IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-485-674
[2019] NZHC 1517	

BETWEEN	THE NEW ZEALAND MĀORI COUNCIL
Plaintiff/respondent	
AND	CLETUS MAANU PAUL
First defendant/applicant

AND OTHERS
Second to eighth defendants/applicants	

Hearing:	19 June 2019	
Appearances:	P Cornegé for plaintiff/respondent
R Harrison QC defendants/applicants	
Judgment:	3 July 2019	

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]	On 11 April 2019, I dismissed the defendants’ application to strike out the plaintiff’s statement of claim pursuant to r 15.1 of the High Court Rules 2016.1 The defendants now seek leave to appeal to the Court of Appeal. They also seek an order pursuant to r 20.10 of the High Court Rules staying this proceeding pending the outcome of their appeal.

[2]	Both applications are opposed.

[3]	The background to this dispute is set out in detail in my judgment of 11 April 2019 and no useful purpose would be served by repeating it here. The essential dispute between the parties concerns the legitimacy of elections and appointments to various

1	Paul v New Zealand Māori Council [2019] NZHC 784.

THE NEW ZEALAND MĀORI COUNCIL v PAUL [2019] NZHC 1517 [3 July 2019]

Māori Associations, including the New Zealand Māori Council, held in early 2018 under the Maori Community Development Act 1962.

Applicable legal principles

[4]	The defendants require leave to appeal by reason of s 56(3) of the Senior Courts Act 2016. The principles that apply to applications for leave to appeal from interlocutory judgments can be summarised as follows:

(a)	The expectation is that reasons for granting or declining leave are expressed in general terms and brief.

(b)	The leave requirement is a “filtering mechanism” intended to ensure that only appeals on significant matters are allowed — the process weeds out appeals that are trivial or unmeritorious, or merely tactical.2

(c)	The threshold for leave is high and intended to reduce the number of interlocutory appeals.3

(d)	The proposed grounds of appeal should raise matters “of general or public importance” or of sufficient importance to the parties to outweigh the lack of general or public importance.4

(e)	Thus, applications for leave involve balancing the substantive merits of the proposed appeal on the one hand against the inevitable delay in the resolution of the litigation that would result from an appeal on the other.

(f)	The ultimate question is whether, standing back and assessing matters “in a pragmatic and realistic way”, the interests of justice are served by granting leave to appeal.5

2	Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13], affirmed in Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11].
3	Finewood Upholstery Ltd v Vaughan, above n 2, at [9](a); and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [15].
4	Finewood Upholstery Ltd v Vaughan, above n 2, at [9](c); and Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 3, at [17].
5	Finewood Upholstery Ltd v Vaughan, above n 2, at [14].

[5]	I also agree with Palmer J’s observation in Li v Chief Executive, Ministry of Business, Innovation and Employment that an application for leave to appeal from an interlocutory decision is only likely to be granted where there is good reason to consider it before, or separately from, the substantive case.6

Proposed grounds of appeal

[6]	Although in their formal application for leave the defendants identified five grounds of appeal, and those grounds were all referred to in Mr Harrison’s written submissions, Mr Harrison’s oral submission drew these together into two essential points:

(a)	Mr Harrison’s first point was that although this proceeding calls into question the legitimacy of elections and appointments held in five Districts, the plaintiff’s pleading does not deal separately with each of these Districts. This, the defendants contend, is an elementary flaw in the pleading, and effectively prevents them from entering a defence.

(b)	The second point concerns the legitimacy or otherwise of the plaintiff’s exclusive reliance on s 3 of the Declaratory Judgments Act 1908. The defendants' contention is that I erred by concluding that the plaintiff was entitled to rely on s 3 simply because in the end the lawfulness or otherwise of the five elections must turn on the terms of the Maori Community Development Act.

[7]	I will deal with each of these contentions in turn.

The pleading point

[8]	It is correct that the plaintiff’s case focusses on the legitimacy or otherwise of elections and appointments held in Mataatua, Tai Tokerau, Takitimu, Tamaki Makaurau and Tamaki ki Te Tonga. It is also true that the plaintiff’s claim, even in its

6	Li v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [1]. See also NZ Fintech Ltd v Credit Corp Financial Solutions Pty Ltd [2019] 1210 at [7].

amended form, does not deal with the elections in these five districts individually, as one might expect, pleading the essential factual circumstances surrounding each election and why it is said, in each case, that the elections organised by the Durie faction were lawful but the elections organised by the Tamihere faction were not. In particular, Mr Harrison drew attention to the fact that the entire claim is currently pleaded against all eight defendants jointly. As he says, this fails to identify their individual acts and omissions, which each relate to only one of the five districts.

[9]	I agree that the pleading is defective in the way described by the defendants, that is to say that it involves allegations relating to five different election processes and therefore involves five different causes of action that should be pleaded separately in accordance with r 5.27(2) of the High Court Rules. That is one of the reasons why, in my judgment, I said that the plaintiff’s amended statement of claim had sought to address some of the criticisms made of its original statement of claim but had done so imperfectly.7

[10]	In response to this criticism, Mr Cornegé submitted that all of the information the defendants need to understand the details of the plaintiff’s claims in respect of each district is contained in the pleadings or alternatively in the plaintiff’s affidavit evidence. That, however, is no answer. It is not the responsibility of a defendant to piece together the necessary components of the plaintiff’s claim by reference to pleadings and evidence. That is the responsibility of the plaintiff, as I have already said.

[11]	That said, I do not accept that in terms of r 15.1 it would be appropriate to strike out the plaintiff’s claim on this basis. The pleading is capable of being corrected in the way I have described. Additionally, it is open to the defendant to give notice pursuant to r 5.21 of the High Court Rules requiring further and better particulars. Indeed, an application for such was made at the time of the strike-out application, although it was not pursued at the hearing. Thus, the defendants have already notified the plaintiff of the particularisation they require.

7	Paul v New Zealand Māori Council, above n 1, at [16].

[12]	It follows that I do not accept the submission that the defective state of the plaintiff’s pleadings gives rise to an arguable error in my decision to decline the defendants’ strike-out application. It is worth noting that while the argument has now been put on the basis that the plaintiff’s claim must be pleaded as separate causes of action, at the hearing of the strike-out application on 19 March 2019 it had been advanced on the basis that the plaintiff was obliged to bring separate proceedings.8 In any case, even if I did accept that this amounted to an arguable error, it is certainly not an error of general or public importance or of sufficient gravity to warrant an appeal.

[13]	The position appears to me to be entirely straightforward. The defendants are entitled to seek further and better particulars of the claim, which will no doubt be carefully focussed on each of the five districts. The plaintiff may then respond by way of a second amended statement of claim, identifying the five causes of action on which they rely and providing particulars with respect to each district. Frankly, this is what should have happened some time ago.

Declaratory Judgments Act

[14]	The second issue concerns the scope of the Declaratory Judgments Act.

[15]	What the defendants wish to argue on appeal is that the plaintiff is not entitled to pursue its claim pursuant to s 3 of the Declaratory Judgments Act, essentially because the claim as pleaded is not sufficiently focussed on the interpretation of any aspect of the Maori Community Development Act.

[16]	I dealt with this argument at [35]–[41] of my judgment. What I said there was that the plaintiff’s claim seeks to clarify the validity of the various 2018 elections and appointments and ultimately that must turn on a proper construction of the Maori Community Development Act (and the Maori Community Development Regulations 1963). I then addressed the three aspects of s 3 that Mr Harrison submitted the plaintiff’s claim failed to meet, concluding in relation to each that, in the end, the

8	In fact, the argument had been put on the basis that separate proceedings would be needed for each of the 111 Maori Committee elections, rather than for each of the five Districts.

determination of the plaintiff’s claim would require an exercise falling within the relevant statutory language. I viewed this as preferring substance over form.

[17]	Mr Harrison was of course far too respectful to put the point as bluntly as this, but his submission to me was in effect that my response was too glib. He submitted that it:

… may be summed up as being that it does not matter that the [amended statement of claim] as pleaded does not directly and expressly put in issue, or claim a declaration expressly dedicated to, any of the qualifying jurisdictional criteria stated in s 3. It is sufficient to found jurisdiction that the questions raised by the claim must ultimately “turn on a proper construction of the [Māori Community Development] Act and the Regulations”; and equally, that “from a wider perspective, the merits of the plaintiff’s case, and the availability of the relief it seeks must, in the end, depend on the interpretation of the Act and the Regulations and the application of their provisions to the factual background as is determined”.

[18]	I accept that, arguably at least, a plaintiff is required to plead the question of statutory construction as the declaratory relief sought, rather than seek a consequential declaration that naturally follows from the answer to that question of construction. That, however, is a matter of pleading, rather than jurisdiction, as Mr Harrison contended. Mr Harrison accepted that s 3 could be used to seek a ruling on whether the legislation empowered the New Zealand Māori Council to direct the conduct of Māori Committee elections. As I understand it, the plaintiff’s case proceeds on the basis that the answer to that question (and possibly others) will determine that one or other set of Māori Committee elections was unlawful or ineffective. In other words, notwithstanding the pleading, the plaintiff puts before the Court a dispute capable of resolution under s 3 of the Declaratory Judgments Act. As I see it the question of whether the pleading is presently directed at the right question is a matter for the trial judge (though if the plaintiff does file and serve a second amended statement of claim I see no reason why this matter should not be addressed at the same time).

[19]	In relation to this second issue, Mr Harrison also argued that this case is not suitable for declaratory relief under s 3 because there are complex factual issues that require resolution. I remain of the view that there are no obvious disputes between the parties of a factual nature. The primary issues appear to me to be legal and entirely capable of resolution in declaratory judgment proceedings. To the extent that there

may be factual issues, as the Chief Justice has said: “I do not see any reason in principle why [the declaratory judgments] jurisdiction should not extend to declarations which require determination of mixed questions of fact and law…”9

[20]	Mr Harrison has not identified any factual disputes, and the defendants are yet to file a statement of defence. If factual issues not apparent at this stage do arise in the course of the proceeding, there are provisions in pt 18 of the High Court Rules to accommodate that.10 It would then be a matter for the trial judge to determine whether it would be appropriate to grant a declaration in the circumstances.

[21]	In any case, I am not persuaded that this issue warrants incurring a delay in the disposal of the substantive proceeding, and nor am I persuaded that the interests of justice would be served by granting leave in this case. That brings me back to the observations made by Palmer J in Li v Chief Executive, Ministry of Business, Innovation and Employment as endorsed by Gault J in NZ FinTech Ltd v Credit Corp Financial Solutions Pty Ltd. In the end, both issues that the defendants seek to raise on appeal concern matters of pleading that can be dealt with in this Court.

[22]	As to the first, this will no doubt involve a notice requiring (and if necessary, an application for) further particulars and more explicit pleading under r 5.21 of the High Court Rules.

[23]	As to the second, as Mr Cornegé submitted, the plaintiff is either entitled to rely on s 3 or it is not. That question will be determined at trial. Whatever the outcome, the unsuccessful party will be entitled to appeal as of right.

[24]	I see no good reason why these issues should be considered at an appellate level at this stage.

[25]	That is particularly so given the circumstances of this case. The dispute concerns elections and appointments in early 2018. Elections have to be held every three years, so there will have to be fresh elections in early 2021. It is not at all difficult

9	Ambrose v Attorney-General [2012] NZAR 23 (HC) at [35]. See also Kamo v Minister of Conservation [2018] NZHC 1983 at [40].
10	High Court Rules 2016, rr 18.15 and 9.74.

to imagine that if there were an appeal at this stage, the substantive proceeding and any subsequent appeals may not be resolved until after the next elections. That would not only render nugatory this claim but would preclude the plaintiff from getting clarity around arrangements for the 2021 elections.

Stay

[26]	Given the conclusions I have reached in relation to the application for leave, it follows that the application for a stay pending the outcome of the appeal falls away.

Result

[27]	The defendants’ application for leave to appeal is declined.

[28]	I reserve costs. My preliminary view is that costs on this application should probably be left to lie where they have fallen, given that it is the infelicities in the plaintiff’s pleading have resulted in this application. If counsel are unable to settle costs they may revert to me by memorandum.

Associate Judge Johnston

Solicitors:
Tompkins Wake, Hamilton for plaintiff Phoenix Law Ltd, Wellington for defendants