Smith v Attorney-General

[2020] NZHC 836

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-384

[2020] NZHC 836

BETWEEN

MICHAEL JOHN SMITH

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:	16 March 2020
Appearances:	D M Salmon and D A C Bullock for Plaintiff/Respondent J M Prebble and R J Warren for Defendant/Applicant
Judgment:	11 May 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]    Mr Michael Smith is suing the Attorney-General on behalf of the Crown. He says that the Crown owes duties to Māori and to him in connection with “climate change”. He says that the Crown has breached these duties. And he says that as a result Māori and he will suffer damage. Mr Smith asks the Court to make declarations as to these matters. He does not claim damages.

[2]    The Crown says it does not understand aspects of the claim. In particular, it says that it is not clear as to the basis for or nature of the duties it is alleged to owe to Māori and Mr Smith, and nor is it clear as to how it is said to have breached any such duties. The Crown says that to the extent these matters are not clear Mr Smith’s statement of claim is inadequate, and it seeks an order that he clarify these matters.

SMITH v ATTORNEY-GENERAL [2020] NZHC 836 [11 May 2020]

[3]    Mr Smith says he does not need to provide the Crown with any further clarification, that he has discharged his responsibilities in terms of articulating his case and that his statement of claim is unobjectionable.

[4]On what basis are these competing contentions to be assessed?

Principles

[5]    Materially, here is what the High Court Rules 2016 say about the requirements of statements of claim:

5.26Statement of claim to show nature of claim

The statement of claim—

(a)must show the general nature of the plaintiff’s claim to the relief sought; and

(b)must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and

(c)must state specifically the basis of any claim for interest and the rate at which interest is claimed; and

(d)in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.

[6]    The Law Reports are replete with cases in which parties have sought more explicit pleadings or further particulars of claims, defences or other pleadings, and counsel referred me to several.

[7]    For present purposes at least, it appears to me that the leading case is the Court of Appeal’s judgment in Price Waterhouse v Fortex Group Ltd.1 In that case, the Court was dealing with a claim by Fortex against Price Waterhouse, which firm had been its auditors. Fortex alleged that Price Waterhouse had breached a duty —said to be owed in both contract and tort — to carry out its responsibilities as auditors with reasonable care, and thereby failed to detect anomalies in its financial records, as a result of which

1      Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998.

Fortex claimed to have suffered substantial losses. Price Waterhouse said that the statement of claim was insufficiently particularised and sought an order requiring Fortex to provide further particulars. It was largely unsuccessful in the High Court. It appealed to the Court of Appeal. The Court of Appeal’s judgment was delivered by McGechan J, the original author of one of  the  leading texts  on  civil procedure.2 His Honour addressed the requirements relating to pleadings in the following terms:3

Pleadings

It has become fashionable in some quarters to regard the pleadings as being of little importance. There was an echo of that approach in the implicit suggestion floated in this case that exchange of briefs of evidence before trial might be seen as caring any lack of particularity in the pleadings. Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.

We are not casting aspersions on the pleadings in this case which, leaving aside issues about necessary particularity, are well drawn on each side. Nor are we advocating a pedantic approach to the topic. Pleadings should be read as conveying what they would reasonably convey, in the context of the case, to a sensible legal mind. Even less are we advocating prolixity of pleadings, or the raising of every conceivable cause of action irrespective of its potential for success; this type of pleading often contains the additional flaw of overlooking R114 which requires each cause of action to be separately pleaded. What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.

Statements of Claim : Particularity : Principles

The principles are well enough known. Difficulties lie in application in marginal situations. This is one such situation.

The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.

It is the level at which such abbreviation is to be set which causes ongoing difficulties. There is, of course, an eternal tension between Plaintiffs who wish

2      Beck and others McGechan on Procedure (online ed, Thompson Reuters).

3      Price Waterhouse v Fortex Group Ltd, above n 1, at 17–19.

to keep content as wide and general as possible, allowing maximum room to cover oversight and further developments, and Defendants who wish to narrow issues and impose restrictions to the maximum possible degree. Determinations, with respect, are not greatly assisted by very general labels such as pleading the “general” nature of matters claimed, or mantras such as “what not how”. While they grasp an idea, they afford little hard guidance. Nor, with respect, does it greatly help to talk in terms of “facts” (to be pleaded) and “evidence” (for trial) as if there were some bright-line distinction between the two. There is not. “Facts” can merge into “evidence” without any clear dividing line.

In marginal cases, it is better to avoid generalities and rules of thumb, and to return to principle. The pleader and Court simply ask “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.

In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the case in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.

[8]    I take guidance from that outline of the principles involved, and place particular emphasis on the question in the penultimate paragraph (“[I]n the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”). That, coupled with the earlier warnings about attempts to draw nice distinctions between “facts”, “evidence” and “law”, and the later proposition that a common-sense approach is to be applied, seem to me to come as close as any case has come to providing a workable test.

The statement of claim

[9]    That brings me to an examination of the plaintiff’s statement of claim in this case, which is not an especially complex document:

(a)In paragraphs [1]–[3], the plaintiff introduces the parties. He says he is

of Ngāpuhi and Ngāti Kahu descent. He says he is the climate change

spokesman for the Iwi Chairs Forum. He says he has interests in land and other resources in and around Mahinepua in Northland. Finally, he says the Attorney-General is sued as a representative of the Crown.

(b)Paragraphs [4]–[11] are headed “Climate Change”. I am not sure that that heading is altogether apt because the plaintiff does not then go on to address climate change, but rather the evidence he says demonstrates that human activity is having an impact on the global climate. Climate change has of course been a constant since the formation of our tiny solar system, approximately four and a half billion years ago. Even during the vanishingly small period of time that we can claim to have direct evidence of climatic conditions on this planet, these have fluctuated dramatically. Of course, climate change as understood in this sense is measured in tens of millennia; not in tens or hundreds of years as humans tend to think, for obvious reasons. Be all of that as it may, what Mr Smith contends in his paragraphs [4]–[11] is that human activity since the Industrial Revolution in the mid-19th century has begun to influence natural climate change. Mr  Smith  pleads  that New Zealand, along with other countries, has contributed, and is continuing to contribute, to this. He refers to this as “dangerous anthropogenic interference with the climate system.” Mr Smith goes on to plead in these paragraphs that there is a “current scientific consensus” as to the likely impact that human activity will have on the global climate and that it is necessary to reduce greenhouse gas emissions so as to reduce and ultimately arrest this impact. In doing so, he refers to various reports and says that he relies on them as if they were pleaded in full. On the basis of this material he alleges that it is necessary to limit warming caused by human activity to 1.5 degrees Celsius and that doing so requires a net reduction in the emission of carbon dioxide by 45 per cent from 2010 levels by 2030, and to zero by 2050, “and substantial and fast reductions of other greenhouse gasses.” These objectives, it will be noted, align closely with the objectives to which New Zealand and other countries committed themselves in the agreement that emerged from the United Nations Framework

Convention on Climate Change in 2015 (the Paris Agreement4) and the targets in the Climate Change Response Act 2002 as amended by the Climate Change Response (Zero Carbon) Amendment Act 2019.5

(c)Between paras [12]–[17] the plaintiff particularises, under separate headings, the harm that he says human interference with the global climate will cause to Māori and to him. It is unnecessary to dwell on these allegations. I take as  a  given  that  if  the  climatic  outcomes Mr Smith postulates were to eventuate, it would have dire consequences for Māori, for him, and for every creature on the planet.

(d)Then, between paragraphs [18]–[20], the plaintiff pleads his sole cause of action. I quote in full paragraph [18] in which he describes the duties that he says the Crown owes to Māori and to him:

The Crown exercises authority over the territory of New Zealand, the activities occurring there, and the atmosphere above New Zealand’s territory subject to a duty owed to Māori (including the plaintiff), and cognisable under the laws of New Zealand, to actively [sic] exercise that authority in a manner that protects current and future generations of Māori from the adverse effects of climate change including without limitation, the loss of: life; health; culture; economic and social wellbeing; spirituality; lands; fisheries; forests; sites of cultural, customary, historical or spiritual significance, and taonga.

(e)In paragraph [19] Mr Smith identifies in non-exhaustive terms the sources of that duty. These are said to “include” the Treaty of Waitangi; “fiduciary and fiduciary-like obligations” that the Crown owes to Māori; the New Zealand Bill of Rights Act 1990; the common law; Tikanga  Māori;  and  international  law   including   under   the United Nations Declaration on the Rights of Indigenous Peoples,6 and the United Nations Framework Convention on Climate Change.7

4      FCCC/CP/2015/10/Add.1 Decision 1/CP.21 (2015).

5      See in particular the emission reduction targets in Part 1B of the climate Change Response Act 2002 as amended.

6      United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007).

7      United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for signature 4 June 1992, entered into force 21 March 1994).

(f)Finally, in paragraph [20], the plaintiff pleads that the Crown has breached its duty to Māori and to him and particularises the alleged breach in terms to which I will return later in this judgment.

[10]   That outline of the plaintiff’s claim as pleaded sets the scene for a discussion of the issues for determination.

Clarification of issues

[11]   Clearly, this is a novel claim. Mr Smith is effectively seeking to compel the Crown to take action on behalf of a subset of New Zealanders (defined by race) and himself, apparently by adhering to international obligations to which it has committed itself and targets enshrined in legislation. There are a series of obvious questions which arise, starting with the standing of the plaintiff to sue on behalf of an entire subset of New Zealanders; the justiciability of the claim; and the jurisdiction of the Courts to grant the relief sought, to identify three of the most obvious.

[12]   However, such questions are beyond the bounds of anything it would be appropriate for the Court to consider on an application for further particularisation of the plaintiff’s statement of claim.

[13]   At this point, I pause to note that the defendant has entered a defence to the claim that includes various affirmative defences; the plaintiff has replied to those affirmative defences; the defendant has already sought particulars by notice pursuant to r 5.21 of the High Court Rules; the plaintiff has responded, providing certain particulars; and there has been extensive correspondence between the parties concerning the plaintiff’s pleading. I do not propose to analyse any of this material. The essential point is that the parties have reached an impasse and the Crown continues to maintain that there are fundamental deficiencies in the plaintiff’s pleading which must be attended to before the matter can be set down for trial.

[14]What then does the Crown continue to seek from Mr Smith?

[15]   Essentially, the Crown says three aspects of the statement of claim require elucidation:

(a)First, the nature of the duties that Mr Smith says the Crown owes to Māori and to him;

(b)Second, the source or sources of those duties; and

(c)Third, the alleged breach or breaches of the same.

[16]I will deal with each of these in turn.

Nature of the alleged duties

[17]   Mr Prebble submitted that the plaintiff’s statement of claim is inadequately pleaded because, whilst it asserts the existence of duties owed by the Crown to Māori and him, it does not describe those duties adequately.

[18]   He acknowledged that in the course of exchanges between the parties the plaintiff had attempted to clarify these duties by saying that the Crown’s obligation was:

·Taking necessary steps to prevent significant adverse effects of climate change on Māori.

·Preventing New Zealand’s greenhouse gas emissions in a year from increasing post-1900.

·Reducing New Zealand’s greenhouse gas emissions to half 2010 levels by 2030.

·Reducing to zero New Zealand’s greenhouse gas emissions by 2050.

·Otherwise taking all necessary steps to reduce New Zealand’s greenhouse gas emissions.

[19]   With the exception of the last bullet point, which is too general to be of any assistance, it will be obvious that that is not so much a description of the duties the plaintiff says the defendant owes, as a recitation of the goals of the Paris Agreement and the targets in the legislation to which I have referred.

[20]Approaching the matter on the basis outlined by the Court of Appeal in

Price Waterhouse v Fortex, it appears to me that the following points emerge:

(a)As already said, this is a novel claim. It is not simply the application of a well-settled duty (such as the duty to avoid acting negligently and thus causing harm to others who are sufficiently proximate to be affected such as that first fully articulated by  Lord Atkin  in Donoghue v Stevenson8) to a new situation. The plaintiff contends for the existence of duties owed by the Crown to Māori and him to achieve certain objectives to which New Zealand has bound itself internationally and domestically. Neither counsel directed me to a case in which a nation state had been held to owe such a duty to a subset of citizens, let alone an individual. I do not ignore the judgment of the Netherlands Court of Appeal in State of the Netherlands v Urgenda Foundation.9 But that case involved different issues. It was focussed on whether the Dutch Government’s greenhouse gas emission targets complied with its duties under the European Convention on Human Rights.

(b)Common sense suggests that where a plaintiff is contending for the existence of such a novel duty, the defendant and the Court are entitled to expect him, her or it to explain the proposed basis for and nature of that duty in more detail than might ordinarily be expected. Although this may involve pleading in a way that is not strictly limited to stating facts, and perhaps be perceived to be straying into the area of pleading evidence or law, traditionally regarded as a heretical, if that is nevertheless necessary properly to inform the defendant and the Court of what the plaintiff is saying, which is the core requirement of r 5.26, then I cannot see that as objectionable.

(c)What is conspicuous by its absence in the plaintiff’s statement of claim here is not so much the basis of the alleged duties, as what the duties contended for would involve. Some questions that the statement of claim does not answer are:

8      Donoghue v Stevenson [1932] AC 562 (HL).

9      State of the  Netherlands  v  Uregnda  Foundation  Hague  Court  of Appeal,  200.  178.245/01, 9 October 2018.

(i)If the defendant owes duties to Māori and the plaintiff, what actions or non-actions do those duties require of it?

(ii)Is this an absolute duty to bring about the objectives or the targets set out in the Paris Agreement or the Climate Change Response Act as summarised by the plaintiff?

(iii)Or is it a duty to take reasonable care to do so?

(iv)If the latter, is the measure of reasonable care a static one fixed by reference to New Zealand’s relative contribution to greenhouse gas emissions as at the date of the signing of the Paris Agreement, the date on which the relevant domestic legislation came into force, or some other date?

(v)Or is the measure of reasonable care a continuously variable one depending upon such things as the steps being  taking  by  New Zealand and other countries relative to each other, the achievement of or failure to achieve milestones along the way and the evolving science indicating what impact measures taken or not taken to date around the world are having?

[21]   As Mr Prebble submitted, where that leaves the Crown, is that it must examine every action of the executive arm of government, including every action of the public service and other Crown owned entities since an unidentified date with a view to determining whether their actions met the necessary standard, all against the background, as already discussed, of not knowing what that standard is.

[22]   The view I take is that in the particular circumstances of this case Mr Smith’s statement of claim could and should be more particular as to the nature of the duties he asserts the Crown owes Māori and himself.

[23]   It seems to me that in the absence of such further particularisation the Crown is entitled to ask: well, what steps is it said we should or should not have taken to date;

what steps should we be taking or not taking in the future; and by what standard will we ultimately be judged?

[24]   As they currently stand, the pleadings create a risk that the Crown will be surprised at trial. Defendants should not be left guessing as to what the plaintiff’s case is, particularly where a novel duty is at issue. The plaintiff’s pleadings need to create a roadmap of sorts to allow the Crown to respond adequately and avoid any prejudice at trial.

Source of the alleged duties

[25]   Mr Smith’s pleading in paragraph 19 of his statement of claim of the legal sources of the duties he alleges is criticised by the Crown because it is a non-exhaustive list. In my view, that is not a fair criticism. As already said, one of the elementary principles of pleading is that a plaintiff or other claimant must identify the factual foundation for the claim but need not — indeed, generally, should not — plead the evidence that it is intended will be called in support of those pleaded facts, or the legal principles that are said to apply on those facts entitling the claimant to a particular outcome.

[26]   I have said that in my view the lines of demarcation between facts, evidence and law are not as bright as some courts or commentators have suggested, and that in a genuinely novel case it may indeed be necessary for a plaintiff to go further than is normally necessary in setting out the basis for the case.

[27]   That appears to me to be exactly what Mr Smith has done here. He has pinpointed what he says are the primary sources of law on the basis of which he seeks the remedies he does.

[28]   The Crown seeks an order that Mr Smith be required to provide an exhaustive list of such sources, on which it can rely. In my view that would be going too far. It would require Mr Smith to commit himself not only to the factual but also to the legal foundation for his case and thus well beyond anything that is required by r 5.26 or the settled authorities in this area.

Breach

[29]Here is how the plaintiff pleads breach:

[20]The Crown has breached, and is continuing to breach, the Duty.

Particulars

(a)New Zealand’s gross and net emissions have increased between 1990 and 2018;

(b)New Zealand’s gross and net emissions will continue to increase absent immediate action by the Crown to reduce the emissions;

(c)A failure to reduce Greenhouse Gas emissions by half of 2010 levels by 2030 will make the adverse effects of climate change inevitable;

(d)A failure to reduce Greenhouse Gas emissions to zero by 2050 will make the adverse effects of climate change inevitable;

(e)The Crown has failed to take adequate  steps  to  reduce  New Zealand’s gross emissions and net emissions by the amount required to avoid dangerous anthropogenic climate change;

(f)The Crown has failed to take adequate steps to actively [sic] exercise its authority in a manner that protects current and future generations of Māori from the adverse effects of climate change including without limitation, the loss of life; health; culture; economic and social wellbeing; spirituality; lands; fisheries; forests; sites of cultural, customary, historical or spiritual significance; and taonga.

[30]Analysing this pleading:

(a)Subparagraph (a) is not a pleading of a breach at all, but an allegation of fact.

(b)Subparagraphs (b), (c) and (d) are the same, with the added difficulty that they contain allegations about a future fact.

(c)Subparagraphs (e) and (f) are, on their face, at least allegations of breach, but all they really do is assert that the Crown has not done enough without identifying what the Crown should or should not have done (other, perhaps, than asserting that it should have achieved the

objectives of the Paris Agreement or the targets set out in the Climate Change Response Act, so as to protect Māori and the plaintiff).

[31]   In my view, it is not extreme to say that on the basis of the claim as pleaded, it is possible to envisage the interlocutory stages of this proceeding such as discovery, and the briefing of witnesses for trial, as being completely unmanageable. The Crown might be forgiven for asking where it should start.

[32]   The response of the plaintiff to this is to say that if the parties approach the litigation in a common sense way they will be able to agree on sensible parameters for discovery and so forth. As the Court of Appeal said in Price Waterhouse v Fortex, that is no answer at all.10 The starting point must be that the pleadings determine the four corners of the plaintiff’s case and the claim that the defendant has to meet. That determines the proper scope of discovery and should be the basis upon which the parties’ brief evidence which is focused on the issues and relevant to their determination.

Conclusion

[33]   Reviewing the plaintiff’s statement of claim having regard to the particulars that have thus far been sought and provided, and the correspondence between the parties, it is fair to recognise that both parties have made a genuine effort to narrow the scope of the case, but the Crown’s application raises important issues concerning matters that must be properly dealt with in the pleadings.

[34]   In the end, the view I take is that the Crown’s concerns about the pleadings in this case are largely justified. My judgment is that the plaintiff has not gone far enough in identifying the nature of the duties that he asserts the Crown owes to Māori and to him, and that his pleading as to breaches of those duty is so vague as to be objectionable. That brings me to the question of the orders that need to be made. However, before addressing that, it may be helpful to make some more general observations.

10     Price Waterhouse v Fortex Group Ltd, above n 1.

The plaintiff’s case

[35]   The Crown has elected to seek an interlocutory remedy through the prism of an application for further and better particulars of the statement of claim, and the Court must respond to that.

[36]   However, in the end, it appears to me that the essential difficulty in this case is that it proceeds on the hypothesis — only partly articulated — that if the objectives of the Paris Agreement or the targets in the Climate Change Response Act are not achieved, then that will mean that the Crown has breached duties owed to Māori and the plaintiff — in that sense, it is akin to a pleading of res ipsa loquitur.

[37]   Moreover, as matters stand, neither the Court nor anyone else is in a position to reach a concluded view as to whether those objectives will be reached, precisely because they are objectives that are measurable at future times — 2030 and 2050 — so that it is only at those future times that the Crown’s performance is even theoretically capable of evaluation. There is some acknowledgment of this in the plaintiff’s claim to the extent that it focusses on the prospect of future harm to Māori and him, as opposed to any present harm.

[38]   Against that background, it is little wonder that the plaintiff has found it impossible to formulate his claim in a way that articulates informatively the nature of the duties which the Crown owes as at today’s date, or to say how the Crown has breached any such duties.

[39]   I do not necessarily say that it does, but this may suggest that the obviously genuine concerns that the plaintiff has about what the future may hold for Māori and himself are incapable, even at a theoretical level, of being articulated in a compliant statement of claim. In relation to this, in correspondence between the plaintiff’s solicitors and the Crown Law Office, the former have suggested that a better vehicle for challenging whether the plaintiff’s proceeding can proceed any further might be an application for an order striking the proceeding out pursuant to r 15.1  of  the High Court Rules on the basis that it articulates no viable cause of action. It appears to me that there is some force in that.

[40]   Nevertheless, the Court can only deal with the application before it which focusses on the adequacy of the plaintiff’s current statement of claim.

Orders

[41]   I have concluded that the plaintiff’s statement of claim does not provide adequate information as to the nature of the duties that he alleges the Crown owes to Māori and him, or the alleged breaches of any such duty.

[42]   Having reached that conclusion, the Court’s responsibility is to formulate an order requiring the plaintiff to provide further and better particulars. That is no easy task. Mr Prebble described what was sought in a memorandum dated 29 November 2019 filed and served with this application, in his written synopsis of submissions and in speaking notes handed up during the course of the hearing. Each of these three formulations were materially different. In the course of oral argument Mr Prebble put a further gloss on aspects of them. The one thing that they all have in common is that they focus on paragraphs 18, 19 and 20 of the statement of claim.

[43]   In my view, the plaintiff has not, and must now, fully and fairly inform the Crown of the following:

(a)With respect to paragraph 18, the precise nature of the duties which he says the Crown owes Māori and himself including details as to when any such duties arose, what steps they required the Crown to take or refrain from taking and whether they are absolute duties or duties to meet a particular standard of care, and if so what standard of care;

(b)As to paragraph 19, I decline to make any order for further particularisation for the reasons already stated;

(c)As to paragraph 20, the particular acts or omissions that he alleges constitute breaches of any duty owed by the Crown to Māori or himself, including details as to the Crown entity or entities that the plaintiff alleges was or is primarily responsible for any such act or omission.

[44]   The above is necessarily a very general description of the material which is not, but which should be, pleaded. It may be sufficient to enable counsel — between whom there appears to be a commendable level of cooperation in this case — to agree on a definitive list of particulars to be provided. If, however, counsel cannot agree on such a list, then I reserve leave to the parties to come back to the Court by way of memorandum (and if necessary telephone conference) to finalise the terms of such a list.

Costs

[45]Not having heard from the parties in relation to costs, I reserve these.

[46]   My preliminary view is that the Crown as the successful party is entitled to its costs on a 2B basis. I am assuming that counsel will be able to resolve costs but if not then I reserve leave to the parties to come back by memorandum and I will deal with costs on the papers.

Associate Judge Johnston

Solicitors:

Lee Salmon Long, Auckland for plaintiff Crown Law Office, Wellington for defendant