LEEF v BIDOIS AND ORS [2017] NZHC 440

LEEF v BIDOIS AND ORS [2017] NZHC 440 [15 March 2017]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV 2015-470-151[2017] NZHC 440BETWEEN RAPOTA (ROBERT LEEF (HAPŪ OFNGᾹTI TAKA)PlaintiffAND COLIN BIDOIS (HAPŪ OFPIRIRAKAU) AND ORSDefendantsHearing: 1 March 2017 (by telephone)Counsel: S P Bryers for Mr Leef (Ngati Taka)M J Sharp for Mr Bidois (Pirirakau)No appearance by or on behalf of other defendantsJudgment: 15 March 2017JUDGMENT (NO. 2) OF HEATH JThis judgment was delivered by me on 15 March 2017 at 2.00pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Martelli McKegg, AucklandHolland Beckett, TaurangaCounsel:S P Bryers, AucklandJudgment of 25 January 2017: Remaining issues[1] On 25 January 2017,1 I gave judgment on a claim by Mr Leef, as a mandated representative of Ngāti Taka, against Mr Bidois, as a mandated representative ofPirirakau. As in my earlier judgment, I shall refer to the parties as Ngāti Taka andPirirakau respectively.[2] I found in favour of Ngāti Taka, and indicated that I was minded to make aseries of declarations to give effect to those findings. I reserved for further submissions the form in which the declarations should be sealed. I said:2[83] For those reasons, I make the following orders:(a) I declare that the award resolves finally and in a binding waydisputes about which hapū held mana whenua over therelevant lands.(b) I declare that the award does not resolve finally and in a binding way the question whether the proceeds of settlement presumptively receivable by Pirirakau should be held by Pirirakau alone or be the subject of some adjustment asbetween Pirirakau and Ngāti Taka.(c) I declare that the Mana Whenua Agreement remains in force and the parties are bound by cl 6.5 to resolve remaining disputes using the process set out in cls 6.10–6.15. Thatprocess may be invoked by Ngāti Taka to deal solely withthe question whether any adjustment should be made, of the type to which cl 6.14 refers.[84] I leave the precise terms of my proposed declarations to be finalised after counsel have had the opportunity to consider this judgment. Counsel shall confer and finalise the terms of an order to be sealed to reflect the declarations I have made. If agreement cannot be reached, I shall hear further from counsel at a telephone conference to be convened at their request. The Registrar shall not seal any order pending receipt of a draft approved by both counsel, or further order of the Court.[3] I reserved questions of costs. I said:3[81] I reserve questions of costs. Presently, given the nature of the dispute, the way in which the issue arose and the need for the Court to provide guidance as to the path that the parties need to take to resolve outstanding issues, I am inclined to let costs lie where they fall. Such an1 Leef v Bidois [2017] NZHC 36.2 Ibid, at paras [83] and [84].3 Ibid, at paras [81] and [82].approach would be consistent with the collaborative approach expected by the Mana Whenua Agreement.[82] Having expressed that tentative view, I acknowledge that counsel have not been heard on the question of costs. I ask that they take instructions. I direct that a joint memorandum be filed on or before 17 February 2017, in which they shall advise whether costs have been agreed. If not, the Registrar shall arrange a telephone conference before me at the first available date thereafter, so that I may make further directions to enable questions of costs to be determined.[4] Following a telephone conference with counsel on 1 March 2017, I have now received written submissions on the outstanding issues. Counsel are content for me to deal with them on the papers. I thank counsel for their assistance.Form of declarations[5] Mr Sharp, for Pirirakau, submits that declarations should be sealed to reflect the wording that I used in my judgment of 25 January 2017.4 Mr Bryers, for NgātiTaka, argues that the declarations should be expressed more expansively, to include findings on particular facts.[6] Pirirakau has foreshadowed an appeal against my judgment. Mr Bryers contends that it would be helpful for the Court of Appeal to have more fulsome declarations, while Mr Sharp is of the view that factual findings that go beyond my proposed declarations are for the Court of Appeal to consider in the context of the declarations as originally framed.[7] I am not persuaded that more expansive declarations are required in order to enable the Court of Appeal to determine any challenge that Pirirakau may bring against my decision. The formal orders are designed to reflect the findings made in the judgment. I do not see any benefit would be gained by the Court of Appeal if I were to formulate the declarations in the manner proposed by Mr Bryers.Costs[8] As I indicated in my judgment of 25 January 2017, my initial inclination was to let costs lie where they fall. I considered such an order would be compatible with4 Ibid, at para [83], set out at para [2] above.the emphasis on a collaborative approach that is apparent from the Mana Whenua Agreement.[9] It appears that neither party embraces the notion of collaboration. Mr Bryers asks that costs be determined at this stage, so that all questions of costs can be addressed as part of the appeal. Mr Sharp prefers that costs be reserved pending theCourt of Appeal's decision. As a fallback position, he supports my provisional view that they should lie where they fall.[10] I accept Mr Sharp's criticism of a point made by Mr Bryers: namely, that anyorder for costs should reflect the merits of this proceeding only. Mr Bryers haspointed to earlier litigation in which orders for costs were made against Ngāti Taka.They should not be taken into account.[11] Nor am I persuaded that any adjustment should be made in favour of Ngāti Taka due to Pirirakau's alleged refusal to sign an Agreed Statement of Facts beforetrial. In the circumstances, Pirirakau should not be penalised for approaching the issues in the way it did.[12] The final point on which I should comment is Mr Bryers suggestion that costs are justified because Pirirakau failed to advise the Court before the second day of the trial that the wife of one of its witnesses was related to Whata J. That led to the Judge deciding to recuse himself and to the unusual procedure that followed, which is set out in my earlier judgment.5[13] While there may have been some minor duplication in the presentation of the respective cases before me, the procedure adopted with the consent of counsel allowed me to proceed without the need to rehear oral evidence. As a result, no further time was required for the hearing than would have been the case if the original Judge had proceeded to judgment. The proceeding before me was more akin to a banco argument, confined (as it was) to closing submissions. No adjustment need be made on that basis.5 Ibid, at paras [7]–[14].[14] Having considered those issues, I remain unconvinced that any order for costs should be made. If I were right in my view that there is a distinction between the allocation process and the type of adjustment contemplated by cl 6.14 of the Mana Whenua Agreement, some of the earlier litigation may have been avoided.6 If the Court of Appeal were to take a different view, it would be open to that Court to direct that costs be awarded in favour of one of the parties in this Court.[15] In light of my conclusion that costs lie where they fall, I shall make no order as to costs in relation to the submissions filed on the issues with which I am nowdealing. I consider that it was reasonable for Ngāti Taka to advance the propositionthat the declarations be formulated more broadly. Neither party took, as their principal approach, my preliminary view that costs lie where they fall.Result[16] For the reasons given:(a) Declarations are made in the form set out in my earlier judgment.7(b) Costs shall lie where they fall.[17] I thank counsel for their assistance.__________________________P R Heath JDelivered at 2.00pm on 15 March 20176 Ibid, at paras [54] and [55].7 Ibid, at para [83], set out at para [2] above.