kei mua i te aroaro o te rŌpŪ whakamana i te tiriti o ... · turi claims. 15. the discussions...
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KEI MUA I TE AROARO O TE RŌPŪ WHAKAMANA I TE TIRITI O WAITANGI BEFORE THE WAITANGI TRIBUNAL WAI 2575
IN THE MATTER OF the Treaty of Waitangi Act 1975
AND
IN THE MATTER OF the Health Services and Outcomes Kaupapa Inquiry
MEMORANDUM OF COUNSEL FOR THE CROWN WITH UPDATE ON MEETINGS WITH CLAIMANT COUNSEL
29 April 2020
CROWN LAW TE TARI TURE O TE KARAUNA
Pouaka Poutāpeta TE WHANGANUI-Ā-TARA
Waea Waea Whakaahua
Whakapā mai:
PO Box 2858 WELLINGTON 6140 Tel: 04 472 1719 Fax: 04 473 3482
Contacts:
Craig Linkhorn – Barrister instructed / Geoffrey Melvin [email protected] / [email protected]
Wai 2575, #3.2.210
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MAY IT PLEASE THE TRIBUNAL
1. On 9 April 2020, the Crown filed its initial statement of response to the
claims proposed to be consolidated and aggregated for hearing in the first
phase of stage two of this kaupapa inquiry – claims by or on behalf of
Māori with lived experience of disability.1 On 15 April, the Crown filed a
memorandum of counsel on how inquiry participants might approach the
interlocutory steps and timetabling for this phase of stage two.2 In these
documents, the Crown identified that a number of the claims made do not
yet disclose clearly material facts supporting the allegations made or are
insufficiently particularised. The Crown also raised some issues about the
most effective scope of this phase of the inquiry as well as some issues
about the jurisdiction of the Tribunal to inquire into some of the claims.
2. The Crown set out in the 15 April memorandum that it intended to meet
with claimant counsel over two weeks to discuss the pleadings issues raised,
noting that the Tribunal may have to rule on these issues if they could not
be resolved.
3. The Tribunal encouraged this approach and directed that these
conversations also be used to discuss the scope and jurisdictional issues
raised. The Tribunal directed the Crown, as an interim step, to update the
Tribunal on the outcome of the discussions by midday on 29 April 2020.3
4. Crown lawyers have had constructive discussions with a majority of
claimant counsel, collectively representing approximately 25 of the claims
proposed to be consolidated or aggregated in this phase of stage two of the
inquiry. A report on these meetings is set out below.
5. To date the Crown legal team has not been successful in arranging a
meeting with remaining claimant counsel. Counsel for the Crown will keep
trying to arrange this, recognising that many people’s work and life
commitments are very disrupted at this time in light of the Covid-19
pandemic.
1 Wai 2575, #1.3.002. 2 Wai 2575, #3.2.208. 3 Wai 2575, #2.6.23 at [1]
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Scope and jurisdictional issues
6. For the most part, the scope issues arising turn on resolving how to
organise this phase of the health services and outcomes kaupapa inquiry
efficiently and effectively. There is a risk of a domino effect into areas
beyond health services and outcomes. Lived experience of disability goes
beyond the disability support services provided by the health sector. Many
of the other areas over which claims might be made will themselves be the
subject of future inquiries – kaupapa or non-kaupapa inquiries.
7. In discussions to date with claimant counsel, the dimensions of these scope
issues have been identified to some extent but remain to be teased out
further in ongoing work and discussions. The objective is to identify
practical boundaries for topics that should be within this phase of stage two
and other topics that might be inquired into later in this kaupapa inquiry or
in other Tribunal inquiries.
8. No agreement has been reached to date on jurisdictional issues arising.
Further time can be productively spent continuing to explore the following
topics with affected claimant counsel in order to refine the jurisdictional
issues the Tribunal might be called to rule on in due course. At this point
these have been identified as:
8.1 “By or on behalf of” issues – for example, the extent to which
claims within scope about ACC are about matters undertaken by
the Crown or on behalf of the Crown;
8.2 Settled historical claim issues – whether a claimant’s historical
claims are already settled; and
8.3 Historical claims filed after the cut-off date for historical claims.
Pleadings issues
9. Counsel for the Crown have met with claimant counsel from Annette Sykes
& Co Ltd,4 Bennion Law,5 barristers Karen Feint QC and Erin James,6
4 Representing Wai 2713. 5 Representing Wai 2143. 6 Representing Wai 2943.
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barrister Siaosi Tofi, Rainey Collins,7 Right Law,8 Smail Legal Ltd,9 Tamaki
Legal,10 Te Mata Law,11 Tukau Law,12 Wackrow Williams & Davies,13 Whāia
Legal14 and Woodward Law Offices.15 Counsel for the Crown have also
corresponded with barrister Barney Tupara.16
10. The majority of claimant counsel with whom we have met have indicated
that they wish to take time to provide further detail in their claims
documents after the Crown’s initial statement of response. In some cases,
this may be done formally, through seeking to further amend statements of
claim; in others cases where there are fewer gaps in setting out material facts
in the allegations made, this may occur informally by providing the Crown
with additional details in order to enable the Crown to prepare a response
and for the next steps to occur of identifying live issues and arranging for
discovery of relevant information about those matters.
11. Other claimant counsel are still considering their clients’ position on
whether to produce more detailed allegations.
12. The following counsel have agreed to work further with the Crown on
providing more detailed claims: Annette Sykes & Co Ltd, barrister Barney
Tupara, Right Law, Tamaki Legal, Te Mata Law, Wackrow Williams &
Davies and Woodward Law Offices. The Crown will continue to work with
these counsel over the next four weeks to progress this. The Crown has
already received some further claim details from Right Law and Annette
Sykes and Co Ltd. The Crown considers this work might allow it to
develop agreed statements of fact with some claimants, which would further
refine the issues for inquiry.
13. The Crown is waiting to hear back from the following groups about
whether they will provide more detailed pleadings: Tukau Law, Rainey 7 Representing Wai 2109. 8 Representing the following Wai claims: 884, 1460, 1941, 2179 9 Representing Wai 2910. 10 Representing the following Wai claims: 2894, 762, 2005, 2743, 2863, 2869, 2893. 11 Representing the following Wai claims: 2672, 2624. 12 Representing the following Wai claims: 682, 1544, 1677. 13 Representing the following Wai claims: 1176, 1781, 2734, 2736 14 Representing Wai 2912. 15 Representing Wai 2644. 16 Representing the following Wai claims: 2006, 2682
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Collins, barristers Siaosi Tofi and Karen Feint QC and Erin James. It is
expected that responses will be received by 15 May with further discussion
to follow.
14. The Crown understands from Bennion Law that the Ngāti Turi claimants
are not practically able to provide more detailed pleadings at this time, in
part because of challenges associated with working with the Ngāti Turi
claimant community. The Crown will continue to work with Bennion Law
to develop a suggested approach to the Tribunal’s inquiry into the Ngāti
Turi claims.
15. The discussions with claimant counsel have been very useful. As part of
these discussions some ideas are emerging about claimant readiness and
how to progress inquiry into more than 40 registered Wai claims in a
practical way. Some sequencing is likely required, allowing groups who are
ready to move earlier to hearings than others who require more time. Issues
of readiness also arise because of the disruption experienced resulting from
the Covid-19 pandemic.
16. The Crown intends to continue to work directly with co-ordinating claimant
counsel and with each group of claimant counsel on these issues and
proposes a further report back to the Tribunal on progress on Friday
29 May 2020.
29 April 2020
C Linkhorn / G Melvin / A Lawson Counsel for the Crown
TO: The Registrar, Waitangi Tribunal AND TO: Claimant Counsel