PAUL v THE NEW ZEALAND MĀORI COUNCIL [2019] NZHC 784

PAUL v THE NEW ZEALAND MĀORI COUNCIL [2019] NZHC 784 [11 April 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-674[2019] NZHC 784UNDER the Declaratory Judgments Act 1908 [andpt 18 of the High Court Rules]IN THE MATTER of the Maori Community Development Act1962 and the Maori CommunityDevelopment Regulations 1963BETWEEN CLETUS MAANU PAUL AND OTHERSFirst to eighth applicantsAND THE NEW ZEALAND MĀORI COUNCILRespondentHearing: 19 March 2019Appearances: R Harrison QC and S Collinson for applicantsF Geiringer and E O'Connor for the respondentJudgment: 11 April 2019JUDGMENT OF ASSOCIATE JUDGE JOHNSTONIntroduction[1] The defendants apply to strike out a proceeding brought by the New ZealandMāori Council under the Declaratory Judgments Act 1908 concerning the properinterpretation of certain provisions in the Maori Community Development Act 1962(the Act) and the Maori Community Development Regulations 1963 (the Regulations).The purposes of the Act are said to be " to provide for the constitution of MaoriAssociations, to define their powers and functions, and to consolidate and amend[earlier legislation]."11 Maori Community Development Act 1962, long title.[2] The Associations referred to are Māori Committees, Māori ExecutiveCommittees, District Māori Councils and the New Zealand Māori Council. Forpresent purposes, how these entities are brought into existence is more important thanthe precise functions performed by them. The Act provides that persons of Māoridescent are entitled, every three years, to elect the members of Māori Committees.Māori Committees appoint Māori Executive Committees. Māori ExecutiveCommittees then appoint District Māori Councils. Finally, District Māori Councilsappoint members of the New Zealand Māori Council. The New Zealand MāoriCouncil is a national body. The others are all regional. As Mr Harrison put it in thecourse of argument, this is a "bottom-up" structure in the sense that the triennialelections occur at the Māori Committee level, while the members of Māori ExecutiveCommittees, District Māori Councils, and the New Zealand Māori Council areappointed. The responsibilities of these Associations are set out in the legislation.[3] From the pleadings and the affidavit evidence, it is apparent that the genesis ofthis litigation is a schism within Māoridom between two factions, one seeminglyconnected with Sir Edward Durie and the other with Mr John Tamihere. I am not surethat it is fair to ascribe leadership to Sir Edward and Mr Tamihere, but connecting theirnames with the two factions will, if nothing else, enhance the readability of thisjudgment.[4] Elections and consequential nominations were due to take place in 2018. Infive regions, the Durie faction was involved in arranging one set of elections and theTamihere faction was involved in arranging another. The outcomes were different. Asort of reverse domino effect then occurred with different purported appointmentsbeing made to Māori Executive Committees, District Māori Councils and theNew Zealand Māori Council. At the New Zealand Māori Council level, the twofactions are maintaining that different individuals hold office. As a result, theeffectiveness of the New Zealand Māori Council is compromised.[5] Plainly, the position needs to be clarified. The plaintiff commenced thisproceeding on 3 September 2018 in an attempt to seek clarification. The essentialquestion for the Court on this application is whether that attempt is even capable ofbeing efficacious.[6] The plaintiff asks the Court to rule that the elections and nominations that ledto the Durie faction candidates holding office were lawful, and, conversely, that theTamihere faction candidates do not hold office. At this point, it may be helpful to lookat the original statement of claim.The plaintiff's claim[7] The original statement of claim begins conventionally by identifying anddescribing the parties. In this case, even this component of the pleading iscontroversial. However, it is not necessary to focus on this controversy. The plaintiffis the New Zealand Māori Council, which has statutory corporate status. The standingof the plaintiff to bring this proceeding is apparently challenged by the defendants, butthat is not a matter that the Court is asked to address at this stage. The defendants arethe Tamihere faction individuals who say that they are the lawful appointees to theNew Zealand Māori Council.[8] The plaintiff then turns to the 2018 elections and nominations. It is allegedthat all Associations under the Act " are required to conduct elections on a triennialbasis including in 2018". That is wrong. As already stated, the legislation providesthat only Māori Committees are elected. The processes of nomination to MāoriExecutive Committees, District Māori Councils and the New Zealand Māori Councilfollows. This mis-description of the processes involved is repeated throughout thestatement of claim.[9] The plaintiff says that the 2018 elections and nominations conducted by theDurie faction were lawful in all respects and therefore the election of Durie factioncandidates as members of the Māori Committees and the subsequent nominations ofDurie faction nominees to Māori Executive Committees, District Māori Councils andthe New Zealand Māori Council were all legitimate, so the Durie faction members arethe lawfully appointed members of the New Zealand Māori Council.[10] The plaintiff pleads that the Tamihere faction also purported to conductelections and make nominations in 2018, the lawfulness of which it puts in issue.Particulars of this allegation are provided. These include an assertion that the NewZealand Māori Council was entitled to issue directions in relation to the conduct ofelections or nominations, that it did so and that the election processes instigated by theTamihere faction were not conducted in accordance with its directions.[11] Finally, the plaintiff alleges that despite this the defendants are holdingthemselves out as legitimate appointees to the New Zealand Māori Council andprovides extensive particulars of this. It is pleaded that the actions of the defendantsabout which the plaintiff complains are effectively preventing the New Zealand MāoriCouncil from functioning.[12] The prayer for relief is in these terms:Wherefore the plaintiff seeks:A. A declaration under s 3 of the Declaratory Judgments Act 1908 that theNew Zealand Māori Council and the District Māori Councils haveconducted lawful 2018 triennial elections in accordance with therequirements of the Māori Community Development Act 1962 and theMāori Community Development Regulations 1963 and the results ofthose elections are as set out in the whole of APPENDIX 1.B. A declaration under s 3 of the Declaratory Judgments Act 1908 that thedefendants do not hold elected positions within the plaintiff or anyDistrict Māori Council.C. An order that the costs of, and associated with, this claim be paid by thedefendants.The defendants' application[13] By interlocutory application filed on 21 December 2018 the defendants applyfor an order pursuant to r 15.1 of the High Court Rules 2016 striking out the statementof claim. Alternatively, they seek an order requiring the plaintiff to provide furtherand better particulars of aspects of its claim. Finally, the defendants ask that thisproceeding be transferred to Auckland.[14] By notice of opposition dated 25 January 2019 the plaintiff opposes an orderstriking out the proceeding. It indicates a willingness to provide further and betterparticulars of its claim. It opposes the transfer of the proceeding.Some recent developments[15] A matter of days prior to the hearing of the defendant's application, the plaintifffiled and served an amended statement of claim. This step on the plaintiff's part iscriticised. The criticism is justified to the extent that it is directed at the step beingtaken at the eleventh hour, but not otherwise. It is commonplace, in response toapplications to strike out pleadings, for the party whose pleading is the subject ofattack to file and serve an amended pleading, or offer a draft amended pleading, todemonstrate that any infelicities in the original pleading are capable of being corrected.That, in effect, is what the plaintiff has attempted to do here.[16] The plaintiff's underlying claim has not changed. It has sought, imperfectly,to correct the inaccurate descriptions of the election and nomination processes. It hasadded further particulars of aspects of its case. But otherwise little has changed.Application to strike out statement of claim[17] The grounds upon which the defendants seek this order (and the alternativeorder requiring the plaintiff to provide further particulars of its claim) are articulatedin detail in their notice of application. Variously, it is said that the plaintiff's pleadingdoes not give rise to a tenable cause of action, that it is likely to result in prejudice ordelay, that it is frivolous or vexatious and that it is an abuse of process.[18] In the end, the primary arguments coalesce around three key points:(a) the form of the proceeding and the appropriateness of a pt 18proceeding having regard to the nature of the case;(b) the inadequacy of the statement of claim; and(c) the availability of the single remedy sought — a declaration pursuantto s 3 of the Declaratory Judgments Act.Form of proceedingPart 18 of the High Court Rules 2016[19] Parts 18 and 19 of the Rules provide for exceptional means of commencingproceedings.[20] Part 18 is directed at proceedings wholly within the Court's equitablejurisdiction, including proceedings pursuant to certain statutes that have codifiedaspects of that jurisdiction. These expressly include proceedings in which relief issought solely pursuant to the Declaratory Judgments Act.2[21] As a rule, pt 18 proceedings are commenced by notice of proceeding andstatement of claim as with ordinary proceedings, but they may, where the case alsofalls within part 19, be commenced by originating application.3 There are special rulesrelating to the conduct of pt 18 proceedings. The most obvious differentiator betweenordinary proceedings and pt 18 proceedings is that, unlike in the former, in pt 18proceeding evidence — in chief at least — is usually in affidavit form. However, withthe advent of case management and written proofs of evidence in chief, that differencemay now be more apparent than real.[22] Part 19 provides for the commencement of proceedings by originatingapplication (as opposed to notice of proceeding and statement of claim). Certain verylimited categories of proceeding are identified as capable of being commenced in thisway. It is, as Mr Harrison submits, a method of commencing proceedings that isdirected at cases where there are no significant factual disputes. The authors ofMcGechan on Procedure say that pt 19 is designed to provide a speedy andinexpensive mechanism. They continue:4As MacKenzie J has described in Fisk v X [2014] NZHC 2797 at [18],Part 19 was initially designed as an expedient for cases where there wasin reality no opposing party. That narrower approach is no longerapplied, but Part 19 remains a procedure generally used for cases whereit is not necessary to have full pleadings and interlocutory steps forthe proper determination of the issues.2 High Court Rules 2016, r 18.1(b)(v).3 Rule 18.4.4 McGechan on Procedure (online ed, Thomson Reuters) at [HRPt19.01].[23] Initially, the plaintiff commenced this proceeding under pt 18, but elected,instead of filing a notice of proceeding and statement of claim, to file an originatingapplication, presumably in reliance on pt 19. That may have reflected a failure todistinguish between cases that are not seriously opposed and cases in which a plaintiffbelieves that his, her or its case is unanswerable and that the proper outcome isobvious. Be that as it may, in a minute dated 27 September 2018 Churchman J directedthe plaintiff to file a statement of claim. In order to succeed the plaintiff will have toestablish a factual foundation for the relief it seeks, and the factual background is notwithout its complications. To that extent, the criticism of the original form that theproceeding took is justified. But the position has now been regularised. What isproceeding to trial is a pt 18 proceeding that is now pleaded conventionally.[24] In my view, the plaintiff's false start is not a basis to strike out its claim.[25] Mr Harrison submits that pt 18 proceedings are not apt to deal with cases thatraise complex factual issues. It "plainly contemplates" he submits "a much moreabbreviated and factually uncontested litigation process than may and often will arisein an ordinary action". In my judgement, that submission applies not to pt 18proceedings but to originating application proceedings under pt 19.[26] For myself I can see no reason in pt 18 itself or in logic why cases that raisefactual disputes should not be dealt with under the part. Indeed, it may be that wherecertain remedies are sought — such as a declaration — a pt 18 proceeding are the onlyoption for a plaintiff. It may be possible to infer some general support for this fromthe judgment of Hammond J in Countrywide Finance Ltd v State Insurance Ltd.5However the report of that case does not mention whether the proceeding wascommenced as a pt 18 proceeding or not.[27] In any event, pt 18 expressly applies to any application for an order solelypursuant to s 3 of the Declaratory Judgments Act. That being so, it is difficult to seehow a plaintiff may be criticised for relying on that to commence a pt 18 proceedingif indeed the relief is sought solely pursuant to s 3, irrespective of whether the case isfact heavy.5 Countrywide Finance Ltd v State Insurance Ltd [1993] 3 NZLR 745 (HC) at 749–753.[28] The final point is that having now had an opportunity to review the pleadingsand the affidavit evidence filed and served for this interlocutory application, it is notat all obvious to me that this is a case in which there are significant factual differencesbetween the parties. The parties agree that two sets of purported elections were heldin certain regions and that, essentially, this was a result of the New Zealand MāoriCouncil (controlled by the Durie faction) directing that elections be held on a particularday while the Tamihere faction disputed the validity of those directions.[29] As already said, the Court will be required to determine the factual background— the events around the 2018 elections in the five regions and the consequentialnomination processes. These matters are not without their complications, but, by andlarge, the parties seem to be on common ground in relation to what took place. Wherethey disagree is on the legal implications of those events.A single proceeding[30] A further contention advanced by Mr Harrison is that it is an abuse of process,or likely to cause prejudice or delay, for the plaintiff to put in issue in this proceedingthe elections and consequential nominations in five regions. In this regard, he referredto this Court's judgment in Nehemia v Auckland District Māori Council.6 In my view,Nehemia is not authority for the proposition that it is inappropriate to includechallenges in respect of elections and nominations in more than one region in oneclaim. Nehemia related to only one region. It is scarcely surprising that the proceedingwas limited to a challenge in respect of that region. There is nothing in Collins J'sjudgment that would suggest that in different circumstances the lawfulness orlegitimacy of elections or nominations in more than one region could not be raised inone proceeding.[31] Nor, in my view, is there anything in rr 5.17(1) or 5.27(2) that requires thoseissues to be considered in separate proceedings, as Mr Harrison contends. Indeed, itseems to me that in a case that raises similar issues in relation to two or more regions,r 10.12 would suggest that, all other things being equal, it is preferable to deal withthose challenges in one proceeding.6 Nehemia v Auckland District Māori Council [2017] NZHC 1998.[32] It is in the interests of both disputant factions here, and, even more importantly,those New Zealanders who stand to benefit from well-functioning Māori Associations,to get this matter resolved. In the end, if those most directly involved are unable toresolve their differences — which one might be forgiven for expecting they wouldmake a serious attempt to do — then the Court is the right venue for resolving them,and if all issues can be resolved in one proceeding then they should be.The pleading issue[33] As Mr Harrison submits, the original statement of claim is virtually silent inrelation to a contention now pursued by the plaintiff that it is entitled to rely on a recordof the elected or appointed members of the various associations (from MāoriCommittees to the New Zealand Māori Council) as being conclusive. That, in myview, is a fair criticism. There is an obscure reference in paragraph 16.7 of the originalstatement of claim to such a contention. But a reader of the document could certainlynot be expected to deduce that it formed a significant part of the plaintiff's case. Thathas not substantially changed in the amended statement of claim.[34] That said, as Mr Geiringer submits, the point was certainly raised in theplaintiff's affidavit evidence filed in support of its claim, and the gap in the pleadingis one that is perfectly capable of being rectified. The Court has a discretion as towhether or not to strike out even a flawed pleading. As a general principle it will notdo so where the pleading is capable of being rectified and there are no limitation orsimilar issues so that the net result of striking out the pleading would simply be toforce the plaintiff — and any other parties — to start again with the consequentialwaste of time and resources. For that reason, it is difficult to see that this point goesanywhere.Section 3 of the Declaratory Judgments Act[35] That brings me to what I perceive to be the substantive basis for thisapplication. The defendants' primary contention is that s 3 of the DeclaratoryJudgments Act, on which the plaintiff relies, is unavailable in the circumstances of thiscase. Mr Harrison submits that: the overall claim pleaded in the SOC necessarily falls outside the statutorylanguage:40.1 What the defendants are alleged to have done – conduct invalid MāoriCommittee elections – cannot be characterised as the doing of "anyact, the validity, legality or effector which depends on the construction of any statute, or regulation or any deed, will or documentof title, or any agreement ", etc;40.2 Equally, the plaintiff does not claim by means of the SOC "to haveacquired any right under any such statute" etc, or "to be in any othermanner interested in the construction or validity thereof";40.3 Nor does the pleaded claim either expressly or in substance seek "adeclaratory order determining any question as to the construction orvalidity of" any such statute, [etc] or any part thereof. No specificprovisions of either the Act or the Regulations are invoked, far lessidentified as in need of "construction".[36] In my judgement, that analysis starts from too narrow a view of the case.Essentially, the plaintiff is seeking clarification as to whether or not the elections andnominations that it says have resulted in the Durie faction nominees holding office asNew Zealand Māori Council members were valid. Ultimately, that must turn on aproper construction of the Act and the Regulations. They are the governinginstruments. It can turn on nothing else. On that basis alone, applying an appropriatelywide interpretation to s 3 of the Declaratory Judgments Act,7 I can see no legitimatereason why the plaintiff cannot seek a ruling in relation to that issue from the Court.[37] With respect to the first limb of the argument, it is obvious that a key issue inthe case will be the scope of the New Zealand Māori Council's authority to issuedirections to subordinate Māori Associations in relation to the holding of elections andappointments. That issue must depend upon the proper application to the facts of thelegislation and, in particular, s 16(2) of the Act, which provides:8Each District Maori Council shall be subject in all things to the control of theNew Zealand Maori Council and shall act in accordance with all directions,general or special, given to it by the New Zealand Maori Council.[38] The second limb of the argument is that in its statement of claim the plaintiffdoes not claim to have acquired any right under any statute or to be in any other way7 See Mandic v Cornwall Park Trust Board [2012] 2 NZLR 194, [2011] NZSC 135 at [5].8 See also Maori Community Development Act 1962, ss 10(2) and 13(2), which providecorresponding powers to Māori Executive Committees and District Māori Councils.interested in the construction or validity of a statute. For the reasons already described,the status of the plaintiff as currently constituted must turn on the proper applicationto the facts of the Act and the Regulations. In short, the plaintiff is claiming that, ascurrently constituted, it has all the rights and obligations conferred on a properlyconstituted New Zealand Māori Council and is asking the Court so to rule. The meritsor otherwise of that contention depend on the construction the legislation, and itsapplication to the facts.[39] The final limb of the argument is that, as pleaded, the plaintiff's claim does notseek a declaration as to any question of construction of the legislation. Whilst it isprobably fair to say that the plaintiff does not expressly seek such a declaration, butrather an order as to the validity or otherwise of the New Zealand Māori Council ascurrently constituted, that appears to me to be a distinction without a difference. Theavailability or otherwise of the declaration sought is heavily dependent on the properconstruction of the legislation.[40] In short, attempting to look at these matters from a wider perspective, themerits of the plaintiff's case, and the availability of the relief it seeks, must, in the end,depend upon an interpretation of the Act and the Regulations and the application oftheir provisions to the factual background as it is determined.[41] That, in my judgement, is enough to bring the case within the four corners ofs 3 (as in the past it would have been enough to bring it with the category of case inwhich equity would have offered a declaratory remedy where the common law wouldnot).[42] For those reasons, I dismiss the defendants' application to strike out theproceeding.Application for further and better particulars[43] The defendants' application for further and better particulars is of coursecomplicated by the plaintiff's last-minute amendment of its pleadings.[44] As a result of this complication, Mr Harrison wisely indicated during thecourse of the hearing that he was unable to pursue the application for further and betterparticulars for the practical reason that he had not had an opportunity to properlyanalyse the amended pleading and determine what if any aspects of the particularssought were now answered. As he said, this issue is best left for determination at alater stage.Venue[45] As Mr Harrison correctly submitted on behalf of the defendants, thisproceeding was incorrectly filed in the Court's Wellington Registry.[46] Rule 5.1 materially provides that the proper registry for the commencement ofa proceeding is the registry nearest by the most practicable route to the residence orplace of business of the first-named defendant. In this case, assuming that the plaintiffhas correctly identified the first defendant's place of residence as Ohope, then theproceeding should have been filed in the Court's Rotorua Registry.[47] No one wants the proceeding transferred to Rotorua.[48] The defendants contend that I should make an order transferring the proceedingto the Auckland Registry, because, they say, that registry "would be more convenientto the parties" as the majority of the defendants live there or within reasonable strikingdistance.9[49] Informally, this issue has already been before the Court. In his minute of27 September 2018, Churchman J declined to order a transfer, effectively saying thatas Wellington was where the plaintiff had its offices, there was at least that much to besaid for the litigation being dealt with here, and that there was no particular reasonwhy it should be transferred to Auckland. In relation to this I respectfully take adifferent view.9 High Court Rules 2016, r 5.1(5).[50] Given that the plaintiff has commenced this proceeding in the wrong registry,it seems to me that there is some force in Mr Harrison's contention that it should betransferred to the registry that is least inconvenient from the perspective of thedefendants collectively, and I accept from him that that is Auckland.[51] I do not think it is open to the plaintiff to complain given that it filed theproceeding in the wrong registry in the first instance.[52] For those reasons, I propose to order the transfer of the proceeding toAuckland.Conclusion[53] In summary, then:(a) the plaintiff's application for an order pursuant to r 15.1 striking out thestatement of claim is dismissed;(b) the defendants' application for an order for further and better particularsis also dismissed, but the defendants, to the extent that they need leaveto do so, shall not be precluded from filing a second application forfurther and better particulars once they and their advisers have had anopportunity to review the plaintiff's amended statement of claim dated6 March 2019;(c) on the defendants' application pursuant to r 5.1(5), I order the transferof this proceeding to Auckland;(d) the Auckland Registrar is requested to liaise with counsel with a viewto this matter being set down for a case management conference as soonas possible.[54] Costs are reserved. In the event that counsel are unable to agree on costs — asI would expect them to be able to do — they may come back to me by memorandumas necessary.Associate Judge JohnstonSolicitors:Phoenix Law Ltd, Wellington for applicantsTompkins Wake, Hamilton for respondent