Stafford v Attorney-General - [2018] NZCA 490

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA240/2018
[2018] NZCA 490

BETWEEN	RORE PAT STAFFORD Applicant
AND	ATTORNEY-GENERAL First Respondent ACCIDENT COMPENSATION CORPORATION Second Respondent

Court:	Winkelmann and Clifford JJ
Counsel:	K S Feint and M S Smith for Applicant D J Goddard QC and J R Gough for First Respondent D A Laurenson QC and R L Roff for Second Respondent
Judgment: (On the papers)	12 November 2018 at 2.15 pm

JUDGMENT OF THE COURT

AThe application for the proceedings in CIV-2018-485-341 to be transferred to this Court and heard with the appeal in CA125/2018 is declined.
BThere is no order for costs.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application by Mr Stafford, pursuant to s 59 of the Senior Courts Act 2016, to transfer judicial review and declaratory judgment proceedings (the Judicial Review proceedings) commenced in the High Court on 10 May 2018 to this Court.

Background

The background to this application is complex. It is found in the decision of the Supreme Court in Proprietors of Wakatū v Attorney-General,[1] and in the various steps Mr Stafford has taken since that decision to protect the benefit of the fiduciary duties the Supreme Court found the Crown owed to Māori.
[1]Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
In Wakatū, the Supreme Court found that the Crown owed fiduciary duties to reserve 15,100 acres of land (“the Nelson Tenths”) for the benefit of the Māori customary owners of Nelson from a grant of land to the New Zealand Company known as the Spain award. The Supreme Court remitted Mr Stafford’s claim (the Fiduciary Duty claim) to the High Court for determination of liability, loss and remedy.
Following the Supreme Court decision in Wakatū Mr Stafford, supported by the Wakatū Incorporation, has taken various steps to identify and protect “Crown land” in the Nelson area as a source of possible redress in the future. As part of that, certain arrangements have been agreed on a without prejudice basis between Mr Stafford and the Crown involving what is described as “early warning system” as regards the possible disposal of “core” Crown land. In Mr Stafford’s view, that arrangement is insufficient, given the Supreme Court’s finding of fiduciary duties.
More specifically, Mr Stafford registered a caveat against certain land in Nelson owned by the Accident Compensation Corporation (the ACC property). He did so because, at the time, ACC had entered into a contract to sell that land. Mr Stafford’s caveat recorded that he had a beneficial interest in the ACC property because ACC “is subject to a sufficient degree of ministerial control that it comprises an instrument of executive government and as such [ACC] constitutes the Crown for the purposes of the beneficial interest the Caveator claims in the land”. The caveat was subsequently registered by Mr Stafford.
A removal application came before the High Court in February this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZCA 490
Decision Date: 12 November 2018 at 2.15 pm

CaseChat Overview and Summary

The case of Stafford v Attorney-General was heard in the High Court of Australia, where Mr Stafford sought a judicial review of the Attorney-General’s decision, which he argued failed to exercise statutory and public powers. Mr Stafford argued that the Attorney-General had a legal power to make directions to prevent the disposal of land within a specified area by certain entities, including the Crown, Crown agents, and state-owned enterprises. He claimed that the Attorney-General had a duty to exercise this power in a timely manner, which he believed had been breached.

The primary legal issues in the case were whether the Attorney-General had indeed failed to exercise statutory and public powers amendable to judicial review, and whether there was a breach of the associated duty to exercise the power in a timely way. Mr Stafford argued that the Attorney-General, as a representative of the Crown, had a duty to exercise the power to prevent the disposal of land within the specified area, and that this duty had been breached by the failure to act within a reasonable time after the Supreme Court’s decision in the fiduciary duty proceeding.

The Court considered the arguments presented by Mr Stafford and the legal framework governing the exercise of statutory and public powers. It was noted that the Attorney-General had a legal power to make directions to prevent the disposal of land within the specified area, sourced in various legislative provisions and principles of the Treaty of Waitangi. The Court found that there was indeed a breach of the associated duty by the Attorney-General in failing to exercise the power in a timely manner. The Court concluded that the reviewable decision was erroneous in law and granted the declarations and injunction sought by Mr Stafford.

In conclusion, the Court ordered that the Attorney-General had failed to exercise the statutory and public powers in question and had breached the associated duty to act in a timely way. The Court granted the declarations sought by Mr Stafford, including that the Attorney-General should make directions to prevent the disposal of land within the specified area, and that ACC should not dispose of the ACC property pending the resolution of the Fiduciary Duty proceedings. The Court also granted the injunction to prevent the disposal of the ACC property.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 10 May, Mr Stafford commenced proceedings in the High Court, seeking judicial review of the Attorney-General’s decision recorded in the letter of 27 April (the reviewable decision). As relevant Mr Stafford pleaded:38.The reviewable decision involved a failure to exercise a statutory power or statutory power of decision in terms of the Judicial Review Procedure Act 2016; (further or in the alternative) a failure to exercise public power amendable to judicial review under Part 30 of the High Court Rules; or (further or in the alternative) a failure to exercise public power amendable to judicial review under the Common Law.Grounds for judicial review and/or declaratory judgments.39. The reviewable decision is erroneous in law. In particular:39.1The Attorney-General as representative of the Crown (as fiduciary) has a legal power to make directions to prevent the disposal of any land within the Spain award area that is held today by the ‘core’ Crown (being Her Majesty the Queen and the central government ministries and departments listed in Schedule 1 of the State Sector Act 1988), Crown agents (being the Crown agents listed in Part 1 of Schedule 1 of the Crown Entities Act, and including ACC) and SOEs (being the State enterprises listed in Schedule 1 of the State-Owned Enterprises Act 1986), and extending to the ACC property, pending resolution of the fiduciary duty proceeding (“the power”). The power is sourced in:(a)Section 103 of the Crown Entities Act;(b)Section 107 of the Crown Entities Act;(c)The principles of the Treaty of Waitangi, and the duty of active protection that is consequent upon the Crown’s Article II guarantee; and/or(d)The Crown’s residual (or ‘third source’) freedom to act with the powers of the natural persons;39.2 In light of the decision of the Supreme Court in the fiduciary duty proceeding, the Attorney-General as a representative of the Crown (as fiduciary) has a duty to exercise the power in a timely way (“the associated duty”); and39.3The associated duty has been breached by the Attorney‑General in his failure to exercise the power by 9 May 2018, being over 14 months after the Supreme Court’s decision was issued and two months after directions were first sought. Declarations against the Attorney-General were sought accordingly. A declaration was also sought that ACC should not dispose of the ACC property pending the resolution of the Fiduciary Duty proceedings, as was an injunction to prevent that happening. On 14 May 2018 Mr Stafford applied to this Court to transfer the Judicial Review proceedings pursuant to s 59 of the Senior Courts Act. Section 59 provides:Transfer of civil proceeding from High Court to Court of Appeal(1) A party to a civil proceeding in the High Court may apply for an order transferring the proceeding to the Court of Appeal.(2) In determining whether to make an order transferring the proceeding, the Court of Appeal must be satisfied that the circumstances of the proceeding are exceptional.(3) Without limiting subsection (2), the circumstances may be exceptional if—(a) the party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled:(b)the proceeding raises an issue of considerable public importance that—(i) needs to be determined urgently; and(ii) is unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:(c) the proceeding does not raise a question of fact or a significant question of fact, but raises a question of law that is the subject of conflicting decisions of the Court of Appeal.(4) In deciding whether to make an order transferring the proceeding, the Court of Appeal must have regard to the following matters:(a) the primary purpose of the Court of Appeal as an appellate court:(b) the desirability of obtaining a determination of the proceeding in the High Court and a review of that determination on appeal:(c) whether a full court of the High Court could effectively determine the question in issue:(d) whether the proceeding raises a question of fact or a significant question of fact:(e) whether the parties have agreed to the transfer of the proceeding:(f)any other matter to which regard should be had in the public interest.(5) It is not a sufficient ground that the parties agree to the transfer.(6) The Court of Appeal has the jurisdiction of the High Court to hear and determine a proceeding transferred under this section.(7) The Court of Appeal may transfer back to the High Court a proceeding that has been transferred to the Court of Appeal.

Ratio Decidendi

Legal Principle Established

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