Adam is a solicitor at Franks Ogilvie. He joined the firm in September 2023 and completed an LLB/BA in 2024, majoring in History and Public Policy. He was admitted as a barrister and solicitor of the High Court in June 2025.
Prior to working at Franks Ogilvie, Adam was part of the team at the New Zealand Free Speech Union, running much of the back-end work of the organisation. He also interned for a Member of Parliament in 2020.
Adam is passionate about liberal democratic values and the importance of a robust civil society. Outside his work and studies, he enjoys getting out into the various tracks and DOC huts in the Wellington region.
The High Court reinstated Mariameno Kapa-Kingi as a member of Te Pāti Māori (“TPM”), finding she had been unlawfully expelled from TPM. The Court found that the meetings used to suspend, then expel, Kapa-Kingi from TPM were not properly held under TPM’s Constitution (“Constitution”) and breached TPM’s tikanga.
The judgment was later recalled and reissued, after a request of the Speaker of the House.
The Constitution provided that TPM’s National Council (“Council”) could cancel a person’s membership if they did not meet the criteria for Party membership, such as loyalty to the Party, and that a person found to have misused Party funds would be immediately expelled from the Party. The Constitution also provided for a lengthy procedure that the Party would have to follow to expel a person on these grounds, which included having a relevant Electorate Council attempt to resolve a dispute before having the issue heard by a Disciplinary and Disputes Committee.
On 9 November 2025 the Council voted to expel Member of Parliament Mariameno Kapa-Kingi. This followed a relationship breakdown between Kapa-Kingi and TPM leadership, and a purported suspension of her membership on 23 October 2025, which also included a resolution to “reset” the Te Tai Tokerau Electorate Executive by way of a Special General Meeting. The expulsion arose following allegations that Kapa-Kingi had misused her Parliamentary budget and that media interviews where she was critical of TPM had brought TPM into disrepute.
On 4 December Kapa-Kingi, alongside her Te Tai Tokerau Electorate Council ( “Applicants”) applied for a judicial review and interim injunction in the Wellington High Court challenging her expulsion from TPM. The Applicants alleged the expulsion violated the Constitution and that TPM’s President John Tamihere had not been properly elected. The following day the High Court granted the interim injunction, reinstating Kapa-Kingi’s membership to TPM pending a substantive hearing.
Were TPM’s decisions amenable to judicial review?
The Court first determined whether internal party decisions could be judicially reviewed and held to public law standards. TPM submitted that as a private organisation judicial review was not available for matters of internal Party discipline, but the Court found that a Member of Parliament’s membership in a political party and the valid appointment of a party president impacted public affairs and could not simply be a private matter. It noted that political parties are how the public engage in Parliamentary politics and so their internal processes have a public nature, related to government, that allows the court to conduct a review
First cause of action: purported suspension of Kapa-Kingi
The Applicant’s first challenge was to the purported decision of TPM’s Council to suspend Kapa-Kingi and “reset” the Te Tai Tokerau Electorate Executive. The Council comprised the TPM President, co-vice-presidents, co-leaders, Members of Parliament and members selected by each Māori electorate. Party MPs (excluding the co-leaders)and the council members from Te Tai Tokerau were not notified of the meeting to suspend Kapa-Kingi.
The Applicants argued that the Constitution did not provide any power to suspend a member and that TPM had failed to comply with the Constitution’s dispute resolution and complaints processes. TPM claimed that the power to suspend membership was inherent to the power to expel and/or cancel memberships.
The Court held there was no power to suspend a membership in the Constitution, implied or otherwise. It found that even if a power existed, TPM ignored relevant provisions of the Constitution such that the suspension could not stand. The Court cited the various procedural failings of the meeting, such as TPM’s MPs and the Te Tai Tokerau electorate not being invited or present, and that no notice of the specific resolution to suspend Kapa Kingi was given to attendees. The Court also noted the importance of tikanga, woven through the Constitution, which TPM did not follow when it suspended Kapa-Kingi.
Second cause of action: Kapa-Kingi’s purported expulsion from TPM
The Applicants challenged the legal and factual basis for Kapa-Kingi’s expulsion from TPM, claiming that the expulsion did not comply with the Constitution and that the factual basis for the expulsion was incorrect. They argued that TPM had not followed the correct procedure for expelling Kapa-Kingi from TPM and that she had not in fact misused Party funds, nor brought TPM into disrepute.
TPM argued that Kapa-Kingi had misspent Party funds by exceeding her Parliamentary Services budget, including through contracts with her son which they claimed was improper. They said her loyalty was also at the judgement of the Council, for which they relied on the media interviews Kapa-Kingi participated in where she was critical of Party leadership.
The Court found that TPM had not followed the Constitution’s requirement that it send a dispute to the relevant Electoral Council and instead had proceeded directly to action at the National Council level. A Discipline and Disputes Committee had also neither been formed nor used. As with the decision to suspend Kapa-Kingi, the decision to expel her was made at a meeting without Party MPs or Te Tai Tokerau electorate representatives. The Court found that the process used to expel Kapa-Kingi did not comply with the Constitution and the expulsion was therefore unlawful. The Court noted this was also contrary to the Constitution’s principles of tikanga, which included acknowledging the authority of individual electorate and the necessity of working towards unity.
The Applicants also argued that TPM had made a mistake of fact, submitting that the factual basis for Kapa-Kingi’s expulsion was incorrect. They claimed that there was no actual misuse of Party funds and that Kapa-Kingi had not brought the party into disrepute, such that the grounds for her to be expelled under the Constitution had not been made out.
Kapa-Kingi’s Parliamentary Services budget was independent of TPM, and Kapa-Kingi had otherwise been able to correct her forecasted overspend. The Applicants also noted that employing whanau was common in TPM and that Kapa-Kingi had not set out to bring TPM into disrepute through her media interviews. Nonetheless, the Court noted that a judicial review for a mistake of fact required TPM’s conclusions to be entirely untenable. It considered that whether Kapa-Kingi had in fact misused Party funds or brought the Party into disrepute were tenable value judgements open to TPM, provided it complied with the Constitution’s processes.
Third cause of action: John Tamihere’s presidency of TPM
The Applicants claimed John Tamihere had not been validly re-elected as President of TPM. The Constitution provided that elections for TPM’s President and two co-Vice Presidents would occur “on a rotational, triennial basis”. John Tamihere had first been elected as Party President in June 2022. At an Annual General Meeting in July 2024 TPM “affirmed” Tamihere’s position as President without opposition. The Applicants claimed that the affirmation of Tamihere’s position did not meet the Constitution’s requirements for nominating and voting on a Party President.
Aside from the minutes of the July 2024 meeting which recorded the affirmation of Tamihere as President, there was no evidence available on the procedure adopted for that meeting. The Court accepted that the minutes evidenced a sufficiently democratic process, particularly as the affirmation of Tamihere’s presidency was without opposition. The Court also noted that no other challenges had arisen to Tamihere’s presidency for the year and a half prior to the Applicants bringing this case. This cause of action did not succeed.
The High Court ordered that Mariameno Kapa-Kingi be reinstated as a member of TPM. This case highlights the importance of following internal processes correctly in a dispute, and also sets a precedent that political parties, despite being private organisations, do have a public nature that brings them within the jurisdiction of judicial review.
Update: following an application from the Speaker of the NewZealand House of Representatives (“Speaker”) seeking to adjust the wording ofthe High Court’s order, the High Court recalled and reissued this judgment. TheSpeaker was concerned that the High Court’s decision breached the principles ofcomity and Parliamentary privilege, by purporting to interpret Parliament’sStanding Orders in making an order that Kapa-Kingi be reinstated to the TPM ParliamentaryParty.
The High Court amended the orders given in its judgment. Itretained the declaration that the decisions to expel Kapa-Kingi from TPM wereunlawful and were set aside. Instead of ordering TPM to inform the Speaker thatKapa-Kingi was reinstated to TPM, the reissued judgment stated that the Court“would expect” that TPM “would consider whether it would be appropriate tonotify the Speaker that Ms Kapa-Kingi is now a member of the parliamentary pāti”.
For further information on this case or similar issues, please contact Director Brigitte Morten
An incarcerated plaintiff in a judicial review application had a significantly reduced costs order made against him in recognition of the chilling effect that costs orders have on potential plaintiffs bringing New Zealand Bill of Rights Act cases.
Lance Lee, an inmate at Rolleston Prison, applied for judicial review of the Department of Corrections (“Corrections”) decisions to decline medical prescriptions, and a prison policy of charging for hearing aid batteries. He alleged the decisions breached his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”). This included his right not to be subject to torture or cruel treatment, right to freedom from discrimination, and right to be treated with humanity and respect while being deprived of liberty.
The application for judicial review failed decisively, and Corrections sought an award of costs from Mr Lee to reimburse them for their expenses incurred instructing a barrister to defend the application (which amounted to $11,648). Mr Lee requested that costs be either reduced or refused entirely.
Costs are awarded at the discretion of the Court in accordance with the High Court Rules. The standard position is that an unsuccessful party will pay costs to the successful party, though the Court may refuse to award costs or reduce them. Circumstances where the Court may exercise this discretion include when a proceeding concerned a matter of public interest, or where the party claiming costs had contributed unnecessarily to the time or expense of a proceeding.
Mr Lee opposed costs on the grounds that the proceeding concerned a matter of public interest. For a reduction of costs on those grounds, it required the proceedings to genuinely engage the public interest, have merit, and be of importance beyond the interests of the unsuccessful party. Just because a case invokes human rights does not necessarily mean it concerns a matter of public interest.
Mr Lee submitted that a costs order would be contrary to his right to justice as affirmed by section 27 of NZBORA and would discourage other inmates from initiating legal proceedings to uphold their own rights. He argued that the Court had agreed his claim had merit as they had refused to strike it out and relied on Gorgus v Chief Executive of the Department of Corrections, where a prisoner successfully appealed a costs order for an unsuccessful NZBORA claim.
Corrections submitted that they acted appropriately throughout the proceedings, including signalling the prospects of costs to Mr Lee. They submitted Mr Lee’s claims were for his personal benefit, were without merit, and had already incurred public costs from Corrections staff having to take time to provide affidavit evidence.
The court considered that the judicial review had little public benefit. The medical decisions were non-justiciable and personal to his circumstances, so did not have the potential to benefit other inmates. The prison policy to charge for hearing aid batteries considered the personal circumstances of prisoners, which the Court said limited the benefit Mr Lee’s review would have for other prisoners.
Citing Gorgus, the Court nonetheless noted the chilling effect that the risk of costs orders has on potential plaintiffs. The Court recognised the policy interest in not discouraging litigants with tenable grounds of review from accessing the courts to vindicate their rights. This interest is balanced against not wanting to immunise litigants with meritless claims from adverse costs awards.
The Court noted that Mr Lee’s status as a prisoner and lack of access to substantial funds were not a barrier to an award of costs, but they did make Mr Lee the kind of person whose access to justice needed to be preserved and recognised. The Court considered it appropriate to substantially reduce the costs Mr Lee would pay to Corrections.
The Court ordered Mr Lee to pay $1000 to Corrections for costs incurred defending his application for judicial review. This was a significant reduction from a standard costs order.
For further information on this case or similar issues, please contact Managing Director Brigitte Morten
The Supreme Court overturned the Court of Appeal’s quashing of a takedown order of online reporting of the extensive criminal conviction of Damon Exley (“Appellant”). The substantive trial had already concluded, but this decision significantly expanded the availability of takedown orders for criminal defendants.
Background
The Appellant was a convicted sex offender who escaped from prison and while on the run committed a series of serious crimes. This offending attracted significant public interest and media reporting, including of his previous convictions. The Appellant applied for a takedown order under the Criminal Procedure Act 2011. The High Court granted this application, ordering media coverage of his previous convictions and character to be removed from the internet.
Takedown orders are used by the courts to direct the removal of specific information (such as an online news article) from publication that is deemed prejudicial to a defendant’s right to a fair trial. Often, as in this case, it involves reporting of a defendant’s character or previous convictions that might predispose a juror against the defendant.
NZME successfully appealed the takedown order in the Court of Appeal, which attached greater weight to the propensity evidence to be heard at trial. Propensity evidence shows a person’s character or predisposition to act in a particular way. Because evidence regarding the Appellant’s character and previous convictions would be given at trial regardless, the Court of Appeal considered that reporting outside trial on the Appellant’s previous convictions would do little to prejudice his case. The Court of Appeal also believed that the risk that jurors might ignore judicial directions against undertaking their own inquiries was overstated, pointing to studies that showed that the great majority of jurors understood and complied with their responsibilities.
Despite the substantive trial concluding and the Appellant returning to another lengthy prison sentence, the Supreme Court allowed an appeal on the takedown orders.
The case
The Supreme Court overturned earlier authority which required consideration of the right to free expression when determining takedown order applications. The Court held that the right to a fair trial is absolute; no other considerations, such as the right to free expression as enumerated in section 14 of the Bill of Rights Act, could prevail over the right to a fair trial. Despite the Criminal Procedure Act 2011 requiring an opportunity for the host of a publication to be heard on a takedown application, the Court held this was not legislative recognition that the court had to consider the right to free expression. The Court also noted its view that it did not consider takedown orders to be an unreasonable limit to free expression, as the right is exercised by the initial act of publication and the orders are only temporary in nature.
The Court determined that the test for making a takedown order was whether there was a real risk of prejudice to a fair trial. The reach of the publication could be considered, but if the material in question is highly prejudicial, that would be sufficient to justify a takedown order regardless of reach. The Court did not consider prospects of compliance with the decision, expecting media to adjust their practices to the requirements of the law but it did require that the takedown order should also be no greater in scope than is necessary to ensure a fair trial.
The Supreme Court noted recent law changes to strengthen jury directions, such as a new oath that jurors would not conduct their own research and fines for those who do. While these reforms were meant to reduce juror non-compliance with judicial directives not to self-investigate, the Supreme Court also took them as Parliament recognising jurors could not be trusted not to undertake their own research.
The Court also suggested that the Crown should support takedown orders itself where its test is met, and that prosecutors should even apply for them at times if the defence do not do so. This guidance was based on the duty of prosecutors to uphold the right to fair trial themselves. The Court gave an expectation that the Crown would reconsider an earlier decision not to update the Solicitor-General’s prosecution guidelines regarding takedown orders.
On the issue of whether the High Court should have accepted the Appellant’s application for a takedown order, the Supreme Court took a middle ground between the High Court and the Court of Appeal. It agreed that a takedown order should have been in place, but only for the URLs submitted by the Appellant’s counsel. The Court noted that not all of the Appellant’s criminal history was before the jury, and that the tone of the relevant reporting was inflammatory in prejudicial terms. That the material was highly prejudicial was enough to justify issuing a takedown order, given the isk to the Appellant’s fair trial rights if the material was accessed by a juror.
Result
The Supreme Court allowed the appeal, determining that the Court of Appeal was not correct to quash the High Court’s takedown order, to the extent that it related to the URLs identified in the takedown application. Defendants in high profile cases that attract media attention will now have a lower threshold to achieve takedown orders to limit publication of their alleged crimes and any criminal histories.
This judgement substantially lowered the bar for defendants in criminal trials to have suppression orders granted in their favour. That the right to a fair trial prevails over free expression is not a new development. However, the judgement has left the law in a contradictory position regarding the trust it places in juries. The Court could have taken an approach that limited the impact on the right to free expression by placing more weight on making juror’s compliance with judicial directions rather than removing access to information for everyone.
The judgment assumed that the takedown orders were necessary to protect the Appellant’s fair trial rights. In doing so it also displaced the presumption that jurors will comply with judicial directions, despite research to show that the vast majority of jurors do in fact understand their obligations. The scope of a takedown order is supposed to only be as extensive as is necessary to protect the right of a fair trial, but without emphasising other means of deterrence as the primary means of protecting fair trial rights, a takedown order will necessarily be more extensive than it otherwise needs to be.
While the new legislative measures to strengthen jury directions recognises the risk that they might undertake their own research, the Court could have also better recognised that they reduced the necessity of takedown orders.
While not central to the judgement’s reasoning (given its view that fair trial rights are paramount) its characterisation of the right to free expression is also concerning. Free expression is not simply exercised by a singular act of speech, but rather is the ongoing ability to impart views and information. That the Court described the right as ‘exercised’ by an initial act of publication is a substantial diminution that might have lead it to treat the impact of a takedown order lighter than it should have.
The right to free expression is not only a right to impart information, but also to seek and receive information. This recognises the right of journalists for example, to publish information but also the general public’s right to access that information. The judgement did not engage with this aspect of the right to free expression.
For further information on this case or similar issues, please contact Director Brigitte Morten.
