TE TAI TOKERAU MAPO TRUST V THE CHIEF EXECUTIVE OF MINISTRY OF HEALTH HC WHA CIV-2010-488-307

TE TAI TOKERAU MAPO TRUST V THE CHIEF EXECUTIVE OF MINISTRY OF HEALTH HC WHA CIV- 2010-488-307 5 August 2011IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV-2010-488-307UNDER the High Court RulesIN THE MATTER OF an application for judicial review ofdecisions made by the Ministry of Healthaffecting Te Tai Tokerau MAPO TrustBETWEEN TE TAI TOKERAU MAPO TRUSTPlaintiffAND THE CHIEF EXECUTIVE OF MINISTRYOF HEALTHDefendantHearing: 10 December 2010Counsel: W Peters for the PlaintiffA Williams and T Bromwich for the DefendantJudgment: 5 August 2011 at 4:00 PMJUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 5 August 2011 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors: Mr W Peters, Wayne Peters & Associates, Solicitors, Whangarei Ms A Williams, Crown Law, WellingtonTable of ContentsPara NoIntroduction [1]The factual backgroundThe genesis of the MAPO [8]The Memorandum of Understanding [11]The Deed of Partnership [16]1997 legislative changes [26]2000 legislative changes [28]Dealings between the parties from 2001 : the evidence [37]Dealings between the parties 2001- 2002 [39]Review of the MAPO in 2003 [42]Following the review [49]The first challenged decision : 19 December 2008 [70]The second challenged decision : 28 April 2009 [74]July to December 2009 : the Whanau Ora concept [77]The third challenged decision : 4 February 2010 [80]The fourth challenged decision : 26 February 2010 [83]Discussion : primary conclusion : the legal nature of the matters challenged : the primacy of contractThe legal nature of the matters challenged [86]The nature of judicial review : the relevance of contract [91]The plaintiff's claim is contractual in substance [98]The relevance of the contracts preceding the 28 April 2009 agreement [101]The 28 April 2009 agreement [110]The other "decisions" [116]Conclusion [118]Are the decisions open to judicial review? [119]The four grounds for judicial review [132]Breach of contract [133]Breach of natural justice [138]Ultra vires [141]Breach of legitimate expectation [145]Conclusion [152]Introduction[1] In 1996 the plaintiff and the Northern Regional Health Authority (North Health) entered into two agreements concerned with health and disability services for Maori people in Tai Tokerau.1 The agreements give some emphasis to matters arising under the Treaty of Waitangi. The plaintiff was funded by North Health.[2] Since 1996 there have been significant legislative changes relating to the provision of public health in New Zealand. In particular, Regional Health Authorities no longer exist. In broad terms, their functions have been taken over by District Health Boards.[3] Other legislative changes resulted in the rights and obligations of North Health under its agreements with the plaintiff being transferred to the defendant. From around 2001 until 2009 there were extensive dealings between the plaintiff and the defendant concerned, in broadest terms, with questions as to whether the agreements would continue and, if so, the party with whom the plaintiff should have a direct relationship in respect of matters covered by the agreements.[4] Over this period the agreements were extended a number of times. The defendant eventually declined to extend them beyond 30 June 2009. Funding of the plaintiff by the defendant then ceased.[5] The plaintiff has now sought judicial review of what it contends was an impermissible unilateral decision of the defendant to ―terminate the plaintiff byceasing payments.[6] The plaintiff advances four grounds for judicial review. These are described as breach of contract, breach of natural justice, ultra vires and breach of legitimate expectation.1 Defined for the purposes of the agreements as including ―all of Whangarei across to, but excluding Dargaville, and the area North of Dargaville up to and including Cape Reinga.[7] The defendant opposes the application on two broad grounds. The first, and primary, ground is that the decision challenged by the plaintiff is a ―commercial decision; a decision not to continue the contractual relationship with the plaintiff. For this reason it is contended that the decision cannot be subjected to judicial review except for fraud, corruption, bad faith or analogous situations, and there is no contention of fraud, corruption, bad faith or analogous situations. The defendant argues in the alternative that, if the decisions are reviewable, the grounds advanced by the plaintiff are not established.The factual backgroundThe genesis of the MAPO[8] In 1996 the principal statute governing the provision of public health services in New Zealand was the Health and Disability Services Act 1993 (the 1993 Act). Under the 1993 Act Regional Health Authorities had responsibility for funding public health services. Regional Health Authorities were bodies corporate established by Order in Council. There were four Regional Health Authorities with responsibility for defined areas of New Zealand. North Health had responsibility for the upper part of the North Island and including all of Tai Tokerau.[9] The Regional Health Authorities were required by Government policy guidelines to develop strategies to improve Maori health. In response to the 1994/95 Maori health policy guidelines, North Health developed its first three year strategy to improve Maori health. This included the development of what became known as MAPO. ―MAPO stands for Maori Co-Purchasing Organisation. Following consultation by North Health representatives with representatives of iwi and hapu of Tai Tokerau, the plaintiff MAPO was established as a charitable trust with the assistance of North Health. Two other MAPO were established in the North Health region south of Tai Tokerau; the Tihi Ora MAPO (through Te Runanga O NgatiWhatua) and the Tainui MAPO.[10] On 24 October 1996 two agreements were signed by the plaintiff and North Health: a ―Memorandum of Understanding and an ―Agreement for Co-purchasingHealth and Disability Support Services. I will refer to the Memorandum of Understanding as ―the Memorandum. I will refer to the second agreement as ―the Deed of Partnership. I use this abbreviation because it is an abbreviation used by the parties in supplementary agreements and it is reflective of provisions in the agreement. I will refer to the agreements collectively as ―the Agreements.The Memorandum of Understanding[11] The Memorandum is central to the plaintiff's claim. Mr Peters, at the outset of his oral submissions for the plaintiff, said that if the Memorandum is no longer binding the plaintiff has no case. Mr Peters' submissions placed substantialemphasis on the terms of the Memorandum.[12] The Memorandum records at the outset:TTTM [the plaintiff] and North Health wish to enter into a partnership for the co-purchasing of health and disability services (health services) in the co- purchasing region of Te Tai Tokerau. This Memorandum of Understanding sets out the basis of the partnership. [13] The next two sections are as follows:2. BACKGROUNDTe Tiriti O Waitangi as New Zealand's founding document, establishes thenature of the relationships between Te Tino Rangatiratanga and Kawanatanga. The parties now seek to define the nature of those relationships, pursuant to the provisions of Te Tiriti O Waitangi and the terms of this memorandum. These principles include partnership, authoritative agency, acknowledgement and enactment of obligations, co- operation, goodwill, mutual respect for cultural diversity and equality.TTMT accepts and acknowledges the rights and duties bestowed upon North Health, as an agent of the Crown, by the Treaty. In turn, North Health accepts and acknowledges the rights and duties of Te Tino Rangatiratanga of Tai Tokerau.North Health, by statutory and Treaty obligations, intention and explicit expression, will diligently pursue improvements in the general Maori health status. Therefore, the parties now agree to establish relationships, aimed at enabling the achievement of mutually greed Maori health objectives.Additionally, the parties further agree, pursuant to the provisions and principles of the Treaty and the principles and terms of this memorandum, to diligently pursue, by all measures that are lawful and in the common good, the ways and means of establishing relationships leading to contracts for health service provision. The provision of these health services shall protect and enhance the particular and general good health status of all iwi Maori, resident within the Tai Tokerau region.INTERPRETATION OF PARTNERSHIP3. PARTNERSHIP, within the meaning of this memorandum shall include the acknowledgement and acceptance by both parties;a) that each is a bona fide member of a ―health partnership, basedupon the Treaty, which is committed to the co-purchasing, of health services primarily for Maori within the Tai Tokerau region, as thepartnership's primary purpose.b) that the nature of human relationships, essential to the conduct of business between the parties, shall be characterised by equality of status and respect.c) that TTMT shall be consulted early and entitled, under Treaty obligation, to be involved as a Co-Purchaser in all North Health'splanning, purchasing and monitoring decisions impacting upon Maori health, within the Tai Tokerau region2.d) that North Health as an agent of the Crown, shall ensure that the working relationships between the parties, encourages equal opportunities and outcomes.e) that contractual relationships between the parties are devised, determined and performed, according to the criterion of the Treaty.f) that the parties are entitled to practise their respective individual duties, according to the cultural values of each and that this right shall be subsequently referred to as Nga Kaupapa Tikanga e Rua (two independent cultural forms of conduct)3.g) that the parties either by explicit agreement or accepted general behaviour, may conduct their dealings with each other in a bi- cultural manner.h) the parties will always seek to reach mutual agreement.______________________2 TTMT has agreed not to exercise its Co-Purchaser role where a conflict of interest may occur eg. where it is the Provider of a specific health service.3 The parties acknowledge that interpretations of this clause may be difficult and that any differences should be dealt with on the basis of good faith and recognising the needs firstly of the persons receiving any health or disability services.[14] The Memorandum then sets out four protocols. Protocol 1 is headed―Awareness Of Relationships And Issues. It provides that the parties are to berepresented by personnel who are ―closely aware of the provisions of the Treaty ofWaitangi and of the Memorandum itself. It records that the parties are to ―increase their awareness of matters ―impacting upon the relationships between Maori and the Crown and its agencies. It records obligations of assistance to each other, earlynotice of ―anticipated impediments to progress, co-operation in negotiations,recognition that ―the Maori health status requires urgent and co-operative attentionand acknowledgement of particular attributes of the personnel representing each party.[15] The content of the remaining protocols is broadly indicated by the headings.Protocol 2 is headed ―Meetings And Procedures. The first provision is that ―the parties shall meet whenever mutually agreed with further provisions made inrespect of meetings. Protocol 3 is headed ―Information Sharing. In broad terms it requires each party to make full disclosure of relevant information and not to use it in ways that are stipulated. Protocol 4 is headed ―Relationships with Third Parties.It recognises that each party may, for the purposes of the joint interests, have a need on occasions to deal with third parties. The first provision records that this mayhappen ―upon mutual agreement. The remaining provisions make more detailed stipulations. This includes an obligation on the parties to ―retain the primary TeTiriti O Waitangi relationship of partnership between themselves in dealings withthird parties.The Deed of Partnership[16] The Deed of Partnership is the agreement referred to in the preamble to theMemorandum as the ―partnership for co-purchasing that the parties ―wish to enter into. It was entered into contemporaneously with execution of the Memorandum.[17] The Deed of Partnership contains a background section explaining the status and functions of the two parties. It refers to statutory and government policy objectives relating to health and disability services for Maori people. In respect of these it records:[T]he parties wish to enter into this Agreement within the concept of"partnership" established under Te Tiriti O Waitangi. Where the word"partnership" is used in this Agreement it refers to this concept ofpartnership rather than the legal definition of partnership and consequently this Agreement does not create a partnership resulting in joint and several liability.[18] The Deed of Partnership then provides:THE PARTIES AGREE AS FOLLOWS:1. MEMORANDUM OF UNDERSTANDINGThe principles contained in the Memorandum of Understanding are incorporated in this Agreement.2. PARTNERSHIP CONCEPTThe parties agree that they will work in partnership in respect of the purchasing of health and disability services for Maori people living in the North Health region. They agree that they will deal with each other in good faith, with honesty and integrity.TTMT will assign a representative to participate with North Health'sBoard on a committee of the Board in respect of the purchasing of health and disability services for Maori people. This committee will comprise all the members of the north Health Board and one representative of each MAPO which has entered into a co- purchasing agreement with North Health.[19] The committee of North Health's board which included the representatives of each MAPO – Te Kaunihera – held its inaugural meeting in April 1996 and convenedmonthly after that. North Health's board delegated full decision-making authority in relation to Maori health to Te Kaunihera. At an operational level, where TeKaunihera's decisions were implemented, the plaintiff (or whichever of the otherMAPOs was involved) shared responsibility with North Health's purchasing teamsfor relevant activities. However, North Health had sole legal and financial liability for the decisions taken by Te Kaunihera, and for the implementation of those decisions in the form of service contracts with providers of the particular service, as noted at [23] below.[20] Section 3 of the Deed of Partnership is headed ―Partnership Principles.There are eight provisions in this section. The first is as follows:a. Te Tiriti O Waitangi is central to the establishment of a "healthpartnership" between the parties. Paramount are the principles ofpartnership, participation and active protection.This provision reflects the statement in the preamble, recorded at [17] above, and the operative provision in clause 1 incorporating the principles of the Memorandum in the Deed of Partnership. The remaining provisions of section 3 amplify aspects of the broad statement of principles in paragraph a., and also record a range of specific interests requiring recognition and protection, and, in particular, various Maori interests.[21] Section 4 provides:This Agreement is for no fixed term but may be terminated by either party giving to the other at least twelve months notice in writing.[22] Section 5 is headed ―Statutory and Contractual Obligations. This sectioncontains acknowledgements by the plaintiff that, amongst other things: North Health was a statutory authority which was bound to act in accordance with the provisions of the 1993 Act; nothing in the Deed of Partnership could abrogate North Health'sstatutory responsibilities, or contractual responsibilities to other parties; and North Health was obliged to comply with the provisions of an annual funding agreement made (in terms of the 1993 Act) between the Crown and North Health.[23] Section 6 of the Deed of Partnership has a brief provision dealing with confidentiality. This requires no comment. Section 7 is headed ―Operations. The plaintiff agreed to establish a management unit which would then ―work in partnership with North Health's various divisions, especially the Maori Health Development Division. This involved shared responsibility for, in particular,consultation with Maori people in Tai Tokerau, assessment of their health needs, and provision of reports and recommendations for the purchase of health and disability services for Maori people. Purchase of and payment for health and disability services was the sole responsibility of North Health. This was provided for in clause 7.3 as follow:7.3 For the actual purchase of health and disability services for Maori people in the Rohe of TTMT, North Health will be the party which contracts with providers, and will be responsible for payment andgeneral contract administration, including effectiveness monitoring and audit.[24] Section 8 makes provision for various payments by North Health to the plaintiff. Clause 8.1 records that North Health had provided the plaintiff with twogrants ―for the purpose of Health Service & Investigation and the Establishment ofit's [sic] operational services. Clause 8.2 makes provision for North Health to make further payments to the plaintiff of ―an amount agreed by both parties for ongoing operational costs of the plaintiff. There is provision for the parties to meet at leastonce a year ―to review the operational costs and analyse expenditure.[25] The final section of the agreement is headed ―Arbitration/Dispute resolution.This section requires disputes that cannot be resolved by agreement to be referred to mediation and then, if necessary, to arbitration. The final clause provides thatmandatory mediation and arbitration ―will not apply to any termination variation orre-negotiation of the co-purchasing agreement.1997 legislative changes[26] In 1997-1998 there was a restructuring of the public health sector. In June 1997 the Regional Health Authorities were dissolved by Order in Council. On 1 July 1997 all the assets and liabilities of the Regional Health Authorities were transferred first to the Transitional Health Authority and then, from 1 July 1998, to the Health Funding Authority. The Health Funding Authority was a body corporate under s 32 of the 1993 Act.[27] The plaintiff and the Health Funding Authority entered into five agreements recording the sums agreed to be paid by the Health Funding Authority to the plaintiff, either to meet the plaintiff's operational budget for a financial year, or to meet additional services the parties had agreed were to be provided by the plaintiff for the partnership. These agreements were effected as variations of the original Agreements. An example is the ―Budget Agreement entered into in July 1998. It also has a relevance as a form of consolidation of the preceding agreements, including the Memorandum and the Deed of Partnership. It is headed ―Addenda[sic] to Deed of Partnership (Agreement for Co-purchasing Health and DisabilitySupport Services). The first clause explains the background as follows:1.1 The Health Funding Authority and Te Taitokerau MAPO Trust are parties to a Memorandum of Understanding (contract number 07877_01), a Partnership Deed (contract number 07878_00) and an Addenda to the Partnership Deed (contract number 07878_01) and an Agreement for the Provision of Additional Services (contract number 07878_02). Together these contracts form the contractual basis of the agreement for co-purchasing health and disability support services between the parties, and are the foundation for the partnership relationship between the Health Funding Authority andTe Taitokerau MAPO Trust's Maori Co-purchasing Organisation, the Te Taitokerau MAPO.One of the headings to this agreement indicates that it is an agreement made pursuant to clause 8.2 of the Deed of Partnership: see [24] above. Clause 4 of this agreement provides that it is for a term of 12 months ending on 30 June 1999. TheHealth Funding Authority agreed to meet the plaintiff's operational budget for thefinancial year of $460,000, plus GST, by equal monthly payments.2000 legislative changes[28] The New Zealand Public Health and Disability Services Act 2000 (the 2000 Act) effected a further and major restructuring of the public health sector. The 2000 Act came into force on 1 January 2001 (apart from three provisions which are not relevant). There were two changes of particular relevance to the present case. The first was that, from 1 January 2001, the Health Funding Authority was dissolved and its assets and liabilities were vested directly in the Crown, with the Crown acting through the defendant (except in relation to shares): s 94(3). The second was thecreation of District Health Boards (DHBs) as the organisations with primaryresponsibility for purchasing and providing health services.[29] The 2000 Act contains provisions to address matters relating to Maori health. The first is in s 3 which sets out the purpose and objectives of the 2000 Act. Relevant provisions of s 3 are:3 Purpose(1) The purpose of this Act is to provide for the public funding and provision of personal health services, public health services, and disability support services, and to establish new publicly-owned health and disability organisations, in order to pursue the following objectives:(a) to achieve for New Zealanders—(i) the improvement, promotion, and protection of their health:(ii) the promotion of the inclusion and participation in society and independence of people with disabilities:(iii) the best care or support for those in need of services:(b) to reduce health disparities by improving the health outcomes of Maori and other population groups:(c) to provide a community voice in matters relating to personal health services, public health services, and disability support services—(i) by providing for elected board members of DHBs:(ii) (d) (2) The objectives stated in subsection (1) are to be pursued to the extent that they are reasonably achievable within the funding provided.(3) To avoid any doubt, nothing in this Act—(a) entitles a person to preferential access to services on the basis of race; or(b) limits section 73 of the Human Rights Act 1993 (which relates to measures to ensure equality).(4) In giving effect to the purposes set out in subsection (1), the Crown and DHBs must endeavour to promote the integration of all health services, especially primary and secondary services.[30] Section 4 provides:Treaty of Waitangi:In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Maori, Part 3 provides formechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services.[31] Section 5 provides an outline of the 2000 Act. It includes the following: 25 Outline(1) In general terms, this Act relates to, and reorganises, the public health and disability sector.(2) Ministerial responsibilities (Part 2) include—(a) determining health and disability strategies (section 8):(b) negotiating and entering into agreements under which the Crown provides a person money in return for the person providing or arranging for the provision of health services or disability support services (section 10):(c) (3) District Health Boards (DHBs) are established (Part 3 and Schedules 1 to 3), and take over functions like those of Hospital and Health Services (HHSs), which are dissolved (Part 7). DHBs—(a) have boards that include members elected by the community and representation of Maori:(b) will provide, or fund the provision of, health services and disability support services:(c) have the objective of reducing health disparities by improving health outcomes for Maori and other New Zealanders:(d) are [statutory entities] rather than companies:(e) are accountable in a number of ways ([under the Crown Entities Act 2004 and sections 38 to 42]), for example, through [plans prepared under section 38], and statements of intent.(4) [32] Part 3 of the 2000 Act, referred to in s 4, makes provision for DHBs. The sections referred to in the following paragraphs – ss 21, 22, 23 and 29 – are all in Part 3.2 The amendments shown in s 5(3)(d) and the first amendment in s 5(3)(e) were made by the Crown Entities Act 2004, s 200.[33] Section 21 provides that each DHB is a Crown entity owned by the Crown for the purposes of s 7 of the Crown Entities Act 2004, except to the extent that the 2000 Act expressly provides otherwise (and there are no relevant exceptions). In terms of s 7 and Schedule 1 of the Crown Entities Act 2004, DHBs are Crown agents.[34] The objectives of DHBs are specified in s 22(1) and include the following:(a) to improve, promote, and protect the health of people and communities:(b) to promote the integration of health services, especially primary and secondary health services:(e) to reduce health disparities by improving health outcomes for Maori and other population groups:(f) to reduce, with a view to eliminating, health outcome disparities between various population groups within New Zealand by developing and implementing, in consultation with the groups concerned, services and programs designed to raise their health outcomes to those of other New Zealanders:[35] Section 23(1) prescribes a wide range of functions for DHBs for the purpose of pursuing the objectives. These include the following:(d) to establish and maintain processes to enable Maori to participate in, and contribute to, strategies for Maori health improvement:(e) to continue to foster the development of Maori capacity for participating in the health and disability sector and for providing for the needs of Maori:(f) to provide relevant information to Maori for the purposes of paragraphs (d) and (e):[36] Section 29 makes provision for the membership of the board of each DHB. It is to consist of seven elected members and up to four members appointed by the Minister of Health. Section 29(4) is a provision to give effect to s 5(3)(a)3 and provides:3 See above at [31].In making appointments to a board, the Minister must endeavour to ensure that—(a) Maori membership of the board is proportional to the number of Maori in the DHB's resident population (as estimated by Statistics New Zealand); and(b) in any event, there are at least 2 Maori members of the board.Dealings between the parties from 2001 : the evidence[37] Reference was made in the introduction to extensive dealings between the plaintiff and defendant from 2001. These dealings are referred to in two affidavits for the plaintiff from Dr Bruce Craig Gregory, the chairman of the plaintiff since 2006, and in an affidavit of Theresa Aroha Wall, the Deputy Director-General, Maori Health, in the defendant Ministry. There is also an affidavit for the defendant fromLeigh Mihikore Andrews. He was a senior analyst in the Maori Health Directorateof the defendant from October 2007 until February 2010. He confirmed theevidence of Ms Wall for that period.[38] The principal deponents, Dr Gregory and Ms Wall, describe various dealings.Dr Gregory's first affidavit and Ms Wall's affidavit, have annexed to them copies ofcorrespondence, minutes and other documents recording the dealings as they proceeded. This applies in particular to the affidavit of Ms Wall which has over 80 documents annexed to it. To some extent, what the deponents say amount to submission on the meaning of documents, or a gloss on a written agreement – theaddition of something not actually recorded or reasonably to be inferred from what isrecorded. I have, of course, had regard to what the deponents have said on mattersof fact. But there is a substantial body of contemporaneous documentary evidence –agreements, letters, e-mails, minutes, some reports, and other types of document. Inrespect of the central issues in this case, this contemporaneous documentaryevidence provides the most assistance. I do not intend to refer to all of this material.However, in order properly to address the parties' contentions, it is necessary toprovide a reasonable amount of detail from the documents.Dealings between the parties 2001-2002[39] In unchallenged evidence Ms Wall said, in respect of the changes effected by the 2000 Act:During the transition period between the disestablishment of the [Health Funding Authority] and the establishment of the DHBs the Ministry inherited the MAPO contracts, along with all other health sector contracts. As the DHBs were established the Ministry, in a staged process, transferred most personal health service contracts to the DHBs, and that included all Maori health service contracts, but retained responsibility for purchasing aged care (although this was devolved to DHBs in 2005), disability support services for people aged under 65 years and public health (population health) services.The MAPO relationship and funding were to be devolved to the respective DHBs as the [2000 Act] made DHBs accountable for the health of the population resident in their districts, and required, amongst other things, the DHBs to ensure Maori participation and decision making and the provision of health services.[40] It appears, from correspondence put in evidence, that the defendant initially proposed that the MAPO agreements (that is to say, the agreements with all three MAPO, including the one with the plaintiff) would be ―devolved to the appropriateDHBs on 1 July 2001 but that, following a meeting or meetings, this was deferred. Following some further correspondence, the defendant agreed that it would retain responsibility for the ―Treaty Based Relationships agreements until 30 June 2002,with an opportunity to review the date before that time. This was confirmed in a letter from the defendant to the plaintiff dated 20 August 2001.[41] Following agreement on extension to 30 June 2002, there were further negotiations through to the end of 2002. This led to two further agreements, although details of the preceding negotiations have not been provided in evidence. The first agreement, made around 28 November 2002 between the three MAPOs and the Ministry, was that there should be an independent review of the MAPOs on agreed terms of reference. The second agreement followed from the first: the plaintiff and the defendant agreed to an extension of the Agreements from 1 July 2002 until 30 June 2005. This extension agreement, signed by the plaintiff on 23 December 2002, was, as before, effected as a variation of earlier extensions, and inessence as described at [27] above. This extension made further provision for monthly payments to the plaintiff. The agreement also records:The Ministry of Health agree [sic] to enter into contract negotiations with Te Tai Tokerau MAPO Trust following the proposed review, with the understanding that final agreement of any proposed contract changes will be by mutual agreement of both parties on completion of the review.Review of the MAPO in 2003[42] The terms of reference were signed by the three MAPO and the defendant on various dates between January and April 2003. The terms of reference set out background facts which include the following:The MAPO contracts and relationships were established in 1995-98 by the Northern Regional Health Authority (NRFA) [sic] The primary purpose of the MAPO Strategy was to operationalise the Treaty of Waitangi in thehealth funding environment The rationale underpinning the MAPO Strategy was to enhance the operational performance of the then Funder (NRHA) by providing the basis for the Crown and Iwi to take joint responsibility for Maori health gain and development in respect to Auckland/Northland.[43] Key objectives in the terms of reference are as follows:Key Objectives for Joint Review of MAPOTo review, consider, and identify the following: The future role of the MAPO in the DHB environment (including the relationships and role with Māori providers, other providers, Māori communities and DHBs) The relationship of the MAPO (at both the specific and collective level or Tri-MAPO) with the MoH (locality and national levels), including Te Kete Hauora [The Maori Health Directorate] What structures and systems need to be altered or strengthened in order to more effectively achieve the objectives of the MAPO strategy in the new health sector environment At what level should the MAPO operational contracts sit (national or district) to give effect to MAPO objectives in the new health sector environment The development of a generic costing framework which can be consistently applied to ensure the equitable resourcing of MAPO[44] The review and subsequent report were completed by two consultant companies appointed by the parties. The principals of the companies were Mr John Whaanga and Mr Herewini Te Koha. With the consent of both parties, Messrs Whaanga and Te Koha continued to act after the review was completed as facilitators to assist with further negotiations.[45] The review was carried out between March and June 2003. The reviewers obtained information from, and interviewed a number of, representatives of the three MAPO and the defendant, as well as chief executive officers and managers of the relevant DHBs, and others. The final report was completed in September 2003, and released in December 2003.[46] One main section in the report, arising from the first objective recorded in the terms of reference, concerns ―the future role of the MAPO in the DHBenvironment. The reviewers found, as recorded in their summary of findings and recommendations, that:(a) the current environment [meaning the legislative environment] promotes and requires the DHBs to establish practical and effective relationship arrangements with Maori, inclusive of hapu and iwi, and this requirement needs to be reflected in the governance arrangements for the MAPO in the future in terms of alignment with their respective relationship arrangements in place and/or being developed;(b) the MAPOs' core role and functions align directly with the new sectoral requirements, and offer DHBs in particular a ready relationship to help them to meet their statutory function of improving Maori health outcomes; and(c) MAPOs' key stakeholders, including their affiliated iwi and provider networks, support the retention of the MAPO's current role andfunctions.[47] A further section addressed ―the relationship of the MAPO with the Ministryof Health. Findings in this section included the following:(a) The future relationships between the Ministry and the MAPO should be aligned with the future role and functions of the Ministry.44 The reviewers noted in this section that the role and functions of the Ministry were ―primarilyoperational, covering the Ministry's current roles as policy setter, funder of some services (e.g. disability services, public health) and in terms of areas such as consultation.(b) (c) The MAPO view their relationship with the Ministry as also being more than just one of contract management, but a Treaty-based relationship.Recommendations are made based on these findings. These include the following:The issue of higher level health sector Treaty arrangements is a separate issue from that of contract management, and there are other means to better initiate and locate these arrangements.[48] The report concludes (section 7) with recommendations of a timetable to implement changes proposed in the report. The authors record the defendant's preference that ―the MAPO contracts transfer to relevant DHBs during 2005 and byno later than 30 June 2006. The resolution of the three MAPOs in this regard, recorded in the report, was:[The] current relationships, inclusive of the MAPO operational contracts, [be] retained with the Ministry of Health until 30 June 2006, in order to safeguard Maori health development in [Te Tai Tokerau, Ngati Whatua and Tainui ki Tamaki] collective Rohe through the continuance of the MAPO co- funding model as a practical expression of Te Tiriti O Waitangi/Treaty of Waitangi in action.There were reasonably detailed recommendations for various steps to be taken on specified dates, including consultation, through to transfer of all MAPO contracts to DHBs by 1 July 2006. A transfer date of 1 July 2006 was stipulated to provide for the minor divergence between the date proposed by the defendant and the dateproposed by the three MAPOs for transfer.Following the review[49] On 10 March 2004 there was a meeting between the defendant and the three MAPO concerning implementation of the review recommendations. The defendant wrote to the plaintiff on 6 April 2004 and said:As agreed at the Ministry of Health and Tri-MAPO meeting on 10 March 2004, this letter confirms a number of key matters in regard to the implementation of recommendations arising from the MAPO Review completed last year.The Ministry confirms that the Review implementation timeline and keyactions thereof are as outlined in Section 7 of the Review report [50] On 2 December 2004 Dr Gregory and others wrote to the Minister of Health. The letter was from Dr Gregory, as chair of Te Hauora o Te Hiku o Te Ika Trust, and others representing iwi and Maori health providers in the far north. They said:At a recent hui held on the 29th November 2004 at Kaitaia comprising Te Hauora o te Hiku o te Ika Trust, and representatives of Maori Health Providers in the Far North of Te Rarawa, Ngati Kuri, Ngaitakoto, Ngati Kahu and Te Aupouri iwi, the following unanimous decisions were reached:- That the relationship between Te Tai Tokerau MAPO, with the Ministry of Health is recognised by iwi, as a Tiriti / Treaty based partnership in health which has proved successful with iwi and that it continue. That Te Tai Tokerau MAPO contract remain with the Ministry of Health continuing the independence of relationship which has best served Maori Health Development with iwi in Te Tai Tokerau[51] The Minister of Health replied by letter dated 2 February 2005. She said, amongst other things:As you will be aware, Te Tai Tokerau MAPO's Treaty-based relationship was first established in 1995 by the Northern Regional Health Authority.At present the Ministry's Māori Health Directorate retains all three MAPOcontracts in a ‗Kaitiaki' caretaker role until the recommendations in theMAPO review report, released in December 2003, have been implemented. The review recommendations include the transfer of the MAPO contracts to their respective district health boards by 30 June 2006.I am aware that the Ministry is working closely with all three MAPO and their respective district health boards in order to progress the MAPO review recommendations. This work will continue throughout 2005.[52] On 10 February 2005 there was a meeting between the plaintiff, the defendant and the Northland DHB concerning the future role of MAPO and contract management. This was followed by a meeting on 24 February 2005 between the three MAPO and the defendant concerning the future relationship and contract management. Messrs Te Koha and Whaanga acted as facilitators. Minutes were taken. Ms Lynette Stewart, the chief executive officer of the plaintiff is recorded as saying: [A]ll the MAPO governance bodies were unanimous in agreeing that they had grave concerns regarding the implementation of the MAPO Review,especially as it related to the on-going Treaty of Waitangi relationship with the Ministry of Health and the devolution of the MAPO contracts to the DHBs. In regard to the former point, the MAPO governance bodies were clear that the Treaty relationship with the Ministry was a ―first orderrelationship and were averse to jeopardising that relationship. In regard to the latter point, the MAPO governance bodies noted that the Review had identified the independent ―leverage of the MAPO are crucial to theirsuccess to date and that the transfer of the MAPO contracts to the DHBs would compromise this role.Lynette also indicated that the MAPO governance bodies had agreed that they wished to arrange to meet with the Prime Minister and the Minister of Health to discuss their concerns. With that in mind, they had instructed the [Chief Executives] to meet with the Ministry to progress operational matters.[53] Sir Hugh Kawharu was a board member of Tihi Ora MAPO. On 16 March 2005 he wrote to the Minister of Health on behalf of the three MAPO inviting the Minister to a meeting. He said:The purpose of the meeting is simply stated. It is to clarify the relationships that have evolved between the three MAPO, the Crown, and District Health Boards since the signing of each inaugural MAPO Memorandum of Understanding upwards of ten years ago.It is evident to MAPO trustees that the periodic policy shifts and consequent restructuring within the health system at both central and regional levels, has resulted in an incremental loss of the original Treaty determined focus in the delivery of health care services to Maori within each MAPO mana whenua. Unfortunately this is a matter that was not examined in the recent MAPO review.While the commitment of the three MAPO to the raising of Maori health levels has never weakened or been compromised by themselves, mounting uncertainty about the acceptance of underlying Maori cultural and Treaty values among their partners has given them (MAPO) cause for much concern. If this uncertainty continues MAPO believe that it will jeopardisethe current health policies and practices affecting Maori in the northern halfof the country.Tai Tokerau, Ngati Whatua, and Tainui MAPO therefore look forward to an opportunity to learn from you the present Government's position on theseand related matters the better to maintain levels of confidence and efficiencyin their part of the Maori health sector.[54] On 3 May 2005 the defendant's Deputy Director-General, Maori Health,reported to the Associate Minister of Health. He recorded a proposal of Ministryofficials that, contrary to the proposal in the MAPO review that the MAPO contractsbe transferred to the DHBs on 1 July 2006, the Memorandum and ―operationalprotocol contracts between the MAPO and the defendant be retained. The report includes the following advice to the Associate Minister:7. The MAPO have carried out consultation hui with their key stakeholders (Maori providers, and iwi) and each of them has reported strong views from these meeting [sic] that the contractual arrangements should not be devolved to DHBs. The issues revolve around: (i) on-going Treaty-based arrangements between the Ministry (the Crown) and the MAPO; and (ii) the transfer of the (operational) MAPO contracts to the respective DHBs.The Associate Minister declined to approve the officials' proposal pending a meeting between the Minister of Health and the three MAPO.[55] A meeting between the Minister and the three MAPO was arranged for 15 June 2005. On 8 June 2005 the Minister received two reports from Ministry officials. The Minister was advised of meetings of officials with the MAPO, including the plaintiff, and DHBs. The Minister was advised that two major issueshad ―been consistently raised by the MAPO; the status of the Treaty based relationship, and the devolution of MAPO contracts (operational) to the respectiveDHBs. The Minister was advised:15. The MAPO represent a Treaty-based model for promoting effective Māori participation in health and disability sector decision-making at a regional level. The MAPO have successfully aided the development of Māori health service providers within their localdistricts.16. The MAPO offer real scope and potential to assist District Health Boards within the Northland and Auckland regions to increase Māorihealth services and assist DHBs with the capacity and capability development of Māori providers in the region.[56] The meeting took place on 15 June. The Minister proposed that the date for transfer to the DHBs be shifted from 1 July 2006 to 1 July 2007. On 16 June 2005 the plaintiff wrote to the Minister and said:The [plaintiff] delegation appreciated your consideration of the issues raised, and your proposition that more time should be allowed for the Ministry of Health and the MAPO to come to agreement on an appropriate pathway for the future.[57] Deferral of the transfers to the DHBs until 1 July 2007 was agreed. It was therefore necessary to extend the existing Agreements. This was done in two stages.The first followed directly from the review recommendation. By agreement signed by both parties in August 2005, there was an extension to 30 June 2006. The further extension to 30 June 2007 was recorded in a written agreement signed by the parties on 10 and 14 July 2006. Consistently with earlier extensions since 1998, this extension agreement referred back to the ―consolidation agreement that had been entered into in July 1998.5 The extension agreement recorded:The AgreementIn 1998 both of us entered into a Health and Disability Services Agreement (the Agreement). The Agreement commenced on 1 July 1998 and ended on 30 June 1999 and was numbered (419840 / 158092/04).―The Agreement as defined here is a reference to the agreement described at [27]above.[58] Dr Gregory said in his first affidavit that, ―between January and June 2006 the MAPO entities, the Ministry and the DHBs engaged in a series of meetings to develop and implement appropriate documentation to clarify the framework withinwhich the relationships and services were expected to continue.[59] By letter dated 24 July 2006 the defendant gave the plaintiff formal notice as follows:Following on from rolling over the current contract for one year and in accordance with the Agreement for Co-Purchasing Health and DisabilitySupport Services, Term 4 which states ―This agreement is for no fixed term but may be terminated by either party giving to the other at least 12 months notices [sic] in writing the Ministry of Health submits this letter as providing 12 months notice of termination of contract 158092-09 and all variations, in order to allow a path to negotiate any future contract.This is merely a process and does not in any way hinder or deter the current negotiations we are working on.―Contract 158092-09 is the agreement for the extension to 30 June 2007.[60] Dr Gregory said in his first affidavit:5 See above at [27].15. Work on the initial drafts of the aforementioned documentation6 wasprogressing well until the Ministry convened a meeting with theMAPO entities in November 2006 and announced that it intended tohalt the collaborative process. A letter dated 27 November 2006 wasforwarded to the MAPO entities soon afterwards advising that theMinistry intended to proceed with ―the devolution of the MAPOfunding and funding role to the relevant DHBs.[61] Ms Wall produced the minutes of a meeting on 16 November 2006 between representatives of the three MAPO (including Dr Gregory) and the defendant(including Ms Wall). Messrs Te Koha and Whaanga again attended as facilitators.This is presumably the meeting Dr Gregory refers to. No minutes for any othermeeting in November 2006 have been produced. The minutes do not bear out DrGregory's recollection of what was said on behalf of the defendant. The meetingtook approximately 2 ½ hours. The minutes record a detailed exchange of views butnot an announcement by the defendant to the effect that ―it intended to halt thecollaborative process. The plaintiff may have construed the advice for thedefendant as constituting a halt to a collaborative process because the defendant wasnot agreeing with the plaintiff's proposals, but that, of course, is a propositiondifferent from the one stated by Dr Gregory. Ms Wall said in her affidavit, inreference to Dr Gregory's statement, that, in addition to finding ―no reference to sucha statement in the minutes she confirmed that no such statement was made by her orby her colleague at the meeting, Mr Rangi Pouwhare.[62] What the minutes do record is the point of difference that had been noted in the 2003 review report and other documents: the MAPO, in broad terms, consideredthat a continuing partnership between each MAPO and the Ministry was necessary inorder adequately to reflect the Treaty relationship between iwi and the Crown. TheMinistry, reflecting the views of the Government, did not consider that such wasnecessary because the fundamental Treaty relationships were between iwi and theCrown and the new legislative framework, centred on DHBs, meant that the MAPOrelationships should be with DHBs. Representatives of MAPO also expressedconcern that DHBs were not dealing adequately with matters relating to Maori healthrequirements. Towards the end of the meeting the chief executive officer of theplaintiff requested that the defendant commit to work on key matters, assist the6 That is, the documentation noted at [58].MAPO to ―turn around poor DHB performance, and agree to a transitional period to 30 June 2008.[63] On 9 March 2007 there was a meeting between the plaintiff, the defendant and the Northland DHB. One of the review authors attended as a facilitator. At thismeeting Ms Lynette Stewart, the plaintiff's chief executive officer, said, as recordedin the minutes:Lynette noted that iwi did not support the position that the Ministry was proposing, and had previously said in consultation that they wanted the MAPO to continue to have a firm relationship with the Ministry. She did note, however, that it was never intended that the MAPO should continuepast ―it's [sic] use-by-date, but that there was some work still to beundertaken before iwi and providers were ready to take up the role that the MAPO had undertaken on their behalf in the past. Lynette noted that she had always been of the view that the transitional timeframe for any changes to the current arrangements should be December 2008. This would allow time to deal with any transitional issues (including the potential for a―Master/Servant relationship developing if the DHB managed the MAPOcontract), and allow for iwi/provider capacity to be enhanced for the future.Ms Stewart is also recorded as saying that ―it was possible to move along the direction proposed by the Ministry, but the matters referred to needed to be addressed.[64] Ms Wall, on behalf of the defendant, is recorded as saying:[T]he Ministry had already signalled that it was committed to the proposed direction, but also committed to working with the DHBs and the MAPO to ensure the transition period was sufficient to allow for all relevant matters to be addressed with the future in mind.Ms Wall agreed that a timeframe of 18 months, which would take it to December 2008 as proposed by Ms Stewart on behalf of the plaintiff, appeared reasonable.[65] In a letter dated 25 May 2007 from the plaintiff to the defendant a further extension, to 30 June 2009, was sought to enable further time for the transition. The letter records that the matters to be addressed were:The development of a Te Tai Tokerau Maori Health Strategic Plan, led out under the collective auspices of the Te Tai Tokerau Maori Health Strategic Alliance (of which TTTM and [Northland]DHB are founding members). The focus of the plan will be long-termsustainability of Maori Health development in Te Tai Tokerau, inclusive of the DHB, MAPO, Maori and community health providers and PHOs.The development of a collaborative decision-making framework for [Northland] DHB which incorporates Treaty-derived partnership and participation, as well as broader Maori health stakeholder involvement (as represented by the Alliance).This was supported by a letter from the Northland DHB.[66] A further extension to 31 December 2008 was agreed. This was recorded in an agreement signed by the plaintiff on 20 June 2007. This again referred back to―the Agreement as defined in the agreement providing for the extension from July 1998.7 What amounts to a preamble to the June 2007 agreement records:The Ministry and the Contractor [the plaintiff] wish to enter into a further variation to the Agreement in order to extend the term of the Agreement until the [sic] 31 December 2008 in order to meet the Ministry's objective of transferring the contractor's existing contracts (and associated agreements)to DHBs.The agreement also contains notice from the defendant that it ―wishes to exit thecurrent agreement with the contractor on the 31 December 2008 without exception.The defendant agreed to pay the plaintiff a total of $1,095,000 by equal monthlyinstalments from July 2007 to December 2008.[67] In his first affidavit, Dr Gregory said in respect of this agreement:Despite [the plaintiff]'s strong misgivings about the process and timing ofthis decision, the contract was signed by [the plaintiff]. However, this was in a context of significant pressure, given that the [defendant] had stipulated that, unless the contracts were signed prior to 30 June 2007, all operational funding for the MAPO entities would cease as at that date. The MAPO entities were effectively presented with the option of signing the contracts or facing extinction.There is no evidence that the plaintiff told the defendant that it was, in effect, signing under duress. The plaintiff had, of course, expressed firm disagreement with thedefendant's proposals, over an extended period, but that is quite different from thecritical proposition contained in this statement.7 See above at [27].[68] On 4 February 2008 the three MAPOs wrote to the Prime Minister advisingthat they had passed a resolution seeking the support of the Prime Minister ―to retainthe Treaty relationship with the Ministry of Health. They said:The Ministry of Health wishes to devolve the three MAPO contracts to thenorthern region District Health Boards at the end of 2008. The Tri- MAPO firmly believes that this move would be premature and highly detrimental to Maori health development.A representative of the plaintiff (and possibly representatives of the other MAPO) met the Prime Minister at Waitangi over the following weekend. This was followed by discussions at a Ministerial level.[69] From March 2008 until December 2008 the issues continued to be dealt with in correspondence and meetings between the parties. There were also meetings between the Minister of Health and the plaintiff on 10 April 2008, between the Associate Minister of Health and all three MAPO on 24 September 2008, and between the Associate Minister and the plaintiff on 30 September 2008. Correspondence and meetings included the following: a letter from the defendant tothe plaintiff on 2 October 2008; a letter from the Associate Minister of Health to theNorthland DHB on 3 October 2008 including proposals for meetings between thethree MAPO, the DHBs and the defendant; a meeting on 9 October 2008 betweenthe three MAPO and the defendant; a joint letter from the Northland DHB and theplaintiff to the defendant seeking postponement of a meeting; a meeting on 11December 2008 between the three MAPO, the Northern Region DHBs and thedefendant.The first challenged decision : 19 December 2008[70] At paragraph 71 of its original statement of claim, the plaintiff contended thatthe defendant had ―made a decision to act in a manner that disregards the fundamental principles of the relationship between the defendant and the plaintiff.The plaintiff provided some particulars of the way in which it contended this had been done, but there were no particulars of the ―decision save from what could be taken from the contentions in the preceding 70 paragraphs. Particulars wereprovided in an amended statement of claim. Four decisions were identified. I will now turn to the first of these.[71] At the meeting on 11 December 2008 between the three MAPOs, the Northern Region DBHs and the defendant, all parties agreed that new MAPO operational contracts were to be concluded by 31 March 2009. The plaintiff (and the other two MAPO) sought further funding from the defendant after 31 December2008, being the existing termination date. The defendant did agree to provide furtherfunding for three months. Ms Wall refers to this in her affidavit as follows, andconsistently with the minutes of the 11 December meeting:54. I agreed a new short-term contract would be offered to the three MAPO to provide a temporary funding for three months from 1 January 2009 to 31 March 2009 so that the MAPO could continue towork while negotiating the new operational contracts. This was agesture of good faith by the Ministry. I made it clear to the MAPOthat if the contract negotiations failed the contract would not berenewed.[72] This was followed by a letter of 19 December 2008 from the defendant to the plaintiff confirming the proposed extension to 31 March 2009 and making provision for the plaintiff to sign the letter as an agreement, if it agreed. The defendant's letteralso records the defendant's intention that the agreement would not be renewed after 31 March 2009. This is the first of the four decisions in respect of which the plaintiff seeks judicial review. I will refer to this as ―decision 1.[73] The letter of 19 December 2008 was followed by further correspondence and meetings through to 19 February 2009. On 19 February 2009 there was a meeting between the three MAPO and the defendant which included negotiation over the proposed new contracts. Over the Waitangi day weekend there had also been a meeting between the plaintiff and the Deputy Prime Minister. The result was anagreement between the plaintiff and the defendant based on the defendant's letter of19 December 2008 (decision 1) with some amendments. The letter was signed as an agreement by the plaintiff on 19 February 2009. This again records the notice from the defendant to the plaintiff that the defendant would not renew the agreement after 31 March 2009. It provides for further funding from the defendant to the plaintiff of $182,500 for the three month period. The plaintiff accepted an obligation to attendmeetings on three occasions, in February and March 2009, with the defendant andthe DHB ―to discuss and negotiate a proposed new contract. The agreement also records:Te Tai Tokerau MAPO Trust and the Maori Health Directorate, Ministry of Health each acknowledge that if no contract is finalised by 31 March 2009 all contracting between Te Tai Tokerau MAPO Trust and the Maori Health Directorate, Ministry of Health, will end.The second challenged decision : 28 April 2009[74] Negotiations proceeded. This included meetings between the plaintiff, the defendant, and the Northern DHB. Agreement had not been reached by 31 March 2009. It was agreed that an independent facilitator be appointed to assist in further negotiations. To enable that to occur the defendant agreed to a further extension of three months to 30 June 2009.[75] The further extension to 30 June 2009 was again recorded in the form of a letter from the defendant to the plaintiff. It is dated 28 April 2009. As a letter, unsigned by the plaintiff, the document records the second of the four decisions in respect of which the plaintiff seeks judicial review. It records the defendant's notice to the plaintiff ―that this agreement will not be renewed after 30 June 2009(decision 2).[76] The letter became a formal agreement between the plaintiff and the defendant when it was signed by the plaintiff as an agreement. I will refer to this as the ―28 April 2009 agreement. The 28 April 2009 agreement contains the notice just recorded. It makes provision for further payments by the defendant to the plaintiff of $182,500. It includes an obligation on the plaintiff expressed as follows:You are expected to use all reasonable endeavours to develop new service components for a proposed new contract with the Ministry.And it contains the following important provisions:This Agreement sets out the entire agreement between us, and supersedes all prior oral and written representation [sic], understandings, arrangements or agreements.Te Tai Tokerau MAPO Trust and the Ministry each acknowledges that if no contract is finalised by 30 June 2009 all contracting between Te Tai Tokerau MAPO Trust and the Ministry of Health, will end.July to December 2009 : the Whanau Ora concept[77] A contract had not been finalised by 30 June 2009. From that date there has been no further funding of the plaintiff by the defendant. However, discussionsbetween the parties did not come to an end.[78] There was a meeting between the Associate Minister of Health and the three MAPO in September 2009. The plaintiff sought to have the funding arrangements reinstated. The Minister suggested that the MAPO and the defendant explore the possibility of a new contract to develop a Whanau Ora service model. Whanau Ora is a social services programme that around that time was being introduced by the Government. This was followed by a meeting between the plaintiff and defendant in Whangarei on 7 October 2009 to discuss the Whanau Ora proposal. The defendant proposed that it would fund the three MAPO to develop Whanau Ora models in their regions, in place of the arrangements that had existed up to 30 June 2009. This proposed funding was noted by the Cabinet on 2 November 2009.[79] The plaintiff and defendant then engaged in discussions about developing a contract for the Whanau Ora service model and the terms of that contract. The plaintiff wrote to the defendant on 23 December 2009. The plaintiff thanked the defendant for some agreed amendments. It was noted that there were further clauses that would need to be discussed by the plaintiff's board and, because of the date, itwas improbable that the contract could be completed by the end of business on 24December. The plaintiff asked that the offer be ―kept open for continuingnegotiation in the new year. The plaintiff concluded by saying that it looked―forward to working with the defendant on the Whanau Ora service model in 2010.The third challenged decision : 4 February 2010[80] On 29 January 2010 the plaintiff advised the defendant that the plaintiff had obtained legal advice. The letter recorded, in essence, that the plaintiff considered that the defendant had failed adequately to consult and listen, and had been unfair and unreasonable in its dealings with the plaintiff. Towards the end of the letter the plaintiff said:It is our hope that we can work with the Ministry to overcome the present conflict and ensure that the appropriate consultation process takes place, thereby ensuring that any eventual agreement between the MAPO and the Ministry is fair, reasonable and has regard to the principles of the Treaty as required.[81] This was followed by an invitation to meet, with a suggestion that legal representatives also participate. The letter concluded with advice that the plaintiff considered it would have little option but to issue judicial review proceedings if the defendant was unwilling to participate in a meeting as proposed, or was unwilling tomove from its ―current position.[82] The defendant wrote to the plaintiff by letter of 4 February 2010. The amended statement of claim refers to this as the third decision of the plaintiff subject to review (decision 3). In its letter the defendant rejected the plaintiff's contentionsrelating to the manner in which the defendant had dealt with the plaintiff. The defendant did not accept the proposals made by the plaintiff at the conclusion of theplaintiff's letter. The defendant's letter briefly noted some of the backgroundrelating to the development of the Whanau Ora service model, including the fact that the proposed funding had been noted by the Cabinet. The letter concluded:I hope that the MAPO reconsider their stance and take the opportunity offered, as whānau ora is an important Government priority.The fourth challenged decision : 26 February 2010[83] The plaintiff replied by letter of 19 February 2010. The plaintiff reaffirmed its position and said:Given these circumstances, we take this opportunity to record in writing that, while we will be executing the contract [relating to the Whanau Ora concept], we do so under duress and reserve our position as previously articulated.The letter concluded with a statement that the plaintiff strongly believed that the Ministry remained bound by the Memorandum of Understanding.[84] The fourth purported decision challenged by the plaintiff is said to becontained in the plaintiff's reply in a letter of 26 February 2010 (decision 4). The defendant advised that it would not accept a contract signed under duress. The letter, from the Director-General of Health, concluded as follows:I reject entirely any allegation that the Ministry is forcing Te Tai Tokerau MAPO to sign the contract, or that it has made any threat. I am satisfied that the Te Tai Tokerau MAPO has complete freedom of choice in deciding whether or not to enter into this contract and that no pressure of any kind has been applied by the Ministry.As advised in my previous letter, Whānau Ora is an important Governmentpriority and the Ministry would like Te Tai Tokerau MAPO to contract forthis work. However any decision to accept the Ministry's offer of a contractmust be made by the MAPO of its own accord.[85] There was some further correspondence following which the plaintiff issued this proceeding.Discussion : primary conclusion : the legal nature of the matters challenged : the primacy of contractThe legal nature of the matters challenged[86] The plaintiff seeks judicial review of four ―decisions. The essence of theplaintiff's case was put as follows in its written submissions:70 Essentially, the Ministry's various acts and/or omissions can bedistilled down to one reviewable decision, being its decision to unilaterally terminate [the plaintiff]. The lack of consultation, the breach of legitimate expectation and the ultra vires nature of theMinistry's actions all extend from this single decision.[87] The essence of the defendant's response was summarised in its written submissions as follows:35 The defendant has pleaded an affirmative defence that the decisions complained of are not judicially reviewable because they are commercial decisions. This proceeding is an attempt to litigate private law issues – the refusal of one party to contract with another– in the ―public law drag of an application for judicial review8 and absent fraud, corruption, bad faith or analogous situations relief should not be given.Particular reliance was placed by the defendant on the Court of Appeal decisions inLab Tests Auckland Ltd v Auckland District Health Board9 and Air New Zealand Ltdv Wellington International Airport Ltd.10 Although the propositions of law containedin the defence summary were expanded and qualified in the detailed submissionsthat followed, it should be noted at this point that the summary does not accuratelyrecord the essential principles contained in the leading cases. I consider this below.11[88] At the commencement of his submissions Mr Peters helpfully set out a summary of the defendant's positive contentions and of the plaintiff's response tothem on the question whether the decisions can be subjected to judicial review. For the plaintiff it was submitted:The relationship between [the plaintiff] and the [defendant] was not―commercial in nature. It was premised [solely]12 on Treaty principles and the obligations under the [Memorandum of Understanding], which were agreed to by both parties.Lab Tests can be distinguished on the facts of the present case: this is not an instance of a commercial body competing for contracts in which other players are also vying for those contracts. [The plaintiff] has a special relationship with the [defendant], the obligations of which are specifically outlined in the [Memorandum of Understanding].While the operational contracts are ―commercial in the sense that funding isprovided for the services [the plaintiff] provides, the [defendant] cannot argue that it has simply decided to award that funding to another entity offering the same services. The [defendant] had obligations to [the plaintiff]8 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776(CA) at [405] per Hammond J.9 Ibid.10 Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259, [2009] 3 NZLR 713(CA).11 At [119]-[124].12 This word – ―solely – is not in the written summary but was added by Mr Peters in his oral submissions.in terms of the manner of dealing that extended beyond mere commercialcontracting. It is the [defendant]'s failure to observe these obligations, withthe resultant outcome that [the plaintiff] has effectively been terminated, which is at issue.[89] The argument for the plaintiff proceeds on an essential premise that therewere ―decisions – unilateral actions of the plaintiff. If that is so, the question whether these are decisions open to review will require analysis. The submissions for both parties addressed these issues in some detail. However, before there should be, or even can be, a determination whether there are decisions open to judicial review, it is necessary to determine the true legal nature of the matters challenged by the plaintiff. If the substance of matters challenged are not unilateral decisions of the defendant, but in fact matters agreed to by the plaintiff, that in my judgment means that the plaintiff cannot maintain this application for judicial review.[90] There are three essential reasons why I consider this to be the correct analysis. The first is that judicial review is concerned with challenges to decisions; more specifically, it is concerned with the process by which decisions were made. The second reason is related to the first; if there have been contracts between the parties it is elementary that these need to be examined to determine the true nature of the dealings. The third reason is that the plaintiff's case, as a matter of fact, isfounded squarely on the proposition that the matters complained of were unilateral decisions of the defendant, but the plaintiff also relies substantially on contractualprovisions in support of its contentions of judicially reviewable breach. Theplaintiff's claim that there are decisions open to judicial review, and the grounds forrelief, are discussed in later sections of this judgment. In the remainder of thissection I will discuss in more detail the legal nature of the matter in contention.The nature of judicial review : the relevance of contract[91] My conclusion is that the matter now challenged by the plaintiff is in fact something that was expressly agreed to by the plaintiff. The plaintiff contends thatthe defendant ―unilaterally terminate[d] the plaintiff and that it did so bywithdrawing funding. Consideration of all of the dealings between the parties, from the outset, has led me to the conclusion that there is a well documented agreement ofthe plaintiff with the defendant that all arrangements between them would come to an end if, at the expiration of a defined period, they had been unable to reach further agreement. The central document in this regard is what I have called the 28 April 2009 agreement.13 This agreement followed challenged decision 2. I will discuss the other ―decisions later in the judgment. But decision 2 is the definitive dealing between the parties because this was the last extension of the funding arrangements; there was no further payment by the defendant to the plaintiff after 30 June 2009, and it is this which, in the plaintiff's submission, resulted in the plaintiff's being ―unilaterally terminated by the defendant.[92] Judicial review, at its most basic, is concerned with the process leading to a decision. Judicial review is brought to challenge the decision making process and, by that means, in most cases, to seek to set aside the decision. These propositions are elementary.14 The point of most relevance in the present context is that there has to be, in the first place, an extant decision which is capable of being set aside by judicial review.[93] Once a decision is identified, it is then necessary to examine the facts to determine whether the decision in question has any continuing effect, or whether subsequent dealings between the parties have in some way brought the consequences of that decision to an end. Even if the decision, at the point that it was made, might have been open to being set aside on judicial review, if subsequent events have materially altered the consequences of that decision in some way, beyond its consequences as a unilateral act of the defendant, nothing may remain for properadjudication by the Court. The Court is not concerned to deal with abstract issueswhich have no consequence.[94] If a challenged decision has been followed by an agreement which has the effect in contractual terms of bringing to an end any continuing relevant consequence of the decision, that does not mean of itself that the decision is immune from judicial13 Discussed above at [75]-[76].14 See, for example, Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (HC) at1173 per Lord Brightman: ―Judicial review is concerned, not with the decision, but with the decisionmaking process. His Lordship continued, with relevance to the present issues: ―unless thatrestriction on the power of the Court is observed, the Court will under the guise of preventing theabuse of power, be itself guilty of usurping power.review. An apparent agreement, on the face of it effective in terms of contract law, might nevertheless be set aside if, for example, one of the parties is a statutory body and its decision to enter into the agreement was contrary to statutory provisions. In this case the plaintiff has pleaded that the challenged decisions were ―ultra vires and outside the Ministry's jurisdiction. As discussed in due course, I am satisfied that there is nothing in these contentions. But these contentions do not in any event bearon the present analysis. This is because the plaintiff does not contend that it wasbeyond the power of the defendant to enter into what I regard as the criticalagreement – the agreement of 28 April 2009. And I am satisfied that this was withinthe power of the defendant.[95] The approach I have outlined is consistent with the approach taken by the Privy Council in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd.15 In that case, in the context of legislative changes relating to the electricity industry, the Electricity Corporation entered into a transitional agreement with Mercury Energy (then the Auckland Electric Power Board) for supply of electricity. There were a number of supplementary agreements extending the term until the Corporation terminated the contract. Mercury Energy challenged the termination. It advanced seven causes of action. Four of those were in contract. The others alleged breach of statutory duty, abuse of monopoly position and administrative impropriety.Electricity Corporation applied to strike out the three latter claims. All three werestruck out by the Court of Appeal. The Privy Council held that the decisions ofElectricity Corporation were in principle amenable to judicial review both under theJudicature Amendment Act 1972 and at common law by way of mandamus,prohibition or certiorari. The Privy Council nevertheless dismissed the appeal.[96] The foundation for the decision was what I call the primacy of contract indetermining whether a decision by the defendant, who had been in a contractualrelationship with the plaintiff, is open to judicial review. In the judgment, deliveredby Lord Templeman, their Lordships observed that ―the power of the Corporation to15 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC). Seealso Pratt Contractors Ltd v Transit New Zealand [2005] 2 NZLR 433 (PC). Both decisions arediscussed in and were followed in Lab Tests Auckland Ltd v Auckland District Health Board.determine the contractual arrangements was derived from contract and not fromstatute.16 At the conclusion of the judgment their Lordships said:The causes of action based on breach of statutory duty, abuse of a monopoly position and administrative impropriety are only relevant if the causes of action based on contract are rejected. If the causes of action based on contract are rejected, the other causes of action will only constitute attempts to obtain, by the declaration sought, specific performance of a non-existing contract. The exploitation and extension of remedies such as judicial review beyond their proper sphere should not be encouraged.[97] The Privy Council's conclusion on the facts was, of course, directed to theposition if the Court, in the substantive hearing, concluded that there was no contractbecause the contract causes of action failed. The conclusion I have reached on thefacts of this case is different – by contract the parties agreed that their relationshipwould come to an end on a particular basis. However, the underlying and basicprinciples leading to the Privy Council's conclusion are in my judgment equallyapplicable. Where, as here, the relationship between the parties was created bycontract, and the plaintiff's complaints are in substance directed to failure tocontinue with the contract, the first and primary enquiry must be in contractualterms. As the Privy Council observed in Mercury Energy,17 in respect of thechallenge by Mercury Energy to the decision of Electricity Corporation to terminatethe supply contract:The Court can only interfere if Mercury alleges and proves that the decision was not made according to law. The decision which is impugned is the decision to terminate the contractual arrangements.In this case I have concluded that the result of which the plaintiff complains –termination of further contracts – is a result which was agreed to by both parties. If the decision is one that was agreed to by both parties, and that agreement is not impugned, the result the plaintiff now complains of was in fact a result produced in accordance with law.16 At 388.17 At 390.The plaintiff's claim is contractual in substance[98] The third reason for my conclusion that this claim needs to be analysed at the outset in contractual terms is that, although the claim is framed as one for judicial review, at least much of its substance is a claim in contract. Aspects of this have already been touched on. The statement of claim is founded on the terms of the Memorandum. The Memorandum is pleaded at paragraphs 4 and 5 of the amended statement of claim. Obligations said to arise from it are then pleaded in a number of paragraphs which provide the foundation for the claims of breach that then follow. The substance of the plaintiff's claim is made apparent by the first pleaded ground for relief. It is described as ―breach of contract.18 As discussed below, the three further grounds for relief, at least in considerable measure, are based on essentiallythe same contentions that are contained in the ―breach of contract ground. Thesubmissions for the plaintiff were also expressed at important points in contractual terms. For example, when referring to the ultra vires ground for relief, Mr Peters referred to the Memorandum as establishing ―a standard to which the parties wereexpected to adhere.[99] I am not intending to convey an impression that the claims are expressed solely in contractual terms. Some of the grounds go beyond contract in terms of the way in which the claim is expressed. However, this of itself does not mean that analysis of the claims can commence at some other point; the foundation remains contractual. For example, the plaintiff in some of its claims places emphasis on theprinciples of the Treaty of Waitangi. An instance is the review ground allegingbreach of a legitimate expectation. Here the plaintiff pleads that a legitimateexpectation arose from, amongst other things, the principles of the Treaty.19 Therelationship between Maori and the Crown through the Treaty was probably one ofthe main reasons for the Agreements. But it is the Agreements which created therelationship between the two particular parties – the plaintiff and North Health – andit is the Agreements which spell out the rights and obligations of each party. TheAgreements expressly recorded the particular rights and obligations arising from the18 This ground for relief is discussed at [133] and following.19 This is more fully discussed at [146] and following.Treaty of Waitangi. These did not change on the transfers to the Health Funding Authority and then to the Ministry.[100] I will now consider in more detail the reasons why I have concluded, on the facts, that the matter of which the plaintiff complains is in fact something agreed to by the plaintiff.The relevance of the contracts preceding the 28 April 2009 agreement[101] The foundation of the relationship between the plaintiff and the defendant was a contractual one. This arose from the Memorandum and the Deed of Partnership.[102] I am satisfied, contrary to the submission for the defendant, that the Memorandum was intended to have legal effect and did have legal effect. The defendant submitted that the Memorandum was simply a statement of aspirations and expressed in such general and vague terms that it could not be given contractual effect. It was also submitted that no consideration passed and for that further reason it could not be given contractual effect. There are a number of provisions in the Memorandum which are possibly too uncertain to be given contractual effect, but that does not apply to all of the provisions.20 The Memorandum sets out, amongst other things, the way in which the parties should conduct their dealings with each other. If the Memorandum was an agreement standing by itself, a Court would strive to give effect to its provisions. I am also satisfied that there was contractual consideration arising from the promises each party made to the other.[103] However, I do not consider that the parties intended the Memorandum to have any continuing effect in the absence of the Deed of Partnership. Stating that in practical terms: if, at some point in the future, North Health's (or its statutorysuccessor's) obligation to fund the plaintiff was properly brought to an end, the Memorandum would be at an end.20 What is more, although not relevant to the present context, provisions which are too uncertain to be given contractual effect may nevertheless have relevance on an application for judicial review.[104] This conclusion is indicated, firstly, by the opening words of the Memorandum, recorded at [12]. The parties agreed that the Memorandum ―sets out the basis of the partnership that they wished to enter into. Their wish to do so had been recorded. It is implicit in this that if the wish had not been fulfilled – if the partnership had not been entered into in spite of best endeavours – the Memorandum would have been an empty vessel.[105] Of course the partnership was entered into when the Deed of Partnership was executed. It is apparent that the detailed terms of the Deed of Partnership were worked out in conjunction with the detailed terms of the Memorandum because both agreements were entered into at the same time. The (at least theoretical) possibility of the Memorandum being an empty vessel, because a partnership for co-purchasing was not entered into in spite of the wishes of the parties and their best endeavours, was avoided by negotiating the terms of both in advance and executing both agreements contemporaneously. The dependency of the Memorandum on a subsisting partnership for co-purchasing, indicated with reasonable clarity by the Memorandum itself, is confirmed by provisions in the Deed of Partnership. The preamble to the Deed of Partnership flows directly from the Memorandum.21 The first operative clause of the Deed of Partnership expressly states that the principlescontained in the Memorandum ―are incorporated in this Agreement.22 The partnership concept set out in broad terms in the Memorandum, is provided for in the next section of the Deed of Partnership, with detailed provisions which give effect to the broader provisions of the Memorandum set out in most of the remaining sections of the Deed of Partnership.[106] A submission that the Memorandum continues in force notwithstanding legally effective termination of the Deed of Partnership cannot reasonably be maintained having regard to section 4 of the Deed of Partnership. This is the provision giving both parties a right to terminate the Deed of Partnership on 12months' notice. This must be read in conjunction with the matters already referredto, including the opening words of the Memorandum relating to the parties' wish andeffective intention to enter into the Deed of Partnership. The expectations recorded21 See above at [17].22 See above at [18].in the Memorandum are recorded with knowledge that what is sought to be achieved, if it is achieved, can nevertheless be brought to an end by one of the parties giving notice. Of course, if one of the parties purported to bring the Deed of Partnership to an end in breach of rights of the other party, whether contractual rights or rights derived from another source, the Memorandum would not come to an end. But on that basis the Deed of Partnership would also not be at an end. This hypothesis does not assist the plaintiff if the Deed of Partnership was properly brought to an end.[107] There was a written submission for the plaintiff that the Memorandum ―didnot contemplate an expiration date, nor did it rely on [the Deed of Partnership] for itsexistence. However, in his oral submissions, Mr Peters conceded that the plaintiff accepts that the plaintiff and defendant were not bound in perpetuity to the Memorandum. That was a proper concession to make for reasons I have already recorded. What Mr Peters added at that point was, in essence, that if the defendant sought to bring the Memorandum to an end then a particular process had to be followed and it was not. That was, in broad terms, reference to matters that will require consideration on the application for judicial review if it is available. And they are matters which do require consideration to decide whether the plaintiff has complied with its contractual obligations. Necessarily included in this is the possibility of the Memorandum being brought to an end by agreement between the parties. And that, as I have indicated, is what I conclude was expressly agreed in the 28 April 2009 agreement.[108] The interdependence of the Memorandum and the Deed of Partnership was expressly recognised by the parties in subsequent extensions of the funding. The extension and effective consolidation of all agreements in July 1998 was discussed at[27]. As recorded there, the first clause in the 1998 agreement referred to the Memorandum and the Deed of Partnership and subsequent supplementary agreements as all being the contracts which formed ―the contractual basis for theagreement for co-purchasing health and disability support services between theparties and are the foundation for the partnership. This continued with theextensions agreed between the plaintiff and the defendant once the agreements had passed to the defendant under the 2000 Act.23[109] This consistent recording, by both parties, of the interdependence of the Memorandum and the Deed of Partnership, was carried through consistently into the 28 April 2009 agreement. There is no ambiguity in what is expressly recorded in this document signed by the plaintiff as an agreement. I now turn to it.The 28 April 2009 agreement[110] The correspondence preceding the 28 April 2009 agreement did record a unilateral decision of the defendant. This was the defendant's advice to the plaintiffthat the agreement would not be renewed after 30 June 2009. But following thecommunication of that decision there were negotiations and these resulted in the 28April 2009 agreement. The plaintiff (as well as the defendant) expressly agreed in asmany words, and reinforced by consideration of all of the prior dealings, that if theparties had not resolved matters by concluding a further agreement by 30 June 2009,then all contracting between the plaintiff and the defendant would end. It was anagreed cut-off after over eight years of negotiation.[111] It was not argued for the plaintiff that this was not an agreement. The effect of the agreement was not addressed in any direct way. It might be argued that the 28 April 2009 agreement, in the provision I am now discussing, simply amounted to an acknowledgement on the part of the plaintiff of its knowledge that there would be no further funding from the defendant after 30 June 2009. To an extent that was perhaps implicit in some of the submissions for the plaintiff. I do not consider that this is the effect of what is recorded. The question as to the effect of what the parties have agreed is, of course, a question of law for the Court.[112] In his first affidavit, Dr Gregory said that the plaintiff had strong misgivingsabout signing an earlier agreement which recorded the defendant's intention not tocontinue beyond a particular date. This related to the extension to 31 December23 See, for example, the provisions for the 2007 extension noted above at [57].2008.24 The fact that the plaintiff had misgivings does not advance the plaintiff'scase as pleaded. The misgivings Dr Gregory refers to relate, of course, to an earlier agreement, not the 28 April 2009 agreement. But even if it is assumed that those misgivings remained, there is no proceeding to challenge what I have found to be an agreement between the parties; that is to say, the plaintiff has not sought to set aside the agreement on some recognised legal basis, such as duress or unconscionability. And there is no contention that the defendant acted illegally by entering into the agreement recorded in the 28 April 2009 letter. The most likely basis for illegality would be failure to comply with obligations under the 2000 Act, but there is no contention to that effect. Nor is there any other ground advanced to challenge thedefendant's decision to enter into the agreement. The challenges are directed topreceding decisions.[113] The plaintiff, through Dr Gregory, did directly record its reluctance to enter into an agreement that was proposed at a later date. This arose during the further negotiations in 2010 in respect of the Whanau Ora programme. Dr Gregory advisedthe defendant that it would sign a contract but would be doing so ―under duress.The defendant declined to accept a contract signed under duress.25 The point of referring to this is by way of contrast with the completion of the 28 April 2009 agreement; it was on the evidence an agreement voluntarily entered into by the plaintiff.[114] The plaintiff was not required to sign the agreement recorded in the letter of 28 April 2009, which it now challenges as a unilateral decision. The plaintiff nowcontends that it had no option; it was bound to sign or to face ―extinction. This is special pleading and it is not a persuasive proposition. Although I am sure this was not intended, when this contention is viewed from a different perspective, and in the light of all of the dealings between the parties, it could be seen as a proposition thatthe plaintiff was willing to evince apparent agreement in order to continue to getfunding, even though it did not agree with all of the terms, and then, when fundingceased, as had been agreed, claim that the conduct of the other party was improper insome way.24 The extension is noted above at [66] and Dr Gregory's statement at [67].25 This letter and the defendant's response are noted above at [83]-[84].[115] There is a further important provision in the 28 April 2009 agreement. The parties expressly recorded that the 28 April 2009 agreement set out their ―entireagreement. They expressly recorded that the 28 April 2009 agreement superseded―all prior oral and written representation[s], understandings, arrangements or agreements. The significant itemisation is all ―understandings. This clearlyincludes the Memorandum. Any uncertainty in that regard is removed by the fact that the parties, in the earlier supplementary agreements, had expressly recorded that the Memorandum was part of the overall ―contracting. This provision, coupledwith the provision that follows in the 28 April 2009 agreement, therefore means that the parties agreed that the Memorandum would come to an end if a further contract had not been entered into by 30 June 2009.The other "decisions"[116] Decision 1 is noted at [72]. As a matter of broad principle, this decision could be open to challenge by judicial review (subject to any limitation having regard to the relevant context, as discussed in the next main section of this judgment). However, as with decision 2, decision 1 was overtaken by a subsequent agreement between the parties. The agreement is recorded at [73]. Comments in relation to the agreement following decision 2 apply in general terms to decision 1 and the agreement that followed. There is a further consideration. This is that, if analysis stops at communication of decision 1, and the subsequent agreement is left to one side, the decision itself had no material consequence. The essence of theplaintiff's complaint is that the defendant withdrew funding of the plaintiff resulting in the ―termination of the plaintiff. Decision 1 did not have this effect because, notwithstanding an evinced intention on the part of the defendant not to providefunds after 31 March 2009, funds were provided after that date. And it is for thisreason that I consider decision 2, and the 28 April 2009 agreement that followed, tobe the determinative transactions between the parties.[117] Decisions 3 and 4, to the extent that they amount to decisions which could be subject to judicial review, are not material to the plaintiff's basic complaint. Both ofthese decisions were made in February 2010. This was after the defendant hadstopped funding the plaintiff, which occurred on 30 June 2009. To the extent that there were further decisions contained in decision 3 or decision 4, they amounted in substance to decisions not to accept the plaintiff's complaints and not to agree to the plaintiff's proposals to enter into further negotiations. These decisions, and one ortwo others to like effect recorded in the letters of 4 and 26 February 2010, have no relevant bearing on the substantive complaint of the plaintiff.Conclusion[118] For these reasons I am satisfied that the plaintiff is not entitled to relief and its claim should be dismissed. However, I will nevertheless consider the remaining broad issues. The first is the question of justiciability: assuming there were decisions, are they open to judicial review? The second broad issue proceeds on the assumption that there are decisions open to judicial review. The question then is whether any of the grounds for review are made out.Are the decisions open to judicial review?[119] The broad positions of the plaintiff and defendant as to the availability ofjudicial review are recorded above.26 As stated, I consider that the defendant'ssummary of the position is not consistent with authority. The detailed submissionsfor the defendant qualified the legal propositions as summarised. In particular, thedefendant discussed the relevance of statutory provisions bearing on decisions madeby public bodies in a commercial context. However, the thrust of the submissionwas that decisions of public bodies made in a commercial context could only bereviewed for fraud, bad faith and analogous situations, or for breach of anyapplicable statutory duties.[120] The defendant's submission, as summarised, appears to have been based onwhat Arnold and Ellen France JJ said in Lab Tests at [91]. The Judges there referredto fraud, corruption or bad faith, and then to ―analogous situations with examplesgiven (such as a conflict of interest). The Judges also referred to the statutory26 At [86] and following.context. However, what the Judges said there was not intended to be a summary of the limits of judicial review of contracting decisions by public bodies. This part of the judgment recorded the conclusion on one aspect of the case before the Court. The broader principles were discussed earlier in the judgment (as the defendant'ssubmissions recognised).[121] The discussion by Arnold and Ellen France JJ appears at [36]-[60]. In a separate judgment Hammond J recorded his reasons for agreeing with the conclusions of Arnold and Ellen France JJ. The first point to note in respect of the general principles articulated by Arnold and Ellen France JJ is that they did not stateas a general proposition that, in cases involving contracting decisions by publicbodies in a commercial context, judicial review will be limited to fraud, corruption,bad faith or analogous situations. The principles may be summarised as follows:(a) A public body involved in a commercial process must exercise its contracting power in accordance with its empowering statute: Lab Tests at [56].(b) The procedural obligations in respect of the decision making of the public body will vary with context: at [57].(c) The context ―includes the nature of the decision being made, thenature of the body making the decision and the statutory setting withinwhich the decision is made: at [58].(d) The circumstances in which the Courts will intervene by way of judicial review in relation to contracting decisions by public bodies may be limited, but that will depend on context: at [59].(e) If a public body and private parties have operated within a contractual framework, that may be determinative. This is a restatement of what Arnold and Ellen France JJ said at [60]. The Judges, at [59], had referred to Mercury Energy, and cases in England and Wales which had applied Mercury Energy. At [60] there was reference to PrattContractors Ltd v Transit New Zealand. The Judges then said that―the Privy Council's unwillingness to import public law notions into the contractual framework suggests that their Lordships [in Pratt Contractors] saw the contractual framework as sufficient in itself.This, of course, is part of the underpinning of the discussion in the preceding section about what I call the primacy of contract.[122] These principles indicate that the scope for judicial review of decisions bypublic bodies in a commercial context may be wider than the defendant contended.Moreover, and with respect to the use of the expression in the cases, to refer ingeneral terms to ―a commercial context does not take the enquiry very far. Thiscase illustrates the point. There are aspects of the Deed of Partnership which mightbe characterised as ―commercial. There was an agreement that North Health wouldmake payments to the plaintiff to cover the plaintiff's operational costs which in turnwould enable the plaintiff, in partnership with North Health, to make assessmentsand recommendations in respect of the health needs of Maori people in Tai Tokerau.There are particular provisions in the Deed of Partnership regularly found incommercial contracts. But there are other aspects of the Agreements which Iconsider cannot properly be characterised as commercial, whatever the true scope ofthat expression. A ―health partnership based upon the Treaty of Waitangi27 cannotbe characterised as ―commercial. The broad objective of the Agreements was toimprove the standard of health of Maori people in Tai Tokerau. Some of the meansof achieving that involved commercial activity. The broad objective was notcommercial.[123] Between these two points was a range of activities, and aspects of the relationship between the parties, which fell somewhere between what might be described as purely commercial and what was plainly not commercial in nature. Ms Williams, in her submissions for the defendant, helpfully summarised several cases28under public health statutes which illustrate what Eichelbaum CJ referred to in one27 Memorandum, clause 3(a).28 New Zealand Private Hospitals Association v Northern Regional Health Authority HC Auckland, CP440/94, 7 December 1994, Blanchard J; Napier City Council v Health Care Hawkes Bay Ltd HC Napier, CP29/94, 15 December 1994, Ellis J; Southern Community Laboratories Ltd v Healthcare Otago Ltd HC Dunedin, CP30/96, 19 December 1996, Eichelbaum CJ; Bayline Group Ltd v Secretary of Education [2007] NZAR 747 (HC).of these cases as a ―continuum.29 The Chief Justice was referring there to decisions made by Crown Health Enterprises under the 1993 Act ranging from those which were plainly of a purely commercial nature to those which were not because of, for example, the major impact on an entire community.[124] In the light of the principles discussed in Lab Tests, and in the light of theaspects of the Agreements just discussed, the proper enquiry is whether the relevantcontext imposed obligations on the defendant beyond those contained in theAgreements. If not, the enquiry is limited to whether the defendant complied withits contractual obligations. And that is an enquiry which could only be undertaken inthe context of a cause of action giving rise to such an enquiry, such as one allegingbreach of contract.[125] The plaintiff did not point to any matters that in my judgment imposed on thedefendant any particular obligations relating to decision making beyond thosecontained in the Agreements. Mr Peters referred to provisions in the 2000 Act:ss 3(1)(b), 4, 22(1) and 24. None of them imposes any relevant obligation on thedefendant.30[126] Mr Peters also referred to s 9 of the 2000 Act. The relevant provisions are as follows:9 Strategies for standards and quality assurance programmes(1) The Minister must, as soon as reasonably practicable after the commencement of this section, determine a strategy for the development and use of—(a) nationally consistent standards and quality assurance programmes for health services and consumer safety; and(b) nationally consistent performance monitoring of health services and consumer safety against those standards and programmes.(2) Before determining the strategy, or amending or replacing it, the Minister must consult any organisations that the Minister considers appropriate.29 Southern Community Laboratories Ltd v Healthcare Otago Ltd at [16].30 The material parts of these sections, save s 24, are set out at [29] and following.(3) In its terms, this provision does not apply to the Agreements because they were entered into before the 2000 Act came into force. In any event, the obligation on the Minister in s 9(2) does not impose an obligation which in some way expands on the wide obligations to consult contained in the Agreements.[127] The statutory context in fact makes clear that, from 2001, the defendant was,in its dealings with the plaintiff, pursuing what was mandated by the 2000 Act as tothe means by which the health needs of Maori were to be met in terms of publiclyfunded health care. The 2000 Act does not expressly stipulate that existingarrangements of the sort this case is concerned with were to be devolved to DHBs.Parliament nevertheless prescribed that DHBs were to be the statutory entities withthe primary responsibility. This was often enough recognised by the plaintiff, asrecorded in the survey of the factual background. The plaintiff clearly expressedreservations about a transfer of some aspects of the Agreements to the DHBs, but therelative merit of that compared with the relationship with the Ministry is not relevantto the present enquiry. The relevant point is that the defendant was not only notacting contrary to statutory obligations; it was positively acting along the linesbroadly directed by Parliament.[128] The statutory context was not the only aspect of context relied on by the plaintiff. In addition, and in particular, there was reliance on the fact that the Agreements refer to the principles of the Treaty of Waitangi and that the Treaty was aprincipal reason for the Agreements being made. This has already been discussed.Although the Treaty is ―context in a broad sense, it is not context which assists indetermining whether the defendant had obligations in relation to decision makingbeyond those contained in the Agreements.[129] In the Agreements, the plaintiff and North Health took care in setting out in some detail what was meant by the principles of the Treaty applicable to therelationship between the plaintiff and North Health. The fact that the Agreementscontain this detail indicates that the plaintiff cannot seek to invoke some additionalprinciples derived in some way directly from the Treaty itself, but which are notexpressly recorded in the Agreements, or necessarily implied by what is recorded.[130] There is a separate reason why, in my judgment, the plaintiff cannot seek to rely on general principles of the Treaty, whatever their full scope may be, beyondthose identified and defined for the purposes of the Agreements. This is that theTreaty was made between Maori and the Crown and that is where the relationshipremains. The plaintiff's relationship was one created by the Agreements and waswith a statutory body, North Health. Under the Agreements, the plaintiff's dealingsat the highest level were with Te Kaunihera – the committee of the board of NorthHealth.31 North Health was not a surrogate for the Crown as a Treaty partner withthe plaintiff (and assuming, without deciding, that the plaintiff was for Treatypurposes a surrogate of iwi of Tai Tokerau).32 As a statutory body, North Healthmight be replaced by another statutory body and this, of course, is what happened.Following the three to four years when the plaintiff's partner was the Health FundingAuthority, there was the transfer to the defendant. In a formal sense, the plaintiff'slink to the Crown was direct, but it nevertheless remained squarely within theframework of the Agreements. The nature of the relationship, defined by contract,was not altered.[131] For these reasons I am satisfied that, even if there is an extant decision of thedefendant which unilaterally resulted in the ―termination of the plaintiff, the lawfulness of the process by which such a decision was made is to be determined solely by the terms of the Agreements between the parties. The decision is not amenable to judicial review.31 See above at [18]-[19].32 On the question whether an entity has a relationship with the Crown for the purposes of considering the principles of the Treaty of Waitangi see Te Heu Heu v Attorney-General [1999] 1 NZLR 98 (HC)at 116-120 and the further authorities discussed there. The specific question in Te Heu Heu waswhether a state-owned enterprise was to be treated as the Crown for the general purposes of s 9 of theState-Owned Enterprises Act 1986. Section 9 required state-owned enterprises to act in a mannerconsistent with the principles of the Treaty.The four grounds for judicial review[132] This final section of the judgment proceeds on the assumption that there are decisions which are amenable to judicial review, the question then being whether any of the plaintiff's grounds for review are made out.Breach of contract[133] This is the first of the four grounds for judicial review. It was discussed in a different context at [98]. The contract pleading is as follows:74. The Ministry, having succeeded North Health as partner to TTTM in relation to achieving Maori health objectives in the Te Tai Tokerau region, has fundamentally breached the foundational contract, being the MOU, by:(i) Failing to undergo an adequate consultation process;(ii) Failing to see mutual agreement; and(iii) Failing to have regard to the principles of the Treaty ofWaitangiwhen making decisions materially affecting TTM's rights, powers,functions and funding.[134] The claim founded on this ground might be dismissed on the basis that the factual allegations should be pursued in an action for breach of contract. However, that is not necessarily determinative. I will assess the contentions on the merits, without allowing the form of the claim to dictate the result.[135] The plaintiff has not established that there were failures by the defendant asalleged in paragraph 74 of the claim. Those contentions, having regard to thepleading, must be assessed by reference to the entire agreement between the parties.This includes the foundation Deed of Partnership as well the foundationMemorandum. There is no principled basis for ignoring parts of the entireagreement. But even if the matter was assessed by reference to the Memorandumalone, I am not persuaded that there were material failures by the Ministry. Myconclusion in this regard is reached having regard to all of the evidence produced in the affidavits, with a substantial part of it set out or summarised in this judgment.[136] The defendant, within the limits of the legislative framework binding on it,and binding on it irrespective of any agreement, did consult extensively, did seekmutual agreement, and did have regard to the principles of the Treaty of Waitangi tothe extent that they were incorporated into the provisions of the Memorandum andthe Deed of Partnership. The consultation, and the efforts to reach agreement, wereextensive. In my judgment they in fact went beyond what was required by the termsof the Agreements. This included the lengthy review process resulting in the reportcompleted in September 2003. The fact that there were recommendations in thereport which the plaintiff was unhappy with is not relevant to the question whetherthe processes engaged in by the defendant met the required standard. Followingpublication of that report, in December 2003, negotiations continued. Negotiationscontinued for almost six further years. And over that period the defendant continuedto provide all of the plaintiff's funding by the successive extensions, andnotwithstanding a contractual right of termination on 12 months' notice. Thedefendant also met the cost of the review and, I infer, the expenses of the facilitatorsbrought in following publication of the review report. The plaintiff was required, interms of the extension agreements, to continue to meet its obligations under theAgreements. But it is not irrelevant to the present enquiry, as to whether thedefendant dealt with the plaintiff as required, that the funding from the defendantenabled the plaintiff to maintain a vigorous debate with the defendant.[137] The evidence establishes that the plaintiff, at various stages, expressed dissatisfaction with proposals made by the defendant and with recommendations inthe report arising from the review. The reasons for dissatisfaction are stated in DrGregory's affidavits and in numbers of contemporaneous documents. This too isgiven considerable emphasis by the plaintiff. This, however, does not establish thebasic point sought to be made for the plaintiff in its claim. It does not demonstraterelevant failings by the defendant. Rather, it demonstrates that, notwithstanding agreat deal of consultation, and efforts to reach agreement, and emphasis given atappropriate times to the principles of the Treaty to the extent they were reflected inthe terms of the Agreements, the plaintiff was unable to get what it wanted. Whetheror not what the plaintiff wanted was better than what the defendant was proposing isnot a matter for adjudication on a proceeding for judicial review, or breach ofcontract.Breach of natural justice[138] This is the heading to the second ground for judicial review. The pleading is as follows:75. In making decisions that materially affect its relationship with TTTM the Ministry has an obligation to act in accordance with theprinciples of natural justice and to consult with TTTM beforemaking such decisions.76. The Ministry is required to so act and consult because:(i) Its decisions inevitably affect the rights, powers and privileges of TTTM; and(ii) Its decisions further affect TTTM's funding and thereby TTTM's very existence.77. The Ministry has breached its obligation to act in accordance with the principles of natural justice and to consult with TTTM.Particulars:(i) The concerns raised by TTTM over the Decision have been largely ignored or downplayed;(ii) The Ministry has acted unilaterally in a situation where a clear partnership exists, along with specific requirements for consultation between the parties to that partnership.(iii) TTTM have effectively been placed in an impossibleposition; TTTM can neither accept the unfair terms of thedraft agreement nor continue without funding from theMinistry.[139] In respect of the contentions that there was an obligation to consult, and breach of that obligation, it is sufficient to note the relevant matters already dealt with in this judgment. There was no obligation to consult wider than that contained in the Agreements. There was no wider obligation imposed by statute. An additional duty to consult did not arise in any other way. The conclusions recorded in thepreceding section, dealing with the breach of contract ground, apply equally to the contention here of breach of an obligation to consult.[140] There is the further contention of a general obligation to comply with theprinciples of natural justice. The only element of the principles of natural justice ofapplication in this case are those which are in fact contained in the Agreements. I amsatisfied that the defendant did not breach these principles.Ultra vires[141] The pleading is as follows:78. The Ministry's unilateral decision to change the form ofdocumentation and the fundamental relationship between the partiesis ultra vires and is outside the Ministry's jurisdiction.79. The Ministry's failure to comply with its duty to consult pursuant tothe MOU and the principles of the Treaty of Waitangi, as well as theprinciples of natural justice render the Ministry's decisions inrelation to devolvement and the revision of the terms of itsrelationship with TTTM as ultra vires. Parliament does not give aperson or body the power to make decisions by way of an unfairprocess. This position was confirmed in New Zealand by the Courtof Appeal in Peters v Davison [1999] 2 NZLR 164 (CA) at 205.[142] There is no basis, either in fact or in law, for the contentions in paragraph 78. The factual contentions are not borne out by the evidence. As a matter of law, proposals that were made by the defendant at various stages for possible newagreements, and therefore the wording of those agreements, were actions well withinthe power of the defendant. The decision not to continue to contract with theplaintiff was also well within the power of the defendant. More specifically, andmore importantly, it was a right expressly vested in the defendant by the Deed ofPartnership. An identical right was vested in the plaintiff by the Deed of Partnership.This is the contractual right to terminate the Agreements by notice. Such notice wasgiven by the defendant.[143] The pleading in paragraph 79 is in large measure a restatement of the contentions in the preceding heads of claim – breach of contract and breach ofnatural justice. Peters v Davison33 does not assist the plaintiff; it does not add another dimension to the matters that were advanced under the preceding heads of claim. Nor does it deal with any separate ground for judicial review which has any application in this case. The broad proposition contained in paragraph 79, that―Parliament does not give a person or body the power to make decisions by way ofan unfair process, may be accepted as an accurate statement of the way in whichParliament would wish to proceed with any legislation, although it is an inversion ofthe statement in Peters v Davison referred to in paragraph 79. In Peters v DavisonTipping J at p 205 began a general discussion of a modern meaning of ultra vires. At206 he cited part of what he had earlier said in O'Regan v Lousich,34 that:35Parliament grants the decision maker the power to decide on the footing that the power is to be exercised lawfully (ie correctly in law), fairly (ie according to the rules of natural justice, if applicable) and reasonably (ie within the bounds of reason — the Wednesbury principle). If the decision maker goes wrong in law, acts unfairly or makes an unreasonable decision, the decision is regarded as having been made ultra vires and thereby the decision maker exceeds his or her jurisdiction.[144] As this passage makes clear a duty to act fairly – in accordance with the rules of natural justice – is a duty that may not apply at all. It is not a duty imposed in this case by the 2000 Act, or any other statutory provision; at least not in respect of any issue arising in this case. In respect of the decisions impugned in the present case, the obligation to act within any powers granted by Parliament has also been considered. So too has the obligation positively to advance the statutory objectives, being objectives inconsistent with what the plaintiff was seeking.Breach of legitimate expectation[145] Ms Williams and Ms Bromwich, for the defendant, provided a concisesummary of legal principles applying to an application for judicial review foundedon breach of legitimate expectation. Mr Peters did not challenge these submissions.With some modifications, and without recording qualifications or exceptions that33 Peters v Davison [1999] 2 NZLR 164 (CA).34 O'Regan v Lousich: Proprietors of Mawhera v Maori Land Court [1995] 2 NZLR 620 (HC) at 626-630.35 At 262.may be relevant in other cases, I set out the defendant's submissions as a generaloutline sufficient for present purposes:(a) Two ways in which a legitimate expectation may arise are from an express promise given on behalf of a public authority, or from the existence of a regular practice that the claimant can reasonably expect to continue.36 In some cases, a legitimate expectation can arise from acombination of the two.37(b) Any legitimate expectation must have a reasonable basis; it cannot be founded on a hope or unsubstantiated belief.38 In order for a representation to found a legitimate expectation, it must be ―clear, unambiguous and unqualified.39(c) New Zealand law recognises a legitimate expectation of a particular decision making process.40 The general principle in this regard isthat: 41 when a public authority has promised to follow a certainprocedure, it is in the interest of good administration that it should act fairly and should implement its promise, so longas it does not interfere with its statutory duty. Theprinciple [is] that a public authority is bound by itsundertakings as to the procedure it will follow, providedthey do not conflict with its duty.(d) The content of a legitimate expectation can change over time. By making a promise or following a practice, a public authority cannot36 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 347 at 408 per Lord Diplock; Talleys Fisheries Ltd v Cullen HC Wellington, CP287/00, 31 January 2002 per Ronald Young J at 48.37 See GDS Taylor Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [13.84].38 Talleys Fisheries Ltd v Cullen at 48; New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [143] per Randerson J.39 R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 (QC);Talleys Fisheries Ltd v Cullen at 48.40 Whether New Zealand law recognises a legitimate expectation of a substantive outcome is moot. See GXL Royalties Ltd v Minister of Energy for New Zealand [2009] NZAR 478 (HC) at [44]-[45] per Wild J. The case was appealed to the Court of Appeal ([2010] NZAR 518), but this point was not argued on appeal (see the Court of Appeal's judgment at [21]).41 Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (FC) at 351 per Lord Fraser, as quoted in NZ Association for Migration and Investments Inc v Attorney-General at [139].―preclude any possible need to change it.42 If a public authority gives notice that the procedural benefit no longer applies, then that may bring to an end any expectation founded upon the earlier promise or practice.43 Similarly, as noted in the passage cited at (c), clear statutory words override any expectation.[146] The legitimate expectation pleading is as follows:80. TTTM had a legitimate expectation that:(i) TTTM would be consulted by the Ministry in regard to both decisions intended to be made by the Ministry and the terms of contracts proposed to bind TTTM and the Ministry; and(ii) The relationship and dealings between TTTM and the Ministry would be conducted in accordance with theprinciples of the Treaty of Waitangi.81. TTTM's legitimate expectation arose from:(i) the terms of the MOU;(ii) the terms of various policy documents, including the 2002Guidelines;(iii) the principles of the Treaty of Waitangi; and(iv) the history of the relationship between TTTM and the Ministry and the corresponding obligations observed since the execution of the MOU in 1996.82. In breach of TTTM's legitimate expectation, the Ministry has failedto consult TTTM in respect of proposed changes to the structure of the delivery of Maori health services in Te Tai Tokerau and in relation to the changes in the contractual relationship between TTTM and the Ministry. Specifically, the Ministry has made a decision to devolve its relationship with TTTM to regional DHBs and to unilaterally alter the terms of the operational contract between TTTM and the Ministry.[147] The factual contentions of wrongful actions by the defendant are, in largemeasure, contentions advanced in one or more of the preceding grounds for reviewand the preceding conclusions apply.42 R v Home Secretary, ex p Ruddock [1987] 1 WLR 1482 (QB) at 1497 per Taylor J; and see New Zealand Association for Migration and Investments Inc v Attorney-General at [140].43 GDS Taylor Judicial Review: A New Zealand Perspective at [13.84] and [13.87].[148] The pleading at 81(i) reinforces this conclusion. It is also an illustration of the misapplication of administrative review concepts to what are in fact contentions of breach of contract. The plaintiff could not have any ―legitimate expectationsarising from the terms of the Memorandum, with those terms properly construed by reference to all relevant agreements, other than those that arose from the terms of the Memorandum. That is the extent of that pleading and it is not converted into aground for judicial review by adding the label ―legitimate expectation.[149] The pleading in paragraph 81(iv) is much the same. Part of the pleading in sub-paragraph (iv) again makes express reference to the terms of a contract. The other aspect of sub-paragraph (iv) is ―the history of the relationship between theplaintiff and the defendant. There is no evidence of any representation by an officerof the defendant, or by a Minister, which could be said to have given rise to alegitimate expectation on the part of the plaintiff that matters would be dealt with ina manner contrary to the way in which matters were in fact dealt with by thedefendant. The opposite is established. The fundamental complaint is that theagreement was brought to an end. From 2001 the plaintiff was on notice from thedefendant that it was, at the least, reasonably likely that the relationship between thedefendant and the plaintiff, established by the Agreements in 1996, would come toan end sooner rather than later. The defendant continued to give express notice tothe plaintiff of an intention to terminate the Agreements unless a new agreementcould be entered into. The plaintiff could not have been under any illusion. Thiswas further reinforced by other matters, such as the recommendations in the 2003review report.[150] The legislative history, from 1996 when the Agreements were made, coupled with the identity of the party with whom the plaintiff originally contracted, are further reasons why the factual foundation for the plaintiff's claim of a legitimateexpectation is not made out. These are matters already touched on. The plaintiff entered into the Agreements with a statutory body, North Health. For three years or so, as a consequence of what was effectively imposed on the plaintiff by statute, the other contracting party was another statutory body, the Health Funding Authority. When the 2000 Act came into force the Agreements were vested in the defendant,but that did not occur for the purpose of giving effect in any way to any expectationthe plaintiff may have had, or any aspiration the plaintiff may have had. The clear direction of the 2000 Act was that the plaintiff's new contracting partner should bethe DHB. The vesting in the defendant was an interim arrangement in terms of thestatutory provisions.[151] The evidence also does not bear out the contentions that the legitimate expectation pleaded in paragraph 80 arose from either of the matters pleaded in paragraph 81(ii) and 81(iii). I agree with the submissions for the defendant that, inthe light of the general principles as to when a legitimate expectation may arise togive grounds for judicial review, the matters referred to in sub-paragraphs (ii) and(iii) are not matters the plaintiff can rely on. The ―2002 Guidelines referred to inthe statement of claim is a reference to consultation guidelines drafted in 2002 whichapplied to DHBs, not to the Ministry. The broad appeal to ―the principles of theTreaty of Waitangi also does not avail the plaintiff. The Treaty of Waitangi does notimpose a discrete duty of consultation on government decision-makers.44 In otherrespects the discussion at [99] and [129]-[130] applies.Conclusion[152] The claims are dismissed.[153] In accordance with the general rule, the defendant would be entitled to costs,but costs may not be sought by the defendant. If costs are sought a memorandumshould be filed and served in the usual way. A response for the plaintiff should befiled and served three weeks after receipt of the defendant's memorandum._______________________________ Peter Woodhouse J44 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 665 per Cooke P,682-683 per Richardson J; Te Waero v Minister of Conservation HC Auckland, M360-SW01, 19February 2002, Harrison J at [54]-[65].