Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Incorporated v Attorney-General
[2019] NZHC 1205
•30 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-005224
[2019] NZHC 1205
BETWEEN TE ARA RANGATŪ O TE IWI O NGĀTI TE ATA WAIŌHUA INCORPORATED
First Plaintiff
RIKI MINHINNICK
Second Plaintiff
AND
THE ATTORNEY GENERAL OF NEW ZEALAND FOR/ON BEHALF OF THE CROWN
First Defendant
NEW ZEALAND STEEL LIMITED
Second Defendant
WAIKATO NORTH HEAD MINING LIMITED
Third Defendant
HERITAGE NEW ZEALAND POUHERE TAONGA
Counterclaim Defendant
…./2 cont’d
Hearing: 29 May 2019 (by teleconference) Counsel;
J Kahukiwa for Plaintiffs in 2013 and Second Respondent in 2014 S Kinsler for First Defendant in 2013 and First Respondent in 2014 J Hodder QC and T S Smith for Second and Third Defendants in 2013 and Applicants in 2014
Judgment:
30 May 2019
JUDGMENT OF VENNING J
Application for adjournment of fixture
This judgment was delivered by me on 30 May 2019 at 9.15 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
TE ARA RANGATŪ O TE IWI O NGĀTI TE ATA WAIŌHUA INC v THE ATTORNEY GENERAL OF NEW ZEALAND [2019] NZHC 1205 [30 May 2019]
CIV-2014-404-001172
BETWEEN WAIKATO NORTH HEAD MINING LIMITED
First Applicant
NEW ZEALAND STEEL LIMITED
Second ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
RIKI MINHINNICK
Second Respondent (Counterclaim Plaintiff)
Solicitors: Corban Revell Lawyers, Auckland
Meredith Connell, Wellington Chapman Tripp, Wellington Crown Law, Wellington
Counsel: J Hodder QC, Wellington
Introduction
[1] The plaintiffs in the 2013 proceedings (and the counterclaim plaintiff in the 2014 proceeding hereafter “the plaintiffs”) apply for an order adjourning the three week fixture set down to commence on 4 June 2019.
Background
[2] This is not the first application by the plaintiffs to adjourn firm fixtures allocated to this proceeding. On 12 April 2018 the Court granted the plaintiffs’ application to vacate the trial then scheduled to commence on 3 May 2018 and to run for three weeks.
[3]In the minute confirming the adjournment the Court said:
[10] The history to the proceeding discloses considerable and unreasonable delay. The file has not been progressed diligently by the plaintiffs. The proceeding was filed on 19 December 2013. …
[4] While ultimately granting the plaintiffs’ then application for adjournment the Court went on to say:
[22] Nevertheless, some discipline must be brought to the proceeding. The plaintiff now says it will be ready to proceed to hearing provided it is given sufficient time to prepare. The plaintiff must face the sanction of unless orders in the event that it does not comply with further orders of the Court to ensure that the case can be heard at the reallocated fixture date. There must be some certainty and finality for all parties.
[5] The Court allocated the alternative fixture to commence on 4 June 2019 for three weeks.
[6] Against the sanction of the unless orders the plaintiffs complied with the timetable orders for exchange of evidence. An agreed statement of facts has also been filed. While there have been other slippages in the timetable, by consent the timetable has been varied and both proceedings are on their face, ready for hearing apart from the exchange of opening submissions.
[7]Despite that, the plaintiffs again seek to vacate the fixture.
Basis for adjournment application
[8] The plaintiffs advance the application for adjournment primarily on the grounds they are not ready for the hearing. They say ongoing funding difficulties mean they have not properly been able to prepare with their witnesses. Apart from Mr Minhinnick their witnesses are Vincent O’Malley, Professor Boast, Ian Lawlor and Sir Edward Taihakurei Durie. The plaintiffs say they cannot afford the cost of calling their expert witnesses.
[9] The plaintiffs say that the claim includes grievances over the last 156 years and if the adjournment is not granted they will suffer significant prejudice, whereas the defendants will not be prejudiced.
[10] Mr Minhinnick has provided a very general statement in support of the application. He does not give any particular reason for the failure to obtain funding other than making a general reference to the involvement of three separate entities which have created difficulties in decision-making and obtaining funding. The three entities are the Ngati Te Ata Whanau Claims Support Trust, the plaintiff and the Te Runanga o Ngati Te Ata. The Trust was formerly involved in Treaty negotiations with the Crown which have been put on hold because of these proceedings. Te Runanga authorised the first plaintiff to issue the proceedings.
[11] Mr Minhinnick says it has now been decided to create a new single governance structure to make all decisions with regard to this proceeding and Treaty claims but that new governance structure will not be fully in place until July 2019 at the earliest.
[12] As to funding, Mr Minhinnick says that in the early months of 2018 a conditional offer of finance from a reputable litigation funder was obtained but it was subsequently withdrawn. He does not say when. The focus now is on obtaining funding from trading banks. Mr Minhinnick refers to a meeting on 7 May 2019 with the BNZ.
[13] Mr Kahukiwa suggested that any delay will be minimal in the context of the historical grievances affecting Ngati Te Ata.
Applicable principles
[14]The application for adjournment is pursued under r 10.2. That rule provides:
Adjournment of trial
The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.
[15] The interests of justice are the overriding consideration. The decision of O’Malley v Southern Lakes Helicopters Ltd and the comments of Tipping J are often cited, namely that on an application for adjournment:1
… the essential question which the Court always has to consider when asked for an adjournment is whether or not that is necessary in order to do justice between the parties. One must not overlook that not only is it necessary to do justice to the party who is seeking the adjournment but also justice to the party who wishes to retain the benefit of the fixture. It is essentially a balancing exercise.
[16] That was a decision from 1990. In it the Judge emphasised that the interests of both (or all) the parties to the litigation had to be considered. It is now recognised that other interests are important as well. In Aon Risk Services Australia Ltd v Australian National University the High Court of Australia noted that the application for adjournment and amendment should not have been considered solely by reference to whether any prejudice could be compensated by costs:2 French CJ said:3
[5] … Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. …
[17] At [98] the joint judgment of the remaining members of the Court with the exception of Heydon J stated:
[98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of
1 O’Malley v Southern Lakes Helicopters Ltd HC Christchurch CP 513-89, 4 December 1990.
2 Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, [2009] HCA 27.
3 Per French CJ.
the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[18] Rule 10.2 is not the only relevant rule. High Court Rule 1.2 which states the objective of the rules is also relevant:
Objective
The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.
[19] The Court of Appeal have recognised that further considerations are to be taken into account and a broader perspective is to be considered when applying case management principles to litigation. In SM v LFDB the Court considered the application of unless orders, noting that the starting point was the objective in r 1.2 of the High Court Rules:4
[26] … the case management regime now included (since 2008) in Part 7 of the rules is designed to achieve that objective by isolating the issues and trying them fairly, swiftly and efficiently, with regard to what is at stake.
[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants – the public at large – because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.
Decision
[20]I return to the application before the Court.
[21] The proceeding has been characterised throughout by the failure of the plaintiffs to satisfactorily advance this case.
4 SM v LFDB [2014] 3 NZLR 494.
[22] The plaintiffs have had every opportunity to advance this proceeding to trial. They have failed to comply with a number of previous directions of the Court and have only complied when faced with the sanction of unless orders. It is sufficient to refer to a brief summary of the background to make the point. Previous fixtures have been vacated or delayed because the plaintiffs were not in a position to proceed.
[23] The first substantive fixture for three weeks was to commence in April 2016. That fixture had been allocated on an urgent basis and with a compressed timetable at the plaintiffs’ request. Despite that, the fixture was vacated at the plaintiffs’ request.
[24] Subsequent case management conferences were also deferred at the plaintiffs’ request on at least three occasions during 2016 on the basis the plaintiffs would file an amended statement of claim. By memorandum dated 21 September 2016 the plaintiffs advised that a draft amended statement of claim would be provided by 19 October 2016. It was later provided on 8 November 2016.
[25] By joint memorandum dated 28 November 2016 the parties recorded their agreement that a new fixture should be allocated and sought directions for a timetable to trial. At that stage the plaintiffs were to file and serve a further amended statement of claim by 3 February 2017. That amended statement of claim was not filed until 6 April 2017.
[26] A second fixture for three weeks was allocated for 2 October 2017. Counsel for the second and third defendants sought a reallocation of this date as senior counsel was unavailable. The Court granted that application and a replacement three week fixture was allocated for 14 May 2018. The plaintiffs then sought to vacate that fixture which was dealt with by the Court on 12 April 2018. In the course of pursuing the adjournment application counsel for the plaintiffs made the point that the fixture scheduled for October 2017 had been vacated at the defendants’ request. While that was correct, the Court noted that although the plaintiffs had opposed the application for adjournment of the fixture scheduled for 2 October 2017, it was apparent from the evidence before the Court in support of the then application for adjournment in April 2018 that the plaintiffs would have been in no position to proceed to the hearing in 2017 in any event. The current application confirms that assessment.
[27] As the Court observed in the 12 April 2018 minute an important feature of the case was the nature of the plaintiffs’ claim, which raises historical grievances against the Crown. It was because of the nature of the claim the Court accepted that the plaintiffs should be given every reasonable opportunity to have their case heard by the Court. But importantly the Court went on to record:
[19] … That however is not an unlimited right and the plaintiffs must accept responsibility to pursue the claim from hereon. I note Mr Minhinnick’s evidence that the plaintiffs are now funded and will be able to properly pursue the claim.
[28] If the plaintiffs wished to rely on the lack of funding to support the application for adjournment, they should have provided more information. On 11 July 2018 the Court recorded Mr Kahukiwa’s advice that funding was not finalised. No further information was provided to the Court. Despite that, as late as 6 May 2019 counsel for the plaintiffs advised the Registrar that “The trial is on, as per the fixture”. Counsel for the defendants have prepared accordingly.
[29] As noted, Mr Kahukiwa now suggests that funding might be available from a trading bank, the BNZ. However, the attached email from the Bank (dated 7 May) is no more than a request for further information. Any agreement to fund will be some time off, if indeed it comes to fruition at all. No information has been provided regarding the steps taken to obtain funding between July 2018 and May 2019. The position is again unsatisfactory.
[30] Further, Mr Kahukiwa may be overstating the funding difficulty as it relates to the witnesses. As noted the witnesses’ evidence has been finalised and briefs exchanged. Mr Kinsler has confirmed the Attorney-General did not require Sir Edward Durie or Ian Lawlor for cross-examination. Their briefs could be taken as read. There is very limited cross-examination for Professor Boast. The plaintiffs’ primary witnesses would be Mr Roimata Minhinnick and Vincent O’Malley. Mr Kinsler confirmed the Crown would be prepared to pay Mr O’Malley’s travel and accommodation expenses. Mr Hodder QC acknowledged that his clients would take a similar view regarding the calling of witnesses. In addition a comprehensive bundle of documents has been completed.
[31] The plaintiffs have been granted a number of indulgences, more indulgences than would normally be the case. However, the time has come when the interests of justice overall and the interests of other parties before the Court must take precedent over the plaintiffs’ position.
[32] To adjourn this proceeding again would be to undermine the objectives of the rules generally. The defendants would be prejudiced by additional cost and further uncertainty. It would affect other litigants who are waiting to have their cases heard and undermine the public’s confidence in the efficient and fair processes of the Court. For those reasons a further adjournment would not be in the interests of justice.
Result
[33] The application to adjourn the trial is dismissed. The trial will proceed on 4 June 2019. The existing timetable is, however, varied. The time for the filing and service of opening statements is extended to 3.00 pm, Friday, 31 May 2019.
[34] If the plaintiffs do not wish to proceed to trial they can file a discontinuance with the attendant costs and other consequences under the rules.
Costs
[35] The defendants are to have the costs on this application on a 2B basis. All other costs remain to be considered in the case when it proceeds next week or, in the event a discontinuance is filed, following the discontinuance.
Venning J
Addendum
[36] There is a final procedural point. In its judgment of 7 November 2018 the Court made an order staying the counterclaim in the 2014 proceedings until a plaintiff with standing to prosecute the counterclaim entered on record. The Court record does
not disclose any further documentation regarding that but I note the intituling has been changed by some of the documents filed by the parties to suggest that Mr Riki Minhinnick is now effectively the counterclaim plaintiff in the 2014 proceedings. Counsel should clarify the position with the trial judge at the outset of the trial in relation to the status of the Mr Riki Minhinnick as the counterclaim plaintiff in the 2014 proceeding.
Venning J
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