Maoate v Minister of Finance [1995] CKHC 8; OA 05.1995 (3 July 1995)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
O.A. No. 5/95

IN THE MATTER
of the Declaratory Judgments Act 1908

AND IN THE MATTER
of certain Letters of Guarantee

BETWEEN

TEREPAI MAOATE
Member of Parliament, Rarotonga
Applicant

AND

THE MINISTER OF FINANCE
of the Cook Islands
sued by and through the Solicitor General
Respondent

Counsel: Mr V.R. Altments for Respondent
Mr B.H. Giles Q.C. and Mr M.C. Mitchell for the Applicant.

Hearing: 1 July 1995
Judgment: 3 July 1995

JUDGMENT OF DILLON J.

The application by the applicant for a declaratory order has been made pursuant to the provisions of the Declaratory Judgments Act 1994 and seeks a declarations from this Court of the following questions, namely-

1. Were certain Letters of Guarantee numbered 11 and 12 signed on the 11^th day of May 1994 for the sum of US$50 million each, numbered 13 to 17 signed on the 9^th of September 1994 for the sum of US$100 million each and numbered 18 to 22 signed on the 24t day of October 1994 for the sum of US$100 million each issued by the Minister of Finance between May and September 1994 on behalf of the Cook Islands Government LAWFUL in terms of-

(a) the Constitution?

(b) The Public Money & Stores Act 1987?

2. What constitutional and statutory procedures were required to be followed in order for the government in order for the Government of the Cook Islands to create a binding guarantee and were such procedures followed in the case of the letters of guarantee numbered 11,12,13-17 and 18-22?

3. Was the signing of the Letter of Guarantee or any one of them, if they or any one then could not be honoured if called upon, a lawful action on the part of the Respondent?

That application is set down for determination in this Court on the 7^th July next.

The Respondent has now filed an application for orders that viz.-

1. The application for Declaratory Orders has filed herein by the applicant be struck out; and

2. An order as to costs.

This application to strike out was fully and very competently argued by both counsels before me on Saturday the 1^st July. The submissions presented and the authorities referred to, have assisted materially in arriving at a decision in this matter which is obviously regarded by the applicant and the Respondent as of importance to both themselves because of the positions they hold and as well to the both citizens of this country that they both represent.

Mr Altments for the Respondent conceded that the application was a person who was indeed entitled to bring proceedings under the Declaratory Judgment Act. His challenge however was that this Court simply did not have the jurisdiction to make the Orders sought. He referred to both New Zealand and English authorities which he believed sustained that submission and supported his application to strike out the proceedings issued by the applicant.

I have no difficulty in accepting Mr Altments submission in respect of the third question posed. That is, in my opinion, a hypothetical question which the authorities quite clearly described as an abuse of the process of the Court.

Question 3 must therefore be struck out from the application filed by the Applicant. Question 1 and 2 are not so affected and must therefore be further considered in accordance with the law applicable to the striking out procedures.

This Courts jurisdiction to accept or disallow the remaining two questions is much more difficult to determine. Mr Altments quite correctly summarizes the limitations within which this Court must exercise its discretionary jurisdiction under this legislation. He gave as examples that the Court has no jurisdiction to deal with mixed questions of fact and law; nor to undertake in effect a public enquiry; nor to embark on an enquiry that will not have a useful and meaningful resolutions.

Mr Giles accepts those principle and the authorities that support them but says, with some justification, that they are applicable only at the hearing of the substantive issues of this case- not he says in the course of a preliminary application to strike out.

The Declaratory Judgments Act in New Zealand is similar to the Declaratory Judgments Act in the Cook Islands. In the case of Van Kessel v Human Rights Commission (1986) 1 NZLR 628 Williamson J stated-

"a Declaratory Order determining any question as to the construction of a Statute may be applied for under S.3 of the Declaratory Judgments Act 1908...

(3) If a person claims to be, in any other manner, interested in the construction of a Statute."

That I am told is the purpose of this application for a declaratory order.

The approach to the striking out of applications in this Court has been very clearly identified in the case of Robati v The Privileges Standing Committee of the Parliament of the Cook Islands and Anor (1993) CA 156/93 and dated the 7^th February 1994. that case dismissed a similar application to strike out the action commenced by Dr. Robati in this High Court. Mr Giles has advised the Court that a recent attempt to review that decision failed when the Privy Council dismissed the special leave petition. The relevance and importance of that decision is obvious and of course is binding on this Court.

I have no doubt that the several authorities relied upon by Mr Altments and accepted by Mr Giles in this application to strike out, will form an integral and very relevant part of the law to be applied at the hearing of the substantive claim for a declaratory order. In this context the very clear statement of the law that no Court has jurisdiction to make a declaratory order where it is required to deal with mixed questions of fact and law will be an issue of paramount importance in determining the applicants entitled to the orders he seeks. That application is to be heard on the 7^th July next subject to Counsel giving consideration to the provisions of S.7 of the Declaratory Judgments Act.

Adopting the principle I have enunciated and in exercise of the Courts discretionary jurisdiction in such matters, the application to strike out in respect of the two remaining Questions Numbers 1 and 2 is dismissed.

The question of costs is reserved.

DILLON J