The Attorney-General v Ririnui

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date12 May 2015
Neutral Citation[2015] NZCA 160
Docket NumberCA336/2014 CA29/2015
Date12 May 2015

[2015] NZCA 160

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Harrison, Stevens and French JJ

CA336/2014

CA337/2014

CA29/2015

BETWEEN
The Attorney-General
Appellant
and
Mita Michael Ririnui
Respondent
BETWEEN
Landcorp Farming Limited
Appellant
and
Mita Michael Rirnui
Respondent
BETWEEN
Landcorp Farming Limited
Appellant
and
Mita Michael Rirnui
Respondent
Counsel:

D J Goddard QC, J R Gough and S J Humphrey for the Attorney-General

S A Barker and B Gnanalingam for Landcorp Farming Ltd A N Isac and J B Orpin for Mita Ririnui

Appeal against a costs order and cross-appeals against the High Court's (HC) refusal to set aside the sale of land — state-owned enterprise (SOE) decided to sell a farm-Office of Treaty Settlements (OTS) wrongly advised that the farm was not of potential interest for a future settlement of historical Treaty of Waitangi claims because all Treaty claims to the farm had been settled ‘appellant was chairman of a claims trust which had an outstanding claim’ trust wished to purchase the farm ‘officer of SOE told trust that the SOE would entertain an offer for the farm in the region of $23 million but did not reveal that a sale had already been concluded — trust had failed on substantive matter in HC but costs had been awarded against the SOE and the Crown-whether the HC had jurisdiction to review OTS' decision — whether the shareholding Ministers of the SOE should have intervened and prevented the sale in line with the principle in In Re Duomatic-whether the SOE acted (1) in breach of s9 State-Owned Enterprises Act 1986 Act (acting inconsistently with the Treaty); (2) inconsistently with the trust's legitimate expectations; and (3) in bad faith-whether the HC had exercised its discretion to award costs correctly.

The issues were: whether the HC had jurisdiction to review OTSdecision; whether the shareholding Ministers should have intervened and prevented the sale in line with the principle in Duomatic; whether Landcorp acted (1) in breach of s9 SOE Act; (2) inconsistently with Whakahemos legitimate expectations; and (3) in bad faith; whether the HC had exercised its discretion to award costs correctly.

Held: The question as to whether the HC had jurisdiction to review OTS decision largely turned on whether, given that it was not exercising a statutory power of decision, OTS nevertheless was exercising a public power within the category which had been held to be amenable to judicial review. Certain factors were decisive. Landcorp, not the Crown, owned Wharere. The title was subject to a standard resumption memorial. The land could be resumed at any time irrespective of the identity of the owner if the Tribunal made an order. Landcorp had no legal obligation to give notice to the Crown or any other party if it wished to sell a scheduled property. Within this broad framework, the protocol was simply a commitment to a consultative process between Landcorp and the Crown about issues affecting each others responsibilities.

OTS was simply acting in accordance with a legally non-binding protocol and its decision was not actionable. The decision did not affect Landcorps rights because Landcorp was always free to sell Wharere. And it did not affect the Crowns rights because the Crown was always free to acquire the property irrespective of which party owned it. Furthermore OTS decision did not adversely affect Ngati Whakahemos indirect rights or have the potential to do so. Its rights to Wharere were already protected by the resumption memorial. In effect, the protocol was no more than a mechanism for the parties to communicate about potential land sales, and did not give any rights to or impose obligations upon either party. The fact that a decision made in accordance with the protocol might have conferred an incidental benefit on a third party did not vest that party with rights of review.

Even if for the purposes of argument the subject matter of OTS decision was about Ngati Whakahemos rights, those rights were unaffected by OTS decision; the tribes right to pursue a claim against Wharere remained undiminished; and that the Crown could always acquire the land, even if it was sold to a third party, if the Waitangi Tribunal so directed. OTS advice did not cause prejudice to Ngati Whakahemo. Its admitted error of law was not material to any matter of substance.

OTS decision was also not justiciable because a decision whether to settle a claim was of an entirely political nature for the Minister to be made taking account of a range of factors. It was common ground that a decision whether to acquire the farm or offer it for settlement was unreviewable. It followed that, if the substantive decision was unreviewable, so too was a step which might be taken in the process leading up to that decision. The Trust had no enforceable rights at any stage in what was an executive decision on whether to settle a Treaty claim made for political or policy reasons.

Even if the Court had jurisdiction to review OTS decision, no purpose would be served by declaring it to be invalid and of no effect. The decision was incapable of having any legal effect and was thus not of any real practical consequence to Ngati Whakahemo. A decision made by a non-contracting party could not invalidate an agreement entered into by third parties some six months later without notice of OTS error.

Neither Duomatic nor Meridian could be invoked as the jurisdictional basis to find that the Ministers should have stepped in and imposed a decision on Landcorps board. Both principles were subject to the limitation that the relevant act was one which the company was lawfully able to perform. Landcorp did not have the constitutional power to act in breach of its legal obligations to third parties. Its constitution did not empower the shareholders to interfere with the directors lawful exercise of powers. Moreover, a third party such as Ngati Whakahemo which had no proprietary or other interest in Landcorp had no right to demand that the corporations shareholders intervene in its lawful activities.

In any event the relevant provisions of the SOE Act excluded any scope to apply the Duomatic or Meridian principles. The policy underpinning the SOE Act was the separation of roles and powers between shareholding Ministers and the boards of corporations. Further the SOE Act required that all decisions relating to a state-owned enterprises operations were to be made by or pursuant to the boards authority in accordance with the statement of corporate intent. Finally, the objective, of excluding Ministers from operational decision making and thus accountability for a corporations actions would be directly undermined by requiring the shareholding Ministers to intervene when and wherever they decided that intervention was in the interests of the Crown, not necessarily of the corporation.

Even if, contrary to this conclusion, the shareholding Ministers had the power to intervene, s9 SOE Act would not have provided a proper legal basis to do so. In refusing to give an undertaking, there was no evidence that the responsible Ministers were materially impairing the Crowns ability to provide appropriate redress if the Trusts claim was upheld. It was for the Crown, and the Crown alone, to decide the means by which it would give redress for any claim.

The s9 claim could not succeed. The Trusts case was that Landcorp should be treated as the Crown for the purposes of preventing a Treaty breach occurring on the sale. However the SOE Act was structured upon identifying and maintaining a legal separation between a state-owned enterprise and its owner, the Crown. To treat Landcorp as the Crown for the purposes of s9 would be contrary to the underlying philosophy and text of the SOE Act.

Landcorps decisions were in principle justiciable whether under the Judicature Amendment Act 1972 or the common law if they adversely affected the rights and liabilities of private individuals without affording them any redress. However a decision to enter into a commercial contract was unlikely to be the subject of judicial review in the absence of fraud, corruption or bad faith or analogous circumstances causing the integrity of the contracting process to be undermined. In order to succeed the Trust had to satisfy a high evidential burden of proving that H had been motivated by ill-will, dishonesty or fraud towards the Trust, and that she knew what she was doing was unlawful

H had misrepresented Lancorps position by indicating that the corporation might be interested in an offer from Ngati Whakahemo to purchase Wharere in the vicinity of $23 million. She failed to disclose that submission of an offer would be a pointless exercise as there already was a concluded sale. Although an adverse inference could be drawn about her conduct, it was limited to a conclusion that she acted irrationally and untruthfully when speaking to the Trust representative. Those factors did not, however, prove bad faith. There was no evidence of ill-will or a desire to deceive the Trust so that it did not apply for injunctive relief.

Even if it was shown that H had acted in bad faith attributable to Landcorp, the Trust did not suffer any prejudice. The factual chronology excluded the possibility that her bad faith, if any, jeopardised the integrity of the contracting process. The decision to sell had already been made and was simply being implemented by that time.

The findings on the Trusts bad faith argument confirmed that there was no unequivocal offer made in clear, unambiguous and unqualified terms which might give rise to a legitimate expectation of the type pleaded. This ground of appeal also failed.

While costs awards were discretionary decisions, the order against Landcorp cannot be upheld. Any alleged misconduct of H and Landcorps chair after the agreement was concluded was an irrelevant factor. Moreover the factual basis did not support the HCs findings....

To continue reading

Request your trial
4 cases
  • Mita Michael Ririnui v Landcorp Farming Ltd
    • New Zealand
    • Supreme Court
    • 9 June 2016
    ...22 At [164]. 23 Ririnui v Landcorp Farming Ltd [2014] NZHC 3402 (Williams J) [ Ririnui (HC final judgment)]. 24 At [85]–[87]. 25 Attorney-General v Ririnui [2015] NZCA 160 (Harrison, Stevens and French JJ) [ Ririnui 26 At [40]. 27 At [29]. 28 At [30]–[34]. 29 At [35]. 30 At [37]. 31 At [62......
  • XY v The Attorney-General
    • New Zealand
    • High Court
    • 3 June 2016
    ...2 NZLR 137 (CA), at [123]. 7Talleys Fisheries Ltd v Cullen HC Wellington CP2878/00, 31 January 2002, at 48 per Ronald Young J; Attorney General v Ririnui [2015] NZCA 160 at 8Green v Racing Integrity Unit Ltd [2014] NZCA 133 at [14]. 9Comptroller of Customs v Terminal (NZ), above n 6, at [12......
  • Mike Pero Mortgages Limited v Mike Pero
    • New Zealand
    • High Court
    • 21 December 2016
    ...in MP Mortgages had assured him that they were accessible should he 1 2 Refer s 177 of the Act, and also Attorney-General v Ririnui [2015] NZCA 160 See for example Re Greymouth Point Elizabeth Railway and Coal Ltd [1904] 1 Ch 32 (Ch). need their input on any matter in relation to the MPRE C......
  • Mita Michael Ririnui v Landcorp Farming Ltd
    • New Zealand
    • Supreme Court
    • 14 May 2015
    ...will also determine whether the interim order made in this judgment should continue pending the outcome of the appeal. 1 Attorney General v Ririnui [2015] NZCA 160 set out at [4] above. If an oral hearing is necessary, it will commence at 1 pm on Tuesday 26 May 2015. We order that Landco......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT