Bidois v Leef - [2014] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA441/2013
[2014] NZCA 271

BETWEEN	COLIN BIDOIS, JENNY ROLLESTON, TAARI NICHOLAS, PATRICK NICHOLAS, CHRISTOPHER (KIRITOHA) TANGITU, RAWIRI KUKA AND SHADRACH ROLLESTON AS THE MANDATED REPRESENTATIVES OF THE HAPU OF PIRIRAKAU Appellants
AND	RAPATA (ROBERT) LEEF, STEPHANIE TERIA TAIAPA, NADINE HORINA PIRAKE, KAINE RAROA TAIAPA, DARREN WILLIAM LEEF, NEIL HIRAMA AND PANIA ANEISHA BROWN AS THE MANDATED REPRESENTATIVES OF THE HAPU OF NGATI TAKA Respondents

Court:

Ellen France, White and French JJ

Counsel:

F M R Cooke QC for Appellants
S P Bryers for Respondents

Judgment:

(On the papers)

25 June 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is granted.
BThe respondents are granted leave to adduce further evidence in response to that adduced by the appellants within 15 working days of the date of this judgment.
CCosts on the application are reserved pending the outcome of the substantive appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

The appellants seek leave to adduce further evidence in support of their forthcoming appeal against a decision of Andrews J.[1] The application is made under r 45 of the Court of Appeal (Civil) Rules 2005.
[1]Leef v Bidois [2013] NZHC 1349.
The respondents oppose the application.
By consent the application has been dealt with on the papers.

Background

The parties are the mandated representatives of two hapū[2] of Ngāti Ranginui. The appellants represent Pirirākau and the respondents Ngāti Taka. Both claim they hold mana whenua over certain lands subject to compensation under the Crown’s Treaty of Waitangi settlement with Ngāti Ranginui.
[2]One of the issues in dispute is whether Ngāti Taka is a sub-hapū rather than a hapū.
Before the settlement was signed, all of the hapū of Ngāti Ranginui (including Pirirākau and Ngāti Taka) entered into an agreement about how to deal with inter-hapū disputes involving competing mana whenua claims. The agreement, which we shall call the Mana Whenua Process Agreement, provided a three-stage process for the resolution of such disputes. Stage 1 involved the identification of claimed mana whenua interests, stage 2 a negotiation process and stage 3 an adjudication process.
When negotiations between Pirirākau and Ngāti Taka failed to reach agreement, they sought to invoke the stage 3 adjudication process. However for reasons that remain controversial, that did not happen. Instead, they entered into their own separate agreement, which was described as an arbitration agreement. The arbitration agreement provided for a different resolution process than the stage 3 adjudication process. The nominated decision-makers subsequently issued an “arbitration award” in favour of Pirirākau.[3]
[3]The arbitrators found that Ngāti Taka could not claim to be a separate entity, but was an integral part of Pirirākau.
Dissatisfied with the outcome, Ngāti Taka then issued proceedings in the High Court under the Arbitration Act 1996, alleging bias and breaches of natural justice on the part of the arbitrators.
Justice Andrews held that all the resolution panel could do under the “arbitration agreement” was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bidois v Leef

Details

AGLC: Bidois v Leef [2014] NZCA 271
Case: [2014] NZCA 271
Decision Date: 25 June 2014 at 3.30 pm

CaseChat Overview and Summary

The case of Bidois v Leef involves a dispute between two groups, the appellants, who represent the hapū of Pirirākau, and the respondents, who represent the hapū of Ngāti Taka, both of which are subgroups of the Ngāti Ranginui iwi. They are contesting claims of mana whenua, or traditional authority over certain lands, in relation to a Treaty of Waitangi settlement with the Crown. The respondents sought leave to adduce further evidence in response to evidence presented by the appellants in their appeal against a decision of Andrews J, which was made under rule 45 of the Court of Appeal (Civil) Rules 2005.

The legal issues before the Court were whether the evidence proposed by the respondents was fresh, credible, and relevant. The respondents argued that the proposed evidence was not fresh because it could have been obtained with reasonable diligence during the High Court proceedings. They also argued that the evidence was not entirely reliable and, even if it was fresh and reliable, it was not relevant. The appellants contended that the evidence was fresh as it related to the background of the Treaty of Waitangi settlement and the reasons for bypassing the stage 3 adjudication process.

The Court found that the evidence proposed by the respondents was fresh as the appellants could not have reasonably anticipated that the Judge would base her finding on the issue of whether the process was an arbitral process. The Court also found that the evidence was relevant and would be helpful in the appeal. The Court granted the respondents leave to adduce further evidence in response to the appellants' evidence within 15 working days of the date of this judgment. The Court deferred consideration of the issue of cross-examination to the panel that would hear the substantive appeal, urging counsel to endeavour to avoid the need for cross-examination. Costs on the application were reserved pending the outcome of the substantive appeal.

Orders