in, or omit from, an SCI certain information;30
(d)determine the amount of dividend payable;31
(e)give directions to support a whole of Government approach that relates to Crown entity companies (GNS’s Board must have regard to those directions);32 and
(f)review operations and performance, with GNS and its board required to supply the responsible Minister of a Monitor with any requested information in relation to operations and performance.33
[85] GNS’s Board is subject to an Annual Letter of Expectations which formally sets out the shareholding Ministers’ strategic and performance expectations and priorities for the financial year and beyond. The Board is required to respond to these expectations and priorities and to operate on a “no surprises” basis.34
27 Crown Entities Act 2004, s 80(1).
28 Sections 88(1)(a) and 89; and Crown Research Institutes Act 1992, s 7(1).
29 Crown Entities Act 2004, s 88(1)(d).
30 Crown Research Institutes Act 1992, ss 15(1)(a) and 16(2)(a)–(h).
31 Section 15(1)(b).
32 Crown Entities Act 2004, ss 88(2) and 107; and Crown Research Institutes Act 1992, s 7(6).
33 Crown Entities Act 2004, ss 88(5), 132 and 133.
34 Affidavit of Anna-Marie Jellie, dated 5 July 2024, at [24] and [26].
[86] Public funding currently amounts to approximately 80 per cent of GNS’s revenue.35 MBIE is the designated monitor or monitoring department of GNS under the Crown Entities Act. The Prime Minister may, after consultation with shareholding Ministers direct the operations of GNS as necessary if a state of emergency is declared under the Civil Defence Emergency Management Act 2002. The GNS Board is required to ensure that GNS complies with any such direction.36
[87] GNS submits that, given the intention that CRIs will always remain part of the Crown estate and the substantial degree of Ministerial control over GNS as a matter of law and practice (which includes all the control factors referred to by the Supreme Court in Ririnui), GNS should be regarded as part of the Crown or its servant for the purpose of s 187.
[88] GNS submits that RCCL is seeking to obtain evidence from GNS in relation to functions it performed as part of GNS’s core public good scientific research and monitoring role in relation to Whaakari. Those functions reflect GNS’s purpose and principals of operation with its statement of intent, operations and performance all monitored by Crown Ministers.
[89] RCCL says that every Crown entity is subject to similar requirements that GNS traverses. Many, if not all, the factors GNS describes are not specific to GNS. They are minimum statutory requirements and do not suggest a higher degree of control specific to GNS. Some of the factors are merely reporting obligations, bearing similarity to that of a typical company, which GNS is currently registered as rather than a Crown entity. RCCL says that these obligations should not be mistaken for suggesting greater Crown or Ministerial control for the purposes of the control test.
The sovereignty issue
[90] Both TNZ and GNS were set up to perform a function or provide a service for the Crown; TNZ to promote New Zealand as a tourist destination and GNS to undertake research for the benefit of New Zealand. Both are subject to oversight by
35 At [32]–[33].
36 Crown Research Institutes Act 1992, s 43(1)(a), (2) and (3).
their responsible Ministers. Both have a degree of autonomy in the way they carry out their functions. The nature of the service provided by CRIs means that there is inevitably less control over the work of GNS. The service which the Crown seeks from GNS requires that it operate with scientific independence. TNZ by comparison is performing a function which does not require the same level of independence.
[91] The fact that an entity has a degree of autonomy over its day-to-day operation is not determinative.
[92] In Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property the House of Lords said:37
In my judgment the question whether the custodian is a servant of the Crown depends on the degree of control which the Crown through its Ministers can exercise over him in the performance of his duties. The fact that a statute has authorised his appointment is, I think, immaterial, but the definition in the statute of his rights, duties and obligations is highly important.
[93]The Court further said:38
It may be that in practice the custodian is given fairly wide discretion. A master often gives wide discretion to his servant. The question is not how much independence the custodian in fact enjoys but how much he can assert and insist on by reason of the terms of his appointment or the nature of his office.
[94]The Court concluded:39
While it may be that a Crown servant could not claim Crown immunity in respect of his performance of statutory duties which served no Crown purpose at all, I can find nothing to justify the argument that Crown immunity can only be claimed by the Crown (or its servants on its behalf) if it is required to protect some direct or financial interest of the Crown; and still less can I find any support for the argument that immunity cannot be claimed by the Crown unless the Crown alone is interested in the benefit which it will bring. I have already said that there is in my view an essential difference between the immunity of the Crown itself and immunity which may be claimed by independent bodies on the ground that they are performing functions of a governmental character. There is every reason for strictly limiting the right of such bodies to claim immunity, but I can see no ground for applying those limits to the Crown itself. If an Act of Parliament does not bind the Crown
37 Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 (HL) at 616.
38 At 617.
39 At 618–619.
then the Crown can claim immunity from its provisions whether its interest to obtain immunity in a particular case is large or small or direct or indirect.
[95] RCCL submits that the nature and degree of control the Ministers have over the evidence sought in this case needs to be analysed. In RCCL’s submission the shareholding Ministers do not have the requisite level of control over the documents, correspondence, and other evidence sought. RCCL says that the material sought by the Letters of Request does not go to any function which might be subject of Ministerial control. RCCL says, therefore, that s 187 does not apply. RCCL says the work of both entities is too removed from the view of the Minister and therefore the control of the Minister to be afforded the protection under s 187 of the Act.
[96] It has been held that cases concerning Crown privilege should be interpreted and applied in a strict manner.40 The Courts have been cautious in extending Crown privileges to entities because the privilege can create an unfair advantage for the entity against private sector companies.41
[97] RCCL relies on Townsville Hospital Board v Townsville City Council where the High Court of Australia said:42
All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a. corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention.
[98] RCCL submits that in circumstances where it is unclear what constitutes the Crown for the purposes of immunity under s 187, the above statement is instructive. In the absence of expressed terms cloaking the respondents as the Crown for the purposes of s 187 they should not receive the immunity. The s 187 protection for the Crown should be construed narrowly.
[99] This argument ignores the purpose of s 187 as it relates to the preservation of sovereignty.
40 Stafford v Accident Compensation Corporation, above n 5, at [342].
41 At [331].
42 Townsville Hospital Board v Townsville City Council [1982] HCA 48 at 291.
[100] The doctrine of sovereign immunity is founded on broad considerations of public policy, international law and comity with the absolute rule providing that a sovereign state cannot directly or indirectly be impleaded in the courts of another country without its consent.43 The common law doctrine of sovereign immunity applies unless clearly excluded.44 To preserve sovereign immunity New Zealand has implemented “blocking/immunity statues” to prevent affronts to its sovereignty.45 Such statues are intended to prevent the exercise of power that infringes on or is prejudicial to the sovereignty of New Zealand.46 Section 187 is one such provision.
[101] It is not in the interests of justice to limit s 187 to the core Crown. To do so would create a tension between the obligation of a Crown entity to follow or have regard to government policy and a desire by that Crown entity not to become embroiled in overseas civil proceedings. A Crown entity should not have any hesitation in implementing government policy because of an apprehension that it or its employees will be compelled to answer for their actions in civil proceedings overseas.
[102] TNZ has no choice but to implement government policy in promoting New Zealand as a tourist destination. GNS is required to have regard to government policy. Neither can properly choose to act in a way that limits the potential for involvement in overseas civil proceedings if to do so would be in conflict with their obligations to the Crown. GNS has a commercial arm and when acting in its own commercial interests it can limit its exposure as it wishes and it can claim no privilege against giving evidence in respect of that. But the functions that Crown entities carry out to fulfil obligations to the Crown are in a different category.
[103] In this case the information sought from TNZ is information that relates directly to TNZ’s core purpose of promoting New Zealand as a tourist destination. It
43 Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426 (CA) at 432–433.
44 At 438.
45 See Evidence Act 1908, s 481 under which the Attorney-General could prohibit the production of documents presently in New Zealand and the giving of evidence by a citizen or resident of New Zealand before a foreign authority regarding such documents if the Attorney-General is satisfied that it was desirable for the purpose of protecting the trading commercial or economic interests of New Zealand.
46 KMPG Peat Marwick v Davison CA223/95, 16 February 1996 at 22.
is true that TNZ can choose destinations to promote but it does so on behalf of the Crown and subject to ministerial oversight. TNZ must promote destinations for tourism. Government policy could favour adventure tourism or could direct that certain types of tourism are not to be promoted. In choosing and promoting destinations TNZ is implementing government policy.
[104] The information sought from the GNS Respondents is information about one of GNS core public good functions namely the monitoring of New Zealand’s volcanoes and the provision of information to the public about volcanic alert levels. That function is closely linked to government policy and is publicly funded for the good of New Zealand. It is inconceivable that GNS could choose not to monitor volcanoes or to release information about volcanic alert levels. The obligation to perform that function is subject to ministerial oversight.
[105] The way in which New Zealand has chosen to structure Crown entities permits the argument that TNZ and GNS fall outside the protection of s 187. But in other jurisdictions the functions performed by TNZ and GNS are performed by government departments or Ministries. If RCCL is correct, New Zealand, because of a structure which it has chosen for TNZ and GNS and other Crown entities, would be in a disadvantaged position compared to nations with reciprocal provisions. Letters of Request issued by this Court would be unlikely to compel from other nations, the provision of evidence such as that sought from GNS and TNZ. That is because in many jurisdictions the information would be held by the Crown or State. Interpreting s 187 as RCCL seeks is inconsistent with the principle of comity.
[106] Given the context and purpose of s 187, I find that both TNZ and GNS are subject to sufficient Crown control that each should be regarded as part of the Crown for the purpose of s 187 of the Act. Primarily, that is because of the high level of control the responsible Ministers have over the objectives and functions of both GNS and TNZ but also because to find otherwise would impact the sovereignty of New Zealand. These are entities that implement government policy. They should not be answerable to another master in the form of the civil jurisdiction of foreign courts.
[107] GNS argued that in the event that it could not properly be regarded as the Crown, it holds the requested information in its capacity as a servant of the Crown for the purpose of s 187. Servant of the Crown is not defined in the Act and there is no good reason to give it a narrow interpretation in the context of s 187. The wording of s 187 suggests that the definition of servant was intended to refer to a natural person because the section refers to any person in “his or her” capacity as an officer or servant of the Crown. Section 17 of the Crown Entities Act provides, however, that a statutory entity may do anything that a natural person of full age and capacity may do providing the act is for the purpose of performing its functions. For the purposes of s 187, I agree that a Crown entity could be defined as a servant of the Crown when it performs acts in furtherance of functions set out in its governing statute. I agree that GNS could be regarded as a servant of the Crown, but I find that, for the purpose of s 187, the control test is satisfied so that GNS should be regarded as part of the Crown. The obligation to have regard to government policy is subject to ministerial control and oversight. GNS is not free to protect itself from actions that may involve it in overseas civil proceedings if to do so would mean disregarding government policy. GNS’s ability to protect itself is controlled by its obligations to the Crown so it should receive the protection available to the Crown.
[108] TNZ and GNS are not independent bodies. They are both subject to considerable governmental oversight and control. For the purpose of s 187 of the Act, TNZ and GNS should be regarded as the Crown. As was said in Re Pan American Airways Inc there is nothing in the Act that prevents the Crown from facilitating the giving of evidence itself or by its servants, but the courts have no power to compel it to do so.
[109]As GNS is not compellable neither are the GNS employees.
Result
[110]The application in respect of the first respondent is declined.
[111]The application in respect of the second respondent is declined.
[112]The application in respect of the sixth respondent is declined.
[113]The application in respect of the seventh respondent is declined.
[114]The application in respect of the eighth respondent is declined.
Wilkinson-Smith J
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