Triad Pacific Petroleum Ltd v Maoate [2009] CKHC 1; Plaint 2.2009 (19 February 2009)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLAINT NO: 2/2009

BETWEEN:

TRIAD PACIFIC PETROLEUM LIMITED,
a duly incorporated company having its registered office at Rarotonga
Applicant

AND:

SIR TEREPAI MAOATE
as the Minister of Finance
First Respondent

AND

SHOLAN IVAITI
of Rarotonga, Financial Secretary pursuant to the MFEM Act
Second Respondent

AND

THE MINISTRY OF FINANCE AND ECONOMIC MANAGEMENT,
a department of State established by the
Ministry of Finance and Economic Management Act 1995-6.
Third Respondent

AND

COOK ISLANDS INVESTMENT CORPORATION
a statutory corporation established by the Cook Islands
Investment Corporation Act 1998
Fourth Respondent

AND

JOHN TINI
of Rarotonga, Chief Executive Officer pursuant to the CIIC Act
Fifth Respondent

Hearing: 19 February 2009 (NZ time)

Appearances: T Arnold for the Applicant
T Elikana, Solicitor-General

In attendance: P Allsworth, the Director of the Office of the Public
Expenditure Review Committee and Audit

Date of Judgment: 19 February 2009 (NZ time)

JUDGMENT OF NICHOLSON J

[1] On 26 January 2009 Triad Pacific Petroleum Limited (Triad) applied for declaratory orders, mandamus and orders pursuant to the Judicature Amendment Act 2008 (the Judicature Amendment Act) in respect of alleged exercise of statutory powers by five respondents as named and described in the entitling of the application.

[2] The alleged wrongful exercise of statutory powers related particularly to proposed purchase by the Government of a petroleum facility from Toa Petroleum Limited (the Toa facility). The applicant owns and runs a petroleum facility in competition with the Toa facility.

[3] On or about 28 January 2009 the Solicitor-General Mr T Elikana agreed to accept service of the application on behalf of the five respondents and copies of the application and statement of claim were served accordingly. At that time Mr Arnold, Counsel for Triad, invited Mr Elikana's views on timetabling.

[4] On or about 2 February 2009 Triad applied for interim declaratory orders relating to implementation of a Heads of Agreement for the purchase of the Toa facility and the borrowing of $5.5 million from the ANZ Bank for this. This application was supported by a 30 paragraph affidavit sworn on 2 February 2009 by Mr C Vaile, the managing director of Triad.

[5] On 9 February 2009 Mr Vaile swore a further affidavit referring to parts of a report on the Government's proposed changes to the Cook Islands fuel supply chain and the proposed purchase of the Toa facility by the Public Expenditure Review Committee (PERCA) which had just been tabled in Parliament.

[6] On 12 February 2009 Mr Arnold filed written submissions in support of the application for interim declarations. In this he said "After deferring consideration of the matter twice, last week, Cabinet earlier this week considered the issue of the fuel farm proposal and both Parliament and the public have been advised that the decision of Cabinet at that meeting was to "hold the purchase" of Toa Petroleum".

[7] Today I held a telephone hearing. No documents had been filed by or on behalf of any of the respondents. Mr Elikana said that he appeared only on a "watching brief" as he and the Crown Law Office had not received any instructions in the respect of the substantive or interim applications. Mr Allsworth said that the Audit Offices' investigation of the Toa acquisition had been hindered by refusal by the Government to give it a copy of the Toa "Heads of Agreement".

[8] The situation is very unsatisfactory. The documents filed by Triad appear to disclose many important, complex and serious issues to be tried. The respondents apparently have not even taken the preliminary step of instructing counsel to represent the Crown in the proceeding. In the circumstances I adjourn the hearing of the application until 12 noon Thursday 26 February 2009 (11.00 am, Friday 27 February 2009 - NZ time). Before then the respondents should instruct counsel to represent the Crown at that hearing.

[9] To preserve the status quo with the acquisition being "on hold" and having regard to the unanswered allegations of Triad, pursuant to s. 50F(2)(a) of the Judicature Amendment Act, I declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory powers relating to the acquisition of the Toa facility. This interim order can be reviewed at the adjourned hearing or earlier upon application on 24 hours notice by any party.

[10] At the adjourned hearing the Court will canvas issues of further pleading, affidavits, the discovery and inspection of documents and an overall timetable for future steps.

[11] Costs of and incidental to today's hearing are reserved.

[12] The Registrar is to forthwith give Mr Arnold and Mr Elikana a copy of this Judgment and in turn Mr Elikana is to forthwith give a copy of it to each of the five Respondents.

CM NICHOLSON J