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Originating application

 

R 19.2 to 19.4 of the High Court rules provide for proceedings that can be commenced by originating application. In addition r 19.5 provides that proceedings that do not come under r 19.2 to 19.4 can be commenced by way of originating application if it is in the interests of justice to do so. In Hong Kong and Shanghai Banking Corporation Ltd v Erceg, the High Court reviewed a number of decisions on applications brought under r 19.5 and stated at [25] that:

These cases show that the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a type of proceeding tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of crossclaims or counterclaims.

Matau v Fusi, an unsuccessful application to commence proceedings regarding a dispute within a Tuvaluan church community over who are the trustees of a charitable trust established by the Church and which rules govern their church community, provides guidance regarding the application of the interests of justice test.  Gordon J noting at [18] that:

“In my view, applying the interests of justice test, this is not a proceeding which should be commenced by originating application. My reasons are as follows:

(a) There are three substantial and detailed affidavits filed in support of the application. It appears clear that there are facts here which create a potential for controversy between the parties.

(b) It is apparent that the factual issues will not be within a narrow compass.

(c) There are five respondents and some of the respondents are comprised of multiple individuals.

(d) Notwithstanding the detail that has already been provided by way of the affidavit evidence, that does not obviate the need for discovery.

(e) Given Mr Pidgeon’s indication that the rules of the Charitable Trust Board are not clear and will be a large part of the contentious element, this is not a simple case of, e.g. applying statutory tests.”

While the applicants’ wish for a speedy resolution of matters was acknowledged, Gordon J declined the application after weighing that against the matters referred to above.

References:

  • High Court Rules, r 19.5
  • Matau v Fusi [2017] 3210
  • Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 at [25]

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