Tahi Enterprises Limited v Taua - [2020] NZHC 2891

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000435

[2020] NZHC 2891

BETWEEN
TAHI ENTERPRISES LIMITED

First Plaintiff

DIANNE LEE
Second Plaintiff

AND

TE WARENA TAUA and MIRIAMA

TAMAARIKI as executors of the estate of HARIATA ARAPO EWE
First Defendants

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and

MIRIAMA TAMAARIKI as trustees of the TE KAWERAU IWI TRIBAL AUTHORITY

Second Defendants

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and

MIRIAMA TAMAARIKI as trustees of the TE KAWERAU SETTLEMENT TRUST

Third Defendants

Hearing: 7 August 2020

Appearances:

C Upton for the Plaintiffs

J S Langston for the Defendants

Judgment:

4 November 2020

JUDGMENT OF ASSOCIATE JUDGE GARDINER

TAHI ENTERPRISES LTD v TE WARENA TAUA & Ors [2020] NZHC 2891 [4 November 2020]

This judgment was delivered by me on 4 November 2020 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Introduction

[1] This is an application by the plaintiffs for particular discovery under r 8.19 of the High Court Rules 2016. The plaintiffs seek discovery of any register(s) of the individual members of the Te Kawerau ā Maki iwi (“the Iwi”) in the control of the defendants (“the Register”). They also apply for discovery of other specific documents and object to redactions made and confidentiality claimed by the defendants in relation to certain further documents.

[2] There have been two previous decisions by this Court on interlocutory applications by the plaintiffs. An application by the plaintiffs for an order under r 4.24 of the High Court Rules appointing the third defendants as the representatives of all affected Iwi members was dismissed by Lang J in a judgment delivered on 26 March 2018 (“the Representation Judgment”).1

[3] An application for discovery of the register of Iwi members under r 8.20 of the High Court Rules was heard by Associate Judge Smith on 6 July 2018. In a judgment delivered on 18 December 2018, Associate Judge Smith ordered the second and third defendants to give discovery of the Register, with details of Iwi members under the age of 18 (as at 27 June 2007) redacted (“the Pre-commencement Discovery Judgment”).2 The second and third defendants appealed Associate Judge Smith’s judgment and the plaintiffs cross-appealed. The Court of Appeal heard the appeal on 9 June 2020 but has not yet delivered its judgment.

1 Tahi Enterprises Ltd v Taua [2018] NZHC 516 [Representation Judgment].
2 Tahi Enterprises Ltd v Taua [2018] NZHC 3372 [Pre-commencement Discovery Judgment].

[4] An interlocutory application by the plaintiffs to consolidate these proceedings with proceedings CIV-2019-404-1589 was also heard with the present application. The outcome of that application is the subject of a separate judgment.

[5] Between the plaintiffs filing their application and the hearing, a number of the discovery issues were resolved or progressed to the point that court orders are unnecessary (namely those at paras 1(b)(i), (ii), (iii), (v), (vi), (vii) and (viii) of…

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: [2020] NZHC 2891
Decision Date: 4 November 2020

CaseChat Overview and Summary

The plaintiffs, Tahi Enterprises Limited and Dianne Lee, brought an application for particular discovery under r 8.19 of the High Court Rules 2016 against the defendants, Te Warena Taua and others. The plaintiffs sought discovery of any register(s) of the individual members of the Te Kawerau ā Maki iwi (“the Iwi”) in the control of the defendants (“the Register”). They also applied for discovery of other specific documents and objected to redactions made and confidentiality claimed by the defendants in relation to certain further documents. The plaintiffs sought discovery of the Register because they believed it was relevant to their claim that the defendants had authority to enter into joint venture agreements with the plaintiffs on behalf of the Iwi members. The defendants opposed the application, arguing that the Register was not relevant to any issue in the proceeding and that it contained confidential personal information that should not be disclosed. The Court found that the Register was only relevant in the sense that it would enable the identification of the individual Iwi members, which would in turn enable the plaintiffs to bring them into the proceedings. However, the Court found that the personal information contained in the Register did not shed any light on the issue of whether the defendants had authority to enter into the joint venture agreements on behalf of the Iwi members. The Court also found that the consequences of ordering discovery would be that confidentiality in the personal information would be lost and 400 individuals would be joined to the proceeding. The Court therefore dismissed the application for discovery of the Register. The plaintiffs also sought discovery of attendance registers from hui at which the Iwi obtained the mandate of Iwi members to represent the people of Te Kawerau a Maki in negotiations with the Crown. The Court found that the presence of an individual at the hui was not relevant to the issues in dispute in this proceeding. The Court also found that the defendants had not stated the nature and extent of the confidentiality claimed in respect of certain documents and had not provided any evidence to support their claim of confidentiality. The Court therefore could not deal with this issue on the evidence before it in this application. Finally, the Court found that the plaintiffs’ application for discovery of documents relating to a memorandum of understanding between the Settlement Trust and Cromcorp New Zealand Ltd was not relevant as the deal did not proceed. The Court dismissed the plaintiffs’ application.

Orders