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Pre-judging the judges

  • December 23rd, 2007

I hear that the Hon William McLeod (Bill) Wilson QC has been promoted to be one of the six judges of the Supreme Court. If true that is welcome news, and a good appointment by the Attorney General, though the anxious rumours that the Hon Margaret Wilson or Sir Geoffrey Palmer were about to fill the slot always seemed far-fetched to me.

 Bill Wilson presents as practical and down to earth. And that is how he is judged by clients and those who know him closely.

He had very wide experience before his appointment directly to the Court of Appeal earlier this year. He’s taken cases and given opinions and conducted inquiries into so many arcane corners he could tell many non-lawyer experts things they do not know about matters they think are their mystery alone.

I understand he has no reason to be humble about his intellect , yet he is.

He should be a steady influence on the Supreme Court, looking for commonsense decisions, though the history of Supreme Court appointments around the world says – do not be surprised by anything.

On the other appointment said to have been made – the replacement for Bill Wilson on the Court of Appeal, inside opinion will be more reserved or mixed. Also a very decent well liked man, and very well read, High Court Judge Baragwanath’s elevation to be one of the six permanent judges of the Court of Appeal will ensure more attention to his literary flourishes and sincere goodwill. But the workhorse judges carrying the burden of keeping sensible judgments flowing out of that court may be discreetly anxious.

Wearing a PC heart on his sleeve may have been career enhancing recently, but any indulgence in emotional judging at appeal court level tends to confuse and complicate the law.

Let’s hope that Justice Bill Wilson will not surprise, and that the hopes for Justice Baragwanath are justified.


  • Christopher Wingate
  • March 13th, 2008
  • 7:22 pm

Justice Baragwanth gained the ownership of Matakana Island for his clients in 1994 it is alleged by misleading the Wellington High Court. That action should be nvestigated prior to any talk of promotion to the Court of Appeal.
Interesting to note his clients were claiming the ownership because of Waitangi issues and claims of the land being sacred, yet by last July Mr Baragwanths clients had sold the sacred land to developers for $75m much to the surprise of the Waitangi Tribunal and serves as a timely reminder the judges need to be more accurate and not bluffed by
smoke screens.


I have had some people asking me about the background on the Matakana case including the role of David Baragwanath who got the local Maori leadership the ownership of 10,000 acres of coastal land for free. I attach a letter I just sent to Dr Pita Sharples copied to Dr Cullen and that covers some of the points that are most important.

Sent: Wednesday, April 16, 2008 2:45 PM
Subject: Matakana Island

Tena koe Dr Pita Sharples

Thank you for your letter dated 10 March together with the attached letter of Attorney General Dr Cullen dated 7 February 2008.

Dr Cullen’s letter states that the legal matters have been fully considered by the Courts. This is something the Attorney-General’s office has been saying for sometime. But they miss the point of my complaint each time. My complaint is the Courts knowingly and intentionally changed various facts that cost Arklow its legal rights. Put simply, the Courts wrote a judgement that was wrong and is a fiction. I understand they did this to allow the Maori defendants to keep the Matakana land. I cannot find any law that allows judges to do this. Clearly they have failed their duty of care. In both the Court of Appeal and Privy Council the point was made by the defence that maybe the bank erred in their duty to Wingate Arklow, but the overriding and important point was the sacred land was now in the ownership of the traditional land owners.

I note with interest what Lord Cooke said in his Harkness Henry speech to fellow judges. He said that the wrongs committed by the Waitangi breaches need not only legislative assistance to correct but that is was up to the judges to do all they can to correct past wrongs. My point and my complaint is that Arklow has been a victim of that policy. Can you please address this issue with Dr Cullen. The main question is; Is it acceptable to the Government for judges to change findings of fact and are the judges obligated to a degree of accuracy when writing their judgments.

The other point I raised with you was seeking to know how in law can the leaders of Ngaiterangi iwi be leaders of the Tauranga Maori community, then when they obtain a business benefit for the people they represent, they ignore their fiduciary duty and take the gain for themselves. That would be like the Prime Minister and the cabinet setting up private companies to take advantage of crown business at the loss for the people who trust them the leadership role. In any area of law, those type of conflicts are not allowed. Can you please address this issue and provide me with the solution. As you would know the people of Tauranga are outraged asking how this could happen. If you require more information please let me know and I will help.

As for the death inquiry of Sonny Tawhiao, the INDEPENDENT POLICE CONDUCT AUTHORITY are looking into the original police inquiry. But again, I find a complete fiduciary failure with getting any government assistance with complaints. I write to the Government complaining about faults in the Crown system, and I seek help, but they ignore the wrong-doing and they ignore my complaint. That behavior is something they have done to Maori for more than 100 years but it appears they now do it to the rest of the citizens. Maori are not the only victims of Crown mistakes. I appreciate more than most what it has cost Maori. But it has cost me and my family our lovely home of 20 years, our income, and my belief in the quality of our Crown system of government.

Heoi ano

Christopher Wingate

Background from ;

Lord Cooke of Thorndon’s Harkness Henry speech; The Challenge of Treaty of Waitangi Jurisprudence, confirmed judge’s extra judicial role to help Maori.

The 1840 Treaty of Waitangi was an agreement England entered into with the Maori which made various promises of protection in exchange for a foot in the door. Although the Waitangi agreement was never formally accepted in British Parliament they undertook a fiduciary duty by asking for and getting the Maori’s agreement to grant Britain control over their interests.

As settlers poured with money the Crown began selling land they did not own. When the Maori refused to sell the Crown the land the government began a war to gain land ownership. In 1975 the New Zealand parliament began recognition that the Treaty was an agreement that had been breached and so began the work of the Waitangi Tribunal. The Tribunal began to hear claims from Maori about the land and rights they had lost due to the Crown’s breach of duty.

Paul Temm’s masterpiece “The Conscience of the Nation” covers the Crown’s history of abuse. With the Waitangi Tribunal’s task to research and produce reports, the Courts took up the role of preventing as best as they could any future government agency violations. And they undertook the Court would ensure all practical assistance be provided to Maori to ensure the principles of the Treaty of Waitangi were honored.

In managing this process Arklow Investments became its first major victim. Arklow has claimed its rights to the Matakana land existed from a claim in equity that Wellington merchant bank Far Financial had stolen Arklow’s deal. The Arklow claim proved that immediately after providing Far with how Arklow had structured the purchase of Matakana Island, Far ran off and did the deal themselves even though they provided Arklow with a written promise of confidentiality. That claim was first outlined in the Auckland High Court in early 1993.

At this same time various groups of Tauranga Maori namely Ngaiterangi Iwi Te Kotukutuku Coporation (TKC)were claiming the Matakana land should be theirs as it was sacred and was the subject to a Waitangi claim. They also claimed the deal Far entered into was illegal.The Maori put in a road blockade, someone set fire to the forest, ITT and E1 were threatened and the police would do nothing.

Eventually Far Financial sort excape from both litigtion’s by entering into a deal to sell the Matakana land to Te Kotukutuku. Their lawyers confident the entry of Maori into the proceedings would stop Arklow’s claim against Far Financial. In March 1994 Far Financial and TKC applied to the Wellington High Court to lift Arklow‘s caveats to make way for new Maori owners. The application before the Court was supported by false affidavits produced by Maori Tribal leadership (who were after assets for themselves personally)and commercial interests Far had introduced as partners into the Matakana deal. Collectively those Far partners stood to lose at least $10m in profits they had bargained for. The affidavits TKC produced failed to inform the court they had a clear conflict of interest and would gain financially as they were shareholders of the Maori company TKC.

Arklow opposed the sale claiming Far Financial had stolen their deal. And that needed to be heard before the land was sold to anyone else. Arklow also provided evidence the Maori group had used illegal tactics to obtain the contract. The judge rejected all of Arklow’s claims and accepted the defendant’s evidence. He also made mention in his Judgement the support by the Minister of Lands and the Minister of Finance and went onto say the transaction went some distance to resolving the Waitangi claims.

A few months later that Judgement was overturned by the Court of Appeal. But both money and title remained in place. Arklow now had 17 defendants to contend with.

In 1997 after a 4 week trial Justice Paul Temm decided in Arklow’s favor. He stated “To put the matter in the vernacular Far Financial stole Arklow’s information and nicked off with a pocket full of money”

In 1998 Far Financial and Maori appealed that decision to the Court of Appeal. The Court was presented with the argument the Matakana land was sacred and was now in the hands of the Maori Iwi. They stated the Maori ownership was in danger if Far Financial lost the appeal. The Court accepted this advice and created a Judgement that ignored and even changed key findings of fact. In addition they changed the nature of the relationship Arklow had with Far and quoted law that did not belong to this type of case.

The only genuine Maori Sony Tawhiao who was the official Waitangi claimant was facing death threats about his complaints of Iwi leadership stealing the Matakana land. Fearing he would become an Arklow witness exposing his leaders dishonesty he became a target. His body was found 7 July 1999.

The Privy Council faced the same submission over the sacred land was now in the hands of Maori. In December 1999 they confirmed the Judgement of the New Zealand Court of Appeal and rejected the Arklow case.

Within a few years that group of Maori under the company name of Te Kotukutuku announced a major canal development on the sacred land. When that didn’t work out they sold the entire parcel of land which is now owned by American and New Zealand property developers. The financial win has gone mostly to the tribe’s leadership including the chartered accountant who gave the Court false affidavits the Court was too ready to accept. The conflicts by Maori leadership in this transaction have been a disgrace.

Since then Privy Council decision, Arklow had made repeated claims to the Crown that judicial misadventure wrongfully destroyed Arklow’s lawful rights to make way for the demands by fake Maori. The undertakings the Maori made to withdraw the Waitangi claims they had over Matakana land never occurred. Those claims have continued.

Arklow’s claim was in equity which was once the domain of a separate court structure. It was originally developed because of repeated injustice being caused by poor legislation that failed to provide remedies in situations in which precedent or statutory law might not apply or be equitable. For hundred of years the independent chancery stood alone to meet that task up until the Judicature Act of 1873. From that point forward all High Court, Appeal Court judges including the House of Lords and the Privy Council, took over the ability to deal with fiduciary mismanagement and unexplained legislation.

This paper deals with the dangers of that discretion.

In 1987, Lord Cooke delivered the judgment of the Court of Appeal in the case of New Zealand Maori Council v Attorney-General, which sought to clarify what Parliament meant by section 9 of the State Owned Enterprises Act 1986. The act stated “Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”, but what those principles might be was left to the courts to decide. The principles elicited by President Cooke set legal standards for the first time on the relationship between the Crown and Maori.
The legal system is not powerless to provide remedies for racial injustice in appropriate cases, and decisions of the Courts in this field have assisted the parties to achieve voluntary settlements.

Some years later Lord Cooke’s speech on ‘Waitangi Jurisprudence’ concludes this well intentioned agenda by saying;

“I hope that this excursion may have helped to show that Maori claims to remedies are not totally unfounded. The challenge of Treaty of Waitangi jurisprudence has been two- fold: to define the principles of the Treaty and to do what the courts can to ensure that they are given practical effect. We have not achieved everything one could have wished. But at least in the fields of lands, forests and fisheries, some tangible results can be seen. They have been achieved by an interaction of three forces: first, some enlightened leadership on both the Crown and Maori sides; secondly, the inquiries and reports of the Waitangi Tribunal, the concept of which as an essentially investigatory and recommendatory body may well find some counterpart in the new South Africa; thirdly, the traditional courts and in some of their judgments an increased willingness to take into account the Treaty and the fiduciary concept. The responsibility of judicial decision is quite different from that of Tribunal recommendation. The functions are complementary. All three forces are probably essential to further progress.”

Lord Cooke of Thorndon’s Harkness Henry speech can be found at the base end of

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