Crawford v Ngati Hineuru Iwi Incorporated [2014] NZHC 2652 (29 October 2014)

Last Updated: 5 November 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2014-441-11 [2014] NZHC 2652

UNDER	The Declaratory Judgments Act 1908
BETWEEN	NGAWAI CRAWFORD Applicant
AND	NGATI HINEURU IWI INCORPORATED Respondent

On the papers
Counsel:
Judgment:	29 October 2014

_{JUDGMENT OF ASSOCIATE JUDGE SMITH}

[1] This is an application by the defendant for further particulars of the plaintiff’s statement of claim. In a joint memorandum for the first case management conference, the parties requested that the application be dealt with on the papers, following an exchange of written submissions. The submissions have now been received.

Background

[2] The plaintiff, Ms Crawford, is a member of Ngati Hineuru and a member of

Ngati Hineuru Iwi Incorporated.

[3] Among the purposes for which the defendant was registered as an incorporated society were to represent Ngati Hineuru and to promote and advance the iwi’s interests in Treaty of Waitangi claims, and in negotiations with the Crown. It was also established to receive funds or other assets transferred from the Crown or

_{other bodies for the benefit of Ngati Hineuru.}

NGAWAI CRAWFORD v NGATI HINEURU IWI INCORPORATED [2014] NZHC 2652 [29 October 2014]

[4] Under the society’s constitution, membership is open to those who affiliate to Ngati Hineuru. Membership is gained by completing the prescribed registration form and obtaining approval of registration by the society’s board. The society has a duty under its constitution to ensure that a register of members is maintained.

[5] In her claim, Ms Crawford contends that the society has wrongly refused to register as members some people who meet the eligibility criteria. She also alleges that some people who are not eligible to be members of the society have been allowed to register as members and to vote at meetings. She seeks declarations that the society has acted in breach of its rules in wrongly failing to register eligible members, and in wrongly registering ineligible people as members.

[6] The society denies those allegations, and seeks the following further particulars:

(a) In relation to the allegation that the society has failed to register members who meet the eligibility criteria for membership and have applied to become members in accordance with the Rules of the defendant:

(i) The names of the individuals who, it is alleged, have not been registered by the society;

(ii) In respect of each person or group of persons identified in response to paragraph (a)(i), particulars of how it is alleged that each of those persons meet the membership eligibility criteria; and

(iii) Particulars of how and when any alleged failure to register those persons was communicated to them.

(b) In relation to the allegation that the society has allowed people who were not eligible to be members of the society to register and vote, full particulars of:

(i) The names of those individuals who it is alleged were not eligible to be members of the society and who were registered; and

(ii) in respect of each person or group of persons identified in response to paragraph (b)(i), particulars of how it is alleged that each of these persons did not meet the eligibility criteria.

[7] Correspondence between the solicitors for the parties, in which the society pressed its arguments for further particulars, has been produced in support of the application.

[8] In her notice of opposition, Ms Crawford says that the society knows the facts which it is seeking in its application for particulars, whereas she does not know the full extent of those facts. She argues that the society should be required to provide discovery of its documents before she is obliged to provide the particulars the society seeks. She says that she has given a sufficient outline of her case for the society to understand it and carry out pre-trial briefing and preparation, and that the request for further particulars is unnecessary and wasteful of costs and court time.

[9] In her written synopsis, Ms Crawford does provide one example of the people she says have attempted to register with Ngati Hineuru but have been denied by the society’s board. She says that a whanau by the name of Adams attempted to register, but were denied because one of the Ngati Hineuru board members said that they had been told that the elder of the Adams family was not whāngai¹ as a child, but was whāngai as a youth and therefore not eligible. Ms Crawford submits that this information was hearsay, and that the person who informed the board member is no

longer alive to provide further evidence. She also says that the Adams whanau was not given an opportunity to reply to the allegations and that the reasoning behind denying a family membership on the “only whāngai as a youth” basis was not

_{explained to them.}

1. A reference to the customary practice of whanau members raising the children (not being their own children) of other members of the whanau. The term whangai means literally “to feed and nourish.” Ministry of Justice “Maori Concepts of Guardianship, Custody and Access: A Literature Review” <http://www.justice.govt.nz/publications/publications- archived/2002/guardianship-custody-and-access-maori-perspectives-and-experiences-august-

2002/maori-concepts-of-guardianship-custody-and-access-a-literature-review>.

Applications for further particulars – legal principles

[10] Rule 5.21 of the High Court Rules:

5.21 Notice requiring further particulars or more explicit pleading

(1) A party may, by notice, require any other party—

(a) to give any further particulars that may be necessary to give fair notice of—

(i) the cause of action or ground of defence; or

(ii) the particulars required by these rules; or

(b) to file and serve a more explicit statement of claim or of defence or counterclaim.

(2) A notice must indicate as clearly as possible the points on which the pleading is considered defective.

(3) If the party on whom a notice is served neglects or refuses to comply with the notice within 5 working days after its service, the court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.

(4) Even if no notice has been given under this rule, the court may on its own initiative order a more explicit pleading to be filed and served.

[11] Rule 5.26 of the High Court Rules requires that a statement of claim:

(a) must show the general nature of the plaintiff's claim to the relief sought; and

(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action; and

(c) must state specifically the basis of any claim for interest and the rate at which interest is claimed; and

(d) in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned

[12] In Price Waterhouse v Fortex Group Ltd the Court of Appeal stated that a

_{party’s pleading is not:} ²

² Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.

“...[S]imply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation.

[13] It is not an answer for a pleading party to say that deficiencies in its pleading will be remedied by discovery or interrogatories. Discovery and interrogatories are only adjuncts to a party’s pleading and are not to be regarded as substitutes for proper pleadings.

[14] The pleadings are intended to define the issues and thereby inform the opposing party in advance of the case it will have to meet, and so enable it to take steps to deal with that case.³ The fundamental obligation is to provide sufficient detail in the pleading to enable the other party to carry out a reasonable degree of pre-trial briefing and preparation, and to ensure that the other party is adequately informed of the case it has to meet.

[15] The Court of Appeal acknowledged in Price Waterhouse that there is no bright line distinction between facts which must be pleaded, and the evidence which will be led at trial to prove those facts. “Facts” can merge into “evidence” without any clear dividing line.⁴

[16] In Pearce v Accident Compensation Corporation, Penlington J stated that a defendant’s preparation for trial and the length of the trial should not be unnecessarily extended because of the anticipation of claims which are not in fact being made by the plaintiff.⁵

[17] On the issue of whether the supply of particulars may be deferred until after discovery, the authors of McGechan on Procedure note that, logically, particulars should be supplied before discovery, as particulars define the questions at issue in the proceedings, and thus the scope of discovery. The authors go on to say: ⁶

However, a practice has developed under which allegations are pleaded in general terms accompanied by a statement that particulars will be given following discovery (i.e. discovery by the other party). A special situation

³ _{Farrell v Secretary of State for Defence [1980] 1 All ER 166 (HL) at 173.}

⁴ _{Price Waterhouse v Fortex Group Ltd, above n 2, at 19.}

⁵ _{Pearce v Accident Compensation Corporation (1991) 5 PRNZ 297 (HC) at 303.}

⁶ McGechan on Procedure (online looseleaf ed, Brookers) at [5.21.06].

exists...in New Zealand where an applicant for particulars has knowledge of the issues involved which the party from whom particulars are sought does not have. In such a situation, particulars should not be ordered until after discovery by the former: Ross v Blakes Motors Ltd [1951] 2 All ER 689 (CA); Hickson v Scales (1900) 19 NZLR 202 (SC); Sullivan v Harris (1906)

8 GLR 650.

Discussion

[18] It will be convenient to deal with Ms Crawford’s two categories of complaint separately. First, I address the request for particulars of her allegation that applications by allegedly eligible individuals have been wrongly refused.

[19] One of the basic requirements of the rules of a registered incorporated society is that the rules specify the way people become members of the society.⁷ The rules should specify:⁸

(1) the mode of application, and if in writing, then whether any application form should be completed;

(2) to whom the application should be sent; and

(3) whether the membership is automatically conferred on application, or who makes the decision whether or not to admit the applicant to membership.

[20] I note that in a case where admission to membership was subject to discretionary approval, the Court of Appeal has held that committee members, as stewards of the assets held by an incorporated society, are required to exercise their powers in the best interests of the society and for proper purposes.⁹ The Court of Appeal noted in Stratford that it was “in the club’s interest that it should grow and be successful and any reasonable committee member would have acted on that premise.

_{Further, the committee were obliged to treat applicants fairly”.}

⁷ _{Incorporated Societies Act 1908, s 6(1)(c).}

⁸ Mark von Dadelszen Laws of Societies in New Zealand Unincorporated, Incorporated, and

_{Charitable (LexisNexis, Wellington, 2013) at 94.}

⁹ Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [57]- [61].

[21] The facts in Stratford were very different from the facts of this case, but I think it can at least be said that the case confirms that the Court may in appropriate circumstances review the membership decisions of a committee or board of an incorporated society.

[22] In this case, membership is governed by the constitution of the society. Under r 6.2, membership is gained by the completion of the prescribed registration form and the approval of that registration by the board. Rule 9.4 stipulates that all decisions of the board must be made in line with the principles and objects of the society. Therefore, Ms Crawford will have to show that the society denied membership on a basis that was inconsistent with the objects of the defendant society.

[23] The society says that to adequately address this allegation without the particulars it seeks, would require it to engage in a lengthy trawl through each and every membership application it has received, and then to attempt to determine which applications might possibly fall into the broad category described by Ms Crawford in her statement of claim. It says that Ms Crawford must be aware of the identity of individuals, or a category of individuals, which she says fall into this category, and it needs to have these people identified in order to be fairly informed of the case it has to meet.

[24] As noted above, Ms Crawford has identified one class of eligible members (members of the Adams whanau) who she says have been improperly refused registration by the defendant. She seeks leaves to file additional particulars once discovery is completed. She provides no detail of when members of the Adams whanau attempted to become members of the defendant.

[25] I accept the defendant’s submissions on this issue. It should not be required to guess what Ms Crawford means when she says that the defendant has failed to register members who meet the eligibility criteria and have applied to become members. It would not be fair to require it to expend resources investigating every refused application, against the possibility that it might be one to which Ms Crawford’s claim refers. It is for Ms Crawford to state the names of the persons she

says have been wrongly refused membership, or at least to identify some category of persons who she says were refused membership contrary to the society’s rules.

[26] If Ms Crawford’s real argument is that the society has wrongly refused to accept as members people who became whāngai as youth, but were not whāngai as a child, and that the society acted in breach of its constitution in refusing candidates for membership in that category, her pleading should clearly define the category in those terms, and refer to the Adams whanau as an example of that (broader) complaint. If there are other categories of case where Ms Crawford says the society has wrongly refused membership applications, they should also be identified.

[27] If Ms Crawford reframed her pleadings along those lines, the evidence does not suggest that it would be an unduly onerous task for the society to collate such records of refused applications for membership as it may have retained, and identify any among them which were refused on the basis or bases identified by Ms Crawford.

[28] Anything less than that level of particularity in the pleading would potentially open the door to a fishing expedition, on which Ms Crawford would be trawling through the society’s membership records with a view to finding additional heads of claim, and not evidence for or against a head of claim which she has properly pleaded. What is relevant for the purposes of discovery will be determined by what has been put in issue in the parties’ pleadings (statement of claim and statement of defence), and in my view the society is entitled to be told the respect or respects in which it is said to have failed to follow its membership rules, before it is required to provide its discovery list. If additional heads of claim arise out of Ms Crawford’s inspection of the society’s documents which are made available to her, it will be open to her to amend her claim at that point (assuming no limitation issues arise) to add the additional matters of complaint.

[29] Turning to the request for particulars of the allegation that the society has registered ineligible applicants as members of the society, I again accept the society’s submissions. It should not be required to guess what Ms Crawford means when she makes the wide-sweeping allegation that the society has registered ineligible

applicants as members. It would not be fair to require the society to expend resources to investigate each of the over 2,000 registered members of the society without a clearer statement of the matters in issue. That would be an unduly onerous task for the society to undertake. Again, it is for Ms Crawford to state the names of the persons she says have been wrongly allowed membership, or at least to identify some category or categories of persons who she says were allowed membership, who were in fact ineligible.

[30] As I have noted above, anything less than that level of particularity in the pleading would potentially open the door to a fishing expedition.

Orders

(1) Ms Crawford is to file an amended statement of claim within 21 days of the date of this judgment providing the following further particulars of her claim:

(a) The names of individuals (or any identified category or categories of individuals) who Ms Crawford says have been wrongly denied membership of the society;

(b) In respect of each such individual (or category of individuals), the facts or circumstances relied upon in support of the allegation that the person (or category of persons) was entitled to be admitted to membership;

(c) The names of individuals (or any identified category or categories of individuals) who Ms Crawford says have been wrongly admitted as members of the society;

(d) In respect of each such individual (or category of individuals) the facts or circumstances relied upon in support of the allegation that the individual or category of individuals were not entitled to be admitted as members of the society.

(2) The costs of the application are reserved.

_Dated:

_{Associate Judge Smith}

Solicitors: