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Coe v Kampupala [2019] NUHC 12; Application CV05/2019 (7 August 2019)

JUDGMENT OF CHIEF JUSTICE C T COXHEAD

Introduction

[1] Mr Terry Coe, member of Parliament, has made an application pursuant to s 71 of the Niue Act 1966 seeking an injunction to stop the commencement of construction of the new Fale Fono building until a proper tendering procedure for the construction has been completed.
[2] The application is opposed by Justin Kampupala on behalf of the Government of Niue on the basis that a selective procurement process was carried out in accordance with the Niue Government procurement procedure and guidelines.

Applicant’s submissions

[3] The grounds for seeking an injunction are:

• (a) The government procurement procedures breach fair and reasonable opportunities for local companies to compete. The procurement policies breach the tendering processes previously used by the government and have never been announced or explained to local businesses.
  
• (b) There is no urgency to replace the existing Fale Fono building.
  
• (c) Government officials and politicians display favouritism to off-shore companies. These companies on previous projects have failed to obtain environmental impact reports.
  
• (d) Favouritism is contrary to a long-standing government policy of localisation and encourages inflated prices for projects and the side-stepping of laws concerning major projects.
  
• (e) There are several construction companies on the island that have displayed the ability to carry out major projects.
  
• (f) Tendering will present an opportunity to gain competitive prices and the exposure to a tendering company’s ability to provide flexible and responsive deliverance.
• (g) The selective procurement process is an unfair and unreasonable policy and opens the door to inflated prices.
  
• (h) Tendering and Tender Committees “have been set up to control the prices submitted and remove business allegations of favouritism and trusted partner”.
  
• (i) The tendering process is “a safety net to corruption which ordinates to obtain major contracts without competitive pricing”.
  
• (j) The Assembly Members’ Interests Act 2006 is appropriate to utilise in this matter.
  
• (k) The wording of the provisions and the government policy of tendering are relevant to the fairness of the industry and the public’s right to expect regulations and policies to be in force that prevent grossly inflated price fixing. It also indicates a permanent policy favouring a company that would bar local companies from quoting on projects and creating a construction monopoly.

Respondent’s submissions

[4] Mr Justin Kamupala has provided a response on behalf of the Niue Government.
[5] The Niue Government as the respondent submits:

• (a) The selective procurement process was undertaken in line with the Niue Government procurement procedure and guidelines and therefore is not required to follow the normal tendering process.
  
• (b) That the urgency to replace the current aging Fale Fono building resulted in the selection of DTB Construction Ltd and this was endorsed by the Cabinet of Ministers.
  
• (c) The contractor was selected for both strategic and practical reasons as the preferred contractor. This takes into account a proven record in Niue of building to Niue’s requirements with a good combination of local workforce and with investment in heavy equipment on the island.
  

(d) Flexibility and responsiveness while delivering to the government’s satisfaction were other considerations.

• (e) The government in seeking tenders for particular contracts may proceed via a selective procurement process or it may choose to adopt a selective purchasing method. In this instance it adopted a selective procurement process.
  
• (f) Section 6 of the Assembly Members’ Interests Act 2006 is inappropriate to utilise in this matter and has been taken out of context. That Act relates to the interests of Members of Parliament and their engagement or tender for government contracts.
  
• (g) The wording of the provision when utilised in the context is ambiguous and does not clearly reflect the intention of Parliament.

Discussion

Injunction

[6] It is noted that this application is filed pursuant to s 71 of the Niue Act 1966. That section states:

71 Procedures so far as not governed by rules of Court

Subject to any enactment, the practice and procedure of the High Court in the exercise of its civil and criminal jurisdiction shall be such as the Court thinks in each case to be most consistent with natural justice and convenience.

[7] The Crown Proceedings Act 1950 may also be relevant. Section 17 of that Act provides:

17 Nature of relief

(1) In any civil proceedings under this Act by or against the Crown or to which the Crown is a party or third party the Court shall have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require.

(2)(a) Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may instead make an order declaratory of the rights of the parties.

(b) In any proceedings against the Crown for the recovery of land or other property, the Court shall not make an order for the recovery of the land or delivery of the property, but may instead make an order declaring that any person is entitled as against the Crown to the land or property or to the possession of it.

(3) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

[8] The applicant is looking to injunct the Government of Niue to stop it from commencing the construction of the new Fale Fono building.
[9] In many jurisdictions, including Niue, the generally accepted position is that an injunction will not be issued against the Crown.
[10] There are of course alternatives in that people seek declaratory orders against the Crown on the basis that if they are successful with obtaining declaratory orders the Crown will abide by those orders. A declaration is not being sought here.
[11] However, in light of the provisions of the Crown Proceedings Act 1950 quoted above, there is clearly a lack of jurisdiction with the Court being able to grant an injunction.

Assembly Members’ Interests Act 2006

[12] Further I read the application as being based on the fact that the government has not complied with s 6 of the Assembly Members’ Interests Act 2006.
[13] Section 6 of the Assembly Member’s Interests Act 2006 states:

6 Government contract exceeding a certain limit to be tendered

(1) Every Government contact of which the value exceeds ten thousand dollars $10,000.00 shall be subject to public tender.

(2) Public Notice of the call to tender shall be given to the media on at least two occasions with a minimum of one month between the first notice and the date of closing of tenders.

(3) Where the contact is of more than twenty thousand dollars ($20,000), the period of notice shall be of such greater period as may be specified by Cabinet.

[14] Further, s 3 of the Act requires that no member of the Assembly may have an interest unless the member, before obtaining such an interest or immediately once the member is aware that such an interest has been obtained, gives notice of the nature of that interest to the speaker in writing.
[15] Section 4 and 5 of the Act discusses the effect of disclosure and provide that the seat of the member will not become vacant by virtue of article 19 of the Constitution in relation to any interest which is disclosed in accordance with s 3 of the Act.
[16] This is an interesting Act and the title of the Act indicates that it is concerned with Assembly members’ interests.
[17] While s 6 of the Act read on its own could be understood as requiring that all government contracts are to be tendered, I must apply the usual rules of interpretation.

Statutory Interpretation

[18] The Interpretation Act 2004 provides guidance in ascertaining the meaning of legislation. Section 6 of this Act provides that the meaning of an enactment must be ascertained from its text, in light of its purpose and in its context.
[19] This approach has been confirmed in various court decisions. In the recent case of Raukawa Settlement Trust v The Waitangi Tribunal, the New Zealand High Court, when dealing with the equivalent section of the New Zealand legislation, confirmed this position and held that interpretation commences with the text informed by the purpose and the context of the Act.^[1]
[20] Therefore, I read s 6 of the Assembly Member’s Interests Act within the wider context of the rest of the Act, which is clearly aimed at Assembly members’ interests. While the section on its own is clear, it could have been clearer if the heading had been “Government Contracts where Members of the Assembly intend to tender”, if that was the intention. If the intention was that all Government contracts above a certain amount are put to tender - then the legislation needs to be clearer.
[21] In my view s 6 should be read within the context of the Act itself and therefore applies to situations when Assembly members intend to tender for contracts.
[22] The Niue Government, could assist by proposing amendments to section 6 so that the intention is clearer.

Decision

[23] Due to lack of jurisdiction to grant an injunction against the Crown the application is dismissed.

Dated at Rotorua, Aotearoa/New Zealand this 7^th day of August 2019

C T Coxhead
CHIEF JUSTICE

^[1] Raukawa Settlement Trust v The Waitangi Tribunal [2019] NZHC 383 at [43]; See also Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36; [2007] 3 NZLR 767 at [24].