Te Pou Matakana Limited v Secretary for Māori Development
[2025] NZHC 781
•4 April 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-183
[2025] NZHC 781
UNDER Part 30 of the High Court Rules 2016 and under the law of equity IN THE MATTER
of an application for judicial review and a claim for an order by way of specific performance
BETWEEN
TE POU MATAKANA LIMITED
Applicant
AND
THE SECRETARY FOR MĀORI DEVELOPMENT
First Respondent
NATIONAL HAUORA COALITION LIMITED, NGAA POU HAUORA OO
TAAMAKI MAKAURAU, TE TIRATŪ IWI MĀORI PARTNERSHIP BOARD
Second Respondent
TE RŪNANGA O TOA RANGATIRA INCORPORATED
Third Respondent
Hearing: 1 April 2025 Appearances:
W L Aldred KC, R J Warren, T I Wharehoka for Applicant T Smith, D Qiu, D Green for First Defendant
J J Brown, D A Northfield for Second Defendant L Clark, N O P Mah for Third Defendant
Judgment:
4 April 2025
JUDGMENT OF BOLDT J
TE POU MATAKANA LTD v SECRETARY FOR MĀORI DEVELOPMENT [2025] NZHC 781 [4 April 2025]
Introduction
[1] The applicant, Te Pou Matakana Limited, which trades as the Whānau Ora Commissioning Agency (WOCA), has applied for urgent interim orders. It asks the Court to stop the Secretary for Māori Development from entering agreements with other agencies for the provision of Whānau Ora commissioning services.
[2] WOCA has commissioned Whānau Ora services for the North Island since 2014. A second agency provides commissioning services in the South Island, while a third provides services for Pasifika families.
[3] In 2024 Te Puni Kōkiri, the Ministry of Māori Development, decided to run a procurement process for Whānau Ora commissioning services throughout the country. As part of that process, it decided to divide the North Island into two regions. WOCA applied to continue in its role and sought reappointment as the commissioning agency for both North Island regions.
[4] In March 2025, Te Puni Kōkiri advised WOCA that its applications had been unsuccessful. Te Puni Kōkiri has signed Heads of Agreement with the successful tenderers and is in the process of entering into contracts, or “Outcome Agreements”, with them. The successful tenderer for region 1, which covers the upper part of the North Island, was the second respondent, National Hauora Coalition. Region 2 covers the rest of the North Island. The third respondent, Te Rūnanga o Toa Rangatira Incorporated, the iwi authority for Ngāti Toa, was the successful tenderer.
[5] WOCA has brought urgent judicial review proceedings which seek to challenge the process by which Te Puni Kōkiri awarded the North Island contracts to the second and third respondents. In addition, it seeks urgent interim orders restraining the Secretary for Māori Affairs from signing the new Outcome Agreements on behalf of the Crown.
[6] WOCA alleges the process by which the contracts were awarded was procedurally unfair and that the criteria Te Puni Kōkiri relied on in making its decision were unreasonable. It alleges Te Puni Kōkiri failed to consider its obligations under s 5 of the Ministry of Maori Development Act 1991 and the Treaty of Waitangi |
Te Tiriti o Waitangi (the Treaty). WOCA also argues there is an implied term in its Outcome Agreement which requires a transition period of twelve months if Te Puni Kōkiri decides the existing contract should not be renewed.
[7] The application for interim orders was argued within 24 hours of its being filed, and this judgment has been prepared with similar urgency. Te Puni Kōkiri has undertaken not to sign any agreement with the successful tenderers before 4 April 2025, but it proposes to formalise its agreements with the second and third respondents shortly afterwards. All parties agree that once the contracts are signed, Te Puni Kōkiri and the new agencies will have passed the point of no return, and that it will be impossible for the process to be unwound.
Background
[8] In 2010 the Government formalised a new approach to the delivery of health, education and social services to Māori. Championed by the late Dame Tariana Turia, the new model was called Whānau Ora.
[9] Whānau Ora is administered by Te Puni Kōkiri and has its focus on the provision of wraparound services for vulnerable whānau. In a passage from its website, reproduced in WOCA’s statement of claim, Te Puni Kōkiri describes Whānau Ora as:
… putting whānau and families in control of services and supports they need to build on their strengths and achieve their aspirations. Whānau Ora uses a kaupapa Māori approach to improve the wellbeing of whānau as a group, addressing individual needs within the context of whānau or families and their culture.
[10] The existing Outcome Agreement between WOCA and Te Puni Kōkiri explains some of the objectives of Whānau Ora:
IIIThe Provider and Purchasing Agency acknowledge and agree that continuing successful commissioning in the context of Whānau Ora:
(a)will involve, on an ongoing basis:
(i) identifying and understanding the aspirations of whānau and families and developing, supporting and investing in a portfolio of programmes and initiatives expected to
best deliver progress towards achieving Whānau Ora Outcomes Framework; and
…
(b)will involve programmes and initiatives that are innovative, local-level and designed to best meet the needs and aspirations of whānau and families from a range of community entities (such as existing Whānau Ora provider collectives, iwi, marae, education and health providers, church groups, land trusts, community organisations and sports groups);
(c)will involve results based performance accountability and seeking programmes and initiatives that make the most difference for whānau and families, including in areas where more traditional service delivery models may have failed to deliver tangible progress towards achieving Whānau Ora outcomes …
[11] In the first few years of its life, Whānau Ora services were commissioned by Te Puni Kōkiri itself. In 2014, however, it entered into contracts with three commissioning agencies. Those agencies fund, support and oversee the work of service providers, who in turn are responsible for the delivery of health, education and social services to whānau. It is part of a commissioning agency’s role to ensure the outcomes of Whānau Ora are achieved. Ms Aldred KC, on behalf of WOCA, explained that WOCA mobilises a network of 113 providers across the North Island. There is no evidence Te Puni Kōkiri has ever expressed any dissatisfaction with WOCA’s performance.
[12] WOCA’s contract with Te Puni Kōkiri was rolled over three times, in 2017, 2020 and 2024. But the final deed of extension, executed on 12 April 2024, was only for a further 14 and a half months, until 30 June 2025. Te Puni Kōkiri advised WOCA that it intended to engage in a fresh procurement process in 2024.
[13] The procurement exercise involved two main stages. The first, completed in October 2024, was the Registration of Interest (ROI) phase. The ROI phase was designed to screen respondents based on their capability and capacity, their commitment to the next iteration of Whānau Ora (including their alignment with Whānau Ora’s values and kaupapa) and their regional coverage and connections.
The latter included their existing and proposed connections with the community and whānau.1
[14] WOCA submitted its ROI on 24 October 2024, and was one of the agencies invited to proceed to the second phase, the Request for Proposals (or RFP) stage.
[15] An important part of WOCA’s challenge is the way the relevant criteria for selection changed between the ROI and RFP stages. In the ROI document, Te Puni Kōkiri provided a preliminary indication of the criteria it intended to consider when assessing the agencies that made it to the RFP phase:
Approach to providing the commissioning services, including existing and proposed service provider network: 40%
Capacity and capability: 40%
Implementation and transition approach and plan: 20%.
[16] Although the ROI document gave an indication of the criteria Te Puni Kōkiri was planning to use at the RFP stage, those criteria were never set in stone. The table was prefaced with a disclaimer:
The indicative RFP criteria and weightings are set out below. The RFP criteria and weightings are indicative only and are subject to change at the sole discretion of Te Puni Kōkiri. Any changes to the criteria and weightings will be advised to the relevant parties in the RFP if and when appropriate.
[17] The RFP document was released to shortlisted candidates on 22 November 2024. As promised, it set out the criteria by which applications would be evaluated, and the nominal weighting to be assigned to each. The criteria and weightings were different from those indicated at the ROI stage. The RFP document recorded the criteria and weighting as follows:
1 The ROI document assigned a nominal weighting to each:
Commitment to the next iteration of Whānau Ora (including alignment of values and Kaupapa with the Whānau Ora Outcomes Framework): 30%
Capability and capacity (including track record in providing whānau centred solutions and operational and financial systems to manage delivery): 40%
Regional coverage and connections (including existing and proposed connections with community and whānau across the region, and existing and proposed services provider network): 30%
3.3 Weightings
Table 16: RFP criteria and weightings
RFP Evaluation Criteria
Weighting
1. Understanding of requirements and key outcomes sought
10%
· The Respondent’s understanding of the requirements and key outcomes sought, and how it will contribute to and optimise achieving those outcomes. The Respondent’s Proposal should:
o reflect a clear comprehension of, and alignment with, the requirements sought;
o describe how the Respondent plans to meet the outcomes effectively; and
o identify and address any potential changes or risks.
10% 2. Approach i.e. how will you provide the Services once implemented
35%
· Whānau centred Commissioning Services are provided across the region, including in areas of highest need. 10% · Cohesive and consistent best practice process, systems and controls related to:
o Ensuring needs and aspirations of whānau are understood, planned for and progressed
o Investment planning (including needs analysis and planning for both
capacity and coverage, including for Navigators, Service Providers and other required workforce)
o Funding and investment decisions and Commissioning agency governance
o Interaction and cooperation with Te Puni Kōkiri
o Management of Service Providers
o Risk management
o Ongoing improvement and innovation as between Commissioning Agencies including collaboration and co-operation with other
Commissioning Agencies
10% · Data Capture, sharing, storage and reporting, including:
o Individual-level data sharing
o Whānau Ora Progression Framework
o Commissioning Agency performance reporting (including financial and delivery)
o Service Provider reporting.
15% 3. Implementation and transition i.e. how will you get services in place
15%
· Implementation plan for delivery of commissioning services to be in place for 1 July 2025, including:
o A detailed and achievable timeline
o An outline of steps and resources required to achieve on-time delivery of commissioning services
o An understanding of potential risks and/or challenges, with strategies to mitigate them
o Include mechanisms for monitoring and reporting on progress.
15% 4. Response to and level of acceptance of the terms of the template Outcome Agreement: 40% · Acceptance of the template Outcome Agreement with an acceptable timeframe and on terms acceptable to Te Puni Kōkiri. 40% Total weightings
100%
· Due diligence, including:
o Information (or updates) on previously declared or any and all new claims and disputes
o Information on current or anticipated inquiries
Pass / Pass with
conditions / Fail
[18] On 19 December 2024, WOCA submitted two detailed applications, one for region 1, the other for region 2.
[19] On 7 March 2025, three representatives of Te Puni Kōkiri travelled to Auckland and advised WOCA its applications had been unsuccessful. That advice was confirmed in writing the following week.
[20] WOCA was intensely disappointed with the outcome of the process. Ms Maria Halligan, who is employed by Te Whānau o Waipareira as the Director of Funding and Contracting, and who holds several responsibilities for funding and contracting on behalf of WOCA, said the news was “utterly devastating and left us bereft”. The Te Puni Kōkiri representatives stayed for only 15 minutes, and did not explain why WOCA, despite being a long-standing incumbent, had missed out. Later it offered WOCA “the opportunity for a debrief on [its] Proposals upon the conclusion of the procurement process” and noted it was planning on conducting the debriefs in the week of 14 April 2025.
[21] WOCA remains determined to learn more about why it was unsuccessful. In this Court it recorded that despite a number of requests, no detail has been forthcoming.
The claim
[22] WOCA pleads five causes of action. First, it alleges the procurement process was procedurally unfair. WOCA argues it had a “legitimate procedural expectation” that the indicative RFP criteria, set out in the ROI document, would not be subject to “fundamental alteration”. It says its legitimate expectation was breached when Te Puni Kōkiri altered the evaluation criteria between the ROI and RFP stages.
[23] The second cause of action alleges the final RFP criteria chosen by Te Puni Kōkiri were unreasonable. WOCA contends the criteria Te Puni Kōkiri
selected bore no rational connection with the qualities required of an effective commissioning agency. It points in particular to the nominal weighting of 40 per cent for the candidate agencies’ “response to and level of acceptance of the terms of the template Outcome Agreement”; that factor says nothing about how well an agency would perform if appointed. WOCA pleads that the inclusion of that criterion, along with the absence of an express requirement that applicants have proven capacity, capability or experience to do the job, effectively meant Te Puni Kōkiri was asking itself the wrong questions. It pleads the evaluative criteria “were unconnected or had an insufficient level of connection to the policy and contractual outcomes of Whānau Ora”.
[24] Third, WOCA pleads that Te Puni Kōkiri failed to take account of mandatory relevant considerations, namely its responsibilities under s 5 of the Ministry of Maori Development Act. Section 5 provides:
5 Particular responsibilities of Ministry of Maori Development
(1)The responsibilities of the Ministry of Maori Development include—
(a)promoting increases in the levels of achievement attained by Maori with respect to—
(i) education:
(ii) training and employment:
(iii) health:
(iv) economic resource development:
(b)monitoring, and liaising with, each department and agency that provides or has a responsibility to provide services to or for Maori for the purpose of ensuring the adequacy of those services.
(2)The responsibilities of the Ministry of Maori Development under subsection (1) are in addition to the other responsibilities conferred on that Ministry from time to time.
(3)Nothing in this section limits the provisions of the Treaty of Waitangi Act 1975 or of any other Act.
[25] WOCA alleges Te Puni Kōkiri’s approach to the RFP process is likely to harm whānau who depend on Whānau Ora services and erode their tino rangatiratanga. WOCA also alleges it will face financial damage arising from the loss of its contract to provide commissioning services.
[26] Fourth, WOCA argues the procurement process breached the Treaty. It contends the adoption of the new RFP criteria breaches Te Puni Kōkiri’s “obligation of active protection of tino rangatiratanga of whānau in receipt of Whānau Ora services” and its obligation as a Treaty partner to act reasonably and in good faith.
[27] Finally, WOCA argues the current Outcome Agreement, most recently renewed in 2024, obliges Te Puni Kōkiri to engage in a twelve-month transition process if it decides not to renew WOCA’s contract.
[28] Two clauses in the Outcome Agreement are relevant to this cause of action. Clause 3.3 relevantly provides:
3.3 As from the date which is 12 months before the date when the term would otherwise expire the Purchasing agency and the Provider will commence discussions about:
(a)Whether or not each of the Purchasing Agency and the Provider is likely to wish to extend the term, and any matters that either of them consider will be relevant to determining whether it wishes to do so; and
(b)If either the Purchasing Agency or the Provider is unlikely to (or does not) wish to extend, the reasons for holding that view; and
(c)If the term were not to be extended, how to ensure an orderly transition from the Provider to a new provider (which might be the Purchasing Agency) as from the expiry of the term, including so that disruption to whānau and families who may be participating in programmes or initiatives being supported by the Provider is minimised.
[29] The second relevant provision is cl 11.4 of Annexure 1 to the Outcome Agreement. Clause 11.4 is headed “Consequences of termination or expiry of any Outcome Agreement”, and the relevant parts provide:
If the Outcome Agreement (or any part of it) is terminated or expires in accordance with its terms:
…
(b) unless an alternative date for stopping the Services is agreed by the parties in accordance with clause 11.4(e) the provider must stop performing the relevant Services from the date of termination or expiry of the Outcome Agreement;
…
(e) the Purchasing Agency and the Provider will discuss how to ensure that there is an orderly transition of the applicable Services and client records from the Provider to any replacement provider following termination or expiry of the Outcome Agreement, agree a plan and implement their respective obligations under that plan.
[30] WOCA contends that these provisions, read together, give rise to an implied term that where the agreement is due to expire, it “will be extended for a sufficient period to enable the discussions, and actions required under clause 3.3 of the Outcome Agreement and clause 11.4(e) of Annexure 1 to occur”. WOCA says a “sufficient period” is twelve months. It seeks an order for specific performance, requiring Te Puni Kōkiri to extend the existing Outcome Agreement to 19 March 2026.
Approach to application
[31] Because WOCA seeks judicial review and, in the fifth cause of action, brings a claim for breach of contract, the parties referred interchangeably to the common law test for injunctive relief and the broader evaluation appropriate when an applicant for judicial review seeks interim orders.
[32] The common law test, repeatedly applied in the New Zealand courts, requires examination of whether the proceeding discloses a serious question to be tried, where the balance of convenience lies and, as a cross-check, the overall interests of justice.2
2 New Zealand Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12], Roseneath Holdings Ltd v Grieve [2004] 2 NZLR 168 (CA) at [35]–[37].
[33] Section 15 of the Judicial Review Procedure Act 2016 provides that in review proceedings the Court may make an interim order, including an order of the kind WOCA seeks in this case, if it is necessary to do so to preserve the position of the applicant.3 In deciding whether to make an order, the Court has a wide discretion to consider all the circumstances of the case, including the strengths and weaknesses of the applicant’s claim for review and all relevant repercussions of granting interim relief, whether public or private.4
[34] While the two approaches are not identical, they are clearly analogous, and I am satisfied that in this case the outcome is the same whichever test is applied.
Discussion
Is the outcome of the procurement process reviewable?
[35] The first question is whether Te Puni Kōkri’s procurement process — as a commercial contracting exercise involving competing providers — is amenable to judicial review, at least in the absence of an allegation of fraud, corruption or bad faith.5
[36] Mr Smith, on behalf of Te Puni Kōkiri, urged me to conclude it is not. He argued WOCA’s claim is, at its core, a complaint that Te Puni Kōkiri preferred the second and third respondents’ applications to its own. Much of the evidence WOCA has produced is directed to demonstrating that its credentials are objectively superior to those of the second and third respondents. WOCA tendered an affidavit from Mr John Tamihere, its Chief Executive, which includes a lengthy section critical of the successful tenderers’ capabilities. He spoke of whānau being “in for a very difficult winter” due to the immediacy of the transition, and summarised this part of his evidence by saying:
3 Judicial Review Procedure Act 2016, ss 15(1) and 15(2)(a). As the respondent in this case is the Crown, the interim order would be couched in the form of a declaration, but nothing material turns on that.
4 Minister of Fisheries v Anton Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at
[3] citing Carlton and United Breweries v Minister of Customs [1986] 1 NZLR 423 at 430 per Cooke J.
5 Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609, [2017] 2 NZLR 470 [Problem Gambling] at [41]. Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385 [2009] 1 NZLR 776 at [91].
[17] … The simple fact is that neither [the second or third respondents] have the capability, capacity or reach to adequately commission the delivery of Whānau Ora services from 1 July 2025. This is demonstrated by information that is publicly available.
[37] By contrast, WOCA emphasised its role as a successful incumbent with an extensive and well-established network of providers built up over eleven years. Mr Smith argued, in effect, that this aspect of WOCA’s evidence proves too much. He submitted WOCA’s evidence reveals the claim is, in reality, an attempt to persuade the Court to overrule Te Puni Kōkiri’s assessment of the merits of the competing applications.
[38] Mr Smith placed particular emphasis on the Court of Appeal’s decision in Attorney-General v Problem Gambling Foundation.6 In that case the Ministry of Health had invited proposals for the provision of public health services and psychological intervention support associated with problem gambling. The Ministry received 32 applications, including two from the Problem Gambling Foundation (the Foundation), a large incumbent provider.7 The Foundation was unsuccessful, and it sought to judicially review the Ministry’s procurement process. The High Court held the Ministry had breached the Foundation’s legitimate expectations as to process and the mandatory rules for procurement, that its evaluation processes had been flawed and that the Ministry failed to address actual or potential conflicts of interest.8
[39]The Attorney-General’s appeal to the Court of Appeal was successful.
The Court observed:9
(a) We agree with the Crown that where the decision the subject of review is a procurement (contracting) decision made in a commercial context, that is the starting point for consideration of the appropriate scope of review. We understand the High Court Judge’s analysis to be that the decisions were not taken in a commercial context. However, that analysis gave no weight to the fact that these were procurement decisions. We agree with the Ministry that where decisions are made by the Crown in the course of a procurement
6 Problem Gambling, above n 5.
7 At [13].
8 At [1] and [26]
9 Footnotes omitted.
process, that will usually provide the commercial context. It follows the prima facie position will be that only narrow review is appropriate, subject to any relevant contextual matters indicating a need for the High Court to have broader powers of review.
(b) This Court identified relevant contextual matters in Lab Tests … To those we would also add the nature of the interest sought to be protected by the party seeking judicial review. We say this because it may be that a decision taken in a commercial context by a state actor does entail wider public interest considerations, suggesting that a broader scope of review will be appropriate, as the Crown acknowledges. But to avail itself of that broader scope of review, the applicant for review must raise issues relevant to that public interest and not just be a disappointed commercial party, seeking to take advantage of public remedies in a commercial context.
(c) In our view, the critical contextual consideration in this case is that the party seeking review, the Foundation, is a disappointed participant complaining about the RFP process through which it hoped to secure a contract to provide paid services to the Ministry. We acknowledge that, as the Judge identified, the RFP process was for the provision of services to enable the Ministry to implement its problem gambling strategy and there is indeed a public interest in the Ministry discharging its statutory duty to formulate a plan and provide those services. But we think the Judge was wrong to conflate the public interest in the Ministry discharging its duty to provide those services with the need for broad review in this case. He was wrong to discount as “too abstract to be of assistance” the Ministry’s argument that the Foundation’s claim did not truly engage the public interest it sought to invoke in support of broad review.
[40]Mr Smith submitted an identical analysis applies in the present proceeding.
[41] Ms Aldred argued WOCA’s claim can be readily distinguished from Problem Gambling. It is common ground that the nature and context of the relevant decision is critical in determining its amenability to review and the appropriate standard to be applied. In this case, Ms Aldred submitted the relevant context is the provision of services to disadvantaged whānau. The Whānau Ora model was designed to help the Crown discharge its Treaty obligations to vulnerable Māori. In doing so, Te Puni Kōkiri is fulfilling its obligations under s 5 of the Ministry of Maori Development Act. It follows that any step which may adversely affect the provision of health and education to Māori engages Te Puni Kōkiri’s obligations under s 5 and is accordingly amenable to review.
[42] Moreover, Ms Aldred argued the Whānau Ora model, with its emphasis on empowering whānau and promoting the exercise of tino rangatiratanga, is a tangible expression of the Crown’s obligations under the Treaty. It follows, she submitted, that
WOCA cannot be dismissed as merely another unsuccessful participant in a Crown procurement process. She placed considerable emphasis on Ririnui v Landcorp Farms Ltd.10 In that case the application for judicial review concerned a proposal by Landcorp to sell a block of land to a private purchaser.11 It had assumed, wrongly, that all Treaty claims to the block had been settled.12 Mr Ririnui brought proceedings on behalf of a Treaty claimant who had hoped to buy the land.13
[43] The Supreme Court confirmed the usual starting point is that a decision by the Crown to enter a commercial contract is unlikely to be reviewable in the absence of fraud, bad faith, corruption or something similar.14 Nonetheless, Arnold J, for the majority, concluded there were wider issues at play, most notably the close connection between Landcorp’s landowning function and the Crown’s fulfilment of its obligations under the Treaty.15 The majority held that the sale to the private purchaser was not an ordinary commercial transaction, and was amenable to review.16
[44] Ms Aldred submitted the present case is similar. Fulfilment of the Crown’s Treaty obligations is one of Te Puni Kōkiri’s core functions, and accordingly, she argued, all the usual grounds of review are available if problems arise.
[45] The Foundation relied on Ririnui in Problem Gambling. The Court of Appeal observed:
[46] We contrast this challenge with that in Rirunui. Although Ririnui also involved a party disappointed in their hopes of securing a contract, a feature of that case missing in the present was an alignment of the claimant’s grievance with the broader public interests in play — in Ririnui, the resolution of Treaty claims. The Foundation’s claim, in contrast, is grounded firmly upon unfairness to it in the process and disappointment of its own private interests. It is a complaint which could have been advanced through contract if the process had given rise to a process contract. The only way in which its allegations engage with the public interest in the provision of public health services is the Foundation’s attempted invocation of that contextual feature in favour of broad judicial review.
10 Ririnui v Landcorp Farms Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.
11 At [6].
12 At [8].
13 At [2].
14 At [65].
15 At [67].
16 At [74]–[75].
[46]Mr Smith argued exactly the same considerations arise in this case.
[47] I doubt the process by which Te Puni Kōkiri decided to prefer the second and third respondents to WOCA is reviewable in the absence of an allegation of fraud or bad faith. I agree that if Te Puni Kōkiri had, for example, unilaterally decided to abandon the Whānau Ora model, and had opted for a provider which proposed to dispense with the “by Māori, for Māori” approach to the provision of services,17 then its decision would raise issues of broad public interest, and its compliance with s 5 would be called into question. In those circumstances there would be no barrier to review proceedings.
[48] There can be no suggestion of that here. While Te Puni Kōkiri characterises the next six years as a “new iteration” of Whānau Ora, it does not propose to make fundamental changes to the model. Rather, it simply preferred the new agencies’ applications to the corresponding applications by WOCA.
[49] While WOCA maintains its networks are now at risk and are inherently superior to anything the second and third respondents will be able to offer, that submission invites the Court to review the merits of Te Puni Kōkiri’s decision. Given that in each North Island region Te Puni Kōkiri was faced with a choice of (at least) two well-qualified organisations, steeped in te ao Māori, there can be no suggestion its selection of the second and third respondents jeopardised the performance of its function under s 5, or the Crown’s obligations under the Treaty.
[50] Ultimately, Te Puni Kōkiri was engaged in a commercial procurement process. WOCA knew, at least since April 2024, that there was no guarantee its Outcome Agreement would be extended beyond 30 June 2025. WOCA’s position is far closer to that of the Foundation in Problem Gambling than it is to the successful appellant in Ririnui.
[51] That said, and in case I am wrong, I have examined WOCA’s claim with reference to the usual test for interim orders under the Judicial Review Procedure Act and at common law. I have done so on the assumption a more expansive standard of
17 Or, as Mr Tamihere put it, “a Māori solution to Māori problems”.
review is available, and that WOCA may have recourse to the full range of review grounds.
Does WOCA have a position to preserve?
[52] I agree WOCA has a position to preserve — as already noted, the transition to the new agencies will pass the point of no return when the new Outcome Agreements are signed. That said, in asserting that interim relief is necessary it is not open to WOCA to rely on its apprehension that those who receive Whānau Ora services will be disadvantaged. Ms Aldred confirmed this is not a representative action, and that WOCA is not seeking to speak on behalf of whānau who may be affected by the transition.
[53] For better or for worse, Te Puni Kōkiri has determined that the interests of Whānau Ora clients will be better served by new commissioning agencies. In reaching that conclusion, it has absolved WOCA of responsibility for the welfare of vulnerable whānau after the contract ends. If Whānau Ora clients are detrimentally affected by the appointment of the new agencies, that disadvantage will be Te Puni Kōkiri’s responsibility. WOCA is entitled to seek interim relief to preserve its own position, but not the position of whānau or other third parties whose services might change.
Strengths and weaknesses of the claim
[54] In any event, I agree with the respondents that none of the pleaded causes of action are strong. First, the contention that WOCA had a reasonable expectation Te Puni Kōkiri would not materially alter the evaluation criteria between the ROI and the RFP stages is untenable. The ROI document expressly noted that the proposed criteria and weightings it set out were indicative only and were subject to change “at the sole discretion of Te Puni Kōkiri”.
[55] It follows the only reasonable expectation WOCA could have had was that any changes to the criteria and weightings would be transparently disclosed at the RFP stage. The RFP document set the final criteria out in full, meaning WOCA could tailor its applications. Far from creating an expectation the criteria and weightings would not change, Te Puni Kōkiri expressly acknowledged they might.
[56] Turning to the second cause of action, I agree the candidate agencies’“response to, and level of acceptance of the terms of the Outcome Agreement” was a curious factor, and the 40 per cent weighting it attracted was surprisingly heavy. But even if it were the Court’s role to second-guess Te Puni Kōkiri’s selection criteria, this particular factor could not have been material to the final decision. Ms Aldred confirmed WOCA had not indicated any concerns about, or dissatisfaction with, the template Outcome Agreement. It had been working successfully with its existing Outcome Agreement for many years.
[57] It follows that WOCA could not have “lost marks” under that heading, meaning the final decision must have turned on Te Puni Kōkiri’s assessment of how well the agencies satisfied the remaining criteria.18
[58] I agree with Mr Smith that the lack of express reference to qualities such as capacity, capability or experience properly reflected the change in emphasis between the ROI and RFP stages. The ROI process was designed to eliminate agencies that lacked the capability or experience to perform the role. Having satisfied itself that all remaining candidates were qualified to do the job, it was reasonable for Te Puni Kōkiri to switch its focus to forward-looking qualities, such as how each applicant proposed to provide the services, and their internal processes.
[59] The allegation underpinning the third cause of action — that Te Puni Kōkiri disregarded the requirements of s 5 — is equally unconvincing. There is no reason to doubt Te Puni Kōkiri had the long-term interests of vulnerable whānau uppermost in its mind when it made its decision. Ms Grace Smit, who had a central role in the procurement process within Te Puni Kōkiri, expressly acknowledged that the objectives listed in s 5 informed the procurement decisions. Te Puni Kōkiri simply decided that agencies other than WOCA would be best placed to commission Whānau Ora services over the next six years.
18 All parties accepted that while Te Puni Kōkiri’s attempts to inject a level of objectivity into its decision-making process might have served as a useful starting point, it was ultimately free to disregard the figures the model generated and choose the agency it considered would perform best as a commissioning agency over the next six years.
[60] As already noted, by the RFP stage, Te Puni Kōkiri was faced with a choice between a number of agencies, all of which had shown themselves to be capable of performing successfully as a commissioning agency. All were reputable, Māori-led organisations, and the procurement process was thorough.
[61] The same analysis applies to the fourth cause of action. There can be no suggestion Te Puni Kōkiri disregarded the Crown’s obligations under the Treaty. The Whānau Ora model itself is not under threat. The whole procurement process was designed to select agencies which will promote and implement Whānau Ora effectively. Once again, WOCA’s real complaint is that Te Puni Kōkiri selected other Māori-led agencies to do so.
[62] Turning to the fifth cause of action, I do not consider WOCA has demonstrated a serious question to be tried. It argues there was an implied term in the Outcome Agreement which provided for a transition period of twelve months if Te Puni Kōkiri decided its contract would not be renewed. I am satisfied the contract is clear on its face. Clause 3.3 is designed to ensure an orderly transition if either party is unsure it wishes to extend the contract further. That clause exists for the benefit of Te Puni Kōkiri, which has ultimate responsibility for ensuring continuity of care to vulnerable whānau. With hindsight it may have been wise to press WOCA earlier about its transition plans if it was unsuccessful in the procurement process. That said, if Te Puni Kōkiri had done so, it may later have found itself vulnerable to accusations of predetermination.
[63] Ms Aldred’s submission that the contract requires Te Puni Kōkiri to renew WOCA’s contract for twelve months cannot be reconciled with cl 11.4(b), which requires it to stop providing relevant services on the date the contract expires unless an alternative date has been agreed. WOCA is obliged, under cl 11.4(e) to assist in the transition process, but the contract expressly provides that WOCA has no expectation of ongoing engagement once the term of the Outcome Agreement ends.
[64] The term WOCA asks the Court to read in falls well short of the requirements of a valid implied contractual term, most recently and authoritatively articulated by
the Supreme Court in Bathurst Resources Ltd v L & M Coal Holdings Ltd.19 Most importantly, the proposed term is inconsistent with the express terms of the contract.20 Moreover, given the contract directly addresses the process of transition from one commissioning agency to another, it is impossible to describe an unwritten clause, requiring a twelve-month transition period, as something “so obvious that it goes without saying”.21
[65] It follows I do not consider any of the pleaded causes of action to be seriously arguable. On its own, I would have regarded that conclusion as fatal to WOCA’s application. Nonetheless, I have briefly examined the public and private repercussions of granting the relief (and, in the case of the fifth cause of action, the balance of convenience).
Repercussions of interim orders
[66] In considering the consequences of a delay to the completion of the new Outcome Agreements, I have no hesitation in accepting the evidence and submissions tendered by the three respondents. I am satisfied that interim orders, which prevent new Outcome Agreements from being signed, would have profound and highly disruptive consequences for an already tight transition. I need not dwell on the detail of their submissions, but the evidence shows the new agencies have already incurred significant costs and are working under considerable pressure to complete their engagement with providers. They are also setting up IT and procurement systems, hiring and reallocating staff, and addressing all the other practical challenges associated with assuming a major new role on 1 July 2025. The second respondent estimates it will incur total implementation costs of $2.7 million by 1 July.
[67] The transition, already rushed, would be derailed entirely if interim orders were made. The second and third respondents would find it impossible to conclude
19 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2024] 1 NZLR 696.
20 At [260] and [269].
21 At [94] and [109].
agreements with providers. The next few months will require considerable investment, and they need the certainty of a signed contract.
[68] The disruption to the already-challenging transition, the economic and reputational consequences for the second and third respondents, and the potential impact on the vulnerable communities Whānau Ora is designed to serve, all weigh strongly against interim relief. When those consequences are considered alongside the weakness of WOCA’s claim, the case for declining the application is overwhelming. I have no hesitation in exercising my discretion against the interim orders WOCA seeks. Analysis of the overall interests of justice leads to the same conclusion.
Conclusion
[69] While WOCA says this proceeding is primarily motivated by concern for the vulnerable whānau it believes will suffer if its contract is not renewed, it also acknowledges it expects to suffer financial harm. In the statement of claim it pleads, among other things, that the loss of its contract will result in financial damage.
[70] As already noted, Te Puni Kōkiri’s decision releases WOCA from responsibility for the wellbeing of Whānau Ora clients after 1 July. What remains is the financial loss WOCA may sustain as the result of a procurement process which, it contends, breached its contract with Te Puni Kōkiri. Even if it has a case, interim relief and specific performance are not required; its remedy will sound in damages.
[71] While WOCA remains confident it can deliver commissioning services better than any other agency, Te Puni Kōkiri saw things differently. The decision was Te Puni Kōkiri’s to make. It has chosen to embark on a new course with new agencies. Together they will be accountable for the quality of the services they provide. There is no reason to disrupt an already challenging transition.
[72]WOCA’s application for interim orders is declined.
Interim interim orders
[73] Ms Aldred asked, in the event I decline WOCA’s application, that I nonetheless make a very short-lived interim declaration to preserve WOCA’s right to seek leave to challenge my decision in the Court of Appeal.
[74] My decision was a discretionary one, and WOCA’s application failed by a considerable margin. All three respondents oppose even strictly limited interim relief, given the magnitude of the consequences they apprehend if they are unable to execute the Outcome Agreements. Nonetheless, I acknowledge WOCA has the right to seek leave to appeal, and that its ability to do so will effectively be foreclosed if the agreements are executed before it is able to make an application. I propose to make a strictly time-limited interim order to allow WOCA, if it wishes, to pursue its options on appeal.
[75] My willingness to do so should not be taken as an indication I will give leave to appeal if an application is filed; an applicant must demonstrate some reasonable prospect of success.22 Nonetheless, it is fair to give WOCA the opportunity to do so.
[76] Accordingly, I declare, under s 15(3)(b)(i) of the Judicial Review Procedure Act, that the Crown ought not to execute Outcome Agreements for Whānau Ora commissioning services with the second and third respondents.
[77] That declaration will expire at 12 pm on 11 April 2025, unless it is extended by order of this Court, the Court of Appeal or the Supreme Court.
Costs
[78] WOCA has been unsuccessful and in the usual course would be liable for costs to all three respondents. I encourage the parties to settle the question of costs among themselves, but if they are unable to do so I will be happy to receive memoranda.
22 Moir v IHC NZ Inc [2018] NZCA 130, (2018) 24 PRNZ 45 at [6]. See also Greendrake v District Court of NZ [2020] NZCA 122 at [6].
[79] If a costs ruling is required, the respondents are to file memoranda within 15 working days of the delivery of this judgment. WOCA is to respond within a further ten working days. Memoranda are not to exceed five pages. In case it assists, my initial inclination is that WOCA should pay each respondent’s costs on a 2B basis.
Boldt J
Solicitors:
T J G Allen , Auckland for Applicant
Crown Law, Wellington for First Respondent Bell Gully, Wellington for Second Respondent
Dentons Kensington Swan, Wellington for Third Respondent
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