This was a successful leapfrog application for leave to appeal to the Supreme Court on behalf of the Ngāi Tūmapūhia-Ā-Rangi Hapū.

Read the full decision here: Ngāi Tūmapūhia-Ā-Rangi Hapū v The Waitangi Tribunal [2021] NZSC 134

This case established the requirements needed to satisfy s 27 of the Property Law Act 2007.  It also clarified the law where a guarantor fails to sign a multi-guarantor contract.

Felix was only involved in the proceeding before the Supreme Court.  The case was brought in the District Court in 2013 for enforcement of alleged guarantee against Mr Brougham. He had signed a loan agreement as “guarantor” but had not executed a deed of guarantee. Another guarantor listed on the loan agreement had not signed.

Felix successfully argued that there was no guarantee. The terms of the guarantee need to be set out in writing not just a mere promise to be a guarantor. The failure of one of the guarantors to sign was also fatal to the claim that it was an enforceable guarantee. 

Read the full decision here: Brougham v Regan [2020] NZSC 118; [2020] 1 NZLR 315

This was a Government Inquiry established by the Attorney-General on 12 April 2018 under s 6(1)(c) of the Inquiries Act 2013.  It followed a 2017 book by Nicky Hager and Jon Stephenson, Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour.  The book made allegations about a 2010 military operation in Afghanistan called Operation Burnham.

Felix was counsel assisting Nicky Hager. The Inquiry produced many important findings which contradicted the narrative previously adhered to by the NZDF and vindicated the work of Messrs Hager and Stephenson.

Read the full decision here: Operation Burnham Inquiry Report

These are the costs decisions for the case decided in Waho v Te Kōhanga Reo National Trust [2018] NZHC 1935. Mr Waho was a trustee of the defendant found to have been wrongfully removed from that position. The Court had found that he acted “with a sense of personal integrity” and “in conformity with the contractual and fiduciary obligation on each member of the Board”.

Felix and James Mahuta-Coyle argued that Mr Waho was entitled to full indemnity costs from the defendant based on his position as a trustee and a right for indemnity under the Trust Deed. The defendant disputed Mr Waho’s right to indemnity and disputed the quantum as unreasonable, although it initially failed to detail the complaint of unreasonableness.

In its first costs judgment (Waho v Te Kōhanga Reo National Trust (costs) [2018 NZHC 3388), the Court upheld Mr Waho’s right to indemnification of legal costs from the Trust. The Court gave the defendant a further chance to detail its claim that the quantum sought was not reasonable. In its second judgement (Waho v Te Kōhanga Reo National Trust (costs 2) [2019] NZHC 1440), the Court held that the full amount sought by Mr Waho was reasonable.

Read the full decision here: Waho v Te Kōhanga Reo National Trust (costs) [2018] NZHC 3388; [2019] NZHC 1440

This defamation case marks a substantial development of defamation law in New Zealand. Felix acted for Sir Edward Taihakurei Durie and Donna Hall in relation to a publication by the Māori Television Service. Felix was initially led in the High Court by Richard Fowler QC. There, the MTS persuaded the Court to dismiss a strike-out brought against a novel public interest defence including a defence of neutral reportage previously rejected by the New Zealand courts (Durie v Gardiner [2017] 3 NZLR 72; [2017] NZHC 377, Mallon J).

That decision was appealed to the Court of Appeal and Felix acted as lead counsel, leading barrister Steven Price. They argued that while recognition of a new public interest defence is appropriate, the High Court erred in the scope and elements of that defence. The Court of Appeal reformulated the defences. Based on the details of the newly recognised defences, the Court of Appeal struck out MTS’s defence of neutral reportage for all publications, struck out all of the public interest defence for one publication, and commented that MTS faced difficulties with this defence in relation to all of its publications.

The case returned to the High Court for further interlocutory argument. In July 2019, the case was settled. The details of the settlement are confidential, but MTS broadcasted a comprehensive retraction and apology three times on its primetime news programme and posted that statement as a lead story on its news site for approximately three weeks.

Read the full decision here: Durie v Gardiner [2018] NZCA 278 Save

This was a high-profile case involving a significant New Zealand institution, Te Kōhanga Reo National Trust. Felix acted as lead counsel representing former trustee, Toni Waho. Mr Waho was removed as trustee after informing Ministers of the Crown responsible for the Trust’s funding that the Trust had received complaints of financial impropriety against its trustees, its staff, and staff of its wholly owned company.

Felix was able to overcome an initial ruling from MacKenzie J rejecting an injunction and holding that Mr Waho’s case was unarguable (Waho v Olsen-Rātana [2014] NZHC 2729, MacKenzie J). The appeal of that decision to the Court of Appeal did not result in an injunction, but the majority ruled that the case was arguable (Waho v Olsen-Rātana [2014] NZCA 612, France P, Harrison and French JJ).

Felix was joined by Mr Mahuta-Coyle and the case was heard at a 13-day hearing in 2017 before Clark J. Her Honour’s decision of 31 July 2018 upheld the claim. Mr Waho’s removal was declared unlawful. The High Court found that Mr Waho acted “with a sense of personal integrity” and “in conformity with the contractual and fiduciary obligation on each member of the Board”. He was awarded unpaid honorarium and costs.

Read the full decision here: Waho v Te Kōhanga Reo National Trust [2018] NZHC 1935

This was a high-profile defamation matter involving the Mayor of Invercargill, Sir Tim Shadbolt. Felix was sole counsel for the Mayor. He successfully opposed a strike out of the Mayor’s defence of honest opinion (Arnold v Fairfax New Zealand Ltd [2016] NZHC 379, Clifford J). The substantive claim was then dismissed after a three-week trial in 2018 before Mallon J and a jury. Felix then successfully defended an application to have the verdict set aside and obtained a substantial costs award for Sir Tim.

Read the full decision here: Arnold v Stuff Ltd [2018] NZHC 1641.

Based on his work in the Hager case, Felix was asked by Jonathan Eaton QC (now Eaton J) to assist in respond to this appeal in before the Supreme Court.  The Crown appeal raised two issues, and Felix responded to the second issue – warrantless Police requests for private information held by third parties. The appeal was successful, but the case established significant limits on that Police practice. The Police later conceded that this decision meant that actions in other cases, including in Hager, had been unlawful.

Read the full decision here: R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710.

This was a challenge to the decisions of the Ngāti Rangiteaorere Koromatua Council and its Validation Committee. The issue was who was validly a member of Ngāti Rangiteaorere in accordance with the Deed governing this Post Settlement Governance Entity. Felix successfully responded to these challenges on behalf of Ngāti Rangiteaorere.

Read the full decision here: Cookson-Ua v Morehu [2017] NZHC 1960.

This was a high-profile defamation matter involving the Mayor of Invercargill, Sir Tim Shadbolt. Felix was sole counsel for the Mayor. In this decision, Felix successfully opposed a strike out of the Mayor’s defence of honest opinion. The substantive claim was then dismissed after a three-week trial in 2018 before Mallon J and a jury. In a later decision, Felix successfully defended an application to have the verdict set aside and obtained a substantial costs award for Sir Tim (Arnold v Stuff Ltd [2018] NZHC 1641, Mallon J) .

Read the full decision here: Arnold v Fairfax New Zealand Ltd [2016] NZHC 379.

Mr Hager is a prominent journalist whose house was searched, and information held by third parties obtained, in a quest by Police to identify one of his sources. Mr Hager challenged the legality of the Police’s actions and sued for damages. Felix and Steven Price and were led by Julian Miles QC for stage one of the proceeding representing Mr Hager. The police search was ruled “fundamentally unlawful”. 

Felix continued the case as lead counsel for the determination of liability and damages. In 2018, Police agreed to publish extensive admissions of liability and to pay substantial amounts in costs and damages. Related proceedings were also brought on behalf of Mr Hager’s daughter. 

Read the full decision here: Hager v Attorney-General [2015] NZHC 3268.

Trustees of a Māori land trust had agreed to a geothermal powerplant project together with neighbouring land trusts despite
owning significant financial interest in the contract counterparties. This was done without consultation with beneficiaries. The MLC and MAC had dismissed applications by the beneficiaries ruling that there was no conflict of interest and no duty to consult.

Acting as sole counsel, Felix persuaded the Court of Appeal that there was a conflict and therefore a possible right of rescission. However, he failed to persuade that Court that there was a right of consultation stemming from the purposes of Te Ture Whenua Māori Act 1993 (Naera v Fenwick [2013] NZCA 353).

The Supreme Court granted leave on the question of what relief should follow the breach but refused leave on the question of consultation (Naera v Fenwick [2014] NZSC 58). In its substantive decision the Supreme Court upheld the breach and significantly altered the law in giving guidance on the relief that might flow from the breach. Despite refusing leave on the issue of consultation, the Court found that there is a need to interpret the deed, including possible consultation requirements, consistently with the purposes of the Te Ture Whenua Māori Act 1993. 

Read the full decision here: Fenwick v Naera [2015] NZSC 68.

Barrister Antony Shaw ask Felix to assist the appellants on this matter at a very late stage after the QC who was to lead the appeal was unable to attend. The Court of Appeal undertook a comprehensive review of the circumstances in which Baigent compensation and/or increased costs should be available when a breach of the New Zealand Bill of Rights Act 1990 is alleged. It remains the leading case in this area. 

Read the full decision here: Attorney-General v Van Essen [2015] NZCA 22.

This was a successful appeal to the High Court against a determination of the Environmental Protection Authority.  The EPA had held that organisms resulting from the use of the Zinc Finger Nuclease type 1 (ZFN-1) and Transcription Activator-Like Effector nucleases (TALEs) gene manipulation techniques were not genetically modified organisms under the Hazardous Substances and New Organisms Act 1996. Felix joined with Dr Matthew Palmer (now Palmer J) to challenge that decision on behalf of the Sustainability Council of New Zealand Trust.

The High Court upheld the challenge, finding that the EPO was not lawfully allowed to exempt the products of these techniques in accordance with the terms of the 1998 Regulations. Those Regulations could be reviewed or in accordance with the requirements of the Act. However, it was not open to the EPA to exempt new techniques because it thought that the Regulations ought to be amended in that way. 

Read the full decision here: Sustainability Council of New Zealand Trust v the Environmental Protections Authority [2014] NZHC 1067.

This was a shareholder prejudice claim between shareholders of Greymouth Holdings Limited. Felix was sole counsel for John Sturgess before the Court of Appeal.  Mr Sturgess appeal was dismissed but with directions for a sales process sought by Mr Sturgess.  The $10 million cross-appeal was also abandoned after Mr Sturgess’ written submissions in response were filed. The case provides significant guidance on the interpretation of s 174 of the Companies Act 1993.

Read the full decision here: Sturgess v Dunphy [2014] NZCA 266.

This case related to the New Zealand Māori Council’s National Freshwater and Geothermal Resources claim before the Waitangi Tribunal. Felix was sole counsel for the Council in Stage 1of the Inquiry before the Tribunal.  In its report (which you can read here: Stage 1 report in the National Fresh Water and Geothermal Resources Inquiry – Wai 2357/2358), the Tribunal held that Māori had interests in Freshwater that were protected under the Treaty of Waitangi. It further held that the nexus between the hydroelectric power assets that the Crown wished to sell and the Māori claim to rights in the water used by the power companies was sufficient to require a halt to the sale.

The Crown chose not to follow the Tribunal’s recommendation and the matter went to the Senior Courts to decide whether they should make a similar declaration. Felix acted as sole counsel for the New Zealand Māori Council. A leapfrog was granted to appeal the High Court’s decision directly to the Supreme Court (NZMC v Attorney-General [2012] NZSC 115). 

Felix was led by Colin Carruthers QC before the Supreme Court. The Crown gave an array of undertakings and commitments to protect and progress Māori water right claims before the Supreme Court. The Court did not grant the declaration, but only the basis of those undertakings which were set out in the judgment. 

Read the full decision here: NZMC v Attorney-General [2013] NZSC 6.

A Standards Committee of the New Zealand Law Society had made a finding of unsatisfactory conduct against B under s 152(2)(b) of the Lawyers and Conveyancers Act 2006, but had not determined to censure B under s 156(1)(b). The High Court held that in those circumstances the NZLS could not publish B’s name in connection with the finding of unsatisfactory conduct. The NZLS sought to appeal this decision before the Court of Appeal. B had been declared bankrupt. The Court of Appeal therefore appointed Felix to appear as amicus curiae to respond to the appeal. Felix’s submissions were accepted by the Court and the NZLS appeal was dismissed.

Read the full decision here: New Zealand Law Society v B [2013] NZCA 156.

This case raised the issue of whether ACC compensation was available for someone who became pregnant after a tubal ligation. On the basis of an earlier Court of Appeal decision, the Accident Compensation Corporation denied compensation on the basis that pregnancy could not fall within the definition of an injury cause by accident. As a preliminary issue in defence of a damages claim, Dr Allenby sought to challenge this ruling. 

Felix was instructed to intervene on behalf of the organisation Doctors for Sexual Abuse Care. The ACC’s interpretation meant that foreign citizens who were visiting or working temporarily in New Zealand, and who became pregnant as a result of rape, were left to fund their own terminations. DSAC wished to bring this to the Supreme Court’s attention and to seek an interpretation of the Accident Compensation Act that would provide cover for these women. 

Felix drafted a successful intervention application. He participated in the hearing before the Supreme Court on behalf of DSAC as sole counsel.  The Supreme Court acknowledged the issue of foreign rape victims and adopted a new interpretation of the Accident Compensation Act that meant that both H and foreign rape victim received cover. 

Read the full decision here: Allenby v H [2012] NZSC 33.

This was a Supreme Court appeal against a conviction for Offensive Behaviour. Valery Morse had burned a New Zealand flag at an ANZAC Day dawn service as part of an anti war protest. The conviction given in te District Court has been upheld in the High Court and Court of Appeal. 

Felix assisted with drafting the successful leave application. He then joined barristers Antony Shaw and Steven Price in arguing the appeal before the Supreme Court. Felix successfully argued that the statutory context of this offence, together with human rights considerations, meant that a conviction could not be upheld in the absence of a disturbance of the peace. 

Read the full decision here: Morse v Police [2011] NZSC 45.

This was one of only a small number of New Zealand criminal cases ever granted leave for a full hearing before the Privy Council. Felix assisted Greg King at an oral leave hearing in 2008. The Crown challenged the jurisdiction of the Court and it was decided that this issue would be heard in full together with the merits of the appeal at a full hearing in 2009. Felix appeared again with Greg King at the full hearing with the role of arguing the jurisdictional point. The appeal was ultimately unsuccessful on its merits, but the Privy Council ruled for Mr Barlow and against the Crown on the jurisdictional point. 

Read the full decision here: Barlow v R [2009] UKPC 30