MINHINNICK V TREATY OF WAITANGI FISHERIES COMMISSION HC WN CIV-2003-485-823

MINHINNICK V TREATY OF WAITANGI FISHERIES COMMISSION HC WN CIV-2003-485-823 3 October 2005IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2003-485-823IN THE MATTER OF the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972 and the Maori Fisheries Act 1989 BETWEEN NGANEKO MINHINNICK Applicant AND TREATY OF WAITANGI FISHERIES COMMISSION Respondent Hearing: 22 March 2005 (and joint memorandum of counsel filed 16 August 2005) Appearances: K.L. Ertel for Applicant J.P. Ferguson for Respondent Judgment: 3 October 2005 at 4.00pmJUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL Introduction[1] The respondent has applied for orders: (1) That the Waikato Raupatu Lands Trust ("WRLT") be joined as a second respondent to the proceedings. (2) That leave be granted for the respondent to serve copies of all pleadings and other documents filed in the proceeding on the Crown Law Office on behalf of the Attorney-General and Minister of Fisheries.(3) That the applicant give security for costs for this proceeding. [2] The first and third orders sought are opposed by the applicant, but the second order is consented to. [3] An order is now made with respect to the matter noted in paragraph [1](2) above. Leave is granted for the respondent to serve copies of all pleadings and other documents filed in this proceeding on the Crown Law Office on behalf of the Attorney-General and Minister of Fisheries. [4] At the hearing of this matter on 22 March 2005 I raised with counsel a jurisdictional issue regarding the power of an Associate Judge to make the orders sought by the respondent, and in particular the order for security for costs. [5] At that hearing I directed the parties to file a joint memorandum addressing this question of jurisdiction within 20 working days. [6] Unfortunately, the parties were unable to reach agreement on a joint memorandum at the time and it was not until 16 August 2005 that a joint memorandum of counsel regarding this jurisdiction issue was filed. [7] This memorandum has only recently been referred to me. I now provide my decision on the matters before the Court.Jurisdiction[8] The jurisdiction and powers of an Associate Judge are set out in Rule 61A High Court Rules which provides:61A Jurisdiction and powers of [[Associate Judges]](1) All [[Associate Judges]] of the High Court shall have the jurisdiction and powers (whether conferred by the Act or any other Act or by rules of Court) of a Judge sitting in Chambers. (2) Nothing in subclause (1) confers on [[Associate Judges]] of the High Court any jurisdiction or powers in respect of –(a) The matters specified in subsections (3) and (4) of section 26J of the Act; or (b) An application under section 26P(1) of the Act. (3) The jurisdiction and powers conferred on [[Associate Judges]] of the High Court by this rule are in addition to those conferred on [[Associate Judges]] of the High Court by or pursuant to section 26I of the Act.[9] Section 26J(4) Judicature Act 1908 provides:(4) Nothing in subsection (1) or subsection (2) of this section [which generally enable rules to be made conferring on Associates Judges such of the jurisdiction and powers of a Judge sitting in chambers as may be specified in such rules] authorises the making of any rule which confers on Associate Judges any jurisdiction or power – (b) To grant any relief on an application for review under s4(1) of the Judicature Amendment Act 1972; (c) To grant any relief in any proceedings for a writ or order of or in the nature of mandamus, prohibition or certiorari or for a declaration or injunction[10] The present proceeding is an application for review under s4(1) Judicature Amendment Act 1972. It also seeks an order by way of mandamus. [11] As such, it falls clearly within s26J(4) Judicature Act 1908. [12] In Reid v New Zealand Fire Service (1995) 8 PRNZ 550 Neazor J held that an Associate Judge (Master) had no jurisdiction to strike out an application for judicial review. He made this finding on the basis that this would be a "grant of relief" in review proceedings, and therefore an exercise of power precluded by s26J(4) Judicature Act 1908. [13] Similarly, in an application for summary judgment in Cosio Industries Limited v Permathene Limited (2000) 14 PRNZ 442 where the parties were seeking a permanent injunction, Master Gambrill said that it was arguable that an Associate Judge (Master) had no jurisdiction to deal with the application by virtue of s26J(4), and she directed that the matter be heard by a Judge.[14] In the present case, however, counsel for the applicant and counsel for the respondent together concur in submitting in their joint memorandum that none of the orders sought by the respondent here constitutes a "grant of relief" within the scope of s26J(4) Judicature Act 1908. They contend that the term "grant of relief" in this section is intended to contemplate orders either interlocutory or substantive that are determinative of judicial review proceedings (e.g. an order striking out a proceeding), or orders that otherwise grant a remedy to the applicant (e.g. an order for an interim or permanent injunction). They argue in their joint memorandum that s26J(4) is not intended to preclude the making of interlocutory orders of a procedural nature in judicial review proceedings and that the present joinder and security for costs applications seek such orders. So far as the joinder application is concerned, counsel contend that there can be no argument that this seeks an interlocutory order of a procedural nature which is something less than a "grant of relief" under s26J(4). [15] With regard to the security for costs application, counsel note that in the event that an order for security for costs was to be made against the applicant here and the applicant failed to provide security within the time allowed by the Court, this proceeding might be dismissed. In that event, both counsel acknowledge that an Associate Judge could not make the order for dismissal, as this would constitute a "grant of relief". Accordingly, they contend that the order for security for costs may be made by an Associate Judge here as it does not fall within the wording of s26J(4). Once made, however if the applicant fails to provide security, any consequent orders sought by the respondent for dismissal of the proceeding would be required to be made by a Judge. [16] Given these submissions, both counsel for the applicant and counsel for the respondent contend that as an Associate Judge, I have jurisdiction to consider both the application for joinder and the application for security for costs before the Court, and they ask that these issues be determined by me in this decision. [17] In considering this jurisdiction question, I note first the comments of Neazor J. in Reid v New Zealand Fire Service at page 554 where he states:It may be that a Master has jurisdiction in respect of other interlocutory orders and proceedings for judicial review which are "orders or directionsrelated to procedure" within the definition in rule 3(1), but it is not necessary to decide that now. It would make sense that a Master should have that procedural jurisdiction, but the appeal provisions in s11 suggest to the contrary.[18] Section 11 Judicature Amendment Act 1972 states:11. AppealsAny party to an application for review who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and s66 of the principal Act shall apply to any such appeal.[19] Turning back to s26J(4) Judicature Act 1908, this prohibits Associate Judges exercising jurisdictional power:to grant any relief" on (a judicial review application)[20] In the present case, I agree with the submissions from counsel contained in their joint memorandum that the joinder application is not a "grant of relief" within the scope of s26J(4). I accept that it is more in the nature of an interlocutory order related to procedure and that I have jurisdiction to consider the joinder application here. Certainly Master Venning (as he then was) in McFadden v Nelson District Law Society (HC Nelson, CP11/01, 11 September 2001) in a joinder application in judicial review proceedings accepted that an Associate Judge had jurisdiction to make a joinder order. Later in this judgment I will set out my decision on the joinder application. [21] So far as the application for security for costs is concerned, however, in my view the position is not so clear. [22] In D v Guy (1996) 9 PRNZ 32 Master Venning (as he then was) said at pages 34 and 35:The term "relief" in s4(1) of the Judicature Amendment Act refers to: 'Any relief that the applicant would be entitled to in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari, or for a declaration or injunction, against that person who has exercised or purported to exercise or refused to exercise the statutory power.' (Emphasis added)The relief referred to in s4 is final and substantive relief. There is no distinction made in s4 between final relief and relief ancillary to that claimed in a pleading as there is for instance in r3. The orders or directions sought during the course of a judicial conference are orders or directions related to procedure. In those circumstances I respectfully agree with the comments of Neazor J that it would make sense for a Master to have that procedural jurisdiction and I propose to deal with the matter at the next Masters' sessions in Dunedin.[23] And section 26J(4), as I have noted above, prohibits the grant of "any relief" on a judicial review application by an Associate Judge. Given this wording, and the comments of Neazor J in Reid v New Zealand Fire Service concerning the appeal provisions in s11 Judicature Amendment Act 1972, I would tend to the view that making an order for security for costs here would constitute a "grant of relief" in the present proceeding, and would therefore fall within the restrictions noted in s26J(4). Certainly once an order for security for costs is made, then often this effectively stays a proceeding until the security is paid. [24] That said, as I see it, the interests of the parties here might be seen as best protected if the current security for costs application was transferred to be heard before a Judge. [25] In case I am wrong in this, and counsel for the applicant and respondent here are both firmly of the view in their joint memorandum that an Associate Judge does have jurisdiction to hear the security for costs application, then I will now briefly set out my decision with respect to the security for costs application on the basis that I may have jurisdiction to deal with this. But first, as I noted at paragraph [20] above, I will give my decision with respect to the joinder application.Joinder of the Waikato Raupatu Lands Trust[26] The first order sought by the respondent is the joinder of the Waikato Raupatu Lands Trust ("WRLT") as a second respondent to the proceeding. [27] The order is sought under Rule 97 High Court Rules. This provides so far as relevant that the Court may add to the proceeding whether as plaintiff or defendant the name of any person who ought to have been joined, or whose presence may benecessary to enable the Court effectually and completely to adjudicate upon and settle all questions in the proceeding. Section 10(2)(b) Judicature Amendment Act 1972 similarly empowers the Court to add parties to judicial review proceedings. [28] The broad grounds put forward by the respondent in support of the application to join WRLT are: a) The applicant seeks to challenge the decision of the respondent not to recognise Ngati Te Ata as an iwi for the purpose of fisheries allocation; b) The effect of the respondent's decision is that Maori persons of Ngati Te Ata descent must secure any benefits from the fisheries settlement through the iwi of Waikato (Ngati Te Ata being a hapu of Waikato); c) As a result of the enactment of the 2004 Act, the respondent no longer has the power to recognise iwi for the purpose of fisheries allocation; d) Schedule 3 of the 2004 Act prescribes the iwi (including Waikato, but excluding Ngati Te Ata) to whom the respondent, or more particularly its successor Te Ohu Kai Moana Trustee Limited ("TOKMTL"), must allocate settlement assets and other benefits; e) Under section 130(3)(a) of the 2004 Act, every iwi must have a mandated iwi organisation ("MIO") that is recognised by TOKMTL before any allocation of settlement assets may be made to that iwi; f) The 2004 Act prescribes various requirements, including constitutional requirements, that an iwi organisation must meet before it can be recognised as a MIO by TOKMTL g) To date, no MIOs have been recognised by TOKMTL, however, pending recognition of a MIO for an iwi, TOKMTL is required to deal with each iwi's Recognised iwi organisation ("RIO") in relation to arange of matters, including interim access to annual catch entitlements that is derived from the settlement quota held by TOKMTL; h) The RIOs for the majority of iwi are prescribed in Schedule 4 of the 2004 Act, which prescribes that the RIO for the iwi of Waikato is the Waikato Raupatu Lands Trust. i) TOKMTL must therefore deal with the Waikato Raupatu Lands Trust in relation to any fisheries allocation matters that concern Ngati Te Ata; j) The proceeding necessarily raises issues concerning the status of Ngati Te Ata vis-à-vis Waikato, including the relevance of the views of the Waikato Raupatu Lands Trust in the decision-making of the respondent; k) While the applicant has yet to file any evidence in the proceeding, having regard to matters alleged in the applicant's (amended) statement of claim dated 7 September 2004, it is likely that issues of fact and law will arise in the proceeding in relation which the Waikato Raupatu Lands Trust wishes to file evidence and/or make submissions. [29] The respondent continues and notes that any determination by the Court relating to the respondent's decision not to recognise Ngati Te Ata as an iwi may affect the rights and interests of WRLT. [30] In Denman v Luxton (HC WN, unreported, 4 May 1999, CP71/99) Gendall J commented at page 6:It may often be the case that there is more scope for rights of others to be affected in judicial review proceedings, than in other types of "plaintiff v defendant" civil litigation, because frequently the challenge to the exercise of the statutory power or decision of a public body will have consequential effects upon others to obtain beneficial entitlements or expectations following the exercise of such power.(See also Wellington International Airport v Commerce Commission (HC WN, unreported, 19 July 2002, CP151/02, France J) and Westhaven Shellfish Limited v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501). [31] In a final submission from counsel for the respondent on this joinder issue, Mr Ferguson noted that WRLT has confirmed in a letter which is before the Court that having received and considered the respondent's joinder application, it has resolved to consent to be joined as a party to this proceeding. [32] In opposition, the applicant argues that none of the causes of action before the Court require the presence of WRLT, in that the proceedings are squarely focussed on the decision-making process of the respondent. [33] The applicant contends that the joinder of WRLT is likely to result in the introduction of unnecessary internecine issues which have no bearing on the present proceeding between the applicant and the respondent. [34] Having considered these submissions and all other matters before the Court, I take the view that WRLT should be joined to this proceeding. As I see it there is a strong argument that the presence of WRLT is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions in the proceeding pursuant to Rule 97. [35] I am satisfied that this proceeding does necessarily raise issues concerning the status of Ngati Te Ata in relation to the iwi of Waikato (Ngati Te Ata being a hapu of Waikato). [36] In my view this is a case where there is clear scope for the rights of WRLT as the third party to be affected by the present review proceedings. It is one of those cases where the tendency of the Court to exercise its discretion in favour of joinder should be followed – Mainzeal Corp Ltd v Contractors Bonding Limited (1989) 2 PRNZ 47, Westfield Freezing Company Limited v Sayer & Co NZ Limited [1972] NZLR 137 CA.[37] The respondent's application for an order joining WRLT as a second respondent to the proceedings is therefore successful. [38] An order is made that the Waikato Raupatu Lands Trust be joined as a second respondent to these proceedings.Security for Costs[39] I turn now to consider the respondent's security for costs application. [40] This application is made under Rule 60 High Court Rules. The stated grounds put forward by the respondent for seeking an order for security for costs are: (1) There is reason to believe the applicant will be unable to pay the costs of the respondent if the applicant is unsuccessful in its proceeding. (2) There is no public interest in the proceeding. (3) The continuing utility of the proceeding must reasonably be questioned in light of the enactment of the Maori Fisheries Act 2004. [41] Before me, counsel for the applicant accepted that the applicant is impecunious. The Rule 60 threshold has been established by the respondent. [42] The Court must now consider whether to exercise its discretion to order security – A.S. McLachlan Ltd v MEL Network Ltd [2002] 16 PRNZ 747 (CA) andLunn v Fourth Estate Holdings Ltd [1997] 11 PRNZ 316. [43] From the wording of Rule 60 it is clear that the Court has a discretion both as to whether to make an order for security for costs and also with regard to the amount of any such security which may be ordered. [44] There is no burden of proof or pre-disposition one way or the other – Nikau Holdings Ltd v Bank of New Zealand [1992] 5 PRNZ 430. Rather the discretion isrequired to be exercised having regard to all the circumstances of the individual case – National Bank of New Zealand Ltd v Donald Export Trading Ltd [1980] 1 NZLR 97. [45] The authorities make clear that the interests of both the plaintiff and the defendant must be considered and the Court should not allow Rule 60 to be used oppressively to deny a plaintiff with limited means the ability to bring his/her case before the Court. On the other hand an impecunious plaintiff must not be allowed to use his/her inability to pay costs to act oppressively or to place unfair pressure on a defendant. It is clear that overall a balancing of a range of factors is required. [46] Certain general principles as to the exercise of the discretion can be found inNikau Holdings Ltd and in Bell-Booth Group Ltd v Attorney-General [1986] 1 PRNZ 457, 466 (CA). Importantly, however, the discretion the Court is to exercise is not to be fettered by the automatic application of "principles" extracted from previous cases. Rather, the Court is to consider the facts of the particular case in issue. As the Court of Appeal said in AS McLachlan Ltd v MEL Network Ltd at paragraphs 13 and 14: whether or not to order security and, if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances. The discretion is not to be fettered by constructing "principles" from the facts of previous cases. While collections of authorities such as that in the judgment of Master Williams in Nikau Holdings Limited v Bank of New Zealand can be of assistance, they cannot substitute for a careful assessment of the circumstances of the particular case. It is not a matter of going through a checklist of so called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a requirement for the making or refusing of an order, in quite different circumstances.[47] Here, counsel for the applicant contends that the applicant is suing as a tribal leader in her representative capacity. Paragraph 1 of the amended statement of claim pleads that she is a single applicant who is "a spokesperson for and representative of Ngati Te Ata". [48] The applicant notes that if security for costs were ordered then she would be unable to pursue the present proceedings.[49] She contends that her case is narrow and plausible and that she is genuine in her cause. [50] The essence of the applicant's case appears to be her claim that, having met the first four criteria established by the respondent for recognition of an iwi for the purposes of a Maori fisheries claim, the respondent was wrong to require that the applicant obtain agreement from parties with a direct pecuniary interest in the decision being made. [51] The applicant's argument is that this is an issue of great public importance as the correct identification of the beneficiaries of fishery settlement assets is an issue in the public interest. Those settlement assets came into the possession of the respondent following a global settlement of treaty claims to commercial fisheries. The applicant states that her rights to make a claim against the Crown were removed and replaced with an interest in the assets held by the respondent. She says it is a matter of public importance that the process of determining the proper beneficiaries of those assets is not a tainted process. [52] Counsel contends that if the applicant is successful in her claim, her community and the relationship the applicant's iwi has with local and territorial authorities will be vastly transformed. Finally she argues that the applicant is suing in the nature of a beneficiary bringing an action against a trustee. In these circumstances the applicant submits it would be wrong for her to be prevented from pursuing her case given also her contention that the impoverished state of the applicant's community is in part a direct result of the respondent's challenged decision. [53] In response, the respondent contends at the outset that there can be no public interest in the present proceeding particularly in light of the enactment of the Maori Fisheries Act 2004 in September of last year. [54] Further, the respondent argues that not only is there no novelty in terms of the legal questions raised in the proceeding which appear to be orthodox issues of administrative law in relation to statutory decision making (pleaded in terms ofunreasonableness and error of law), but also, as noted above, the utility of the proceeding must be seriously questioned given the enactment of the 2004 Act. [55] As a consequence of that enactment, the respondent contends that there is no longer any tangible merit in the applicant's proceeding. To the contrary he argues that at best the proceeding is an academic exercise in relation to matters that have now been conclusively determined by Parliament's enactment of the 2004 Act. [56] The respondent notes that the Treaty of Waitangi Fisheries Commission has been dissolved and its powers under the Maori Fisheries Act 1989 which are challenged by the applicant are spent. [57] The successor to the Commission, TOKMTL has no ability to reconsider the former decisions of the Commission concerning Ngati Te Ata nor does it have the power to alter or supplement the list of eligible iwi prescribed in Schedule 3 to the Maori Fisheries Act 2004. The respondent says that Ngati Te Ata (as a hapu of Waikato) therefore falls to participate in the benefits of the fishery settlement and fisheries allocation through the iwi of Waikato. [58] The respondent notes that there is also no question of the applicant or any other person of Ngati Te Ata descent missing out on the benefits of the settlement. This is because there is a requirement before any settlement assets are transferred for TOKMTL to be satisfied that the constitution of Waikato is to be representative of all persons who are entitled to be members of the iwi including persons affiliated to Ngati Te Ata. [59] As a result, the respondent contends that there is little, if any, merit in the applicant's proceeding, and her claim therefore, has little prospect of success. The respondent emphasises that this is particularly so as those iwi who are to receive a Maori fisheries allocation are now specified in Schedule 3 of the 2004 Act, and can only be altered in so far as it might affect Ngati Te Ata by statutory amendment by Parliament.[60] Having considered both these arguments for the respondent and the contentions put forward by counsel for the applicant, in my view the submissions from the respondent must be preferred. [61] As I see it, there can be little doubt that the continuing utility of the current proceeding must be questioned now in light of the enactment of the Maori Fisheries Act 2004, and the allocations which are now underway. [62] I am of the view that given recent events, there is little merit now in the applicant's claim. Any public interest which may have existed has been overtaken by events in light of the 2004 Act. [63] That said, on these grounds alone, I am satisfied that the respondent's security for costs application should succeed. [64] As I have noted above, the balancing of interests between applicant and respondent here is another relevant factor to be taken into account in the exercise of the Court's discretion. While access to the Courts is not lightly to be denied to a genuine plaintiff, defendants are entitled to protection against unjustified litigation, particularly where it is unwarranted, over-complicated and unnecessarily protracted – AS McLachlan Limited v MEL Network Limited. [65] In the present case, for the reasons outlined above, I am satisfied that the interests of the respondent must prevail over the interests of the applicant. As I see it, in light of the 2004 Act, the present proceeding by the applicant is futile. [66] An order for security for costs, in my view, would be a means of furthering the interests of justice here, having regard to the interests of all parties. [67] For these reasons, the respondent's security for costs application must succeed. [68] Turning now to the quantum of costs to be ordered, counsel for the respondent contends that scale costs on a category 2B basis for the present proceeding would amount to a total sum of $26,682.50.[69] On this basis, before me the respondent sought an order for security for costs of at least $15,000. [70] In response, on quantum, counsel for the applicant commented that, at most, a modest award in the vicinity of $2,000 or $3,000 should be all that is ordered. [71] As to quantum, McGechan on Procedure, para HR60.09 states:The amount of security is equally in the Court's discretion. It is not necessarily to be fixed by reference to likely costs awards. Rather, it is to be what the Court thinks fit in all the circumstances: AS McLachlan Limited v MEL Network Limited.[72] Bearing this in mind, I am satisfied that under all the circumstances here, an appropriate award of security for costs is $12,000. [73] Although, having said this, I am mindful of the comments I have made at paragraphs [24] and [25] of this judgment. [74] On the basis that both counsel for the applicant and counsel for the respondent are satisfied that as an Associate Judge I do have jurisdiction to make an order with respect to the security for costs application, the following orders are now made: (1) The applicant is ordered to give security for the costs of the defendant in the sum of $12,000 by paying that sum into Court, or by giving to the satisfaction of the Registrar security for that sum. (2) An order is made staying this proceeding until such time as security for costs has been given.Costs[75] Before me counsel made no submissions with respect to costs on the current applications.[76] If there is an issue as to costs and counsel are unable to resolve this, then leave is reserved for each party to file an appropriate memorandum as to costs, and in the absence of a request from either party to be heard on the issue of costs, I will decide the question on the basis of the papers filed. __________________________Associate Judge D.I. GendallDelivered at 4.00pm on 3 October 2005.Solicitors:Kathy Ertel & Co, Solicitors, Wellington for Applicant Kahui Legal, Wellington for Respondent