Te Pou Matakana Limited v The Secretary for Māori Development
[2025] NZHC 849
•9 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 849
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: On the papers Counsel:
W L Aldred KC, R J Warren, T I Wharehoka for Applicant T Smith, D Qiu, D Green for First Respondent
J J Brown, D A Northfield for Second Respondent L Clark, N O P Mah for Third Respondent
Judgment:
9 April 2025
JUDGMENT OF BOLDT J
(Application for leave to appeal)
TE POU MATAKANA LIMITED v THE SECRETARY FOR MĀORI DEVELOPMENT [2025] NZHC 849 [9
April 2025]
Introduction
[1] On 4 April 2025, I declined an application by Te Pou Matakana Limited, which trades as the Whānau Ora Commissioning Agency (WOCA), for urgent interim orders.1 WOCA now seeks leave to appeal to the Court of Appeal. It also asks me to extend the “interim interim” order I made to preserve its appeal rights. Finally, in an application filed late on the afternoon of 8 April, WOCA asked me to recall part of my judgment, as it contended I had incorrectly recorded its position.
Background
[2] On 27 March 2025, WOCA filed judicial review proceedings. Earlier that month, Te Puni Kōkiri, the Ministry of Māori Affairs, told WOCA it had decided not to renew WOCA’s contract to provide Whānau Ora commissioning services for the North Island.
[3] WOCA has operated as the commissioning agency for North Island Whānau Ora services since 2014, but last year Te Puni Kōkiri announced it intended to undertake a procurement process for commissioning services throughout the country. As part of that exercise, it decided to split the North Island into two regions. Te Puni Kōkiri also set out to appoint a commissioning agency for the South Island, and another to commission services for Pasifika families.
[4] WOCA applied for reappointment as the commissioning agency for both North Island regions. On 7 March, Te Puni Kōkiri advised WOCA it had been unsuccessful. Te Puni Kōkiri awarded the contract for region 1 — the northern part of the North Island — to the second respondent, National Hauora Coalition Limited. The third respondent, the iwi authority for Ngāti Toa, was awarded the contract for region 2, which covers the rest of the North Island.
1 Te Pou Matakana Ltd v Secretary for Māori Development [2025] NZHC 781 [Interim orders decision].
The claim
[5] WOCA pleaded four causes of action in judicial review. A fifth, which is no longer pursued, alleged Te Puni Kōkiri had breached its existing contract with WOCA.
[6] At the same time as WOCA filed its statement of claim, it applied for urgent interim orders restraining Te Puni Kōkiri from entering new contracts, or “outcome agreements” with the second and third respondents.
[7] The new agencies are scheduled to assume responsibility for commissioning Whānau Ora services from 1 July 2025. The transition period is a tight one and all three respondents emphasised the speed with which they are presently working to ensure the agencies are ready to step into their new roles on that date. The agencies have incurred significant costs and are presently working to establish procurement and IT systems, hiring and redeploying staff, and seeking to enter into agreements with the frontline providers who will deliver services to vulnerable whānau. The respondents argued interim orders would make an already difficult and pressured transition impossible. The new agencies require the certainty of signed agreements to complete the many steps that remain between now and 1 July.
High Court decision
[8] I dismissed WOCA’s application. I concluded its claim is, in substance, a complaint by a disappointed applicant about the outcome of a commercial procurement process.2 WOCA placed considerable emphasis on its assertion that its credentials as a commissioning agency are plainly superior to those of the successful tenderers.
[9] I held the proceeding, at its core, invited the Court to overrule Te Puni Kōkiri’s assessment of the merits of the respective applications.3 While WOCA argued the proceeding raises broader issues of public importance and engaged questions of compliance with the Treaty of Waitangi | Te Tiriti o Waitangi (the Treaty), I noted that Te Puni Kōkiri was not proposing to abandon or fundamentally alter the Whānau Ora
2 At [61].
3 At [49].
model.4 Rather, it was faced with a choice between competing, well-qualified, Māori-led providers, and that WOCA’s real complaint is that Te Puni Kōkiri preferred the second and third respondents’ applications to its own.5
[10] Accordingly, applying Attorney-General v Problem Gambling, I doubted that the outcome of the procurement process was reviewable, at least in the absence of an allegation of fraud, bad faith, corruption, or something similar.6
[11] WOCA sought to rely on the Supreme Court’s decision in Ririnui v Landcorp Farms, in which the majority held that while a decision to enter a commercial contract is unlikely to be reviewable in the absence of fraud, bad faith or an analogous circumstance,7 a decision of that kind may be reviewable when it raises wider issues, such as the Crown’s compliance with the Treaty.8 I held Ririnui is distinguishable from the present case on the same basis it was distinguished in Problem Gambling.9 WOCA’s essential complaint is that was unsuccessful in a procurement process in which the contracts were awarded to other well-qualified agencies, both of them steeped in te ao Māori.10
[12] Nonetheless, and in case I was wrong, I examined WOCA’s application for interim orders on the assumption a more expansive standard of review would be available, and that all the usual grounds of review were open to it.11 I held none of the pleaded causes of action were strong.12
[13] The first two causes of action invite the Court to second-guess the criteria Te Puni Kōkiri applied when choosing between the competing agencies. I held Te Puni Kōkiri had transparently disclosed the selection criteria it would apply when making its final selection, and that WOCA had no legitimate expectation Te Puni Kōkiri would confine itself to the criteria it had signalled, on an indicative
4 At [47].
5 At [60].
6 At [47] and [50]. Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609, [2017] 2 NZLR 470 [Problem Gambling].
7 Ririnui v Landcorp Farms Ltd [2016] NZSC 62 [2016] 1 NZLR 1056 at [65].
8 At [67].
9 Problem Gambling, above n 6, at [46]. Interim orders decision, above n 1, at [50].
10 Interim orders decision, above n 1, at [49].
11 At [51].
12 At [65].
basis, at the beginning of the process.13 Selection criteria were a matter for Te Puni Kōkiri and, in any event, there was no basis to be concerned the particular criterion WOCA was concerned about may have been decisive.14
[14] The third and fourth causes of action alleged Te Puni Kōkiri’s decision to prefer the second and third respondents’ applications to WOCA’s placed it in breach of s 5 of the Ministry of Maori Affairs Act 1991 and art 2 of the Treaty.
[15] I held that ground of review may have been available if the Government were planning to abandon or fundamentally alter the Whānau Ora model,15 but not in a case where one well-qualified Māori-led agency seeks to challenge the Government’s decision to award a contract to two others.16 The evidence disclosed Te Puni Kōkiri sought to identify the agencies which would best deliver the Whānau Ora model over the six-year term of the new contracts.
[16] Turning to the consequences of the orders WOCA sought, I accepted the respondents’ evidence that the disruption to the transition, if interim orders were made, would be profound. I held the public and private repercussions of interim orders weighed strongly in favour of allowing the new agreements to be signed.17 When those considerations were weighed against the merits of WOCA’s claim, I concluded the case for refusing the application for interim orders was overwhelming.18
[17] I agreed to make “interim interim” orders to preserve WOCA’s right to seek leave to appeal. Those orders will expire at 12pm on Friday 11 April unless extended by order of this Court, the Court of Appeal or the Supreme Court.19
Application for leave to appeal
[18] WOCA seeks leave to appeal my decision to the Court of Appeal. It also asks for an order extending the interim interim order. If leave to appeal is granted, it asks
13 At [54]–[58].
14 At [55] and [57].
15 At [47].
16 At [68] and [61].
17 At [66].
18 At [68].
19 At [76]–[77].
me to extend that order until the appeal is determined. If leave is refused, it asks that the order be extended until the Court of Appeal has determined any application for leave filed in that Court, provided an application is made within three working days.
[19] In challenging my decision, WOCA raises similar, though not identical, grounds to those it relied on in argument. There is one notable change. In argument before me, WOCA disclaimed any intention to pursue review proceedings on behalf of the whānau it contends will be disadvantaged by the change in commissioning agencies. Ms Aldred KC confirmed the proceeding had not been brought on a representative basis, and acknowledged WOCA was entitled to seek orders to preserve its own position, but not the position of third parties who might be affected by the change.
[20] WOCA now asserts it is “contrary to law, namely tikanga Māori, to hold that WOCA cannot rely on the impacts on whānau who receive Whānau Ora services, and current Whānau Ora providers, to support its claim for interim relief”. The role of tikanga formed no part of WOCA’s argument in support of its application, and it tendered no evidence to show tikanga may mandate a different approach to applications for interim relief than the law currently understands. In any event, the new ground presupposes that the Court is entitled to engage with WOCA’s central contention, namely that its application was inherently superior to those of the successful agencies, and accordingly that the decision to prefer their applications to WOCA’s will harm the interests of vulnerable whānau.
[21] That aside, WOCA seeks leave on grounds which largely mirror those it advanced in support of its application, though it no longer pursues its claim in breach of contract.
Approach to application
[22] Because my decision to decline WOCA’s application was interlocutory in nature, s 56(3) of the Senior Courts Act 2016 provides that no appeal may be sought without the leave of this Court. If leave is declined, WOCA may seek leave direct from the Court of Appeal under s 56(5).
[23] The relevant considerations when leave is sought are well established. As the Court of Appeal observed in Greendrake v District Court of New Zealand:20
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
Discussion
[24] I held WOCA’s application for interim orders failed by a considerable margin.21 WOCA has sought to characterise its complaint as one which engages wider issues of public policy and addresses the Crown’s broader obligations under art 2 of the Treaty. That said, its real complaint has always been that it missed out on a contract, despite its firm conviction it was the best applicant.
[25] In the present application, WOCA seeks to assert the networks of providers available to the respondents are so inferior to its own that services will inevitably be disrupted. It argues that disruption will place the Crown in breach of its obligations to vulnerable whānau under the Treaty. Aside from its belated attempt to invoke tikanga, which did not feature in argument last week, WOCA proposes to argue I was wrong to characterise its claim as an attempt to relitigate the merits of Te Puni Kōkiri’s decision, that I underestimated the strength of its claim and overstated the
20 Greendrake v District Court of NZ [2020] NZCA 122 at [6] (footnotes omitted).
21 Interim orders decision, above n 1, at [74].
repercussions for the respondents if leave were granted. Overall, it contends I exercised my discretion wrongly.
[26] The same factors which led me to conclude, by a wide margin, that interim orders should not be made persuade me it would be inappropriate to grant leave to appeal. While WOCA continues to maintain it is not asking the Court to revisit Te Puni Kōkiri’s assessment of the respective merits of the agencies which took part in the procurement process, its claim turns on the Court being willing to do so.
[27] Most importantly, WOCA says the Crown will breach the Treaty if the commissioning contracts are awarded to the second and third respondents. It does not allege those agencies lack the credentials to perform the role in a culturally appropriate manner. Rather, its claim turns on the Court accepting that WOCA will do a materially better job, and that the other applicants were objectively inferior candidates. WOCA’s claim cannot succeed unless the Court decides it is appropriate to re-examine Te Puni Kōkiri’s assessment of the competing applications. In the absence of an allegation of bad faith, that is not an appropriate role for the Court on review.
[28] It is, of course, possible the Court of Appeal will see the case differently. Nonetheless, I remain convinced the balance of competing interests overwhelmingly favours allowing the new contracts to take effect. The second and third respondents require the certainty of a signed contract in order to make the extensive investments that will be required before they begin their new roles. Significant tranches of Crown funding will be held up if the contracts are further delayed. The agencies face significant implementation costs. It is important they are able to engage with, and make binding commitments to, the frontline providers who will deliver Whānau Ora services, and who will need to be in place and ready to go on 1 July 2025.
[29] Moreover, it would be inappropriate to force Te Puni Kōkiri to renew WOCA’s contract, even on a short-term basis, in the face of an assessment that its case lacks merit. That appears to be the outcome WOCA favours.
[30] It follows I do not consider WOCA has met the high threshold required by s 56(3) of the Senior Courts Act. I consider the circumstances of the case do not
warrant incurring further delay, and that the interests of justice will not be served by a grant of leave. The application for leave to appeal is declined.
Recall
[31] On 8 April 2025, WOCA has filed an application which asked me to recall part of paragraph [7] of my judgment. That paragraph read:
[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.
[32] In its recall application, WOCA contended the italicised sentence did not reflect its submissions or its position.
[33] The observation WOCA objected to was made for its benefit and explained the urgency of the application for interim orders. Te Puni Kōkiri had undertaken not to execute new agreements with the second and third respondents until 4 April 2025; WOCA contended interim orders were urgently required to prevent that step from being taken. The only step my interim interim order prevents is the execution of final contracts between Te Puni Kōkiri and the agencies.
[34] I convened a telephone conference to giving WOCA the opportunity to clarify its position. On further reflection, Ms Warren, who appeared on Ms Aldred’s behalf at the conference, confirmed WOCA does accept it will be impossible to unwind the agreements once they are signed. She noted it may still be open to WOCA to seek declarations about the procurement process but accepted it will not be able to obtain tangible relief. Ms Warren withdrew the recall application.
Extension to interim interim order
[35] WOCA now has the right to seek leave directly from the Court of Appeal. It plainly intends to do so. I made the interim interim order to preserve WOCA’s right to pursue its options on appeal, while also acknowledging the urgency of the position and the ongoing prejudice to the respondents. I accept the detriment to the second and third respondents will continue to mount as long as the agreements remain unsigned.
[36] Mr Smith urged me to allow the interim order to lapse on Friday. While I am acutely conscious of the respondents’ position, it would not be appropriate either to foreclose WOCA’s right to seek leave from the Court of Appeal, or to require that Court to determine an extension application without the time to consider it properly. I propose a short extension to the existing order to enable WOCA to seek leave. Ms Warren confirmed an application could be made by 12 pm tomorrow.
[37]Provided an application for leave to appeal is made to the Court of Appeal by
12 pm on 10 April 2025, I extend the existing interim order until 12 pm on 16 April 2025, or until further order of this Court, the Court of Appeal or the Supreme Court.
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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