Puka v Council for the Ongoing Government of Tokelau [2021] NZCA 349 (29 July 2021)

Last Updated: 3 August 2021

SITTING AS THE COURT OF APPEAL OF TOKELAU
E NOHO ANA RITE TONU KI TE KŌTI PĪRA O TOKELAU

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA105/2021 [2021] NZCA 349

	BETWEEN	SIAOSI HETO PUKA Applicant
	AND	COUNCIL FOR THE ONGOING GOVERNMENT OF TOKELAU First Respondent ULU O TOKELAU Second Respondent

Court:	Miller and Brown JJ
Counsel:	J W Goddard for Applicant R J B Fowler QC for Respondents
Judgment: (On the papers)	29 July 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] The applicant (Mr Puka) was employed as the Director of Finance by the Government of Tokelau under a Tokelau Public Service employment contract. He and Mr Suveinakama, who held the position of General Manager, were initially suspended and subsequently had their employment terminated as a consequence of their involvement in the purchase of two helicopters for a proposed interim air service for Tokelau.
• [2] Mr Puka and Mr Suveinakama commenced a proceeding against three parties, namely the present respondents and, as third defendant, the Administrator of Tokelau. However the claim against the Administrator was stayed on 1 February 2019, shortly before the commencement of the substantive hearing on 11 February 2019. The claim was determined in a judgment of the High Court of New Zealand sitting as the High Court of Tokelau delivered on 26 July 2019.^[1]
• [3] The nature of the claim was described in the judgment in this way:

[26] Although the case was fundamentally about the termination of the contracts of employment between [Mr Suveinakama and Mr Puka] and the first defendant, the pleadings treated the claim as if it were one advanced on a public law basis and sought the public law remedy of “quashing” various decisions including a decision to suspend [Mr Suveinakama and Mr Puka] of 13 April 2017, and the decision to suspend them without pay of 30 June 2017.

[27] Contractual damages were also sought, being salary and benefits for the period 24 November 2017 to 10 January 2019 for [Mr Suveinakama], and salary and benefits from 24 November 2017 until the date of the issue of the judgment in this matter for [Mr Puka]. [Mr Puka] also sought an order of “reinstatement” to the role of Director of Finance. General damages, interest and costs were also sought.

• [4] The Court held that the decision to terminate the two employment contracts was lawful but that the decision to suspend them without pay from 13 July 2017 to 24 November 2017 was unlawful.
• [5] In a subsequent costs judgment dated 6 September 2019 the Court ordered that the defendants jointly reimburse Mr Puka and Mr Suveinakama for the filing, scheduling and hearing fees totalling $6,050, that being viewed as an appropriate outcome to reflect the very limited nature of their success in the proceedings.^[2]
• [6] On 9 March 2021 Mr Puka filed an application for leave to appeal to this Court against both judgments. The application for leave to appeal was unnecessary because an appeal lay as of right. However, because the notice of appeal was filed more than 18 months after the expiry of the appeal period for the first judgment, an application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) was required. We have treated the application for leave to bring a civil appeal as an application for an extension of time to appeal which falls to be determined in accordance with the principles in Almond v Read.^[3] Before doing so we first comment briefly on the papers filed by Mr Puka.

The form and scope of the application

• [7] In addition to the notice of appeal and the application for leave to bring the appeal, Mr Puka filed a number of affidavits. The primary affidavit was that of Mr Puka himself dated 11 January 2021, which comprised 86 pages together with 29 exhibits. He also filed a much shorter affidavit which was also executed on 11 January 2021.^[4]
• [8] Further affidavits in support were filed by:
  • Ioane Puka dated 7 April 2021, comprising 35 pages together with exhibits of 182 pages;
  • Mr Suveinakama dated 10 March 2021; and
  • Kuresa Nasau dated 16 March 2021.

Each of those further affidavits stated that the deponent had read both the notice of appeal and Mr Puka’s affidavit of 11 January 2021 and confirmed the accuracy of the contents.

• [9] The purpose of these affidavits is unclear. Mr Fowler QC for the respondents suggests it is an attempt by Mr Puka to request that this Court by way of appeal conduct a de novo hearing of his claim. However if they were intended to be adduced as further evidence on appeal, then their filing was premature. In any event, as they largely revisit the events the subject of the substantive judgment, they are not fresh. While the absence of freshness is not an absolute disqualification for the receipt of further evidence on appeal, in Rae v International Insurance Brokers (Nelson Marlborough) Ltd this Court stated that the criteria for admission in such circumstances must be very strict.^[5]
• [10] The affidavits also appear to have been directed to the issue of the venue for the appeal. Mr Puka’s larger affidavit stated:
  4. In one sense, this litigation is very simple. In order to appease the government of New Zealand, my employer had to make someone accountable for progressing an interim air service. It decided to target Mr Suveinakama (the General Manager of the Tokelau Public Service, based in Apia, Samoa) and me. However, in doing so, it breached key terms of my employment contract by failing to implement fair and reasonable procedures and by forming incorrect conclusions about my conduct. In suspending me (twice) and dismissing me from my position as Director of Finance, it breached my employment contract thus entitling me to compensation.
  5. However, the factual, political, legal and cultural context is complex. I expect that it will be challenging for this Court to fully understand these matters without the benefit of the case being heard in Tokelau and without evidence from the General Fono, the Tokelau Public Service Commissioner, representatives from the villages of Atafu, Fakaofo and Nukunonu and without evidence from the Administrator of Tokelau about his role and the involvement his office has had into this matter.
• [11] The issue of venue was addressed prior to the High Court hearing. Mr Puka and Mr Suveinakama sought to have their claim heard in Fakaofo, contending that the case potentially could resolve constitutional, political and legal issues and had cultural dimensions making Tokelau the appropriate venue. In a judgment of 6 July 2018 Elias CJ rejected the application. She pointed out that the plaintiffs were represented by lawyers based in New Zealand and noted the cost and logistical problems of accommodating the trial in Fakaofo, including transport and accommodation for the Court, parties and counsel, the absence of an air service and the delay in having the hearing in Tokelau.^[6]
• [12] Nevertheless a change of venue was foreshadowed by Mr Goddard in his submissions in support of the application:
  13. The cultural context is relevant to this litigation which is brought pursuant to the Tokelau Act 1948 and concerns the development aspirations of Tokelau. There are obvious difficulties with a court sitting in New Zealand trying to understand cultural practices, customs and relationships when the participants may have never travelled to Tokelau, speak Tokelauan or have any engagement with the Tokelauan community.
• [13] However at present there is no application concerning the venue for the appeal. Hence we will determine the r 29A application on the footing that any appeal is very likely to be heard by this Court sitting in New Zealand, either in Wellington or Auckland.
• [14] A further issue arises from paragraph 5 of Mr Puka’s affidavit, namely the suggestion that the participation of the Administrator of Tokelau in the appeal might be required. As noted above^[7] in the High Court the proceedings were stayed vis-à-vis the Administrator. When Mr Puka’s affidavits and his submissions in support of the current application dated 8 April 2021 came to the attention of the Administrator, through counsel the Administrator filed a memorandum expressing concern about the assertion that the Administrator and/or the Ministry of Foreign Affairs and Trade (MFAT) were a driver of what was said to be unlawful singling out of Mr Puka and Mr Suveinakama. The memorandum stated:
  4. From the perspective of the Administrator, the concern is not only that it is not fair to seek to rely upon claims against him, his predecessors, successive Ministers and other New Zealand officials when, by the appellant’s actions below and in this Court, those claims were not put to proof or decided below or pleaded here. It is also that, as will be self-evident, this proceeding has been demanding for Tokelau, given its novelty, the scale of the claimed remedies and the time taken. The proposed appeal ought not add further to that difficulty by further attempts to engage with wider grievances or criticisms, not pursued below, that the appellant or others may hold.

(Footnote omitted.)

• [15] In a memorandum in response Mr Goddard addressed the status of the Administrator stating:

(a) the decisions under appeal relate to alleged breaches of an employment agreement and the Administrator is not and has never been the employer of Mr Puka;

(b) the Administrator has not been named as a respondent by Mr Puka; and

(c) there has been no indication from the respondents that the Administrator will be a witness if the appeal is allowed to proceed.

It was contended that the Administrator lacked standing to file documents in this Court and that he ought not to be making submissions on the r 29A application as he is not a party to the appeal.

• [16] In our view it is apparent from that exchange of memoranda that the proposed appeal does not extend to any issues concerning the Administrator or his conduct. This is a relevant consideration in the evaluation of the significance of the issues raised by the proposed appeal.^[8]

Relevant principles

• [17] In Almond v Read the Supreme Court explained that when the litigant takes steps to exercise the right of appeal within the required timeframe (including advising the other party) but misses the specified time limit by a day or so as a result of an error or miscalculation (especially by a legal adviser) and applies for an extension of time promptly on learning of the error, it is not appropriate to characterise the giving of an extension of time as the granting of an indulgence which necessarily entitles the Court to look closely at the merits of the proposed appeal. The Court commented:

In reality, there has simply been a minor slip-up in the exercise of a right.

The Court considered that the ultimate question when considering the exercise of the discretion to extend time under r 29A is what the interests of justice require which necessitates an assessment of the particular circumstances of the case.^[9]

• [18] The following factors were identified as likely to require consideration:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, particularly of the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

The length of delay

• [19] As the Supreme Court observed, the longer the delay the more the applicant will be seeking an “indulgence” from the Court and the stronger the case for an extension will need to be.^[10]
• [20] Here the delay in seeking to bring the appeal is substantial, being more than 18 months after the expiry of the appeal period for the substantive judgment. Mr Goddard accepted that that period was significantly more than the 20 working days generally allowed for bringing an appeal under the Rules. However he submitted that such a period of time was less than the two years permitted under the Tokelau Crimes, Procedure and Evidence Rules 2003 (CPER) for bringing a civil claim or the six-year period of limitation for bringing a claim in the New Zealand courts.
• [21] Mr Fowler responded, correctly, that the applicant had misinterpreted r 104 of the CPER which refers to the limitation period for filing a civil claim, not to the filing of a civil appeal. That is governed by s 4(1) of the Tokelau Amendment Act 1986 which states:

An appeal shall lie to the Court of Appeal of New Zealand from any judgment, decree, or order of the High Court of New Zealand exercising the jurisdiction conferred on it by section 3 of this Act in the same manner as from any judgment, decree, or order of the High Court exercising its jurisdiction in respect of New Zealand.

The reasons advanced for the delay

• [22] Mr Puka advances a combination of factors by way of explanation for the delay which are summarised in the following paragraph of Mr Goddard’s submissions in reply:
  47. The attempts at settlement, the attempts at arranging finance, the bureaucracy of the legal aid application, the difficulties in accessing the Court file, the impact of the Covid-19 lockdown measures, the need to prepare supporting affidavits, the extent and scope of the evidence and uncertainty as to the nature of the first-ever appeal before this Court all contributed to a significant but unavoidable delay in filing the appeal.
• [23] With reference to settlement, it is submitted for Mr Puka that following the release of the judgments in July and September 2019 Mr Puka and Mr Suveinakama actively explored settlement of their claims. It only became clear by 23 September 2019 that settlement negotiations could not succeed at which point a decision was made to appeal, subject to finance being arranged. The respondents contest the suggestion that there were settlement negotiations, drawing attention to the fact that the only document referred to by Mr Puka is an email from the New Zealand Administrator dated 23 September 2019, acknowledging an email from Mr Puka, which states that the Office of the Administrator does not need further staff to deal with the proposed air services initiatives.
• [24] Mr Puka’s shorter affidavit explains his difficult financial situation following the litigation, both in terms of his debt for legal fees and an award of costs made on the application of the Administrator.^[11] He explains that between July and December 2019 he sought agreement with his lawyers for funding arrangements to bring an appeal but without success.
• [25] He explained that on 13 December 2019 Mr Goddard resigned from the legal firm which had acted in the High Court proceeding but did not commence work as a barrister sole until 10 February 2020. Mr Puka claims that he could only bring an appeal once Mr Goddard became an approved provider of civil legal aid, that approval being confirmed on 22 April 2020.
• [26] While the respondents do not accept those circumstances as a sufficient explanation for the first part of the delay, they make the point that there was no justifiable explanation for the delay of almost 11 months between Mr Goddard’s approval as a legal aid provider and the filing of the application in March 2021. The respondents also emphasise that there is no justifiable explanation as to the delays in processing the application for legal aid, observing that Mr Puka’s affidavit does not provide any information to show that the application was submitted in a timely manner.
• [27] In any event the respondents submit that suitable arrangements could have been made to bring an appeal within time and at the very least Mr Puka should have provided notice to the respondents advising of his intention to file an appeal. In response Mr Goddard submits that the respondents were on notice from July 2020 that Mr Puka was working towards filing an appeal by reason of the fact that his counsel reapplied for certification to appeal before a Court of Tokelau pursuant to the CPER.
• [28] The COVID-19 restrictions were said to have contributed to the delay by interfering with the operations of the Ministry of Justice and the New Zealand Law Society, with the result that the grant of legal aid was not confirmed until 5 August 2020. However the respondents point out that New Zealand only commenced lockdown late in March 2020, some seven to eight months after the substantive judgment was delivered and well after the expiry of the appeal timeframes. They also note that Mr Puka and his counsel are both based in New Zealand and there is no explanation offered as to how the COVID-19 restrictions would have prevented the filing of this appeal until 9 March 2021.
• [29] Mr Goddard’s submissions in support of the application observed that the “residue” of the delay is largely explained by the desire to involve Mr Nasau^[12] in the appeal so the Court is afforded an opportunity to understand the full Tokelaun context. He explains that Mr Nasau, who was not able to attend the High Court hearing due to ill health, will be a key witness in the appeal, providing valuable insight into the workings of the Government of Tokelau. It is said that an initial meeting between Mr Puka and Mr Nasau took place on 22 September 2020 but the latter’s decision to take part in the appeal was not made until a further meeting in February 2021.
• [30] The respondents have signalled their intention to oppose the receipt of the new affidavit evidence including that of Mr Nasau. They draw attention to the fact that the High Court was in fact provided with detailed evidence of the applicable cultural aspects of the Tokelau Government and Tokelau culture in the affidavits of Siopili Perez and Afega Gaualofa.

The conduct of the parties

• [31] By reference to the matters traversed in the context of the reasons for delay the respondents contend that Mr Puka has sat on his hands. Mr Puka resists that suggestion, submitting that bringing the appeal was a significant task which required significant work from a number of parties.
• [32] The significant work from a number of parties would appear to refer to the extensive affidavit evidence which was filed (without any application for leave under r 45 of the Rules) together with the application for leave to appeal on 9 March 2021.^[13] It is self-evident that these extensive documents were prepared over a substantial period of time. In fact the shorter affidavit of Mr Puka was initially dated September 2020 and the initial meeting with Mr Nasau took place in the same month.^[14] It is apparent that an appeal had been in prospect for a lengthy period. Indeed an email dated 20 September 2019 from WCM Legal to Mr Puka, exhibited to Mr Puka’s shorter affidavit and bearing the subject heading “Funding for appeal to the Court of Appeal of New Zealand sitting as the Court of Appeal of Tokelau”, referred to the fact of confirmation by the board of WCM Legal that the payment of $40,000 into its Trust account would provide it with sufficient confidence to authorise commencement of an appeal.
• [33] Prior to Almond v Read the conduct of legal advisers was accepted as a mitigating factor in the context of an application out of time. In My Noodle Ltd v Queenstown Lakes District Council this Court commented:^[15]

[20] We accept that the cause of the delay in this case was a genuine mistake on the part of the applicants’ legal advisers. Once the error was discovered, their counsel immediately sought the respondents’ consent to an extension of time for appealing. This Court has made it clear that it is normally sympathetic to an extension of time in such circumstances, particularly where counsel has acted expeditiously to remedy the oversight after it has been discovered: see, eg, Grey v Elders Pastoral Holdings Ltd [1999] NZCA 143; (1999) 13 PRNZ 353 at [15] (CA) and Havanaco at [7].

• [34] The delay in that case, approximately three and a half months (including the Christmas vacation), was described as significant. However prior to the oversight being discovered it was clear that all parties assumed an appeal was on foot.
• [35] The delay in Almond v Read was much less. Through a calculation error Ms Almond’s solicitors filed the notice of appeal one day late.^[16] That provides context for the Supreme Court’s reference to a minor slip-up.^[17] The Court also observed that in a case where there has been a slip-up and the appeal date has been inadvertently missed, how quickly the applicant seeks to rectify the mistake after learning of it will also be relevant.^[18]
• [36] In Langridge v Wilson the time for filing an appeal expired on 6 September 1985 and the application for leave to appeal was filed on 23 October 1985.^[19] It was submitted that, the failure to file being due to a mistake on the part of counsel, the discretion should be exercised in the appellant’s favour on that ground alone, citing the English authority Palata Investments Ltd v Burt & Sinfield Ltd.^[20] In declining an extension of time this Court noted that Palata and like cases referred to were directed to circumstances where the delay was very short, in Palata being only three days. However in Langridge the delay was six weeks and it was not until four weeks after judgment (by the filing of an abortive notice of appeal) that notice of intention to appeal was given to the respondent.
• [37] The principles in Langridge were followed in Grey v Elders Pastoral Holdings Ltd where this Court commented that once the error is discovered the intending appellants and their advisers are expected to act promptly.^[21] Mr Grey was advised at an early point that the appeal period was three months when in fact it was only one month. However it was not until a further three months that the application was filed. This Court declined an extension of time as it was not convinced that steps were taken with sufficient expedition once the error was realised, nor that the delay thereafter was satisfactorily explained.^[22]
• [38] Mr Puka does not state in his affidavits when he realised that his proposed appeal was out of time. However we note that his shorter affidavit (bearing the original date of 1 September 2020) states that he assumes that it is necessary to apply for leave out of time and that he was proceeding on the basis that leave was required. Six months then elapsed before the application was filed.

Any prejudice or hardship to the respondent or to others

• [39] Mr Goddard submits that Mr Puka has lost the ability to find work in Tokelau and to live in Tokelau and that his losses are personal, extensive and ongoing. By contrast he contends that life continues as normal for the respondents who know that their defence of the appeal will be funded by the Government of Tokelau with contributions likely from the Administrator and MFAT as required. Hence the prejudice to Mr Puka is said to be far greater if the appeal is not allowed to proceed than would be suffered by the respondents if the appeal is heard.
• [40] The respondents’ rejoinder is that as a result of national elections there has been a new Council of the Ongoing Government of Tokelau since February 2020. That new Council was entitled to reasonably conclude that this litigation was at an end, given the expiry of the appeal period, and no contingency budget was needed for this particular litigation. Mr Puka responds that the Council is not new, but that three of the six members are new.
• [41] The respondents further submit that the way in which Mr Puka is formulating the proposed appeal will incur significant costs, drawing attention to the additional substantial affidavits that not only attempt to relitigate the evidence in the High Court but also introduce a lot of new evidence, the admissibility of which is challengeable and which raise fresh issues of discovery.

The significance of the issues raised by the proposed appeal

• [42] Mr Goddard describes the litigation as historic, unprecedented and ground‑breaking. He submits that the people of Tokelau deserve to know definitively from their highest court which laws apply to their employment in Tokelau, their employers’ obligations when it comes to investigating misconduct and disciplining/dismissing employees and, importantly, what actions of their employers can be challenged and how. He goes on to say:
  12. The wider context is integral to this claim. Over the course of this litigation, the status of the Constitution has changed from being the foundation of the nation of Tokelau to being a nullity in the legal sense. This development has confused the roles and responsibilities of the General Fono, the Council, the Ulu, the Taupulega and the Administrator. There is also substantial confusion relating to the Tokelau Public Service Commissioner and the extent of his powers given that he purported to dismiss the appellant even though he was not a party to the contract of employment.

(Footnote omitted.)

• [43] The respondents’ rejoinder is that Mr Puka’s claim in the High Court was one for private damages in his personal capacity and it is not possible for an appeal on this matter to seek any determinations regarding any perceived public issues such as those governing the relationship between the General Fono of Tokelau and the Council.
• [44] The respondents’ submission finds support in the decision of Elias CJ on the change of venue application:^[23]

[12] I do not accept that the claim as pleaded raises constitutional issues or cultural issues which suggest Tokelau might be the appropriate venue for the trial. It is a claim for unlawful dismissal and raises the sufficiency of the investigation that led to termination of the plaintiffs’ employment by the Council for the Ongoing Government of Tokelau. Contrary to the submission made on behalf of the plaintiffs that there is need to clarify whether the Court is “constituted under the constitution, the Tokelau Amendment Act 1986 or pursuant to its inherent jurisdiction”, there is no doubt as to the legal order applicable. The Tokelau Act 1948 remains in force. The constitution has not taken effect to displace or affect it. Accordingly, the jurisdiction of the High Court to determine the claim is established by the provisions of the Tokelau Amendment Act 1986. The Tokelau Act 1948 specifies the sources of law applicable to the determination.

• [45] While accepting that there was substantial public interest in the claim in Tokelau, Elias CJ further observed:

[16] Although the background of the case is a matter of public interest because the defendants are participants in the government of Tokelau, it is a private claim for damages and associated relief of benefit to the plaintiffs in their personal capacities.

• [46] It is also pertinent to note that in response to the memorandum for the Administrator, Mr Goddard described the decisions under appeal as relating to alleged breaches of an employment agreement.^[24]

Conclusion

• [47] Not infrequently, efforts to obtain legal aid will result in a modest delay in filing an appeal which may warrant an extension of time. However the very substantial delay in this case has been the product of several additional factors including initial attempts to resolve the dispute without further litigation, delays in waiting for counsel to become available and to secure jurisdictional eligibility and the preparation of extensive further evidence, both the relevance and admissibility of which are, to say the least, questionable.
• [48] The circumstances of individual cases and the period of delay will of course vary significantly. However in this case both Mr Puka and his counsel had an appeal in contemplation from not later than September 2019. While the Court will generally be reluctant to countenance a situation where an inadvertent or possibly even conscious delay on the part of a legal advisor might prejudice the position of an intending appellant, the circumstances of this case are not such that an omission by counsel can be accepted as the basis for excusing the very substantial delay.
• [49] Nor is Mr Puka able to say that at an early stage he put the respondents on notice of the prospect of an appeal. In consequence, notwithstanding that the respondents are public bodies (although, as the respondents say, not a rich or well‑resourced state), there is a measure of prejudice arising from the omission to make specific financial provision for the cost of still further expensive litigation.
• [50] It is submitted for Mr Puka that, given this is the first appeal in this jurisdiction, the fact there are no precedents makes it difficult, if not impossible, to say with certainty what the interests of justice require. However we accept the respondents’ submission that the proposed appeal does not engage new areas of law requiring clarification or raise issues of constitutional significance. Mr Puka’s claim, which is a private claim for damages arising out of an employment agreement, does not raise some wider Tokelauan public interest component.
• [51] For these reasons we consider that the case for the substantial indulgence sought is comparatively weak and is insufficient by a significant margin to justify an extension of time of the length sought.

Result

• [52] The application for an extension of time to appeal is declined.
• [53] The applicant is legally aided. Accordingly there is no order as to costs.

Solicitors:
Wakefields Lawyers, Wellington for Applicant
Wallwork Lamb Lawyers, Samoa for Respondents

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^[1] Suveinakama v Council for the Ongoing Government of Tokelau [2019] NZHC 1787.

^[2] Suveinakama v Council for the Ongoing Government of Tokelau [2019] NZHC 2241 at [16].

^[3] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[4] The amendment to the date of that affidavit suggests that it was intended to be sworn on 1 September 2020 and it is identified in Mr Puka’s submissions by reference to that date. We will refer to it as the shorter affidavit.

^[5] Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 193.

^[6] Suveinakama v Council for the Ongoing Government of Tokelau [2018] NZHC 1670 [Change of venue decision].

^[7] At [2].

^[8] At [42]–[46] below.

^[9] Almond v Read, above n 3, at [37]–[38].

^[10] At [38(a)].

^[11] Suveinakama v Council for the Ongoing Government of Tokelau (Costs No 2) [2019] NZHC 2974.

^[12] See [8] above.

^[13] The two-volume affidavit of Ioane Puka was filed subsequently on 12 April 2021.

^[14] At [29] above.

^[15] My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.

^[16] Similarly see Edel Metals Group Ltd v Geier Ltd [2017] NZCA 359, (2017) 24 PRNZ 305 at [24]; and Skiffington v Wellington Tenths Trust [2018] NZCA 462, (2018) 24 PRNZ 488 at [16]–[17].

^[17] At [17] above.

^[18] Almond v Read, above n 3, at [38(a)].

^[19] Langridge v Wilson (1989) 3 PRNZ 341 (CA).

^[20] At 343, citing Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 (CA).

^[21] Grey v Elders Pastoral Holdings Ltd [1999] NZCA 143; (1999) 13 PRNZ 353 (CA) at [13].

^[22] At [18].

^[23] Change of venue decision, above n 6.

^[24] At [15] above.