DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUROA | HEALTH COUNCIL [2023] NZHC 1683

DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUROA |HEALTH COUNCIL [2023] NZHC 1683 [30 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-847[2023] NZHC 1683BETWEEN DIRECTOR-GENERAL OF THEMINISTRY OF HEALTHPlaintiffAND WAKAMINENGA KAUNIHERAHAUROA | HEALTH COUNCILFirst DefendantAND JACQUES IMBEAUSecond DefendantAND ANNA GOODWINThird DefendantCont:\Hearing: 30 March 2023Appearances: S C Carter and A L Prestidge for PlaintiffFirst to Fifth Defendants in PersonNo appearance for/by Sixth DefendantJudgment: 30 June 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 30 June 2023 at 5 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law Office, Wellington for PlaintiffANDCont:\MĀORI GOVERNMENT OF AOTEAROA NUTIRENIFourth DefendantAND GEORGINA JOBFifth DefendantAND PIRIPI SHEEHANSixth Defendant[1] From October 2021, a group of people describing themselves as theWakaminenga Kaunihera Hauora | Health Council (the first defendant, referred to inthis judgment as WHC) purported to offer registration and certification services forhealth practitioners "who wish to practice under Māori jurisdiction". In doing so,WHC made various representations to the effect that such registration andcertification:(a) would permit lawful practise within a wide range of health professionsin New Zealand; and(b) would provide immunity from prosecution or censure by competentNew Zealand health authorities.[2] In this proceeding, the Director-General of the Ministry of Health seekssummary judgment upon her claims:(a) against WHC, for a declaration that by making the representations itbreached various provisions of the Fair Trading Act 1986 (FTA), andfor an order under that Act restraining WCH from repeating or makingsimilar representations;(b) against the other five defendants, for orders restraining them from beingknowingly concerned with repeated or similar representations; and(c) against all six defendants, for costs.[3] By judgment dated 21 July 2022, Peters J granted the Director-General aninterim injunction restraining WHC and the other defendants from similar activity.Leave was reserved to permit the defendants to apply to set the injunction aside.1 Thefirst, fourth and fifth defendants have done so.1 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council[2022] NZHC 1765.[4] In this judgment, I address the Director-General's summary judgmentapplication, the defendants' setting aside application, and miscellaneous interlocutorymatters described below.BackgroundRegulation of health practitioners in New Zealand[5] Under s 3 of the Health Practitioners Competence Assurance Act 2003(HPCAA), headed "Purpose of Act":(1) The principal purpose of this Act is to protect the health and safety ofmembers of the public by providing for mechanisms to ensure thathealth practitioners are competent and fit to practise their professions.(2) This Act seeks to attain its principal purpose by providing, amongother things,—(a) for a consistent accountability regime for all healthprofessions; and(b) for the determination for each health practitioner of the scopeof practice within which he or she is competent to practise;and(c) for systems to ensure that no health practitioner practises inthat capacity outside his or her scope of practice; and(d) for power to restrict specified activities to particular classesof health practitioner to protect members of the public fromthe risk of serious or permanent harm; and(e) for certain protections for health practitioners who take partin protected quality assurance activities; and(f) for additional health professions to become subject to this Act.[6] Section 4 outlines the HPCAA. It observes, amongst other things, that:(a) Part 1 contains provisions that prohibits persons other than registeredhealth practitioners of a profession with current practising certificatesfrom claiming to be practising the profession;2 and2 Health Practitioners Competence Assurance Act [HPCAA], s 7.(b) Part 6 constitutes certain authorities (Authorities) with the function ofregistration and oversight of practitioners of particular healthprofessions (Regulated Professions).[7] In particular, s 7 of the HCPAA provides:7 Unqualified person must not claim to be health practitioner(1) A person may only use names, words, titles, initials, abbreviations, ordescriptions stating or implying that the person is a health practitionerof a particular kind if the person is registered, and is qualified to beregistered, as a health practitioner of that kind.(2) No person may claim to be practising a profession as a healthpractitioner of a particular kind or state or do anything that iscalculated to suggest that the person practises or is willing to practisea profession as a health practitioner of that kind unless the person—(a) is a health practitioner of that kind; and(b) holds a current practising certificate as a health practitioner ofthat kind.(3) No person may make an express or implied statement about anotherperson that the other person is prohibited by subsection (1) orsubsection (2) from making about himself or herself.(4) Subsection (2) does not prohibit a person from stating his or herwillingness to practise a profession for the purposes of seekingemployment if the person is, or would on obtaining that employmentbe, qualified to be registered as a health practitioner of that professionand to hold a current practising certificate as a health practitioner ofthat profession.(5) Every person commits an offence punishable on conviction by a finenot exceeding $10,000 who contravenes this section.[8] Sections 15 to 18 of the HCPAA set out requirements for registration of healthpractitioners, and ss 26 to 33 set out the manner in which health practitioners arerequired to obtain annual practising certificates, and the conditions upon which theAuthorities are required to issue such certificates.WHC Website[9] Towards the end of 2021, the Deputy Registrar of the Nursing Council, andthe Registrar of the Midwifery Council (each Authorities under the HCPAA), raisedconcerns with the Ministry of Health about a website featuring WHC's name andbranding (the WHC Website).[10] The WHC website asserted that WHC had been established as a healthauthority under "sovereign native customary ture tikanga (Māori customary law)".The WHC website offered registration with the WHC for "qualified healthpractitioners who wish to practice under Maori jurisdiction (i.e the Confederation ofthe United Tribes of Aotearoa New Zealand". It indicated that it was comprised ofvarious professional councils, which in turn were administered by professionals of thatprofession. Once an applicant health professional had been registered with the"relevant council", the WHC would then: issue your WHC Annual Practicing (sic) Certificate. You can then legallypractice under Māori jurisdiction as long as you clearly display in your waitingroom (real and/or virtual) the He Wakaputanga, your APC from the WHC andthe combined Basic Concepts/Universal Laws and Code of Ethics andConduct. This is so that your patients/clients are fully informed.[11] The WHC Website added that:Our practitioners shall be immune from prosecution or censure by anyauthority, person, or entity, insofar as they are acting within the above statedprinciples, laws, and precepts in the context of their acknowledged skill setthat has been vetted by the Wakaminenga Health Council (WHC) as part oftheir registration. The Wakaminenga Health Council shall be the soleauthority to which our health practitioners are accountable.[12] The WHC Website advised that a registration fee of $150 would apply, aswould annual APC fees in amounts depending on the profession in question.The fourth defendant (MGANT) and the MGANT Website[13] The WHC Website appeared to be related to another website (the MGANTWebsite) featuring the name and branding of the fourth defendant, Te WakaminengaMāori Government of Aotearoa Nu Tireni (MGANT), an entity describing itself as:the "de jure Government of the Chiefs of the Confederation of the United Tribes"; the"Māori Government of New Zealand or New Zealand Maori Government"; and the"governing body of the Sovereign Nation of Aotearoa Nu Tireni, which existed priorto 1840 and continues to exist in accordance with the Declaration of Independence of1835 [He Wakaputanga]".Correspondence between parties[14] In early January 2022, the Ministry of Health understood WHC to act underthe authority of MGANT. By letter dated 12 January 2022, the Ministry of Health'ssolicitors advised MGANT that it did not have authority to act as a health authority orto administer professional councils in relation to certain health professions, and"recommended" that MGANT stop its activities.[15] At around this time, Authorities such as the Dental Council, Nursing CouncilNew Zealand and Occupational Therapy Board of New Zealand updated their websitesto include or adopt advice provided by the Ministry of Health; that is, WHC was notpermitted to issue health practitioners with practising certificates under the HPCAA,and that only the relevant Authorities could do so.[16] MGANT responded by letter dated 26 January 2022, signed by "ArikinuiRipekatangi" (the fifth defendant, Ms Job), denying all allegations the Ministry hadmade, and asserting:(a) various faults on the part of the New Zealand Government as aconsequence of its COVID-19 response;(b) that MGANT, as a "lawfully constituted Government", "providesprotection for all health practitioners who wish to practice inaccordance with the Wakaminenga Health Council (WHC), BasicConcept/Universal law and Code of Ethics & Conduct and who arefirmly on the side of pro-choice"; and(c) that in the event the Ministry did not by 2 February 2022 providedocumentary evidence of the Hereditary Chiefs and Leaders of theUnited Tribes having consented to the HCPAA, Crimes Act 1961, FTAand COVID-19 Public Health Response Order 2021, or of the Ministryhaving authority over such persons, an "actionable breach" would arise,and the matter would be "closed".Preliminary enforcement action by Midwifery Council, ongoing referrals to Ministry[17] By late January 2022, the Midwifery Council had written to the Director-General, amongst other health authorities, to advise it had suspended the HPCAApractising certificates of three midwifery practitioners in light of their ongoing practisedespite being unvaccinated against COVID-19. These practitioners had been relyingon practising certificates issued by WHC.[18] During the early months of 2022, the Ministry was approached by other healthauthorities, and by other agencies and members of the public, querying the activitiesof health practitioners in other areas of practice. These practitioners similarlyappeared to be relying upon practising certificates issued by WHC.Update of WHC Website[19] Sometime prior to 3 May 2022, the WHC Website was updated to assert thefollowing:It has come to the attention of the WHC that "Crown" (i.e the NZ Corporation)related entities have provided misinformation about the WHC to theirmembers.The WHC is legally structured under Maori Jurisdiction. The followinginformation may provide clarification on this topic:Most people are not aware that the law in New Zealand is in two streams. InSeptember 2020 "The Supreme Court has just reminded us that our law isindeed sourced in two streams and that the legal profession ought to beprepared to engage with Māori law ... "https://www.lawsociety.org.nz/news/publications/lawtalk/lawtalk-issue-943/tikanga-maori-in-nz-common-law/In a very recent decision (30 September 2021) of the NZ Supreme Court, itwas stated that: Tikanga is applicable law, and there is no negotiation of thatreality." Recognising and respecting tikanga, says the court, is part of theCrown's obligation to give effect to the principles of the Treaty. Thatobligation is more than just a generalised acknowledgement of Treatyprinciples. Rather, there must be precise and particular legislative schemes toprovide for and protect Māori interests. It follows, write two of the SupremeCourt justices, William Young and Ellen France, that Treaty clauses should beinterpreted with a "broad and generous construction, not a narrow, reluctantor begrudging way."https://e-tangata.co.nz/comment-and-analysis/the-supreme-court-has-spoken/Two important principles are also at play.A) First in time, first in Law: Ture tikanga (Māori law) and He Wakaputanga(Declaration of lndependence 1835) clearly precedes common law and insteadupholds Māori customary law.B) The international doctrine of contra proferentem: Many are also not aware that the NZ government is a corporation (SEC CIK#0000216105) listed on the US Security & Exchange Commission as "HerMajesty the Queen in Right of New Zealand""The Crown" is wrongfully attempting to assert its power through the statuteknown as the HPCA Act 2003."The Crown" is actually a potential conflation of one of three or 4 Crowns thatformed agreements with the NZ corporation. Only one of those Crownsapplies to a Māori jurisdiction, but it has no authority unless there has beenconsent from the United Tribes and Hereditary Chiefs.This statute cannot be used to promote a fraudulent action that seeks to usurpour bodily sovereignty and our freedom. The HPCA Act 2003 has no authorityin our jurisdiction and is not recognized in Ture Tikanga (Māori customarylaw).Because successive New Zealand Governments that represent the Crown inthe Treaty partnership, have failed to recognise Māori rights as te Tiritipartners, it is now necessary to assert those rights including the right of self-governance.(Emphasis in original).Other defendants[20] The WHC and the MGANT are not registered as companies or incorporatedsocieties. Their websites appear to describe unincorporated groups of people mindedto assert certain forms of authority.[21] The second defendant, Dr Jacques Imbeau, is an oral practitioner registeredwith the New Zealand Dental Council. On 18 October 2021, he appears to havespoken on behalf of WHC to a meeting of the "World Council for Health", criticisingthe New Zealand Government's "coercive measures" relating to COVID-19 andexplaining that they informed his work with the third defendant, Dr Anna Goodwin,to establish WHC under the authority of "the Māori government". A transcript of DrImbeau's assertions in that regard formed a part of the WCH Website.[22] Dr Goodwin is a retired oncologist whose registration with the MedicalCouncil has lapsed. Prior to Peters J's judgment dated 21 July 2022 restrainingDr Goodwin from doing so, Dr Goodwin acted as the WHC's registrar. For example,3she signed a WHC certificate in favour of a general medical practitioner who in March2022 certified the inability for medical reasons of a patient to wear a mask or otherface covering, notwithstanding the expiry of his registration with the New ZealandMedical Council in February 2022. The certificate reads:I hereby certify that the person named below is registered by theWakaminenga Health Council of Aotearoa Nu Tireni under Tikanga Maorijurisdiction and is entitled to practice under the Wakaminenga MedicalCouncil with the scope of practice listed below.General Medical PracticeIssued pursuant to He Wakaputanga and te Tiriti o Waitangi under MaoriJurisdiction by the authority of the Wakamlnenga Health Council of AotearoaNu Tireni.[23] The fifth defendant, Georgina Job, has been described on its website, under thealternate names Arikinui Ripekatangi and Georgi Marchioni, as holding the MGANTeducation portfolio. She corresponded on behalf of MGANT with the Ministry'ssolicitors as outlined above.[24] In May 2022, the sixth defendant, Piripi Sheehan, was listed withDomain Name Commission Limited as the sole registrant of both the WHC andMGANT Website. A residential address in New Plymouth was recorded asMr Sheehan's address. After the Director-General commenced this proceeding,3 Other examples arise in respect of persons holding themselves out as a clinical psychologist andas a registered nurse. In each case, the practitioner's website has asserted registration with WHCand attached similar certificates signed by Dr Goodwin or in her name, with areas of practisedescribed as "Clinical Psychology Practice" and "Nursing Practice | Registered Nurse",respectively. In the former case, the practitioner is not registered with the Psychologists Board.Mr Sheehan's registered residential address was updated to "21 Jump Street, NewPlymouth". No such address exists.Apparent rift between MGANT and WHC[25] By 3 May 2022, it appears Dr Imbeau and Dr Goodwin were seeking toincorporate the WHC under Te Ture Whenua Māori Act 1993, notwithstanding theMāori Land Court's exclusive jurisdiction to do so.4 The WHC Website claimed(incorrectly):The WHC-Whenua Topu Trust is also legally constituted in accordance withTe Ture Whenua Maori Act 1993 [sic] (pursuant to section 211(2), 216, 218,and 258 of the Maori Incorporations Constitutions Regulations 1995/2000).[26] Seemingly in response, the MGANT Website was updated to assert that thedecision of Drs Imbeau and Goodwin was incompatible with the concept ofindependence associated with application of He Wakaputanga. By 25 May 2022, theWHC Website asserted that WHC now had the full support of an alternate authorisingbody, the "Taumata National Wakaminenga. Ko Matou Nga Rangatira o TeWhakaminenga 1835".[27] Despite the apparent rift between MGANT and WHC, on 25 May 2022, theMGANT Website nevertheless maintained a degree of connection to the WHCWebsite, asserting the following under the heading "Professional registration":If you are a registered professional under the NZ Corporation - Her Majestythe Queen in Right of New Zealand - you can transfer your registration to theequivalent registration body, the Wakaminenga Health Council [WHCWebsite address provided] under the authority and protection of the MāoriGovernment of Aotearoa Nu Tireni. You will maintain your right to practicefreely without coercion.Interim injunction[28] As mentioned above, Peters J granted the Director-General an interiminjunction restraining WHC and the other defendants from making representations tothe effect of those set out at [2].4 Te Ture Whenua Māori Act, s 211.Response to interim injunction[29] Following Peters J's orders the WHC Website was amended, in broad terms, tolimit WHC's services to professions that are not regulated by the HPCAA. Further, itrecords that:Due to evolving MoH policies the WHC has temporarily suspended newregistration of HPCAA related professions.[30] The MGANT Website no longer appears to be operational. A second MGANTwebsite has been established at a different web address. The second MGANT websitemakes the same assertion as that set out at [27] above.Parties' applications[31] The Director-General's summary judgment application was brought with leaveof this Court in respect of an amended statement of claim dated 22 September 2022,and is supported by affidavits of Jane Birdsall, a principal advisor at the Ministry ofHealth, dated 26 May, 22 September, and 17 October 2022.5[32] As indicated above, WHC, MGANT and Ms Job applied to set aside Peters J'sorders for interim injunction. They did so, relying on affidavits of Drs Imbeau andGoodwin dated 8 August 2022, Ms Job dated 9 August 2022, and various other people.These affidavits take issue with the Director-General's submissions on the applicationof the HCPAA: they assert that the HCPAA does not apply to the defendants' activities,nor to the activities of health practitioners registered and certified by WHC. But theydo not take substantial issue with the factual narrative outlined above, which is drawnfrom Ms Birdsall's affidavits.[33] The defendants have also filed or sought to file a variety of documents,challenging this Court's jurisdiction, seeking particulars, and claiming what isdescribed as an 'estoppel' together with damages, arising and payable on the basis thedefendants have not been provided with documents recording their acceptance of theHCPAA and other statutes.5 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health CouncilHC Auckland CIV-2022-404-847, 7 October 2022.[34] On 31 October 2022, the proceeding was called before Brewer J. On thatoccasion, his Honour called for submissions on the effect of the Supreme Court'sjudgment in Ellis v R,6 and directed that the substantive hearing be re-scheduled. It isthe re-scheduled substantive hearing that took place before me on 30 March 2023. AsBrewer J observed on 31 October 2022:7[2] It is clear that the [Director-General's] application for summaryjudgment must be determined first because if it is successful then the variousapplications by the defendants will fall away.Director-General's case[35] In essence, the case for the Director-General on the application for summaryjudgment was that:(a) WHC made the following representations (Representations), pleaded inthe amended statement of claim:(i) That it was able to register people to the [Regulated]Professions, which would allow those individuals to obtainpractising certificates and ultimately, lawfully practise oneor more of the [Regulated] Professions;(ii) That it was able to provide those who are registered with WHCwith [practising certificates], which would allow them tolawfully practise one or more of the [Regulated] Professions;and(iii) That persons that [WHC] registered and to whom it provided a[practising certificate] were provided with immunity fromprosecution or censure by competent New Zealand authoritiesand could only be held to account by [WHC].6 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.7 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health CouncilHC Auckland CIV-2022-404-847, 31 October 2022.(b) The Representations are contrary to the HPCAA and by making theRepresentations WHC has breached the FTA:(i) by engaging in conduct that was misleading or deceptive or waslikely to mislead or deceive in breach of s 9 of the FTA;(ii) by engaging in conduct that was liable to mislead the public asto the nature and/or characteristics of the services it provided inbreach of s 11 of the FTA;(iii) by making a false or misleading representation with respect to:1. the kind of services it supplies; and/or2. the particular characteristics of the first defendant as thesupplier of those services,in breach of section 13(b) of the FTA; and(iv) by making a false or misleading representation with respect tothe benefits conferred by the services it supplies in breach ofsection 13(e) of the FTA.(c) The second to sixth defendants were directly or indirectly, knowinglyconcerned in, or have been party to, WHC making the Representationsby:(i) in the case of Drs Imbeau and Goodwin, being involved inWHC's administration as its Chief Health Officer and DeputyChief Health Officer / Registrar respectively, and in theestablishment of WHC;(ii) in the case of MGANT and Ms Job, establishing and permittingWHC to operate under MGANT's purported authority and bymaking representations on WHC's behalf; and(iii) in the case of Mr Sheehan, being the registrant of WHC'swebsite, the primary vehicle through which the Representationswere made.(d) As the defendants have no defence to the causes of action, the Director-General should be granted summary judgment.[36] On the issues of jurisdiction and the effect of Ellis, the Director-Generalsubmitted that tikanga does not override statute law such as that set out in the HCPAA.Acts of the New Zealand Parliament are binding on all people within New Zealand'sgeographical boundaries. Such people cannot elect not to be so bound. The judgmentsin Ellis do not suggest otherwise.Defendants' positions[37] The arguments advanced for the first to fifth defendants in written material,and the submissions advanced orally at the hearing by Drs Imbeau and Goodwin ontheir behalf and for WHC, and (with exceptional leave granted on that occasion), byMs Job's McKenzie friend Charles Tortise for her and for MGANT, were in essencethat:(a) MGANT has a law-making function that exists independently of, andis capable of overriding, the authority of New Zealand's Parliamentexercised by way of statute. Tikanga fulfils a similarly independentfunction. Accordingly, MGANT is capable, whether in reliance ontikanga or otherwise, of authorising WHC to register and certify healthprofessionals such that they may practise lawfully within New Zealandin the absence of registration and certification under HPCAA.(b) The failure by the Ministry and the Director-General to respondsubstantively to MGANT's letter of 26 January 2022 (see [16] above)implies that the Director-General is estopped from pursuing her case.(c) Various provisions of the FTA and Te Ture Whenua Māori Act operateto undermine the Director-General's case.[38] Mr Sheehan's position (as the sixth defendant) is largely unknown. He wasserved in accordance with directions for substituted service made by Lang J on 17August 2022 but has taken no steps and did not appear at the hearing on 30 March2023. As noted above, however, following commencement of this proceeding heappears to have amended his physical address as registrant of the WHC and MGANTWebsites to an address that does not exist.Analysis[39] I start by considering the defendants' argument as to lawful registration andcertification of health professionals by WHC. I then turn to whether the Director-General's case under the FTA is made out (including consideration of the defendants'points regarding that statute and the Te Ture Whenua Māori Act). I consider whetherthe Director-General is estopped from pursuing her case. Finally, I deal with the issueof the appropriate relief.Sovereign authority of New Zealand's Parliament[40] As noted above, s 7 of the HCPAA is expressed to prohibit persons from:(a) describing themselves as health practitioners of a particular kind unlessthey are registered as such; and(b) claiming to be practising a profession as a health practitioner of aparticular kind unless they hold a current practising certificate as ahealth practitioner of that kind.[41] By necessary implication, the type of registration and certification describedin s 7 is registration and certification under the HCPAA.[42] The defendants' essential proposition, that MGANT is capable of authorisingWHC to register and certify health professionals such that they may practise lawfullywithin New Zealand in the absence of registration and certification under HPCAA,requires that HPCAA does not apply to health professionals practising in New Zealandwhen they are registered and certified by WHC. That proposition is clearly wrong.[43] As Peters J observed when issuing the interim injunction:8 the contention that the first and fourth defendants operate under a differentand superior jurisdiction is unsustainable. The Court of Appeal addressed asimilar contention in its recent decision in Warahi v Chief Executive of theDepartment of Corrections.9 In [11] of that decision, the Court of Appealconfirmed that Acts of Parliament, such as the HPCAA and FTA, are binding[on] all persons and institutions within the geographical territory of NewZealand, and the Courts of New Zealand are required to uphold them asenacted. The defendants are as much bound as any other individual and body.[44] While the Supreme Court in Ellis v R,10 as cited on the WHC Website,11"reminded us that our law is indeed sourced in two streams", the balance of the citedpassage reads that the legal profession "ought to be prepared to engage with Māorilaw as part of the common law of New Zealand".12 The phrase in italics was omittedfrom the WHC Website, but it is important.[45] To explain why, it is convenient to commence with a passage from the SupremeCourt's judgment:13[19] The Court is unanimous that tikanga has been and will continue to berecognised in the development of the common law of Aotearoa/New Zealandin cases where it is relevant. It also forms part of New Zealand law as a resultof being incorporated into statutes and regulations. It may be a relevantconsideration in the exercise of discretions and it is incorporated in the policiesand processes of public bodies.(Footnotes omitted).[46] As is apparent, tikanga has direct application in the development of thecommon law. And it has indirect application when incorporated into legislation, andotherwise as stated. But it is not superior to statute in the sense of being capable ofgiving rise to exceptions or occasions when (in the absence of statutory languagepermitting this result) the legislation is not binding.8 Director-General of the Ministry of Health v Wakaminenga Kaunihera Hauora Health Council,above n 1, at [19].9 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105.10 Ellis v R, above n 6.11 See [19] above.12 Carwyn Jones "Tikanga Māori in NZ Common Law" (15 September 2020) New Zealand LawSociety <www.lawsociety.org.nz> (emphasis added).13 Ellis v R, above n 6.[47] On the latter topics, Glazebrook J recognised the interrelationship betweenlegislation and tikanga when making the following observations:14[98] The first point is that the application of tikanga in the common law canbe limited or excluded by statute, although this requires an unambiguousstatutory provision. This does not give the full picture, however. It isgenerally accepted that there is a presumption that statutes are to be interpretedconsistently with Te Tiriti as far as possible. Because the tino rangatiratangaguarantee in Article Two is generally taken to import Māori rights to live byand benefit from tikanga, it has been argued that it follows that statutes shouldbe interpreted consistently with tikanga as far as possible.[117] As an overall comment, tikanga will need to be considered where it isrelevant to the circumstances of the case. It will not have to be considered incases where it is not relevant or where consideration of tikanga will not orcannot assist, such as when it would be contrary to statute, or contrary tobinding precedent.(Footnotes omitted).[48] Accordingly, and as Venning J noted (citing Chambers J in Creeks v R) whenallocating the summary judgment and setting aside applications for hearing:15[16] While the Courts have recently acknowledged the place of tikanga inan appropriate case, the Courts have routinely rejected claims that individualsare not subject to the laws of New Zealand passed by Parliament or that theCourts have no jurisdiction over Māori or other people who decline torecognise the authority of the Court.16 Such arguments are not tenable:17[7] The Court of Appeal has made it clear that the courts are notthe forum for a fundamental challenge to the entire constitutionalstructure of the country or for political campaigns of the sort theappellants are waging. Māori sovereignty can be the subject of debatein Parliament. The Waitangi Tribunal may be prepared to consider it.It can be debated in public meetings or the media. It may be thesubject of lawful protest. But an assertion of Māori sovereignty doesnot raise a justiciable question. It cannot succeed in the general courtsof New Zealand. Accordingly, this point should not be submitted tothe Court of Appeal.[49] In short, and to the extent the defendants assert that the signatories ofHe Wakaputanga (the Declaration of Independence of 1835) did not cede, and their14 Ellis v R, above n 6.15 Director-General of Ministry of Health v Wakaminenga Kaunihera Hauora Health Council HCAuckland CIV-2022-404-847, 7 October 2022.16 Creeks v R HC Auckland A138/00, 6 November 2000; Morunga v Police [2016] NZCA 599;Wallace v R [2011] NZSC 10; Phillips v R [2011] NZCA 225; and Yates v R [2019] NZCA 155.17 Creeks v R, above n 16.descendants have not ceded, legislative authority, whether that is correct or not isbeside the point: Parliament has acquired it.18 The two streams have now merged.[50] The upshot is that much of the material posted on the WHC Websitemisrepresents the law. The HCPAA not being capable of interpretation such that itcarries piecemeal application to health professionals subject to registration andcertificate under an alternative regime, the defendants' position on the application ofHCPAA is in error.Case under FTA[51] First, it is clear WHC and MGANT are "persons" for the purposes of the FTA."Persons" are broadly defined in s 2, to include "any association of persons whetherincorporated or not". The Court of Appeal in Edwards v Legal Services Agencyinterpreted the similar phrase "body of persons whether corporate or not" to require:19 regulation of their internal affairs that there can be said to be a structure bywhich they can be recognised as a collective entity – the unincorporatedequivalent of a body corporate.[52] Here, the WHC Website asserts that it has an email address and a bank accountinto which fees for services (such as its minimum $150 registration fee) are paid. Itpurports to have rules and processes for registration and certification of healthprofessionals, and office holders such as "registrar". The MGANT Website and itssecond website also outline the structure by which MGANT asserts it can berecognised as a collective entity.[53] Next, WHC made the pleaded Representations. They are an apt description ofrepresentations appearing on the WHC Website.18 See Matthew Palmer The Treaty of Waitangi: in New Zealand's Law and Constitution (VictoriaUniversity Press, Wellington, 2008) at 167; Bruce Harris New Zealand Constitution: An Analysisin Terms of Principles (Thomson Reuters, Wellington, 2018) at [1.4.3]; Philip A Joseph Joseph onConstitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) , especially,at [3.4] citing New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 671,690 and Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC) at 213.19 Edwards v Legal Services Agency [2003] 1 NZLR 145 (CA) at [28].[54] Further, the Representations contradict the HCPAA, which applies to all healthprofessionals in New Zealand. Accordingly, they are false, misleading, and deceptivein terms of the FTA. The latter terms carry their normal meanings, and their existenceis to be determined objectively. Statements of law can amount to misleading ordeceptive conduct.20 There is no requirement for the person making representationsto have intended to mislead or deceive anyone, or for people to have actually beenmisled or deceived,21 but those who have sought and obtained "certification" by WHCare likely to have been misled or deceived. Those who appear to have practised ashealth practitioners without certification under the HPCAA may have exposedthemselves to criminal liability and are unlikely to have done so intentionally. Andpublication of the Representations on the WHC Website was undertaken "in trade", interms of the definition of that term set out in s 2 of the FTA, bearing in mind theregistration fee mentioned above.[55] Accordingly, WHC engaged in conduct in breach of ss 9, 11, 13(b) and 13(d)of the FTA. There is considerable overlap between those provisions. Broadly, theyrelate to misleading or deceptive conduct in trade, misleading conduct in trade as tothe nature of services, and false or misleading representations that services are of aparticular quality or have certain performance characteristics or benefits, respectively.In the circumstances of this case, they have all been breached.[56] I am satisfied that each of the second to fifth defendants were, directly orindirectly, knowingly concerned in or party to the making of the Representations:(a) A transcript of Dr Imbeau's address asserting that he and Dr Goodwinestablished WHC for the purpose of circumventing the Ministry'sCOVID-19 response was linked to the WHC Website.(b) The joint affidavit of Dr Imbeau and Dr Goodwin confirms theirinvolvement, prior to withdrawal by Dr Imbeau as WHC's "ChiefHealth Officer" in March 2022. Dr Goodwin asserted in oral20 Sky Network Television Ltd v My Box NZ Ltd [2018] NZHC 2768, [2019] 2 NZLR 411.21 Taylors Textile Services Auckland Ltd v Taylor Bros Ltd [1988] 2 NZLR 1 (CA).submissions that she has resigned from the Council. I note that in thiscontext assertions of withdrawal simply confirm prior involvement.(c) MGANT asserted in correspondence with the Ministry that it "providesprotection for all health practitioners who wish to practice inaccordance with the Wakaminenga Health Council (WHC)". And asnoted above, even after the rift between WHC and MGANT, theMGANT Website asserted that health practitioners registered underHCPAA could transfer their registration to WHC, and would maintaintheir right to practise. Ms Job, as "Arikinui Ripekatangi", hasmaintained her responsibility for MGANT's conduct throughout.[57] I am not satisfied that the sixth defendant, Mr Sheehan, was necessarilyknowingly concerned in or party to making the Representations. His role as registrantof the WHC and MGANT websites does not imply that he was aware of their contentuntil being served with the Director-General's proceeding. However, as noted abovethe residential address recorded with the registry of the website's domain names wasupdated following commencement of the proceeding to a non-existent, and apparentlyintentionally dismissive address. I consider it likely Mr Sheehan as sole registrantauthorised that update, and therefore that representations similar to those the subjectof this proceeding will continue to appear on the WHC and MGANT Website, orothers, as a consequence of knowing involvement on Mr Sheehan's part (unless thatis prevented by Court order or other enforcement action).Defendants' responses under FTA[58] As indicated above, the defendants suggest that various provisions of the FTAand Te Ture Whenua Māori Act undermine the Director-General's case. In particular,Drs Imbeau and Goodwin submitted for themselves and for WHC that:(a) s 5, which applies the FTA to every body corporate that is an instrumentof the Crown engaged in trade, means the FTA does not apply them;(b) in the course of its COVID-19 response the Ministry has breached itsown obligation under s 9 not to engage in misleading or deceptiveconduct in trade, the upshot being that the Director-General's approachin taking this proceeding is "disproportionate", "vexatious" andaccordingly without authority;(c) s 12B, which requires the Court in proceedings concerning acontravention of s 12A to assess whether a person had reasonablegrounds for a representation by reference to all of the circumstances,means the Court needs to consider whether it was reasonable that theyrely on MGANT's representations to them about its authority;(d) s 34, which sets out a meaning of "services" for the purposes of Part 4that does not extend to the services provided by WHC, means they didnot breach ss 9, 11, or 13;(e) s 44, which provides for various defences to a prosecution for anoffence under s 40, and to enforcement proceedings for contraventionof ss 28 or 36RA or by publication of an advertisement, if the defendantproves various matters of excuse, means they have a defence to theDirector-General's proceeding;(f) s 50, which states that nothing in the FTA limits or affects the operationof any other Act, means that the FTA does not constrain their activitiesunder the authority of the MGANT or WHC's alternative authorisingbody, the Taumata National Wakaminenga Ko Matou Nga Rangatira oTe Whakaminenga 1835; and(g) WHC has "a right to exist under" s 218B of Te Ture Whenua MāoriAct.[59] None of those submissions have merit. Section 5 extends the operation of theFTA to Crown agencies engaged in trade; it does not limit the operation of the FTA tosuch agencies. The defendants' views of the Ministry's COVID-19 response have noimpact on the Director-General's authority to pursue this proceeding: as discussedbelow, this Court may grant injunctions restraining breach of the FTA on theapplication of the Commerce Commission "or any other person" (including theDirector-General). This is not a proceeding concerning a contravention of s 12A. Thes 34 definition of "services" does not apply to the meaning of "services" under ss 9,11 and 13 (which appear in Part 1). The Director-General's proceeding is a civilproceeding, not a prosecution for an offence under s 40, or for contravention of ss 28or 36A, and WCH's business is not in publishing advertisements. The defendants'activities are not authorised under an Act other than the FTA. Section 218B of Te TureWhenua Māori Act has no application to the activities of WHC, it not being a trustconstituted under Part 12 of that Act.Estoppel[60] In light of the Court of Appeal's judgment in Wilson Parking New ZealandLimited v Fanshawe 136 Limited,22 an estoppel would require:(a) a belief or expectation on the part of the defendants, created orencouraged by words or conduct on the part of the Director-General;(b) to the extent an express representation is relied upon, it is clearly andunequivocally expressed;(c) the defendants reasonably relied to their detriment on therepresentation; and(d) it would be unconscionable for the Director-General to depart from thebelief or expectation.[61] The circumstances outlined above raise no realistic prospect of an estoppel.Neither the Ministry, nor the Director-General in particular, created or encouraged abelief or expectation on the part of MGANT that they would accept MGANT'sassertion the HCPAA and FTA (and other legislative instruments) did not apply, muchless make an express representation to that effect. The defendants did not rely on anysuch representation: indeed, the defendants' lack of reliance was plain when the22 Wilson Parking New Zealand Limited v Fanshawe 136 Limited [2014] NZCA 407, [2014] 3 NZLR567 at [44]; see too Bailey v Auckland Council [2022] NZHC 2632 at [72].WHC Website was later updated to assert (incorrectly) that the Crown was"wrongfully attempting to assert its power through the statute known as the HPCA Act2003".Summary judgment[62] In terms of r 12.2 of the High Court Rules, the Director-General has satisfiedthe Court that the defendants have no defence to the Director-General's causes ofaction. I will enter judgment accordingly.Relief[63] The final issue for consideration is the nature of the appropriate relief.[64] Relevantly, under s 41(1) of the FTA:The court may, on the application of the Commission or any other person,grant an injunction restraining a person from engaging in conduct thatconstitutes or would constitute any of the following—(a) a contravention of any of the provisions of Parts 1 to 4:(e) being in any way directly or indirectly, knowingly concerned in, orparty to, the contravention by any other person of such a provision;[65] Sections 9, 11 and 13 are provisions of Part 1.[66] If considered desirable, the Court may grant such an injunction, whether or notit appears the person(s) concerned intends to engage in the conduct again.23 Here, theWHC Website asserted, following Peters J's orders, that the WHC has merely"temporarily suspended new registration of HPCAA related professions". Plainly, ifan injunction is not granted, it will resume making the Representations, orrepresentations to a similar effect. Given the other defendants' historic involvementin the making of the Representations, and in the case of Mr Sheehan his apparentinvolvement in the continuation of the Representations following service of this23 Section 41(3).proceeding, I consider it desirable that each of the defendants are made the subject ofan injunction.[67] This Court has further granted relief in respect of FTA breach by way of formaldeclaration, relying on its inherent jurisdiction.24 However, a declaration will not begranted where the matter is moot or the relief will be of no practical utility.25 InSky Network Television Ltd v My Box NZ Ltd, declaratory relief was refused on thebasis that the defendant's breach of the FTA would be apparent from the judgment,that past losses could be compensated by damages and future infringements would beprevented by injunctive relief.26[68] I consider the first to third defendants' breach of the FTA will be apparent fromthis judgment, and that the injunction I intend to issue in respect of each of thedefendants will address the prospect of future breaches such that declaratory reliefwould have no practical utility.Result[69] For the above reasons, I order under s 41(1)(a) of the FTA that the defendantsare permanently restrained from making the Representations or representations of amaterially similar nature.[70] This Court having granted the Director-General's summary judgmentapplication for a permanent injunction in respect of each of the defendants, thedefendants' various applications, for setting aside of Peters J's judgment and (lessformally) for various other remedies, fall away. They are dismissed.[71] The Director-General is entitled to costs. I direct that costs memoranda be filedand served as follows:(a) for the Director-General, by 21 July 2023;24 For example, in Commerce Commission v ANZ Bank New Zealand Limited [2015] NZHC 1168.25 At[18].26 Sky Network Television Ltd v My Box NZ Ltd, above n 20.(b) for the defendants, by 11 August 2023.[72] I will determine the issue of costs thereafter on the papers.____________Johnstone J