Instead of a cage, sentence them to a trade

Instead of sentencing them to a cage, sentence them to a trade - then everyone is a winner 

The Moloch Barrier

Moloch is a game theory that exemplifies our participation in a race that could lead to our downfall, yet we continue to play due to the fear of others gaining an advantage that we are unaware of. This is evident not only in politics but also in the endless commercialisation and corporate imperialism that dominate our economy. Although we recognise the need to shift to sustainable and safer energy sources or halt the exploitation of the environment, we hesitate to do so because we fear that other countries such as India, China, and Russia will not follow suit.

Our desire to win at all costs has led us to explore dangerous territory such as nuclear armaments, gene editing, particle accelerators, and artificial general intelligence despite being aware of the risks. We are unwilling to stop playing because we fear others will continue and we believe in the idea that we cannot afford to fall behind. This pattern of behavior is a Moloch, where the desire to win outweighs the consequences, even if it leads to self-destruction.

In politics, politicians spend money on specific sectors to gain votes, but this does not yield any positive outcomes. The problem lies not with the game itself but with the force that compels politicians to play. Despite the solution being apparent, nobody is willing to implement it due to the fear of backlash from the media and political opposition. A collective effort is required to stop, but this is unlikely as each participant fears that others will continue to play, leading to the perpetuation of this destructive game theory. That's why modernising democracy is necessary and why I am sponsoring the 4th Hand Project because the current path is leading us towards doom.

There is a theory that suggests the Moloch Barrier may be responsible for preventing most civilisations from advancing beyond a particular stage in their development. It's possible that countless stars, galaxies, planets, and billions of other civilisations have reached our level of progress but were unable to surpass the Moloch Barrier. It's conceivable that nature intended us to participate in this game, to screw ourselves up and that events such as the particle accelerator, operating at precisely the right energy frequency, can trigger the necessary supernova for the ongoing expansion of space, along with the seeds and blueprints for the consciousness we develop. The atoms that make up our being have been many other things before they became part of us. According to scientific observations, when sperm fertilises an egg, it releases a flash of zinc. Maybe this is the moment that this cluster of atoms connects with the universe we are a part of. Ultimately, energy is never destroyed; it simply reassembles itself after things settle down.

The 4th Hand Project - Leadership Accountability Law

Leadership Accountability Law 

Introduction: The credibility of politicians and the functioning of the government is at an all-time low. Many of us have experienced a sense of frustration and helplessness as we witness our political elite dictating their agenda to us.

Even when their actions are negligent or illegal, the lack of accountability leaves us with limited options for recourse, exacerbating the severity of the situation.

The complete lack of responsibility has played a significant role in the decline of New Zealand, emphasising the urgent need for immediate and comprehensive reform. Simply voting for another political party or charismatic leader is insufficient to address the deep-rooted flaws in our democracy and governance, especially when it comes to the crucial issue of accountability. Despite attempts at transparency through reviews and consultations, these processes are often predetermined or influenced by powerful interest groups, further undermining public trust.

The proposed legislation would give the Leadership Accountability Court (LAC) the power to order a rectification notice within 30 days if a decision is unsound. Those who obstruct the LAC's efforts could face dismissal or even arrest. 

By weeding out bad actors and holding decision-makers accountable, the LAC would help attract better-quality public servants and candidates for public office.

The 4th Hand Project is a grassroots movement aimed at effecting change by flooding existing political parties with new or existing members demanding they urgently implement new leadership accountability laws. This will provide us all a fighting chance to obtain truth and accountability from public officials who are supposed to work for the collective good. 

Currently, the government has no department tasked with evaluating the decisions made by those exercising the power of the state, and the lack of accountability has contributed to the decline of the country. 

It is critical for people to have a practical and effective way to hold those involved in state decisions accountable for their actions.

The proposed Leadership Accountability Court (LAC) will be an independent court that can process complaints against politicians, judges, local council and public servant actors, members of the media, and government employees, holding them responsible for unreasonable, unethical, unfair, or wrong actions. 

The LAC aims to ensure that government employees act in the best interests of citizens and improve the functioning of government while minimising disruptions to daily life. 

In the current adversarial system, those in public office are often able to stall or refuse to answer complaints. This allows bad actors to learn how to manipulate the system for their own benefit, rising to the top and delivering little value to those they are supposed to serve. 

True democracy would surely allow people the easy ability to obtain accountability and transparency from those in power, and to question their actions to ensure fairness and justice.

Proposed Procedure

1. A citizen who is aggrieved with the action or inaction of a Responsible Person over which the Court has jurisdiction can make a complaint to the Leadership Accountability Court (LAC) for a hearing.

2. In order to make such a complaint, [three] experts in a relevant field must provide written approval that the action or inaction complained about is prima facie unreasonable, unethical, inequitable or unconscionable .

3. On receipt of the [three] written approvals, the LAC must schedule a hearing at the first available time. There is no discretion to reject the application.

4. The hearings will be presided over by a qualified single LAC Judge, salaried and appointed by the government, who need not be a lawyer. LAC Judges will be government officials, and their own decisions subject to the jurisdiction of the Leadership Accountability Court .  

5. All hearings will be virtual. Evidence and expert opinion shall be heard virtually. Juries will sit and deliberate virtually.

6. Jurors will be selected from a randomly generated pool from the electoral register, who shall then pass a basic assessment to qualify them for the LAC jury pool.

7. Parties may be represented at hearings, or may represent themselves. Legal aid will be provided if required.

8. If the relevant official chooses not to attend the hearing or be represented, the jury may draw an adverse conclusion from such a lack of cooperation, although this is not a presumption of proof of the complaint.

9. There will be 11 members of a LAC jury. Verdicts will be by simple majority, and may only be “proved” or “unproved”. Neither juries nor LAC Judges will be empowered to award damages to the complainant.

10. The function of the Leadership Accountability Judge will mainly be administrative. The judge may not make any summary of the facts of the case to the jury, but shall remind the jury of the burden of proof on the complainant (balance of probabilities) and explain the concept of unreasonable, unethical, inequitable or unconscionable conduct to the jury. The judge may make no indication to the jury of his/her opinion on whether the burden of proof has been satisfied by the complainant.

11. If the jury finds the complaint proved, the LAC Judge will make an order that the relevant individual address the inequity within 30 days. The LAC Judge has no discretion to make any other order. If the inequity is not addressed within 30 days to the satisfaction of the complainant, acting reasonably, the complainant may return to the Court and, unless contested, the LAC Judge must make an order requiring the government/employer to dismiss the relevant Responsible Person. If contested, the same jury will be re-empanelled to decide, on the balance of probabilities, if the proved complaint has been addressed by the official. If the jury, by simple majority, decides that the complaint has not been addressed, the LAC Judge will make a dismissal order. The LAC Judge will have no discretion to make any other order.

12. There shall be no appeal from the decision of the jury or the order of a LAC Judge. Refusal to obey a dismissal order of a LAC Judge will be treated as contempt of court and result in immediate arrest and imprisonment until the dismissal order is complied with.

How to get Accountability from a system that refuses to change? 

Whether through the establishment of a new political party or by convincing existing political parties and their members to outvote the ignorant old guard to make the 4th Hand Project official party policy will ensure its a short step into law so we can all be protected from idiots in power. The 4th Hand Movement is committed to advancing robust accountability measures to uphold our democratic principles, as well as safeguarding our sovereignty, developing a competitive advantage and promoting a unified nation governed by a consistent set of laws that hold all individuals, particularly those in positions of power, accountable. There is no reason to excuse any tax paid leader from laws that regulate non government persons. Opportunistic self interest exploitation of public assets and power are a continuing risk for every community. 

We also propose implementing a system that holds public officials accountable for their actions or inactions that contribute to corruption. This could include the imposition of financial penalties and incarceration for individuals who knowingly or negligently ignore complaints about corrupt practices. This would serve as a powerful deterrent against corruption and send a clear message that such behaviour will not be tolerated in our society.

Why hold the media accountable? 

People need to know the facts in order to make informed decisions. In the past 40 years the media now referred to as ‘the corporate media’ has shifted from publishing unbiased information to publishing often false or misleading propaganda in an attempt to manipulate the public narrative for some hidden agenda. 

In what ways can you offer assistance? 

By spreading the word about the 4th Hand Movement, you are actively contributing to the modernisation of our democracy. You have the power to use this tool to promote change and create a better future for our nation. It is crucial that we engage in conversations with our fellow New Zealanders and emphasise that the government is a trust structure owned by all of us. Therefore, it is our collective responsibility to establish the rules and regulations that govern our society. Let us work together to promote accountability in government and pave the way for a stronger, more responsive democracy.

The need for implementing leadership accountability laws is urgent and critical for the survival of our nation. The current state of governance has resulted in extremely serious problems and it is imperative that we all act now to prevent further deterioration. It is our responsibility to raise awareness about this issue and demand immediate action from those in power. The future of our country is at stake and we cannot afford to delay any longer. We must come together and work towards building a government that is accountable and responsive to the needs of the people.

The 4th Hand Project  - The People's “Hand” on Government Power  

Modernising Democracy - New Zealand 2023

Start at 4m22s it explains everything that’s been destroying our society. 

https://m.youtube.com/watch?fbclid=IwAR3Hx0aWGo3lVvLBcvn9Q64Z9MJjsNJ2oLdAFMOr6jSjvriZkh13JYtJ3l0&v=rBZ6-Rvuaa4&feature=youtu.be

Apartheid New Zealand - Judges caught lying in the Matakana Island litigation because they favoured Maori - The Evidence

If anyone asks what Chris Wingate is complaining about it's this: 

That what certain judges wrote in the Matakana Island litigation was not only false, the judges manipulated the actual hard evidence. And when judges manipulate evidence in an act of blatant fraud, victims are powerless, the system is corrupt.

The background to the Matakana Island litigation was simple.

I needed to borrow $5m to buy a 10,000 acre land and forest asset called Matakana Island Forests for $20m. The price I had negotiated down from over $30m after talks with Sir Selwyn Cushing then chairman of Carter Holt Harvey. $15.75m of the purchase price was coming from Kanematsu Corporation after endless negotiations who were buying the 17-34 year forests.

The bank we  approached was a privately owned bank called FAR Financial. Trouble was they were broke and had a horror background of lying to the public and doing dodgy deals. The bank was desperate so no sooner than we gave them over 120 pages of how our deal was structured, they stole our information  and made a deal for themselves with 2 other companies, ITT Rayonier and Ernslaw One. The bank ended up with the land owned under a $100 shelf company called Caldora Holdings. The legal relationship that protects people from that type of theft is fiduciary law whose purpose is to prevent the likes of banks or financial advisors from exploiting confidential information.

No sooner than we began litigation the defendants made a deal to sell the 10,000 acres of land to a Maori group called Te Kotukutuku Corporation (TKC).  Standing in the way of the bank/ Maori TKC deal were 2 things. Our caveats which were registered on the title to protect our property rights. And our case against the defendants. But in early 1994 the Crown, Ministers of Land, and Finance, together with the Crown Law Office got Greig J in the Wellington High Court to lift our caveats allowing the bank to sell the land to Maori. The Maori took control of the assets on the basis they would accept the outcome of our claims against the bank. 

In 1997 we won, the bank was clearly guilty. The judgment by Temm J was delivered after a 4 week hearing was then appealed. We lost the appeal. Court of Appeal judges Gault and Blanchard wrote judgments that were utterly false and that can be easily confirmed by reading the judgment by Sir Ted Thomas who sets out all the evidence and the law. Thomas J was clearly angry at what the other judges were doing. We then appealed that decision to the Privy Council and we lost with the judgment written by New Zealand judge Henry J. 

The complaint here is that Maori were given special favours. The Crown, made up of both Cabinet Ministers and senior judges, were manipulating the law and the record of facts. Not only did they assist Maori in getting 10,000 acres of my private property they also got more than $4m to fund lawyers to fight me. By 2007 leaders of the Iwi sold the “sacred land” and walked away with millions and the people of Ngai Te Rangi iwi got nothing. 

The Evidence in the Arklow case: 

1. I put the judges into two groups to identify what they are saying on the key points:

Arklow / Wingate “Win” in Blue

Arklow / Wingate “Lose” in Red 

The “red group” of judges against Arklow / Wingate directly infer that:

Arklow Wingate could never settle the purchase of Matakana Island. Paragraph 9

Arklow Wingate was never vulnerable to the actions of FAR Financial. That the relationship wasn't fiduciary. Paragraph 17 

FAR never copied the Arklow business strategies . Paragraph 35  

FAR Financial had no interest in buying the land. Paragraph 43

FAR Financial was simply a broker acting on behalf of Ernslaw and ITT Rayonier.Paragraph 52 

The evidence is clear- the judges against Arklow Wingate lost probity- why? Paragraph 59

2.   Arklow/Wingate “win” - Justices Temm, Fisher and Thomas say:

..the bank is guilty- its directors caught lying on their only defence, evidence of guilt everywhere you look, the bank was broke, their cheques bouncing, overdraft exceeding when they pinched the Arklow Wingate deal. 

3.   On May 5 1997 Justice Paul Temm handed down his decision after a 4 week trial. Arklow Wingate won with Justice Temm stating: 

“To put the matter in the vernacular FAR Financial pinched Arklow’s information and ran off with a pocket full of money.”  

Justice Temm died May 25 1997.

4.   Then in 1998 the NZ Court of Appeal overturned the High Court judgment of Temm J in a 4/1 decision. The minority decision by Sir Ted Thomas said:

“But I do not consider that this meticulous examination should have been required in this case. Temm J's findings were amply supported by the evidence and there are no exceptional circumstances which would justify differing from his conclusions…”

“I would be less than frank if I did not confess to a lack of satisfaction, and certainly no pride, in a judgment as long as this judgment. But I also feel that the length is not entirely of my own making. Once this Court accepted counsel's invitation to enter upon a complete review of the facts, there is no alternative but to undertake a thorough review of the evidence.  Having regard to the fact that the hearing before Temm J lasted three weeks and that in that time he heard the evidence of 30 witnesses, this is necessarily a formidable task. Once in issue, there is no substitute for a ``meticulous examination of the facts''. 

5.   Against Wingate/Arklow, Arklow “lose”, were Justices Greig (94), Gault, & Blanchard (98) and Henry (99) say:

They refer to the merchant bank FAR Financial as a ‘broker’ who got Arklow’s ‘trivial’ business plans in an ‘arm's-length’ relationship, that no fiduciary elements exist and no evidence existed they copied the Arklow deal.

6.   Greig J 1994 - 

“Taking up all these matters my conclusion is that the Arklow Wingate case is not just a weak case but one which is not a serious case to be tried.” 

7.   Gault J 1998 - 

“The relationship was of one party voluntarily choosing to disclose to the other information in circumstances in which they could not be said to be other than at arm's length. Far undertook no duty (other than to respect confidence) with which it could be said their interests conflicted'' 

The judges against Arklow Wingate offered no evidence as to what they said. They just make specific statements; they wave a blanket idea that the bank is innocent. The purpose of fiduciary law is to prevent the likes of a bank from exploiting its special position. A position of trust in exactly this type of relationship where a client is looking for money and they approach a bank and show them how a deal was being assembled, a deal in which the client, in this case Arklow Investments, Christopher Wingate would be making a profit. The very moment the bank is made aware of how that profit is being made then the relationship becomes fiduciary because the client to the bank becomes vulnerable to the bank using that information to make itself profits at the expense of the client.  

8.   Thomas J 1998 said:

 “The business plan'' Mr Wingate had undoubtedly done a great deal of work in producing what he called Arklow's ``business plan''. Temm J described it, correctly I believe, as a ``complete workable scheme''. In broad terms it comprised the acquisition of Matakana Island for $20m, a figure at net present value (NPV) which the receivers would accept. The mature timber over 17 years old would be sold to Kanematsu at up to $15.75m. Funding would be required for the balance of $4m to $5m. In the result, the island could be acquired at no cost to Arklow and would be able to be developed as a major residential and tourist development.”

9.    Arklow Wingate could never settle the purchase of Matakana Island. 

10.   *Greig J 94 says-  

“At no relevant time would Arklow have been able to purchase and complete the transaction.” 

11.   Gault J 98 says-

 “...there is no indication that anyone else, and particularly Mr Wingate, was able to meet the receivers' terms up until February 1993.”

12. Blanchard J 98 says- 

“They had Kanematsu Corporation of Japan (Kanematsu) showing definite interest but its offer was heavily tagged and incapable of acceptance…..then there may be doubt about whether the evidence of the Spencer deal can be taken at face value…”

13. Henry J 99 says- 

 “Its prospects of successfully concluding an agreement with the receivers was not shown to have been adversely affected by FAR’s use of that knowledge. As the majority of the Court of Appeal held, supported by Blanchard J, there is no basis upon which Arklow could be entitled to relief.” 

14. Thomas J says- 

“Nor do I consider it acceptable to dismiss the involvement of the Spencer group, or the bona fides of that group's proposed participation, out of hand. The general manager and managing director of the group at the time categorically stated in evidence that by 8 February 1993 Mr Spencer and the Spencer group were committed to advancing the necessary funds to Arklow to enable it to complete the purchase of Matakana Island…This direct evidence should be accepted. One of the receivers acknowledged in evidence that an unconditional offer of $20m NPV from Arklow with proof of capacity from Kanematsu and Mr Spencer or the Spencer group to complete the transaction would have been acceptable to them but for their commitment to the FAR, ITT and Ernslaw consortium.”

15.   Direct Evidence of Steve Wilson:  

“I am a manager of Kanematsu NZ Ltd. In February 1993 Kanematsu agreed to pay $15.75m for the older forestry.”

16.   Direct Evidence of Richard Schofield: 

“I was previously a general manager and managing director within the Spencer Group of Companies. I can state quite clearly that by 8 February 1993 Spencer was committed to advancing the necessary funds to Arklow to enable it to complete the purchase. I am aware that the only reason the moneys were not ultimately advanced to Arklow was because other parties (Far Financial) were able to reach agreement with the receivers first.”

17.  Arklow Wingate was never vulnerable to the actions of FAR Financial. That the relationship wasn't fiduciary. 

18.  Greig J 94  said

 “The Arklow Wingate case is not just a weak case but one which is not a serious case to be tried.”

19.   Gault J 98 said

 “Therefore, even if the information as to the status of the Wingate project as 60 percent complete (a very considerable over-assessment in fact), were to be classed as confidential information (and it was not so claimed), we can see no basis on which he or his company would now be entitled to relief.”

20.   Blanchard J 98  said-

 “Because we have concluded that there was no actionable breach of fiduciary duty or of confidence by the Far interests the appeal is allowed.” … I reach the conclusion that FAR was for a short period (prior to 15 July 1992) in breach of a duty to Arklow not to pursue its own interests without informing Arklow that it was not interested in acting for Arklow. I also conclude that FAR misused confidential information both before and after 15 July. However, both breaches, especially the former, were relatively minor ones and neither was in the end result causative of any loss to Arklow. They did not contribute in any material respect to the advantage which FAR gained when the final contract with the receivers was signed in February 1992, or even when the offer made in November was accepted. 

…”A duty of loyalty to Arklow came into existence when FAR did not signal at the meeting on 15 June or when communicating the terms on which it would work for Arklow (the mandate document) that it had an intention of separately pursuing its own interests in relation to Matakana. It was not enough to say, as Mr Graham is said to have done, that FAR had looked at Matakana but had no commitment. That was misleading, or at least became so when FAR began to pursue Matakana for itself. By agreeing to Arklow's stipulation for confidentiality in such circumstances FAR placed itself in a position in which it was not free to proceed independently without first giving notice of termination.”

21.   Henry J 99 asks- 

“Did FAR owe a duty of loyalty to Arklow?” … Their Lordships are unable to see an evidential basis for finding that a relationship of trust and confidence, in this sense of undertaking an obligation of loyalty, arose in these circumstances. “ 

 

22.   Thomas J: 

“Did FAR act contrary to Arklow's interests? “I do not need to dwell long on the question whether FAR acted contrary to Arklow's interests. Clearly it did. FAR's activity following the meeting on 15 June more than justifies the Judge's conclusion that the company was ``galvanised into activity''. The known steps taken by FAR may be listed as follows (15 June and 15 July are in bold type to indicate the extent of FAR's activity in the intervening period):”

“I consider that FAR breached its fiduciary obligation. After initially indicating an appreciation of its duty to Arklow, it set about putting its own deal together involving ITT and, later, Ernslaw… 

FAR was galvanised into activity, and began to put together the deal with ITT and Ernslaw some time before the mandate was withdrawn on 15 July.” 

23. The financial position of the bank ten days before they got the Arklow Wingate business strategies. FAR Financial Services Limited letter to: Mr Murray Stewart National Bank of New Zealand Wellington By Hand 5 June 1992 -

“Dear Murray Thank you very much for approving our interim facility of the present overdraft level plus the two car automatic payments and allowing for the $1,580 to go back out on proviso that the $2,000 cheque that Bruce Bartley had reversed on us comes back in. Kind regards FAR Financial Services Ltd Ian Smith Director”

25. Banking Industry Expert reporting on this situation:  

Thomas said  re Pryke: 

“The only independent expert to give evidence on the point was a Mr Pryke. He was called by Arklow. His credentials as a company director, a financial adviser, and a practising merchant banker are impressive. He was asked what is the standard practice in the merchant banking/investment banking industry in relation to the receipt of information by the adviser from a client or potential client and, in particular, what the adviser might properly do with the information and how the adviser might properly act following receipt. He was asked whether the standard practice would be different depending on various variables. 

Mr Pryke prefaced his opinion by expressing his view as to why industry practice places such a significant onus and obligation on the adviser. Merchant bankers and investment bankers/financial advisers, he said, offer a very distinct service to potential clients in determining whether a proposed venture is viable or is likely to produce returns which would be regarded by the client as acceptable, and assisting to obtain or locate the necessary funding required to enable the venture to proceed. As such, he said, the client is approaching the adviser ``purely with a view to the advisor assisting in advancing the client's interests.''

Mr Pryke confirmed the standard practice as being that, as soon as a potential client has approached an adviser for financial advice or assistance and the adviser receives information from the potential client about the proposed venture, the adviser is absolutely precluded from using that information in any way ``other than would be consistent with acting in the potential client's interests.'' The adviser would never subsequently take steps that might ``in any way adversely affect the potential client's interest.'' Where the adviser, on its own behalf or on behalf of another client, is already interested in some way in the venture to be pursued by the potential client, then, as soon as the adviser identifies that fact or possibility, he or she immediately ends any discussion or communication with the potential client and simply advises that they cannot act. They invite the potential client to approach another adviser.

A hypothetical situation was then put to Mr Pryke and he was asked to comment on what the standard industry practice would have required in that hypothetical situation. It includes, in brief outline, the facts accepted by the Judge in this case. In such a fact situation Mr Pryke stated, the standard industry practice is abundantly clear. In allowing Arklow to disclose to it the proposed venture, together with the basic information required to proceed with that venture, and in offering to provide the services which were being sought by Arklow, FAR could not subsequently act ``in any way contrary to Arklow's interest in relation to that venture.'' Mr Pryke said that this is the position irrespective whether the ``information given to FAR was either wholly within the public domain, or confidential or expressed to be confidential, or already within FAR's knowledge'' and ``whether or not FAR's offer is accepted.'' In the circumstances, as soon as the acquisition of Matakana Island was mentioned, FAR would have indicated that it could not continue the discussion and would have invited Arklow to seek alternative advice or assistance. Sending out a mandate to act is wholly inconsistent with what the industry would do if the adviser was in any way already interested in pursuing the proposed venture or was otherwise aware of it and wished to retain the possibility of pursuing it in the future.

Mr Pryke's evidence was not shaken in cross-examination. The questions put to him were framed in terms of an organisation acting for two parties and being required to keep confidential the information of one party from the other. The trial Judge clarified that in Mr Pryke's opinion there should be fully informed consent by both parties if the firm is to act for both. But, as will be quickly appreciated, this line of questioning did not reflect the  factual situation. This was not a case of a merchant bank acting for two parties and disclosing that fact to the party seeking advice or assistance.”

26.   Gault J 98 says re Pryke 

“The relationship was of one party voluntarily choosing to disclose to the other information in circumstances in which they could not be said to be other than at arm's length. Far undertook no duty (other than to respect confidence) with which it could be said their interests conflicted. The relationship between 16 June and 15 July 1992 was one in which Far, after preliminary disclosure, was waiting to hear whether the prospective client wished to retain them, whilst Mr Wingate had no intention of doing so. Far had expressly required a commitment from the prospective client before providing advice or undertaking representation. In that situation we cannot see that the law should regard the relationship as one giving rise to duties of loyalty and fidelity. Even if the position were otherwise, any fiduciary relationship came to an end at the latest when the mandate was withdrawn on 15 July, if not when Mr Wingate decided he had no interest in furthering the relationship in view of the terms set out in the mandate.

These conclusions are contrary to evidence given of practice in the merchant banking/investment banking industry. That practice was said by Mr Pryke to require that if a potential client approaches an adviser for financial advice or assistance, as soon as the adviser receives information about the proposed venture, the adviser can never subsequently take steps that might in any way adversely affect the potential client's interest save with the client's consent even if all the relevant information is public. Without qualification by reference to confidential information this is too widely stated because of the infinite duration of the prohibition. Further, it would seem to preclude, for example, a bank considering applications for possible mortgage finance from customers who intended competing at a public auction or a firm of accountants advising a client in connection with normal business activities long after it is known a former client or potential client trading as a competitor has gone to other accountants. It requires that there need not be any nexus between the proposed venture disclosed and the interests that might be adversely affected. Certainly the law society rule of practice preventing practitioners acting against former clients is narrower and Mr Pryke in cross-examination agreed that the two standards are similar. Such rules of practice (and in the present case it is not said to be a rule) are not to be equated with the law. They may assist, however, in consideration of what might be the reasonable expectations of the parties. But as the Privy Council said in Re Goldcorp Exchange Ltd (In Receivership): Kensington v Liggett [1994] 3 NZLR 385 at p 400 ``high expectations do not necessarily lead to equitable remedies.''

Accordingly, we are satisfied that, if his judgment is to be construed as finding fiduciary obligations going beyond the duty not to disclose or misuse confidential information, the Judge was in error.”

28.   Banking and lawyer conduct

After FAR and ITT Rayonier signed a conditional contract with the receivers in November 1992 one of their directors, lawyer Peter Marriot, began acting for Ngai Te Rangi iwi and Te Kotukutuku. Marriot never told his Maori clients he had a conflict of interest, but the Maori group were looking for funding so Marriot introduced them to FAR - namely CEO Ian Smith. The very purpose of getting this meeting going was to steal information from the Maori group who were opposing the “ITT Rayonier” deal to buy Matakana island. ITT was the only identified party at that stage. The identity of Far and Ernslaw wasn't made public until after the agreement to purchase went unconditional in February 1993. On the 7th of December 1992 Smith wrote a letter to his other partners in the project- ITT Rayonier and Ernslaw One and it's worth noting what he said. 

29.  7 December 1992 FAR Financial [Smith] to ITT and Ernslaw -

“The following is sent to ensure that there are no misunderstandings due to non communication. Also we believe that it is important that all actions at this point are collectively agreed and brief memos would appear the best way to ensure this from all sides.  Given the problems that are being encountered at present FAR is progressing, thinking down several paths on the following bases: 

Priority 1 Ensure that the deal as it is currently signed is consummated. If this proves not possible in due course then Priority 2  Have an alternative action plan that leaves Ernslaw, ITT and FAR Forestry in the same position as if the existing deal had progressed as drafted. In the event that this too is not possible:  Priority 3 Have a further alternative that ensures the sale and purchase proceeds and that it delivers as much of the expected result of the existing deal as possible to each party.  Most of our thinking on Priorities 2 and 3 have been and will continue to be internal, mainly because we still believe it is unlikely that the deal will be blocked from progressing as is and also because we would prefer not to waste time and go too far down these paths until it becomes more evident we need to. ……

….Kotukutuku- I was introduced to the Kotukutuku group by their lawyer who works with FAR from time to time, Their lawyer rang us because he knows we work in the forestry sector and thought we might be able to assist the Kotukutuku in achieving their objectives.  I met with Graham Ingham on Saturday morning. I made it clear that: I might or might not know anything about the situation I might or might not be able to assist in any way I might or might not have an absolute conflict of interest. I was not accepting any brief of any nature to act for Kotukutuku. And that in general I was there to listen to his story but reserved any and all rights of action to act thereafter as I chose. 

Simply put Kotukutuku want to: "Own the island" Assist their fellow Maori to gain wealth and employment.  I pointed out that as far as I was aware the island was in fact a number of titles, some privately owned and some Maori owned. I enquired as to which of these they desired to own. The answer was as much as possible. As with most of these sorts of discussions, funding capacity and timing of the same was fairly up in the air so I doubt that he has the capacity at this point in time.”

30. Peter Marriot was going to be a witness in the trial before Temm J but didn't show up after no doubt warned off given the cross examination I (Wingate) did of FAR CEO Ian Smith where I grilled him over his relationship and loans he had obtained from law firm Hornblow Carran. But this header is from Marriott's brief of evidence.

30.   PETER MARRIOTT : "I was a director of FAR 1992 to 1995. I am a solicitor from 1988 onwards with the firm, Hornblow Carran Kurta & Bell "

30.   When lawyer Peter Marriot who was a director of FAR took his clients TKC to FAR he took them there because TKC was looking for funding to buy Matakana Island. Both Marriott and Smith knew they were using the limited access confidential meeting for one single purpose - to  extract information that would benefit FAR and harm TKC.

30.  27 November 1992 Hornblow Carran [Marriott] to DRT (Deloitte Ross Tomatsu)  Re Matakana Island - 

“We have received instructions to act for Te Kotukutuku Corporation and also for the people of Ngai Terangi and related Iwi who comprise that company.  The company has submitted a bid for the purchase of property on the island held in receivership. We refer to the offer contained in the letter of 28 April 1992 and subsequent reiteration of the offer dated 23 September 1992. Our client notes there has been no conclusive response to the offer….”

35. FAR never copied the Arklow business strategies 

36.   Gault J:

“There is no indication that the figures were regarded as for the same age class of trees.” - trees offered by FAR to ITT are 1974 and older- 17-34 year forest.”

37.   Yet evidence was a letter FAR sent to ITT dated July 28 1992 a few weeks after getting our strategy . In this letter FAR are offering the 1400 ha of age classes up to 1974 - which is the 17-34 year forest for $15.6m.

FAR Financial Consultants Limited  letter 28 July 1992 Messrs Andy Wiltshire & Peter Berg ITT Rayonier (N.Z.) Limited …”What is required is fine tuning of the values of the various components of the offer.  As FAR Financial Consultants Ltd ("FAR Financial") acting for FAR Forestry I am currently carrying out this process with the other parties FAR Financial intends to introduce to enable FAR Forestry to complete the transaction. …...Apart from updating you on progress, this letter is to address in a focused way the price which ITT (subject of course to a written contract and the fulfilment of all ITT required conditions) would pay for the est 1400 ha of age classes up to 1974.  The ITT price  from the discussion yesterday you indicated that (should a deal progress) a price range in the vicinity of NZ$15m might be appropriate. Having analysed FAR Forestry's residual position I feel that should ITT be able to pay a price-of NZ $15.6m there would be a very good probability of closing the transaction.”

39.   FAR Financials own internal worksheets dated May 1992 had zero mention of them involved with Matakana Island.

43. FAR Financial had no interest in buying the land. 

44.   Gault J 98-  

“After withdrawing the offer of services to Arklow, Far proceeded to work in facilitation of a transaction in which ITT would buy the older age class trees and Ernslaw would buy the younger age class trees and the land. They tried to secure an exclusive option for a period to protect the time and expense being committed by the two clients in assessing the proposition.” 

45. Blanchard J 98 said- 

“FAR was interested in dealing with the forests, not in a property development. It did not proceed on the basis of constructing a deal under which it would get the land for nothing.”

46. Henry J 99 said- 

“FAR proceeded to broker arrangements with other parties for the purchase of the island, which ultimately led to the February 1993 sale now in question.”

47. Evidence showed FAR wanted the land.

48.   September 1st 1992:- “FAR Financial Consultants Limited- PROPOSAL TO CML/JOSEPH BANKS TRUSTS for the FUNDING/UNDERWRITING OF A SECURITIZED FORESTRY INVESTMENT - Prepared by F C Graham – IW Smith I September 1992 Proposal to CML/Joseph Banks Trust for the underwriting, funding of a securitised forestry investment: 

“The Far group through Far Forestry is working to secure a long-term land resource known as Matakana Island. Far Financial Consultants is the investment banking arm of the Far group. As such it is acting to facilitate Far Forestry’s objective by managing for Far Forestry its purchase of Matakana and the packaging and on sale of the existing forests. FAR is contributing significantly to the purchase of Matakana from its own resources.”

50.   5 January 1993 statutory declaration- 

“I, IAN WILSON SMITH of Wellington, Company Director solemnly and sincerely declare: 

That I am a director of CALDORA HOLDINGS LIMITED ("the purchaser") the purchaser of the land described in the Schedule hereto.  

And the purchaser has entered into the transaction solely on its own behalf as the person beneficially entitled thereunder.”

51.   March 12 1993 affidavit of  FAR CEO Ian Wilson Smith-

 BETWEEN NGAI-TERANGI and others- First to Third Plaintiffs - AND THE MINISTER OF LANDS and others- First to Tenth Defendants-  

 I, IAN WILSON SMITH, of Wellington, - Company Director swear:

 “I have been a director of FAR Forestry Investments Limited, ("FAR Forestry") the Eighth Defendant in these proceedings and am currently a director of Caldora Holdings Limited ("Caldora") the Tenth Defendant in these proceedings. In my capacity as a Director of FAR Financial Consultants Limited ("FAR Financial" - a company related to FAR Forestry) I have negotiated on behalf of FAR Forestry and Caldora the transactions at issue in these proceedings. I am authorised to make this affidavit on behalf of both these parties. …..directors of FAR Financial considered that the sale of the Matakana Assets presented a worthwhile business investment opportunity in a New Zealand forest which would be of appeal to a range of investors. To this end FAR Financial held discussions with various parties with a view to finding an investor or investors which would allow FAR Financial or related companies within the FAR group to take advantage of the opportunity Matakana presented. 

At this stage FAR Financial's plans as to how the FAR group could profit from the Matakana opportunity were reasonably flexible. FAR Financial was concerned to secure a fee for its services but in addition was cognisant that it might be possible for a FAR company to purchase the Matakana Assets with funding made available from the contemporaneous on-sale of only some of those assets. 

In this regard FAR Financial was hopeful that if a successful sale of the Matakana forestry rights to outside investors could be arranged then it may be possible for FAR Forestry to be left in a position where it owned all the freehold land of Matakana Island, the mill together with other substantial assets. 

As the result of its knowledge of the forestry investment industry FAR Financial decided to approach ITT Rayonier (New Zealand) Limited, the sixth defendant ("ITT"). This would have been in the latter half of 1992. ITT indicated an interest in purchasing the forestry rights of the older forests on Matakana Island but made it clear that it did not wish to purchase the younger forests, the mill or any land associated with Matakana Island. FAR Financial was aware that the Receiver was not prepared to sell the Matakana Assets on a piecemeal basis. This made it necessary for FAR Financial to endeavour to identify a purchaser for the younger forests if  ITT was to be a participant. As well as other parties FAR Financial approached Ernslaw One Limited, the seventh defendant ("Ernslaw"). FAR Financial was aware that Ernslaw was actively involved in forestry in New Zealand and considered that it might be interested in the opportunity presented on Matakana. This was confirmed in discussion with Ernslaw which indicated a willingness to purchase a forestry right in respect of the younger forest on Matakana Island. Having established a genuine interest on the part of ITT and Ernslaw FAR Financial then commenced negotiations with the Receiver whereby FAR Forestry would purchase the Matakana Assets some of which would then be on-sold to ITT and Ernslaw.” 

52. FAR Financial was simply a broker acting on behalf of Ernslaw and ITT Rayonier.

53.   Blanchard J 98 said- 

“FAR was interested in dealing with the forests, not in a property development. It did not proceed on the basis of constructing a deal under which it would get the land for nothing.”

54. Henry J 99 said- 

“FAR proceeded to broker arrangements with other parties for the purchase of the island, which ultimately led to the February 1993 sale now in question.”

55. Evidence FAR was not a broker this was a FAR led deal 

56.   16 October 1992:- “T P Greville  (ITT Rayonier’s Lawyer)  to ( FAR’s lawyer )- J D Fanselow Esc/ Barrister G Solicitor WELLINGTON. 

“We have been engaged to act for ITT Rayonier New Zealand Limited in respect of the proposed Matakana Island transaction. If we could summarise our principal concerns these are first that whilst it is not the intention of ITT Rayonier in any fashion to undermine the position of your client in having put this transaction together, it would from a legal perspective be highly preferable for our client to be dealing either direct with the Receiver of MFL or contracting directly with Ernslaw One Limited. If this were possible the document could be greatly shortened, warranties could be attended to and a separate arrangement no doubt completed with your client.” 

57. Thomas J 1998 Court of Appeal in Arklow v Maclean said: 

The central question in issue in this appeal is whether the trial Judge's finding that, in the circumstances of this case, the appellant (FAR) owed the respondent Arklow Investments Ltd (Arklow) a fiduciary duty and acted in breach of that duty is to be upheld.

A secondary, and very much subsidiary issue, is whether the Judge's finding that FAR misused confidential information is sustainable.

The trial Judge was Temm J. He heard evidence for a period of three weeks. In a reserved decision delivered on 5 May 1997 [(High Court, Auckland, CP 49/97], the learned Judge found in favour of Arklow. Much of his judgment is devoted to the resolution of strongly contested questions of fact.

Having regard to the argument before us, it may be prudent to clarify at the outset that the learned Judge was not asked to determine Arklow's relief, and he did not do so. He did not purport to decide that Arklow was entitled to a constructive trust over assets acquired by reason of the breach of fiduciary duty. That question could only properly be addressed at a further trial following the Court's finding on liability in response to the issues submitted to the Court pursuant to R 418 of the High Court Rules. It is only then that the relief to be granted, including the question of whether or not a constructive trust is applicable, will be in issue.

In this judgment I have not sought to distinguish between the various companies in the FAR group of companies. It is convenient, and does no harm to the substance of the case, to use the generic term ``FAR''.

 A horse can be made to drink!

I would be less than frank if I did not confess to a lack of satisfaction, and certainly no pride, in a judgment as long as this judgment. But I also feel that the length is not entirely of my own making. Once this Court accepted counsel's invitation to enter upon a complete review of the facts, there is no alternative but to undertake a thorough review of the evidence.  Having regard to the fact that the hearing before Temm J lasted three weeks and that in that time he heard the evidence of 30 witnesses, this is necessarily a formidable task. Once in issue, there is no substitute for a ``meticulous examination of the facts''. See the dictum of Lord Scarman in National Westminster Bank plc v Morgan [1985] 1 All ER 821 at p 831. But I do not consider that this meticulous examination should have been required in this case. Temm J's findings were amply supported by the evidence and there are no exceptional circumstances which would justify differing from his conclusions. See Nocton v Lord Ashburton [1914] AC 932 per Viscount Haldane LC at p 957. Having undertaken a comprehensive examination of the evidence, however, I should make it clear that I am confirmed in my view that the experienced trial Judge in this case possessed a real advantage in making findings of fact and assessing the credibility of the various witnesses.

Because of its length, I have divided this judgment into two parts; first, the judgment proper and, secondly, an addendum containing a review of the evidence. The relegation of this review to an addendum, however, does not mean that the facts of this case do not remain of prime importance.

The judgment proceeds on the basis that the addendum is read at this point. The references in brackets in the addendum are references to the bound volumes submitted to this Court as part of the case on appeal and the reference, ``Supp'', is a reference to the supplementary documents produced by Mr Judd QC, appearing for Arklow, during the course of the hearing in this Court…

I consider that FAR breached its fiduciary obligation. After initially indicating an appreciation of its duty to Arklow, it set about putting its own deal together involving ITT and, later, Ernslaw… 

FAR was galvanised into activity, and began to put together the deal with ITT and Ernslaw some time before the mandate was withdrawn on 15 July. I do not consider that an interpretation that FAR simply sped up or accelerated its efforts to form its own consortium to acquire Matakana Island is open to the Court… 

That deal eventuated and became the successful bid in early 1993. But the process began in the month between 15 June 1992 and 15 July 1992. It is in that period that FAR acted contrary to Arklow's interests when it was not entitled to do so… Once it is accepted that this information was confidential, it is clear that FAR proceeded to use the information other than for the purpose for which it had been conveyed. 

In short, FAR used the information for the purpose of putting together its own deal rather than for the purpose of obtaining the necessary funding to complete Arklow's proposal. It used the information to advance a competing deal which eventually deprived Arklow of the opportunity of being the successful bidder.

I believe the trial Judge's findings of fact were sound and that, on the basis of those facts, FAR were under a fiduciary duty from 15 June 1992 to 15 July 1992 not to act contrary to Arklow's interests. It breached that duty by taking steps to put its own deal together. In the process, and subsequently, FAR utilised confidential information which had been imparted by Arklow. I would therefore dismiss the appeal, and answer the issues as follows: 

If it is necessary to answer this issue, yes, the detriment being the loss of opportunity to complete a successful bid to purchase Matakana Island.

“...“(i) ``The business plan'' Mr Wingate had undoubtedly done a great deal of work in producing what he called Arklow's ``business plan''. Temm J described it, correctly I believe, as a ``complete workable scheme''. In broad terms it comprised the acquisition of Matakana Island for $20m, a figure at net present value (NPV) which the receivers would accept. The mature timber over 17 years old would be sold to Kanematsu at up to $15.75m. Funding would be required for the balance of $4m to $5m. In the result, the island could be acquired at no cost to Arklow and would be able to be developed as a major residential and tourist development.

The core element of Arklow's business plan was the commitment of a major forestry company, Kanematsu, to purchase the trees over 17 years old. The exchange of faxes, read together with the documents following the 15 June meeting, indicate the enormous difficulty and complexity in obtaining a commitment from a major participant naturally inclined to protect its own position at every step. While Kanematsu may not have executed a contract, it is nevertheless clear from the correspondence and internal faxes that, by the end of March 1992, Kanematsu were prepared to pay $13m for the mature trees and, by the end of May 1992, to contribute by way of secured loan a further $2.75m, making a total of $15.75m

Nor do I consider that it is appropriate to hazard the conclusion that Arklow's attempts to purchase Matakana Island were doomed to come to naught or would necessarily have failed to obtain acceptance by the receivers. 

Arklow had the substantial advantage of having obtained the support of a major purchaser for the mature forest. While, as at 15 June, the commitment of Kanematsu was not contractually binding it was as firm as could reasonably be expected until the remainder of the transaction was in place. 

On the face of it, with $15.75m procurable, and the value of the balance of the forest providing an equity of $4m to $5m, the deal was, to use Mr Smith's words a ``good deal'' which, now in Mr Graham's words, was a ``do-able'' deal. 

Nor do I consider it acceptable to dismiss the involvement of the Spencer group, or the bona fides of that group's proposed participation, out of hand. The general manager and managing director of the group at the time categorically stated in evidence that by 8 February 1993 Mr Spencer and the Spencer group were committed to advancing the necessary funds to Arklow to enable it to complete the purchase of Matakana Island. 

This direct evidence should be accepted. One of the receivers acknowledged in evidence that an unconditional offer of $20m NPV from Arklow with proof of capacity from Kanematsu and Mr Spencer or the Spencer group to complete the transaction would have been acceptable to them but for their commitment to the FAR, ITT and Ernslaw consortium.

Did FAR act contrary to Arklow's interests? “I do not need to dwell long on the question whether FAR acted contrary to Arklow's interests. Clearly it did. FAR's activity following the meeting on 15 June more than justifies the Judge's conclusion that the company was ``galvanised into activity''. The known steps taken by FAR may be listed as follows (15 June and 15 July are in bold type to indicate the extent of FAR's activity in the intervening period):

15 June 1992 - the meeting is held at FAR's offices.

15 June - [according to FAR verbal evidence] a discussion took place between the FAR directors as to whether to act for Arklow or ``progress the ITT path''.

16 June - the mandate was sent to Arklow.

16 June - Mr Smith rang Mr Olsen advising him that Arklow was 60 percent complete with a deal which would suit the receivers but, as it was likely not to proceed, he would come back to Mr Olsen. 

18 June - Mr Smith rang Mr Olsen again and reiterated that if Arklow's project proceeded Olsens would not be needed, and referred to a ``substantial organisation'' keen to have Olsens involved in both feasibility and, probably, management.

18 June - Mr Walkinton had a discussion with Mr Wiltshire of ITT. This was undoubtedly when ITT learned that the ``prospect on FAR's books'' was Matakana. 

Last two weeks of June - FAR received Arklow's information memorandum from Mr Bailey.

Last two weeks of June - Mr Walkinton communicated with Ernslaw about Matakana and concluded that Ernslaw's proposal ``looked very real''.

Late June/early July - Mr Smith spoke to Mr Bailey on the telephone and asked him if Arklow would be receptive to dealing with another party rather than Kanematsu.

3 July - the FAR directors met with the receivers.

3 July - FAR received an information schedule and package from the receivers.

3 - 8 July - FAR requested further information from the receivers.

8 July - FAR received the further information relating to the latest age class distribution of the forestry.

10 July - Mr Smith requested a meeting with Mr Margiotta of ITT and his fellow directors in either Wellington or Auckland at any time in July or August.

Prior to 13 July - FAR arranged for representatives of ITT and the company to inspect the forest on Matakana Island.

13 July - FAR and ITT carried out a joint inspection of the forest on Matakana Island.

Prior to or on 15 July - FAR met with the receivers and sought to establish an arrangement whereby the receivers would pay FAR commission should it introduce an acceptable deal. This arrangement would preclude Arklow as it related only to purchasers ``introduced'' by FAR.

15 July - FAR wrote withdrawing the mandate.

23 July - the receivers confirmed FAR's requested arrangement for payment of a commission for a successful bid ``introduced'' by it.

Late July - FAR sought an option from the receivers which would ``nullify the competition for the option period'' - including Arklow.

27 July - a meeting was held between FAR and ITT at which FAR made an ``offer'' involving other parties to enable it to ``complete the transaction''.

13 July - 18 August - a number of further communications took place between FAR and ITT.

17 August - a draft sale and purchase agreement between ITT and FAR was sent to the receivers.

20 August - the receivers advised FAR they were not prepared to accept the option proposal.

1 September - FAR made a proposal to CML Joseph Banks Trust seeking to complete a deal under which FAR would own the land.

5 September - FAR made a proposal to Ramsey Roundwood seeking to complete the deal under which FAR would also own the land.

September - November - the deal involving FAR, ITT and Ernslaw which was finally acceptable to the receivers was put together.

19 November - the receivers executed an agreement, conditional on statutory consents being obtained, with FAR, ITT and Ernslaw.

5 February 1993 - the receivers executed an unconditional agreement with FAR, ITT and Ernslaw.”...

1. Thomas J said:- 

FAR's progress prior to 15 June- I entertain no doubts that FAR had not made the progress it claimed in putting a deal together in respect of Matakana Island. Certainly, it can be accepted that the forest on Matakana Island was discussed with Mr Olsen from late 1991 and that such communications continued into 1992. As Mr Smith indicated, Mr Olsen was seen as a valuable contact. A number of records indicate that Matakana may have been mentioned in conversations as from 23 March. But these conversations were certainly no more than expressions of continuing interest or general inquiries as to the potential of the forest and the possibility of a deal which would involve FAR. The handwritten note made by Mr Smith on the copy of the letter to Mr Olsen dated 23 February 1992 is firm evidence of this interest. It indicates that Mr Smith spoke to Mr Olsen on 2 March and discussed his interest in Matakana Island at $21m to $27m.

The evidence is clear that anything like a firm deal in respect of Matakana Island was not raised with Ernslaw until after 15 June. It seems fairly conclusive that Mr Walkinton contacted Mr Johnston of Ernslaw about Matakana some time during the last two weeks of June. Mr Johnston of Ernslaw accepted, or came close to accepting, that this was so in cross-examination.

It is therefore impossible to accept that FAR was advanced in advising either ITT or Ernslaw as to the purchase of the Matakana timber or that they had seriously begun to put a deal together for the purchase of the acquisition prior to the 15 June meeting.

The ersatz 31 May 1992 spreadsheet

The FAR directors' evidence is frequently founded on the veracity of the 31 May calculations. In fact, it is clear from the evidence that this document was not completed on 31 May or at any time before the meeting on 15 June. Mr Walkinton was not so much upset as routed on this issue by Mr Ingram in cross-examination. Temm J was correct to find, as a necessary consequence, that most of Mr Walkinton's evidence as to the detailed knowledge he possessed before 15 June about the value of the forest on Matakana Island had to be rejected. Nor is his reason for declining to accept the evidence of Mr Smith and Mr Graham seriously open to challenge having regard to the extent to which both witnesses relied on Mr Walkinton's evidence of his calculations prior to the meeting with Mr Bailey. What was to have been a critical piece of documentary evidence supporting the oral evidence of the FAR directors simply backfired.

 Mr Smith's telephone conversations with Mr Olsen

The file notes made by Mr Olsen of his conversations with Mr Smith on 16 and 18 June are critical. They demonstrate a number of points: 

FAR's perception that Arklow's project was ``60% complete''.

The possibility of succeeding in putting a deal together on the basis of a split of $15m to $16m for the forest and $5m to $6m in real estate.

The knowledge that such a deal would suit the receiver.

FAR's acceptance that Arklow had first claim on its services, that is, to provide funding. It would only be if Arklow's project failed that FAR would be able to involve Olsen.

Recognition by FAR of some element of confidentiality in that Arklow's name is not disclosed.

Reference to the role which would be ascribed to Olsen if Arklow's deal did not proceed indicates:

That FAR had not reached the stage of defining Olsen's role previously; and the outline of the deal FAR would seek to put together if it were in a position to do so.

The mandate as a basis for negotiation

Although Mr Bailey sent FAR Arklow's information memorandum towards the end of June, neither he nor Mr Wingate responded to FAR's letter of 16 June and the mandate enclosed under cover of that letter…. It may be noted that neither ITT or Ernslaw executed a mandate.

FAR is unenthusiastic about pursuing Arklow's interests

The evidence as to what transpired following the meeting confirms that the FAR directors, or at least Mr Smith and Mr Walkinton, were unenthusiastic about pursuing Arklow's interests. In the post-meeting discussion ITT was seen as a better prospect, both in respect of a deal relating to Matakana and in the longer term in relation to other forestry products. Mr Smith at once checked to confirm that Mr Olsen would be free to work with FAR. But a mandate was nevertheless sent to Arklow on the apparent basis that FAR were obliged to stay with that company if its project proceeded. All the evidence would point to a decision being made at this post-meeting discussion to the effect that, if Arklow's proposal did not proceed, FAR would then explore or pursue the possibility of putting a deal together involving Olsen and ITT. At some point, obviously before the mandate was withdrawn, this contingent proposal became a reality and FAR were ``galvanised into activity'' in pursuit of its own independent deal.

It may also be noted that FAR's observation in the letter forwarding the mandate that securing funding might be more difficult because of the nature of the commitment to be entered into by a financier and the fact that ``attempts to sell Matakana had been public knowledge for a long time'' does not suggest that FAR was well advanced in putting a deal together. Nor does it suggest Matakana had previously been viewed as a particularly inviting prospect. Nor does it suggest any urgency….

The business plan

The business plan undoubtedly had considerable value to FAR in terms of putting together its own deal. It at once had a realistic price to work in the knowledge that, prior to entering into negotiations with the receivers, it would be acceptable to them. 

It possessed a valuation of the forest carried out by a forestry consultant. It knew the worth of the mature trees to an international forestry company. The knowledge that an international forestry company was prepared to commit itself to the purchase of the trees over 17 years old and made available by way of a purchase price or additional secured sum, the sum of $15.75m, would be of considerable value in stimulating the interests of another forestry company. The deal could be approached with significantly more confidence. 

There must necessarily be a vast difference between approaching a prospective participant with estimates and calculations on the one hand, or approaching that party with the firm knowledge that a competitor was prepared to commit itself to the purchase of the mature forest, presumably after carrying out a full investigation as is practice within the industry. 

As Mr Graham observed in cross-examination, ``the association of Kanematsu and the way the case was presented'' caused him to regard it as a ``reasonably serious suggestion''. 

FAR also knew that the level of additional funding required to complete a purchase acceptable to the receivers was $4m to $5m and the value of the less mature trees which were available for milling by another party to assist bridge the gap to the purchase price. Any ``do-able deal was attractive'', as Mr Graham said, adding that he believed Arklow's proposal was ``do-able''. 

FAR also knew, as Mr Graham also conceded, that the land, once cleared, had considerable potential value for tourist and residential development, knowledge which would possibly explain why FAR initially sought to put together a deal under which it would own the land itself. 

Overall, FAR knew that a deal along the lines proposed by Arklow was viable, or as Mr Smith said, ``feasible''. In answering a question from the Judge, he said he saw Arklow's plan as being a ``good deal'' 

The causes of action were not conflated

The fact that Temm J adverted to FAR's use of information in the course of finding that there had been a breach of fiduciary duty does not mean that he ``conflated'' one cause of action into the other. Irrespective whether the information was confidential or not, it was this information which FAR used in taking steps to set up its own transaction. It comprised Arklow's business opportunity. In putting together its own deal utilising the information acquired from Arklow, FAR acted in breach of its fiduciary duty not to act contrary to Arklow's interests. The fact that information was used in the process does not mean that the cause of action in confidence was ``conflated'' into the cause of action for breach of fiduciary duty. It is simply part of the proof of that cause of action.

…...Apart from the trial Judge's explicit finding, there is no plausible explanation for FAR's known activity prior to 15 July when the mandate was withdrawn except that it was engaged in the pursuit of an alternative deal in which FAR and ITT would be the primary parties and Arklow would be excluded. 

If nothing else, FAR's arrangement of a joint inspection of the Matakana forest by ITT and its representatives on 13 July 1992, knowing that Arklow would not accept ITT in substitution for Kanematsu, demonstrates that a separate deal was being pursued. Furthermore, the speed with which events developed following 15 July demonstrate that the groundwork had been done with ITT by that date and that the advantage, that is, the ``60%'' lead which Arklow enjoyed on 15 June, had been or was being eroded.”

58. The Flawed Privy Council Decision

 Eminent Canadian law Professor Robert Flannigan wrote in the law review:

 “One notable [and flawed] exception is the Privy Council decision in Arklow Investments Ltd v MacLean.' Although Justice Henry cited Lord Millett's remarks, he added some curious propositions of his own. He described the duty of loyalty as a "concept [that] encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognize, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal".  He offered no authority for this "legitimate expectation" test, nor did he employ the idea in his subsequent analysis. The more curious proposition, however, was his apparent requirement for mutuality: "Put shortly, there was no mutuality giving rise to the undertaking or imposition of a duty of loyalty."' The suggestion seems to be that some sort of relationship above and beyond the receipt of confidential information was required for fiduciary responsibility.  The acceptance of confidential information, however, is a sufficient basis for fiduciary accountability. Recipients have a limited access. It is not necessary that negotiating parties ultimately agree that one will act on behalf of the other in the course of any proposed use of the information. In this case, the negotiations in which the information was disclosed in fact failed to produce an agreement.”

59.   The evidence is clear- the judges against Arklow Wingate lost probity- why?

The bank’s business partners included John Eichelbaum, the chief justice's son, a barrister (who also represented the bank during the Matakana litigation). Mr Eichelbaum was with law firm Chen Palmer. Senior partner is New Zealand's most important figure in Maori jurisprudence, Sir Geoffrey Palmer KCMG AC QC PC the 33rd Prime Minister of New Zealand, the 39th Minister of Justice and the 26th Attorney General.  The bank and (Arklow v Maclean witness) Michael Reeves also set up Lombard Finance with Hon Bill Jeffries the 40th Minister of Justice with Sir Douglas Graham KNZM PC 1st Minister for Treaty of Waitangi Negotiations and 41st Minister of Justice and on 21 May 1998 Mr Graham was appointed as a member of the Privy Council. 

60. Crown Policy on Treaty Matters

61.   Sir Geoffrey Palmer's book, Reform, noted: 

The Department of Justice came into its own in helping to provide proper advice for the Government on Treaty issues. I obtained from Cabinet authority to set up in Justice a unit to deal with the Crown response to Treaty negotiations. It was headed by my former academic colleague, Alex Frame, who had a deep interest in these issues. The unit had several purposes: to act as the centre within Government for the Crown’s policy on Treaty matters, to generate that policy, to coordinate the activities of other departments on the Treaty and negotiate directly with Māori on claims”. The Treaty unit and Alex Frame were the main authors of the report later adopted by Cabinet and published on 4 July as “Principles for Crown Action on the Treaty of Waitangi.” Some thought it was a self-serving declaration designed to allow the Crown to avoid obligations. But there was no intent in this document to rewrite the Treaty. It was designed to have a clear statement of where the Government stood so departments and agencies could have clarity. Some of them had bizarre ideas of what the Treaty entailed. We needed clear principles that would be applied by the whole government system and that is what we got. There were five principles: Kawanatanga – the principle of government; Rangatiratanga – the principle of self-government; Equality; Cooperation; Redress. The statement developed each of these principles crisply. The advantage of the effort was that it gave the government a place upon which to stand. They were designed to provide a framework for action by one Treaty partner.

62.   The Ngai Te Rangi iwi’s claim to get ownership of the Matakana island land before Greig J in 1994 was represented by David Baragwanath QC. 

63. In his study paper 9, MÄORI CUSTOM AND VALUES IN NEW ZEALAND LAW written when Mr Baragwanath was President of the Law Commission, 2001:

Para 118 “The drive for tikanga to be recognised becomes more urgent as the Crown increasingly seeks to divest itself of land and resources. Mäori are striving to have the values that underlie tikanga preserved by whatever means possible, including legislation and by the courts.

128 - In discussing the values, we also discuss a number of related concepts. These are: tikanga tangata – social organisation; tikanga rangatira – leadership; and tikanga whenua – land. 

195: The connections with land are reflected in all five of the underlying tikanga

values identified above. Whanaungatanga or the relationship with land, mana or

the power and authority which hapü and iwi derive from it, utu or the reciprocal. 

203: In recent years, judges are increasingly being required to develop an understanding of Mäori cultural values and practices and how they apply to particular situations that confront them.

207: The discretionary powers of the courts are an important mechanism in enabling the common law to retain respect and acceptability in a more informed, more critical, and more demanding modern society. They allow judges to determine how principles should be prioritised to ensure that justice is best served in the instant case.

208: In exercising its discretion, whether sourced in statute, the courts’ inherent

jurisdiction or the power of review, the court will often need to take into account

Mäori values.

 Courts have long been able to draw on principles and material outside the text of particular statutes when considering the interpretation or application of the statutes. They do this for a variety of purposes, one being to protect and promote other principles and values that are external to the statute.

Where the courts have stated that it is appropriate in interpreting a statute to

permit or even to require reference to the Treaty of Waitangi or Mäori interests

even where the statute makes no reference to it.

The judgement is also authority for a number of other notable points, including that: legislation can be interpreted and the common law developed by reference to other statutes even though they are not directly in point; the Treaty has had significant statutory recognition; Mäori spiritual values are relevant; and courts increasingly take account of treaties and other international instruments even if the statute does not mention them. The judgment includes an extensive and valuable review of many other cases concerning the Treaty.

For example, section 29 Te Ture Whenua Mäori Act 1993 allows the Minister of Mäori Affairs, the Chief Executive of Te Puni Kökiri, or the Chief Judge of the Mäori Land Court to refer any matter for inquiry to the Court. Where such an inquiry concerns a matter of tikanga, the Chief Judge shall appoint two or more persons with “knowledge and experience of tikanga Mäori” to the court. This means that evidence as to tikanga in section 30 applications will be required. The problems and issues relating to the operation of section 30 are set out in the Law Commission’s advisory report for Te Puni Kökiri – Determining Representation Rights under Te Ture Whenua Mäori Act 1993, published as a companion paper to this One. 

The Treaty has been a rallying point for diverse claims, listed by the then

Chairperson of the Tribunal in 1986 as follows:

There are claims to particular land, hunting and fishing rights.

There are claims with regard to rivers, lakes, foreshores, and harbours.

There are claims to the just redress of past dispossessions and land losses.

There are claims to the better accommodation of Mäori preferences in law,

including for example, environmental laws, land laws, laws affecting the placement and adoption of children, laws governing the right to bring group actions and even laws on criminal matters and the punishment or treatment of offenders.

There are claims to a greater involvement in national administration, in Legislature, Public Service, Judiciary and Local Government.

There are claims seeking a greater awareness of Mäori attitude, culture and beliefs within the general public and the more sensitive provision of many Government Services.

The Tribunal has expressed the opinion that the Treaty guarantees oblige the Crown to take positive action in the protection of Mäori Treaty interests. Implicit in this principle is the idea that the Crown cannot avoid its duty of active

protection by delegating responsibilities to others.

The Tribunal considers it a fundamental principle of the Treaty that the Crown owes a fiduciary duty of good faith to Mäori.

This principle recognises the Crown obligation to protect, preserve and promote the economic development of Mäori. This includes: a duty to ensure that Mäori are now left with sufficient land and other resources for their maintenance and support and livelihood and that each hapü maintaines a sufficient endowment for its foreseen needs.

64. The Pre-existing Crown Obligations To Maori

In order to justify their objective, Justice’s Greig 1994, Gault 1998 and Henry 1999, adopted Kant’s theory that in order to “bring forth” the needed Maori transition, the judges' activism was founded on what they perceived as their “awareness of duty” and thus acted morally.  Their action was deemed moral using Kant’s logic even though their actions destroyed Arklow Wingate lawful rights as they imposed their hidden agenda of assisting Maori as required under the Treaty of Waitangi. While I accept that official decision making can be driven by “extra-legal” factors,  the Crown upheld its side of their Treaty partnership obligations at my expense.

65. Yet the Matakana Island Waitangi claim was  the work of Matakana Maori researcher Mr Sonny Tawhiao whose Waitangi claim was used by tribal leadership to get Crown sympathy to get their hands on the land in their own personal names. When Mr Tawhiao complained and challenged their corruption he was later found dead in the backseat of his burnt out car in July 1999 just 3 months before the Privy hearing before Henry J 99, killed undoubtedly to silence his criticism of Maori leadership corruption in TKC and Ngai Terangi.

66.  19th Century: Of the 290,000 acres the Crown seized in the Tauranga region in 1865, 240,000 acres were returned to Maori between 1865- 1886. The confiscated 50,000 acres did not include Matakana Island. Matakana Island is 15,000 acres. The 5000 acre western side of the island (farmland part) was purchased by Whittaker and Russell between 1869-1873. Whittaker and Russell then sold that 5000 acres on 2 April 1874 to the crown who then gave it back for no cost to the same Maori who had previously sold it. The coastal sand dunes of 10,000 acres were purchased by William Daldy. A certificate of title under the Land Transfer Act 1870 was issued to Daldy on 3 August 1878. That transaction relates to the Wiakoura, Oturoa, Paretata, Omanuwhiri, Ohinetama, Wairaka, Pukekahu, Okotare and Hori Tupaea's Pa blocks.  A Report Commissioned by the Waitangi Tribunal by Russell Stone: Whitaker and Russell: A contextual study of their interests and influence dated February 2001 the Waitangi researcher says on page 35 in his conclusion that: “I have come across no evidence that an inner circle colluded in acquiring confiscated or ceded Maori land in the l860s or early 1870s. The records also indicate that Daldy, Whitaker and Russell acted independently in their alleged 'purchases' of Matakana Island.”

67. The 1994 attempts by the Crown to help Ngai Te Rangi involved Te Kotukutuku Corporation, a private company owned by the leaders of the iwi and who were witnesses with conflicts of interest in the litigation.  The rangatiratanga status of the shareholders of Te Kotukutuku showed they themselves were bound by fiduciary obligations to the wider Maori community and that conflict of interest was ignored by the Crown. That failure resulted in tangata whenua alienation from the land. And it unjustly enriched tribal leaders, Enoka Ngatai (Chairman Tauranga Moana Iwi Trust Board, Hauata Palmer (Chairman Ngai te Rangi Iwi), Don Shaw (RMA manager), John Neill (Chairman Matakana Island trust) and their accountant Graeme Ingham along with a small number of minor supporters.

68. The litigation faced conflicts of interest and divided loyalties because of the Crown’s liabilities it owes Maori. As a result of Crown breaching their partnership obligations, this resulted in a hidden policy of discrimination against Arklow Wingate based on my race which reduced my dignity and diminished my legal rights. 

69.  In 1993 I  began this litigation with the assurances of my first barrister Gary Judd that my case will cost $80-$100,000  “slam dunk” I would win. That was before the entry of the Maori group who from 1994 were assisted by the Crown to defeat my lawful rights and destroy my property. By the time we finished the 1999 Privy Council case Arklow and Wingate had spent over $5m. 

70. The defendants are in receipt of misappropriated trust property or its traceable proceeds even though they're not bonafide purchasers of those assets because Greig J ordered the lifting of Arklow Wingate caveats under Section 7 of the Illegal Contracts Act without having statutory authority. This supports our claim of the apprehension of bias and Crown conflicts of interest which led to the erroneous Wednesbury decisions’ of Gault J, Court of Appeal in 1998, and Henry J for the Privy Council his advice to Her Majesty in 1999. 

71. After losing in the Privy Council, just as I was preparing a claim to the United Nations in July 2000 the Maori group who stole my business information, had threatened my partner Kanematsu with Maori trouble unless they were cut in, assisted by the Crown to rob me, flush with a free $4.6m, plus 5000 acres of development land, 22 houses, a modern sawmill, transport system,  placed a caveat on my family home Malulabah at 15-17 Grand Vue Road Kawaha Point Rotorua, forcing us to sell. 

72. A reminder: 21 March 1994 Greig J said- 

“ ...I deal first with validation. This settlement involves a return of at least half the land to the Tangata Whenua. This is of some particular importance in light of the Waitangi Tribunal claim the Maori interests have made.

 …There can be said, as indeed Crown Counsel said representing the 1st, 2nd and 5th defendants, (Crown law office represented Ministers of Land and Finance, Overseas Investment Commision, and District Land Registry Office DLR) that there is substantial support for the claim that Maori were unjustly deprived of their ancestral land. 

..The Arklow Wingate opposition is that settlement has been achieved by coercive tactics by the plaintiffs. The fact is that there was some violent, unlawful direct action on the part of some Maori persons on the island which amounted to a blockade which prevented ITT and other persons from carrying on any forestry work. There can be no question but that the Court must disapprove of any such conduct. It is contrary to the Treaty obligations of a partner to that. An obligation under the Treaty must be to accept and abide by the rule of law which requires peaceable resolution of disputes, not illegal, unlawful intimidation or other similar direct action. If it was the case that the plaintiffs had been responsible for that, it might be that the Court would withhold relief to them because it would be contrary to the rule of law and to justice if the Court was to appear to support or endorse the result of that direct unlawful action. 

I am satisfied however, from my knowledge of the matter as it has progressed, that the plaintiffs are not directly or indeed indirectly involved in that direct action and I do not consider that that is any ground against them.” 

73.   Yet the evidence was clear it was Maori threats in exchange for the land:

74.   26 August 1993 Buddle Findlay [Hubble] to Glaister Ennor [Porus] ...(lawyers for ITT and Ernslaw). The key parties to the above litigation TKC. El and ITT, have been able to reach general agreement on a proposal for settlement as follows:  

“The plaintiffs (Maori group TKC) will pay to El/Caldora $9.6m and in return Caldora will assign its interest in the land to the plaintiffs and El will assign all of its interests in its forestry right to the plaintiffs. The plaintiffs will afford to ITT the same rights of access, management and/or other contractual rights as were given to ITT by Caldora and El.  The obligations of ITT to FAR Forestry will remain unchanged  It is the intention of the parties that the plaintiffs, being NZers, should become registered proprietors of all of the land other than that occupied by the sawmill owned by FAR Forestry and that ITT will have a registered forestry right over portions of the land affording them the same rights as exist under the present intended contracts.  

All barricades currently the subject of litigation will be removed forthwith and in the interim ITT may continue with logging. We have just had a call from Don Shaw who confirms the outline above and we have a letter from Mr Song in similar effect. 

The unknown areas are the position of Caldora, the Arklow litigation and FAR Forestry's position.  Mr Shaw has indicated a desire for the Maoris to hold a ceremony on Sunday to remove the barricades but would like confirmation from you on behalf of El and if possible Caldora to the effect that the above outline represents the intended agreement between the parties. 

Obviously, this has no binding effect but it would provide a solace which would result in the removal of the barricades and will undoubtedly lead to more concrete proposals for the future. The essential ingredient of $9.6m + the willingness of El to sell is all that should really be necessary to bring this matter to a conclusion. We would envisage the parties presenting the Judge a Consent Order which could result in the vesti, of property in the manner we require. Could we please have your urgent comments either today tomorrow morning as the writer is about to leave the country for a period of 3 weeks and would like to be able to advise Mr Shaw that we have a general agreement so that the removal of the barricades can take place.  Cc Mr Williams, Sheiff Angland Fax 309 3019 Mr W D Baraqwanath QC, Fax 307 2717 Auckland”

75. The 26 August letter- along with dozens of other examples that support this key point- that the Maori group obtained their agreement achieved by threats, acts of violence and  extortion. 

78. MIKE PITTAR Wellington Registry 27 April 1994: 

I am a Te Puke businessman and Justice of the Peace 

I was Mayor of the Western BOP District Council for 9 years and therefore have a reasonable understanding of the various parties interested in acquiring Matakana Island 

On 20 April 1993 1 attended a meeting at the office of Ingham Mora Malcolm & Rassell at which were Graham Ingham, Don Shaw and George Claridge. Ingham said TKC required funding to purchase and develop land on Matakana Island. Their proposal appeared to be very like that presented by Arklow Investments. 

Ingham said that as Maoris they had a good chance of getting the land because they were Maori and Courts and politicians were sympathetic to Maori claims. 

Claridge advised Shaw "If you don't want the island sold to an overseas company .... the Maoris should kick up a bit of a fuss- ie: make yourselves heard" 

It is my belief that Greg J has been seriously misled and is quite wrong to believe the Maori Plaintiffs in Wellington were not involved [in the blockade] because in my opinion they were. 

79. MIKE PITTAR Wellington Registry 9 March 1994 

In August 1991 I introduced Wingate to various Matakana Island Maori leaders, including Don Shaw, Perry Murray and John Neil for the purpose of allowing each to voice their respective Intentions and concerns 

It was my understanding that TKC had been set up to represent commercial interests for the Matakana Island community. It was also said that TKC would attempt to negotiate an Interest with the eventual successful bidder. Don Shaw indicated to Wingate that they had funds to invest towards securing an interest in Arklow. 

Arklow Investments always sought to keep Matakana Island in local hands. 

We (Western Bay of Plenty District Council) voted in favour of supporting in principle Wingate's intentions to develop Matakana Island. Wingate has a genuine desire to see the Maori cultural interests preserved and developed to the benefit of local Maori people. He has always sought advice and been completely open regarding Matakana Island. 

80. ANTHONY DAYRELL BISHOP Wellington 10 March 1994 

Of Tauranga, chartered accountant and business consultant:

Since August 1991 I have been retained as an adviser to Chris Wingate/Arklow Investments in relation to the purchase of Matakana Island. 

While effecting due diligence, It did not appear that anyone has preceded him in doing so. This did not tie in with what Fincham (DRT- Matakana receivers) had implied at our first meeting, that the receivers were about to conclude another contract.

Both Chris and I felt it was best to bypass Shaw in calling a meeting with Matakana Maori as Shaw was not conveying Chris Wingate's intentions correctly.

At the meeting on 6 October 1991 Maori did not give me any indication that they would bid in competition with Chris Wingate.

The meeting on 6 October 1991 was not convened secretly.

On 18 March 1992 Wingate and I met with Ingham, Hansen and Capamagan. Chris Wingate was interested in finding out whether TKC would come in with him.

On 6 April 1992, Ingham advised that whoever got Matakana "would have to cut TKC into the deal or else Maori problems would be endless. 

81. TE KOTUKUTUKU CORPORATION LIMITED 

2007 New Share Parcel(s)  

Number of Shares 1,000,000

New Shareholder(s)   

MATAKANA INVESTMENT GROUP LIMITED  Level Seven, 234 Wakefield Street, Wellington 

Original Shareholders Removed Share Parcel(s) 

Number of Shares 47,619 PALMER, Hauata  Matakana Island, Tauranga (Chairman Ngai Te Rangi Iwi)

Number of Shares 79,365 NGATAI, Enoka  164 Matapihi Road, Matapihi, Tauranga (Chairman Tauranga Moana Trust Board) his son 132,222  NGATAI, Mark  Matakana Island, Tauranga 

Number of Shares 190,557  INGHAM, Graeme Law  91 Manuwai Drive, Tauranga (iwi chartered accountant)

Number of Shares 190,556 SHAW, DONALD  Rangiwaea Island, Tauranga (Resource management act manager liaison to developers)

Number of Shares 15,873 NEILL, John Roberts  Matakana Island, Tauranga (chairman Matakana Island Trust) 

82. Awarded to Enoka Ngatai QSM, of Tauranga- For services to Maori. Mr Ngatai was the Chair of the Tauranga Moana Maori Trust Board for 12 years.

83. Former chairman of Ngai Te Rangi iwi Hauta (Howard)  Palmer was presented with an honorary doctorate for his contribution to Maori welfare. 

84. Justice David Baragwanath QC 's services as a judge of the Court of Appeal recognised with a knighthood.

85. Rt Hon Sir John Henry QC recognised with a knighthood.

86. Sir Thomas Munro Gault QC recognised with a knighthood.

87. Sir Peter Blanchard recognised him with a knighthood.

88. Key questions for some other day:

89. How far are New Zealand judges prepared to go to put Maori first? 

90. Doesn’t the evidence show judges lose probity, ignore their judicial oath and take a biased position to defeat private property rights by delivering judgments that contain falsity?  

91. Can judges ignore the law and do as they please? 

92. What position does that put any non Maori party before the courts whose property rights are being subjected to the competing rights of Maori given the impartiality adjudicating the dispute has already been compromised by the judges' policy statement that they will do all they can to assist Maori whenever the opportunity arises.

93. The evidence shows the Court of Appeal and Privy Council falsified their written judgments so why hasn't the crown corrected their mistakes ?

94. The evidence shows the Court of Appeal and Privy Council got the law wrong so why hasn't the crown corrected their mistakes ?

95. Do the Crown owe Maori an obligation under the Treaty to be honest?

96. What part did the special purposes unit within the ministry of justice play in assisting Ngai Te Rangi in these matters. 

Note:  Treaty principles developed by courts. Court of Appeal case, 1987. Wharewaka, Wellington. Tainui v Coalcorp, 1989. Treaty of Waitangi Policy Unit, 1989 Lands case, 1987. A court case in 1987 was the first to define treaty principles in some detail. The New Zealand Māori Council asked the Court of Appeal whether the government’s plans to transfer land to state-owned enterprises breached the principles of the Treaty of Waitangi. To answer that question the court had to decide what those principles were. A judge in the case, Justice Robin Cooke, described the 1987 lands case as ‘perhaps as important for the future of our country as any that has come before a New Zealand Court.’ The court’s judgment became a precedent for later judgments and Waitangi Tribunal reports.

Some of the treaty principles identified by the 1987 lands case were: the duty to act reasonably and in good faith – the treaty ‘signified a partnership between Pakeha and Maori requiring each other to act towards the other reasonably and with the utmost good faith’ active Crown protection of Māori interests – the duty of the Crown was not just passive but extended to active protection of Māori people in the use of their lands and waters ‘to the fullest extent practicable’ the government should make informed decisions – the Court of Appeal said that in order to act reasonably and in good faith, the government must make sure it was informed in making decisions relating to the treaty the Crown should remedy past grievances – ‘If the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant at least some form of redress, unless there are grounds justifying a reasonable Treaty partner in withholding it – which would be only in very special circumstances, if ever’ the Crown has the right to govern – the principles of the treaty ‘do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles’. Another Judge in the case, Gordon Bisson, said it was ‘in accordance with the principles of the Treaty that the Crown should provide laws and make related decisions for the community as a whole having regard to the economic and other needs of the day’. Since the 1987 lands case, other court cases have also identified, reiterated and developed the principles of the Treaty of Waitangi. Some of these cases include: New Zealand Maori Council v Attorney-General 1989, which related to forests. Tainui Maori Trust Board v Attorney-General 1989, which related to coal. New Zealand Maori Council v Attorney-General 1991, which related to the radio spectrum. New Zealand Maori Council v Attorney-General 1992, which related to broadcasting assets. In 1994 a High Court judge said that ‘there is no doubt Treaty principles impose a positive obligation on the Crown, within constraints of the reasonable, to protect the position of Maori under the Treaty’.

151. What protections do the public have when appellate judges lose probity and refuse to address their mistakes?  

152.  Why were the defendants allowed to misuse the discovery process to conceal documents and should discovery laws be changed? 

153. Did the defendant’s lawyers pervert the course of justice by claiming damaging documents had legal privilege? 

154. Was Justice Greig perverting the course of justice when he ordered the contract Maori entered into to sell half of Matakana island to American property developers be sealed and hidden from Wingate when that contract showed the Ngai Te Rangi group promised Blakely there were no claims on the land despite a Waitangi claim and the Arklow Wingate claim? 

155. Did barrister John Eichelbaum have a business partnership with Ian Smith, CEO owner of FAR Financial?

156. Did John Eichelbaum mislead the Court of Appeal (1998) and the Privy Council (1999) with false submissions?

157. Did lawyer Jock Fanselow attempt to pervert the course of justice by holding in trust for FAR Financial directors personal assets? 

158. Did the Court of Appeal and Privy Council engineer false judgments in order to ensure the Matakana Island land remained with Maori defendants? 

159. In 1994 in lifting Mr Wingate’s caveats protecting his interests in Matakana Island did Justice Grieg pervert the course of justice?

160. Did the Resource Management Act section requiring Arklow to consult with local iwi (as directed by the Tauranga / Western Bay of Plenty mayors)  expose Arklow to extortion and commercial vulnerability?

161. Has the judiciary been operating a special “Assist Maori” policy?

162. Was the Crown blinded by the Maori claim the Matakana Island land was sacred without doing any serious inquiries?

163. Did the Minister of Land and Minister of Finance knowingly assist the Maori defendants at Arklow expense?

164. Did the Commissioner of Crown Lands Brendan Mulholland set out to destroy Arklow Wingate’s lawful rights in his push to ensure the Maori group TKC got everything they demanded ?

165. Did the Maori defendants use threats and violence to obtain their contracts from ITT Rayonier, Ernslaw One and FAR Financial in 1993?

166. Did the Maori defendants (TKC) interfere with Mr Wingate’s relationship with timber buyer Kanematsu Japan by threatening them with “Maori problems”?

167. Did the defendants use the millions of dollars of unjust enrichment to pay for lawyers to fight Wingate to defend their fraud?

168. Did Sonny Tawhiao’s complaints about iwi leadership corruption offer a problem to iwi leadership who were also the personal shareholders of Te Kotukutuku Corporation?

169. Did the Tauranga police fail to investigate (Waitangi manager WAI 215) Sonny Tawhiao’s death?

170. Did the tribal leadership of Ngai Te Rangi breach their fiduciary duty by directing tribal assets into their own personal names? Was that action theft by a person in a special relationship?

171. Did the Maori group submit to the Court that the Matakana Island land and forestry and housing assets were going to be jointly owned on a 51/49 basis with a charitable entity known as Matakana Island Trust and was it not correct that the trustees then transferred that benefit into their own names?

172. Did the tribal leadership of Ngai Te Rangi, namely its Chairman Howard Palmer, accountant Graeme Ingham, Tauranga Moana Trust Board Chairman Enoka Ngatai, iwi Resource Management Act manager Don Shaw, Matakana Island Trust Chairman John Neill provide the High Court affidavits claiming the Matakana Island was sacred and subject to a Waitangi claim but perverted the course of justice by failing to tell the court they were personally shareholders set to gain real estate worth more than $100m should the court assist them gain ownership at Arklow’s expense?

173. Despite the claims which the Crown supported that the Matakana Island land was sacred; did the Maori group involved, namely Te Kotukutuku Corporation, sell that land to developers in 2007 resulting in none of the $100m plus going to Ngai Te Rangi iwi or charity Matakana Island Trust, but instead all of it going into the pockets of the Maori leadership, their accountant and lawyers who misled the court?

174. Did Arklow’s confidential valuations by forestry consultant John Cawston for the Kanematsu /Arklow deal which was provided in confidence to stockbroker Neil Craig in August 1992 get used by Neil Craig in putting a bid to the receivers on 30 September 1992? When that bid failed did Neil Craig then provide those valuations to Te Kotukutuku and forestry consultant Paul Robinson 4 December 1992? Did iwi accountant Graeme Ingham and iwi RMA manager Don Shaw then use that information to threaten Kanematsu on 7 December 1992?

175. Did Justice Henry predetermine his Privy Council decision prior to trial?

176. Was the author of the Privy Council judgment Justice Henry in a horse breeding business relationship with Alan Galbraith QC defence counsel for the defendants?

177. Did New Zealand police create a "criminal conviction recording" after Arklow Wingate’s High Court win on the national online database against Christopher Wingate that was completely false?

178. Was a senior tax officer Jeff Tyler who issued a tax payable demand for $1.4m against Christopher Wingate, a former lawyer for defendants Far Financial?

179. After the Privy Council win did FAR Financial set up Lombard Finance with Michael Reeves and appoint Sir Douglas Graham and Hon Bill Jeffries, both former ministers of justice to the board of directors?

180. Was FAR Financial business partner and legal counsel John Eichelbaum partners with former Attorney-General and Minister of Justice and Prime Minister Sir Geoffrey Palmer?

181. Was John Eichelbaum the son of the former Chief Justice Sir Thomas Eichelbaum?

182. Was John Eichelbaum’s partner Sir Geoffrey Palmer have a close friendship with Sir Ivor Richardson and Sir Kenneth Keith two of the judges that went against Arklow in the Court of Appeal and did they talk about the Arklow case -(see Brenda -Kenneth Keith’s secretary Wingate’s aunty).

183. Did the defendants know in advance of the Court Appeal decision they had won from an inside source? 

184. Did David Baragwanath QC mislead the High Court at the 1994 Justice Grieg hearing?

185. Did Arklow/Wingate’s barrister Gary Judd fail to protect Arklow’s legal rights at the 1994 Justice Grieg hearing?

186. Was Mr Wingate’s barrister Gary Judd QC in a business relationship with David Baragwanath QC? Did David Abbott who acted for the Ngai Te Rangi iwi move into Gary Judd’s office in Anzac Avenue and my lawyer Mr Judd QC move into Mr Baragwanath’s office where he took over all of his clients accept Ngai te Rangi iwi who went to Alan Galbraith QC.  

187. Did police use a search warrant to uplift confidential files from Mr Wingate’s residence and then invited the defendant’s lawyer Ray Annan to take copies of those files which he did on that very day? (see affidavit Det Sgt Shaw)

188. Was Justice Baragwanath’s daughter Natalie present at a meeting held by businessman Greg Clark (whose grandfather was involved with the Maori defendants Te Kotukutuku) in March 2000 in which Wingate was offered $18,000 a month in exchange for remaining silent and to stop any complaints about the Matakana court process?

189. When those payments stopped in August 2000 immediately after Wingate filed a complaint to the United Nations Commission on Human Rights, did the defendants within 48hrs then file for costs against Wingate in the High Court?

190. Did Lord Cooke who had a strong pro Maori position withdrew in the weekend leading up to the Privy Council trial admitting he had holidays at Lake Taupo with one of the directors of FAR Financial- what was the full extent of that relationship?

191. Did other TKC Corporation witnesses perjure their evidence and pervert the course of justice?

192. Did Ernslaw One lawyer and company secretary Jack Porus perjure his evidence and did Ernslaw make a $3.9m profit even though they acted illegally? 

193. Did ITT CEO Charles Margiotta perjure his evidence?

194. Note added- (ITT Rayonier $22m plus profit from culling the 17-34 year forest.- ITT lawyer Patricia Fordyce told Sir Peter Tapsell and myself that her manager, the CEO of ITT, gave false evidence to help FAR escape liability which would then flow onto ITT.) Note re legal privilege. ITT Rayonier’s evidence in support of FAR Financial: In 2001 ​Patricia Fordyce​ a former inhouse lawyer working for ITT Rayonier told Sir Peter Tapsell and myself that her manager of ITT Rayonier Charles Margiotta, had given the court false evidence and that he had perjured himself in doing so. So how does an inquiry deal with her evidence?

195. Did Don Shaw perjure his evidence?

196. Did FAR Financial directors perjure their evidence including backdating diary entries?

197. Did Michael Reeves perjure his evidence? 

198. Did FAR Financial steal confidential information from Arklow Investments?

199. Did FAR Financial owe Arklow a fiduciary duty? 

200. Was FAR Financial broke when Arklow approached it to borrow money therefore saw the Arklow business plans as an opportunity to get rich by stealing the Arklow deal?

201. Did FAR Financial state in a letter dated 1 September 1992 to CML/Joseph Banks that FAR Financial was purchasing for themselves the Matakana Island land, selling off the 1-16 year forest and the 17 to 34 year forest therefore were actively copying the Arklow deal? Then did the High Court Greig J 94 and Court of Appeal majority 98 claim that at no time did FAR Financial copy the Arklow deal?

202. Was the Court of Appeal wrong when they stated: “At no stage was Arklow vulnerable to the action of FAR Financial” Despite the fact FAR Financial were broke and now had the confidential business blueprint plans of Arklow that if implemented had the potential to earn a minimum of $3m up to $billions.

203. New Zealand is a small country. For example Privy Council judge in the Arklow case, Justice John Henry’s father is Maori lawyer Donna Hall’s grandfather. Donna Hall’s husband is Sir Eddie Durie judge, law commissioner and chairman of the Waitangi Tribunal from 1980 to 2004. As a small country we accept these relationships, however if there is any accusation of bias as there is in the Matakana litigation then only a meticulous examination of the facts will show if bias was deployed. ( Donna Hall’s law firm:- About Us:  “Our initial clients were mostly Māori land trusts and incorporations of Te Arawa and Tuwharetoa. This led to acting for the National Māori Congress and this in turn led us acting for Sir Graham Latimer and the New Zealand Māori Council for over 30 years. Woodward Law has grown to become one of the country’s foremost providers of legal services in Māori law and Treaty law.”)  (Sir Graham Latimer was deployed to lobby for TKC and Ngai Te Rangi in getting the Matakana Island deal.)

New Zealand’s largest development

This was the most important property development project in New Zealand's history.  The 10,000 acre coastal development was to include over twenty thousand houses, dozens of hotels, motels, motor camps, public parks, 6 international golf courses that I had involved Greg Norman and Arnold Palmer through IMG, various theme parks, and even an airport capable of international flights for trade and opening up the Bay of Plenty as a gateway to incoming tourists. I had also planned a post graduate university that would be funded from development profits. An arts faculty covering both law and political science whose sole aim was better governance. And a science engineering faculty to study alternative energy systems.

This was bringing the ownership of Matakana island back to a local from the Bay of Plenty. The project was according  to George E.Lipp Inc, concept analysts and financial consultants of Singapore together with international architects Klages Carter Vail and Partners of California and NZ engineers Duffill Watts and King -  was in 1997 $ - worth $17.82 billion, with development costs of $6.40 billion, operating costs of $7.99 billion to produce a net cash flow of $3.43 billion. Today the net profits would be ten times that amount.

Our project would have provided accommodation for more than 160,000 people, over a 60km waterfront providing 15,000 permanent jobs, creating $80b in assets.

• As a result of the Crown mishandling these matters so that they could unfairly and illegally favour Maori my family lost our homes at 15-17 and 19 Grand Vue Road Kawaha Point, Rotorua, our Queenstown Waiheke Island and Surfers Paradise properties plus other investments. 

• In 2002 I turned down $5m because the Crown said the terms of reference for the inquiry must exclude any evidence/allegations of wrongdoing by judges or lawyers.

The Matakana Island land was under a Waitangi claim based on the passionate and genuine work of Matakana researcher Mr Sonny Tawhiao’s whose Waitangi claim, WAI 215 was used by iwi leadership, with the assistance of Crown actors to get their hands on 10,000 acres of Matakana land, in their own personal names. After Mr Tawhiao complained about iwi leadership corruption, his body was found in the backseat of his burning car on 7th of July 1999 just 3 months before the Privy hearing that was to decide the fate of land ownership. The police report said it was suicide. 

Some years back I wrote this to : 

Acting Inspector Scott Fraser

Police District Headquarters Rotorua

Dear Sir

I have attached an important part of the Coroners Report that was missing from the official Police Report.

You will note the family are obviously concerned that foul play has occurred. Yet Det Perry was stuck on insisting the death was a result of a suicide despite the following facts;

1- Don Shaw was in the process of stealing land worth a minimum of $75m, something Sonny Tawhiao had stated according to witnesses was going to expose. (R Hawrawira, N Kuka, A Tukaki and just about every person on Matakana Island)

2- Witnesses told police Don Shaw had threatened to kill Sonny Tawhiao. (R Hawrawira, N Kuka, A Tukaki (and police never interviewed Shaw)

3- Don Shaw was seen near the scene of the fire walking and sweating saying his car had broken down. (Hellier, Frank Tawhiao)

4- The analysis of the car fire scene with the body in the rear seat has foul play and murder written all over it. 

5- No drugs, alcohol were found in the victims system.(J Lewen ESR Toxicology)

6- The victim feared for his life so much so he asked his associates to keep away fearing imminent death from Don Shaw.(A Tukaki, )

7- The victim was threatened death by Don Shaw if he went ahead with the Marina Club something he did the day before he was killed.(A Tukaki, lawyers Dowd Thomasson Strachan)

8- Music was left on the victims family home phones the afternoon of the fire (Memories) and (Don't Cry For Me Argentina).(Hellier, S Tawhiao)

9- The body was found without a shirt and boots, they were found at the rear right wheel burnt in a separate fire according to police.(removal of boots and top is a military sop to subdue an enemy- Shaw was ex Navy)

10- The victim's car was seen driving away from the ferry in an erratic manor minutes before the fire occurred by ferry operators.(G Lett re A Jansen, Lloyd Harvey)

11- Don Shaw had asked the victim to meet him at Panepane on the morning.(G Lett, Greg Tukaki)

12- Don Shaw was over the island the day before giving plenty of time to hide both a weapon and petrol.(0940hrs - 6 July)

13- Sonny Tawhiao was the official Waitangi claimant. With no authority Don Shaw misused that claim to maximum effect by attaching it to their false statements and submissions to both the High Court and Minister of Lands that ownership by TKC and MIT will end the Waitangi claims,and that the land in their ownership would be returning the sacred land to the traditional owners. (High Court Greig 1994 attached, Minister of Land 4 December 1992 attached, Wingate,Lett, R Hawrawira, N Kuka, A Tukaki, Waitangi Tribunal,etc)

I have made contact with Mr X- 027-x Tauranga / Matakana.

X tells me two key points;

Sonny Tawhiao was on his way to meet Don Shaw the morning he was killed. X and Greg Tukaki have information on this.

That the barge operators Lloyd Harvey (dead) and Andre Jensen saw Sonny's car driving away from Panepane minutes before the fire.

The vehicle Don Shaw was driving over on the island was a Toyota Dyna Twin Cab 4 wd. Tire tracks in front of Sonny's car were photographed by police after the fire. Were they from that a Toyota Dyna ?

H Murray is David Murray a TKC shareholder was the person on the barge with Don Shaw 6 July on the return trip from Matakana.

Don Shaw was on Matakana the day before the fire yet his trip was not referred to on any police report.

I had a telephone call last Tuesday from Wena Harawira of Maori TV. What began as a formal type interview chat suddenly turned personal. Wena said her grand parents owned the store on Matakana Island. Maori TV had set aside 12 minutes to run this Sunday night. Wena and crew began interviews with various people mentioned in the Sonny Tawhiao report when she said they got threatened. Suddenly what was set as a 12 minute program for this Sunday is something they cannot now do.

In Conclusion

The only evidence is that the bank was guilty. In 1993 we began the litigation in the Auckland High Court which was around the time Tauranga Maori leadership began its threats of violence and then the  road blockade on Matakana Island demanding that they get ownership to the “sacred Waitangi claimed lands”. 

All of their threats and acts of violence were not only ignored by the courts and the Cabinet, they were covered up. The bank under advice decided that tactically it was better to pass the land ownership to Maori where they knew the Crown would protect Maori which in turn would protect the bank from liability. 

When people litigate there is an assumption their lawyers would place the clients interest first. The evidence in the Matakana case shows this simply isn't true. A lawyer's first loyalty is to the Courts, that's where they earn their income. Clients are only temporary whereas their relationship with the courts is ongoing.  

The evidence was clear that the Crown swung into action to advance the Maori interests but that came at the expense of my property rights. 

There is no better evidence than that provided by Sir Ted Thomas in his minority judgment in the Court of Appeal. He quotes the actual evidence which proves the statements against Arklow Wingate are utterly false. These are extremely serious matters no one in power or in the media will go near which should put a shiver up the spine of every kiwi.

What I have come to learn is that New Zealand has been under a coup d'etat that began in the 1980's and has in recent years become more openly active. I will leave others to fill the gaps based on what they have witnessed. 

But my most serious warnings are that your mainstream media in New Zealand appear to under some type of central control when it comes to the important issues relating to the nation being gutted. 

I have seen multiple examples of major fraud, crime, sale of state owned assets, major government contracts, donations to political figures, and washed cash funneled through the countries largest law firms all covered up. 

All the bases are covered, from the prosecutions, inquiries so that stories like this remain hidden. But let me be very clear and would warn the people of New Zealand, don't trust your media, your courts and your government.