Saving New Zealand: February 2015

"We don't want to believe our power is held by a handful of incompetent men"

New Zealand House of Representatives

Inquiry into Arklow Investments Limited v MacLean
The Matakana island Litigation

Separation of Powers is about what?
Stopping an inquiry into another hand on the power who fail or Checks and balances?

In 2009 I wrote “In life you end up valuing the lows almost as you do the highs because the lows build character and the highs reward you for the struggle”

As a businessman, father and New Zealander I had held a faith that at the highest levels of government there would exist a group of leaders who would be accurate, diligent, caring and honest. And that they would use that power to correct any of the mistakes done at the lower levels. Well I was wrong. We don't want to believe our power is held by a handful of incompetent men, but that is exactly what I found.

This new inquiry is about corruption at the highest levels. For years New Zealanders have seen one shonky deal after another- they appear endless.

My court case was about a merchant bank called Far Financial. A private bank based in Wellington who made sure it surrounded itself with the most powerful people running New Zealand. At the time I came in contact with them in 1992 they were broke. I didn't know that because they had approached my company Arklow Investments offering their services. I was at the time putting together a deal to buy a 10,000 acre property in the Tauranga harbour which was covered in pine forest aged up to 34 years. The land had a sawmill and its business was planting and growing trees, then cutting and processing them.

As a forestry business it made about $1.3m profit which was not enough to pay its bills and at the time I was trying to buy it, it was in the hands of a receiver because the owners had borrowed 100% of the purchase price and couldn't make the repayments. The price the receivers were seeking was $30m plus so I went to the debenture holder, the party owed the money and negotiated a price of $20m. I had been up to Japan several times seeking a buyer for the forest and I had finally ended up with a deal for that company to pay $15.75m for the 17-34 year forest.

So I put together an information memorandum outlining my proposal to put to banks or investors. The summary of that information was as follows:

I am buying Matakana island's 10,000 acres of coastal land for a price of $20m. I require up to $5m to complete the purchase. I will repay that $5m after selling the 1-16 year forest. The banks security would be the 10,000 acres, the sawmill, transport system, 20 odd houses, a mature hardwood forest and the 5000 acre 1-16 year forest. The younger forest we thought was worth around $6-10m. It actually sold for $10m a year later but that's another part of the story I won't get in detail on at this point.

The merchant bank Far Financial had approached us wanting to see what our deal was and so in June 1992 we provided them with over 100 pages of how our deal was structured. We offered 2 basic deals. Loan us the $5m like a normal bank loan or invest the $5m and get a 25% share this project. It was a great deal. But the problem was, the bank were broke as can be seen here in this letter from them to their bank:

The above documents you can see the bank were broke. Had bounced cheques, couldn't make car repayments. You also see a file open numbered "498"- that was opened for their new client, my company Arklow Investments Matakana Island deal. But instead of offering us $5m as you would expect a bank to do, they asked us for $5000 to go look for the money and so our relationship never went any further. I didn't know they were broke I just provided them with our deal's details and left it with them.

So, what did the bank do? Well you can see that on July 15th they made contact with the receivers. Other documentation showed that 2 days after they first started getting our information they started fishing around and had made contact with an American forestry called ITT Rayonier. The letter just above dated 28 July shows Far Financial offering the 17-35 year forest to ITT Rayonier for $150,000 less than our Kanematsu deal of $15.75m. They were now on their way to stealing our deal.

In the months that followed Far Financial, ITT Rayonier and Ernslaw One purchased Matakana Island. The court cases that followed began on the basis of my barrister Gary Judd saying " it will take less than 2 years...will cost you $80-100,000... you have an excellent case... you will win."

I did win. In 1997 after a 4 week hearing Justice Paul Temm slammed the defendants with a solid judgement outlining their guilt. Gary Judd my barrister never ran the case he had pulled out 1 month prior to the hearing claiming I had lied on a security of costs affidavit stating his duty as an officer of the court was compromised. We replaced him with Noel Ingram QC.

The above pictures show my staff during the trial and then just above with Noel Ingram QC the day we won the trial which was May 5 1997. A month after this picture was taken Justice Paul Temm suddenly died. The defendants then claimed I had bugged their telephone lines, gained an unfair advantage and wanted a new trial. That application was brought before Justice Fisher. Fisher had to look at what if any advantage I would have gained from bugging the defendants. He found none and pointed out the defendants guilt was clear.

The Bugging Case

The case was dropped when we showed the police the man I was alleged to have employed to carry out the bugging was on the payroll of the defendants. We knew he was spying on their behalf and my investigators led by John Hughes were spying on them. The Rotorua police were being directed by a team of former detectives working for the defendants used their contacts to cause as much problems for Wingate /Arklow as possible. They even had the former deputy commissioner of police on their payroll. They even used a search warrant, took evidence against the defendants and gave it that same day to Ray Annan, a lawyer working for the defendants.

Former senior police inspector John Hughes ready at the High Court to give evidence about the bugging case if it got raised during the Far Financial trial.

So two decisions were then appealed to the Court of Appeal. The decision of Justice Temm and the retrial application by Justice Fisher. That case was heard in early 1998. And so enters the Maori group. My litigation began in early 1993. And around that time some of you may recall a road blockade was erected on Matakana island by local Tauranga "Maori" who claimed they should be the owners, that the land was sacred, that they had the money etc. That Maori group threatened to "burn the forests" and a fire did occur. They also used the Maori Congress to lobby ITT Rayonier and Ernslaw One Ltd threatening them with "Maori trouble" if they didn't hand over the Matakana land.
I employed researchers to investigate the "sacred land claims" and found it was complete nonsense. The original Tauranga tribe the Ranganui lived peacefully at the top of Mt Maunganui and were massacred by a northern NZ tribe called Ngai Te Rangi not long before Captain Cook arrived. So any claims this is their sacred land is rubbish. Besides, the local Maori sold for cash all of the Matakana land (15000 acres) to three businessman in the 1880's. The government in the 1890's then purchased back 5000acres of that now improved land and gave it for free to local Maori. So there is no sad story here of troops taking land and local Maori being hard done by.
By late 1993 the new owners (Far Financial, ITT and E1) fearful of my case against the bank, for strategic reasons, sold the land to the "Maori group" who had set up a company called Te Kotukutuku and their charitable trust called Matakana Island Charitable trust. But to get ownership they needed to lift my caveats. That case in 1994 was before Justice Greig. Together with the support of the Crown- Minister of Lands, Minister of Finance the judge ordered my caveats lifted allowing the bank to sell. The judge said in his judgement that the sale would go a long way to solving the local Maori Waitangi claims. But the Maori group didn't have any money to buy so they arranged an American group to buy half the "sacred land" (5000 acres) and 1-16 year forest for $15m.

And so after my win against the bank in 1997 the Maori group appeared in the Court of Appeal in 1998 to push one key point. "The bank may have done a little wrong but the important issue was that the sacred land was now in the hands of the traditional owners."

When they judgement came out I was shocked. Not only had I lost but the facts were completely twisted, false, misleading and bore zero relationship to what the actual documents showed. One judge, justice Ted Thomas was on my side-

Justice Ted Thomas minority decision in the Court of Appeal 1998 -

http://lawisanass-wingate.blogspot.com.au/2015/02/justice-ted-thomas-decision-nz-court-of.html

After the Court of Appeal I had to take my case to the Privy Council in London. Lord Cooke pulled out from hearing the case at the 11th hour because he shared holidays with one of the Far Financial directors. He was replaced by Sir Andrew Leggatt. The decision was handed down by NZ judge John Henry. Arklow Wingate lost.

Since then I have been appealing to various authorities seeking a new trial. Below is some of the reaction I have had and below that is a list of questions I have assembled that show the extent of the corruption involved in this case.

Professor Peter Spiller

"Thanks for sending this to me: it makes disturbing reading."

Sir Peter Tapsell August 2009

“I have read your submission from cover to cover and I agree with you completely. You have formulated a cohesive and articulate argument and backed it up. I cannot believe the government has not done something about it, it’s appalling.”

Retired Australian High Court Justice Michael Kirby

" I also enjoyed the dissenting opinions of Justice Ted Thomas. He is often ahead of the game."

Professor Paul Finn

“The most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials.”

Justice Paul Temm

“To put the matter is the vernacular, the defendants pinched the plaintiffs’ information and knowledge, used it for themselves and walked away with a pocketful of money leaving the plaintiffs lamenting”

Christopher Wingate

"I think it's a travesty of justice that in this particular case, the defendants have been able to fight me using teams of powerful lawyers paid for by stolen money."

Below is a list of questions that if unanswered because legal persons in parliament block an inquiry; then there is no doubt we have serious and organised cover-ups of corruption. Parliament must overturn the Privy Council decision because that's their duty of care.

Justice and Electoral Select Committee

New Zealand House of Representatives

“That the House of Representatives inquire into, with a view to overturning, the Privy Council’s decision in Arklow Investments Limited v MacLean [2000] 2 NZLR 1, and provide suitable remedies to the plaintiff.”

Background

Mr Wingate was the main plaintiff in Arklow v Maclean. He has applied to the New Zealand House of Representatives Justice and Electoral Select Committee to investigate a miscarriage of justice.

In order for that to be determined these questions will need to be addressed:

1. Did the Court of Appeal and Privy Council get any facts wrong?

2. Did the Court of Appeal and Privy Council get any law wrong?

If that answer is yes, then it needs to be determined how that materially affected the outcome.

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

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

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

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

7. Did the defendants use the millions of dollars they had defrauded at Arklow/Wingate’s expense then use that to pay for lawyers to defend their fraud?

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

9. Was the author of the Privy Council judgement Justice Henry in a business relationship with Alan Galbraith QC defence counsel for the defendants?

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

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

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

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

14. Did David Baragwanath QC mislead the High Court at the 1994 Justice Greig hearing?

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

16. Was Mr Wingate’s barrister Gary Judd QC in a business relationship with David Baragwanath QC? (Mr Baragwanath acted for the Maori defendants 1993-1994.)

17. Did any of the defendants perjure their evidence?

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

19. Did Ernslaw One lawyer and company secretary Jack Porus perjure his evidence?

20. Did ITT CEO Charles Margiotta perjure his evidence?

21. Did Don Shaw perjure his evidence?

22. Did Far Financial directors perjure their evidence including backdating diary entries?

23. Did Far Financial steal confidential information from Arklow Investments?

24. Did Far Financial owe Arklow a fiduciary duty?

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

26. Did the defendants misuse the discovery process by concealing documents?

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

28. Did barrister John Eichelbaum have a business partnership with Far Financial?

29. Did John Eichelbaum mislead the Court of Appeal in 1998 with false submissions?

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

31. 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 vulnerability?

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

33. After the Privy Council win did Far Financial set up Lombard Finance with Michael Reeves and appoints former Attorney General Sir Douglas Graham and Minister of Justice Bill Jeffries to the board of directors?

34. 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 and what was his relationship with the judges of the Court of Appeal?

35. 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?

36. Did the Brendan Mulholland the Commissioner of Crown Lands misuse his office to defeat Arklow’s rights?

37. Did the tribal leadership of Ngai Te Rangi breach their fiduciary duty by directing tribal assets into their own personal names? (Theft by a person in special relationship)

38. Did the Maori group submit to Court the Matakana Island land was going to be jointly owned on a 50/50 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?

39. 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?

40. 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 going into the pockets of the Maori leadership, their accountant and lawyers who misled the court?

41. 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?

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

43. Did Arklow’s confidential valuations by forestry consultant Cawstons 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?

44. Did Far Financial clearly 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 Court of Appeal majority claim that at no time did Far Financial copy the Arklow deal?

45. 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?

46. Was Justice Baragwanath’s daughter Natalie present at a meeting held by a businessman 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?

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

48. 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 right through to the Arklow aim of securing the 10,000 acres of land which according to reports by 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 - calculated Arklow’s turnover of $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.

Note:

The NZ Government provided the template.

* “That the House of Representatives inquire into, with a view to overturning, the Privy Council’s decision in Arklow Investments Limited v MacLean [2000] 2 NZLR 1, and provide suitable remedies to the plaintiff.”

The Arklow / Wingate team provided the questions.

Was the Privy Council wrong on the law ?

Below is a paper done by leading international equity expert Professor Robert Flannigan. I can hear some suggest it's just his opinion. However, I have employed the world's most respected experts in this area of law, Professor Paul Finn and Professor Peter Birks. The law is clear, and Flannigan is correct. If anyone who doubt's this needs to write a paper espousing their views on how fiduciary obligations operate. Flannigan surgically rips apart the Privy Council decision.

The word ‘fiduciary’ derives from the Latin fiducia which means trust or confidence. In Roman law fiducia was a pactum, an “appendage to a conveyance”. Its primary use was a direction to the holder of property concerning that person’s obligations in relation to the property. One such example was fiducia cum amico, an institution which still exists in Civilian jurisdictions, in which a person receives assets subject to an obligation to deal with them in a particular way, in good faith.

The Boundaries of

Fiduciary Accountability

(Professor) ROBERT FLANNIGAN

Citation: 2004 N.Z. L. Rev. 215 2004

The English Jurisprudence

The senior English courts have been content for the most part to employ a traditional approach. An example is the 1993 decision of the Privy Council in Attorney-General for Hong Kong v Reid, which confirmed the English commitment to the strict application of fiduciary responsibility.' The judgment of Lord Templeman is an illustration of the proposition that courts will do what is necessary to remove any incentive to act opportunistically. Generally, there are few indications in the senior English courts of any willingness to engage in the comprehensive articulation of the abstract character of fiduciary accountability.
The judgment of Lord Millett in Bristol and West Building Society v Mothew is now regarded as stating the current English position on the nature of fiduciary responsibility. The definitive extract, quoted regularly in English courts,"
A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977) p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary.

Lord Millett recognised that conventional fiduciary responsibility addresses disloyalty or opportunism. The "core" obligation, as the listed "facets" or rules illustrate, is to forgo self-interest.

Beyond that, however, there is little in the judgment to advance our comprehension of fiduciary analysis. There is one semantic concern with Lord Millett's remarks. The rules he listed are not "defining characteristics of the fiduciary" in the sense that they identify who is a fiduciary. Rather, they are consequences of a fiduciary characterisation. The rules themselves do not indicate what it is that makes a person a fiduciary. They only have application once triggered by a prior finding of fiduciary status. That is only a semantic point, but semantics are a main source of confusion in the fiduciary jurisprudence. Consider Lord Millett's reference to Finn. It should be evident at this point that Finn's observation confounds the matter. He appears to have it exactly backwards. Actors become subject to specific fiduciary rules because their access is limited (that is, because they are fiduciaries), not because they are somehow spontaneously subjected to fiduciary obligations.

The issue in Bristol was whether a lack of care on the part of a fiduciary was a fiduciary breach. Lord Millett agreed with the view that negligence by a fiduciary was properly regulated by general tort law principles. Acting negligently was not a fiduciary breach. As he explained it, "Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. He understood that the duty of care and the duty of loyalty are parallel general duties applied on a default basis to regulate two distinct mischiefs.

The English experience since Bristol, for the most part, is unremarkable. The English judges have remained on the sidelines in the debate over the definitive criteria for fiduciary responsibility. Their abstract analysis of the nature of the obligation usually begins and ends with the citation of Lord Millett's judgment.

The Arklow Case

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 utilize 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. The recipient, however, did not subsequently use the information (no benefit). Accordingly, there was fiduciary accountability, but no fiduciary breach. In conventional terms, it was straightforward. A "mutuality" requirement only truncates and misdirects the analysis. Another observation may be made. The issue in Arklow was whether the defendants had (1) breached a fiduciary obligation, or (2) misused confidential information. The Court stated that it was not necessary to consider"[w]hether or not the obligation not to misuse confidential information is properly classed as a fiduciary duty". The Court went on, however, to insist that: "Characterising the duty to respect confidential information as fiduciary does not create particular duties of loyalty, which are imposed as a result of the nature of the particular relationship and the circumstances giving rise to it. It is not the label which defines the duty. The point appears to be that asserting fiduciary character for the duty to respect confidences does not by itself define or establish fiduciary content. But that would be incorrect. A proper finding of fiduciary status or accountability (limited access) attracts a singular default duty to forgo self-interest. That duty is associated with a set of generic rules that have individual application as the circumstances dictate. Those rules, however, are only derivative manifestations of the singular proscription against self-regard. In cases of breach of confidence, that proscription produces the "rule" that fiduciaries must not exploit confidential information. Accordingly, once the label is properly attached (accountability imposed), the associated proscription does automatically define the default duty.

On the general question of the relationship between fiduciary obligation and breach of confidence, it is worth mentioning the words of Lord Steyn a few months later in Attorney General v Blake. With reference to the disclosure of confidential information by a spy, Lord Steyn stated: "If the information was still confidential, Blake would in my view have been liable as a fiduciary .... He was ... in a very similar position to a fiduciary. The reason of the rule applying to fiduciaries applies to him." That is a sound observation. The "reason of the rule" is the same for both fiduciary obligation and breach of confidence. Information that is confidential is information that cannot be freely exploited. Where access is for a defined or limited purpose, it is a breach of loyalty to disclose or exploit the information for other than the defined purpose. In the end, although ostensibly closer to the conventional position, the English jurisprudence is in much the same condition as that of Australia and Canada. The English judges appear to understand the singular function of fiduciary responsibility, but have had difficulty in articulating an analytical construct that offers definition and distinction in the marginal cases where it matters. The continuation of this state of affairs will serve only to diminish the efficacy of fiduciary discipline in each of these jurisdictions.

Conclusion

The boundaries of fiduciary accountability appear to be unsettled. That is an illusion. Though currently obscured by a layer of confusion, the conventional boundaries remain intelligible and unchanged. Those who have access for a defined or limited purpose are subject to fiduciary regulation; those with open access are not. Most judges understand this distinction intuitively. They also recognise that different nominate arrangements are properly subjected to generic fiduciary control. Traditionally they applied this form of regulation by direct appeal to public policy, by analogy, or by the assertion of policy artifacts (the conflict and profit rules). These analytical techniques were conceptually untidy in some respects, but the function and boundaries of the jurisdiction were uncontroversial. Unfortunately, in the last while, commentators and judges unintentionally challenged the conventional boundaries when they introduced various abstract criteria in attempts to organise what they regarded as disjointed or unpolished analysis. They introduced these concepts, in most instances, in order to describe and clarify, not displace, what they perceived to be the conventional boundaries. The problem was that their criteria implied or accommodated boundaries that were not congruent with the conventional scope of fiduciary accountability. The criteria were insufficiently precise for their intended definition task. Nevertheless, because they sprang from credible sources, they had the appearance of logic and authority, and were incorporated to different degrees in judicial analyses. That produced an additional measure of confusion quite apart from the inherent indeterminacy of the various criteria. If all the criteria were potentially applicable, what was their relationship to one another? Were they redundant? Was there priority amongst them? Did they have different weight? Predictably, the novelty, number, and controversial content of the criteria produced substantial confusion. Equally predictably, the fiduciary jurisdiction was criticised, even ridiculed, for its vagueness and, more damaging, its seeming plasticity.

The main difficulty with several of the criteria was their open-ended quality. They could be interpreted in both restrictive and expansive ways. The misinterpretation concern was realised in several senior court decisions (and many more lower court decisions). The Supreme Court of Canada notoriously adopted expansive interpretations in the aboriginal/Crown and medical records contexts. The Court passed over the conventional boundary between the nominate and fiduciary dimensions. In contrast, in those same areas, the High Court of Australia declined to make the conceptual leap. In other respects, however, employing other criteria, the High Court has been unduly restrictive. In Canada, the more recent decisions of the Supreme Court are conventional in result, though the judges continue to toy with suspect criteria. The one promising development is the decision in KLB, which suggests the possibility of a significant rehabilitation or clarification of the jurisprudence.

Throughout this same period, the senior English courts have resisted manufacturing or applying novel criteria, though there are exceptions. Most recently, the English appear to have accepted Lord Millett's conventional statement of principle, and have not otherwise generally engaged in the abstract analysis of fiduciary accountability.

The solution to the problem of an opaque jurisprudence is not always apparent. That is not the case here. It is possible in this area to chronicle with some precision the production of increasing levels of confusion as a result of the introduction of numerous imprecise and irrelevant criteria over a number of decades. The solution is straightforward. Each and every one of the introduced criteria must be discarded. Unjust enrichment, discretion, encumbered power, abuse of power, power differential, total reliance, vulnerability, reasonable (legitimate) expectation, commercial character, arm's length, mutuality, and a collection of others, are all unsatisfactory as general tests. It is necessary to expunge them all in order to restore our proper comprehension of the conventional boundaries. The conventional function is undisputed. It is manifest public policy that our limited access arrangements be shielded from the infection of self-interest. That policy produces specific boundaries. There is no other policy identified in the jurisprudence that would justify altering those boundaries. A failure to recognise the distinction between nominate and fiduciary regulation, or to discard the confusions of the past decades, will condemn the jurisprudence to a further period of uncertain application and continuing questions of legitimacy.

Parliament Must Act

The above paper is clear. The Privy Council got the law wrong. Not only did they get the law wrong they wrote completely incorrect facts no doubt designed to cover their tracks.
Sir Peter Tapsell told me the decision against me was namely because some in government thought the land claims were legitimate. But they weren't. The Maori group were the leaders of the tribe who misused their positions to personally enrich themselves and certain people in the government and judiciary failed to investigate what was going on.

The inquiry into Arklow faces strong opposition from people within the legal fraternity who either by personal friendship or club rules will try their best to see it shut down irrespective of the corruption and negligence involved. Below is a letter I have sent to the Secretary of the Commonwealth in anticipation of that.

Commonwealth Secretariat

Marlborough House Pall Mall
London United Kingdom

10 February 2015

Dear Mr Secretary

If a member nation has a corrupt or negligent judiciary, what can be done if the Attorney General uses ‘Separation of Powers’ to stop a parliamentary inquiry into said judiciary?

This has the effect of upsetting the Separation of Powers doctrine, which I understand is in place to create independent checks and balances on both legislative and judicial functions.

Please advise on this matter.

Sincerely

Christopher Wingate

Fiduciary Law and our Government Leadership

Some years ago I wrote:

"My aim has never wavered. To me fiduciary accountability (legislation) is the answer to all our political, judicial, economic, social & educational problems. When the world finally understands and adopts this, they will look back and wonder how they ever managed without it.”

Since the Matakana decision I have built a careful and detailed case for the removal of Crown Immunity. As some of you know, a fiduciary is a person who you trust to look after something that belongs to you. The most powerful fiduciary in society are our politicians and judges. Yet incredibly, you can't challenge them when they fail. Your doctor, lawyer, accountant, advisors, etc, are all accountable in a court of law. But the top of the power tree operate under ancient laws of immunity stemming from the dictatorship concept of "The King can do no wrong- the King is always correct."

Government is a trust structure owned by the people. We select people from our communities... well...our political parties put forward candidates for us to select from and those people are then employed with managing our nation.

I don't need to get into details of how often they fail you all know many stories yourselves. But failure by a doctor or a lawyer may only harm a few dozen at most. But failure by those we trust running our nation harms millions of people. Wars, bankruptcy, poor health and education services, loss of state assets, inflation and no money to look after our families is caused by poor government leadership.

From local councils through to the state management a fiduciary duty of care needs to be in place so that they can be held to account for their decisions. So how can we do this? Politicians are members of political parties and any of you who have had anything to do with them knows that decisions are made by a very small group of people. Those people put up ideas, candidates and members generally agree. If I asked the main political party or it's members of parliament to adopt fiduciary legislation they would reject it. They simply don't want to be held to account.

So, what we do is flood the political parties and actively push fiduciary legislation. I explained it like this to my kids. "You are members of the sailing club and have nice waterfront facilities and one day some powerboat people ask if they can also use your club. But you say no. Then over the next year your membership increases then one day at a meeting one of the new members suggests the club allows powerboats and calls for a motion in favour- someone else seconds the proposal and when it goes to vote the powerboats are now allowed to use the sailing club facilities."

That is the wonderful thing about democracy. By introducing new duty of care rules into our political parties the existing candidates have no choice but to comply with Party Policy.

Politics needs to be modernised. For too long it has been the lobby of political self interest and corrupt monopoly business. Democracy needs to be modernised. Democracy is not just about people having a vote, it's about ideas, culture and people and communities with needs. To maintain those links those we entrust the management of our nations must have connected to them strict rules that remind them they work for the people and not themselves or those who often secretly fund their elections.

Matakana Island