Cowan v Cowan
[2022] NZHC 1322
•3 June 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-137
[2022] NZHC 1322
BETWEEN CHRISTINE MARAMA COWAN
First Plaintiff
AND
TE RAHUI JOHN COWAN
Second Plaintiff
AND
JOHN ARTHUR COWAN
Defendant
Hearing: 3 June 2022 Appearances:
J Mason for the Plaintiffs
R C Laurenson and C M Batt for the Defendant
Judgment:
3 June 2022
REASONS FOR DECISION OF GENDALL J
Solicitors:
R Laurenson, Barrister, Wellington
COWAN v COWAN [2022] NZHC 1322 [3 June 2022]
[1] Today, 3 June 2022 is the fifth hearing day for this substantive claim, scheduled for a total of seven hearing days.
[2] Evidence was scheduled to be given today on behalf of the plaintiffs, from Haami Piripi, a tikanga Māori expert in accordance with an affidavit he filed in this proceeding dated 26 May 2022.
[3] Before Mr Piripi is to be called, however, Mr Laurenson for the defendant made an oral application before me seeking an order for Mr Piripi’s evidence here to be ruled inadmissible and irrelevant and therefore that he not be called as a witness for the plaintiffs. Issues relating to Mr Piripi’s evidence have been the subject of earlier discussions with counsel. In my Minute of 20 May 2022 in this proceeding I recorded:
(4) At the outset, Mr Laurenson complained strongly that the plaintiffs and their counsel had not complied with timetabling arrangements leading up to the hearing of this matter and in particular relating to reply evidence from the plaintiffs’ witnesses and new evidence from a tikanga expert, which the plaintiff was to put forward.
…
(6) … suffice to say that in any event Ms Mason contends the interests of justice here require the plaintiffs to have a short further period of time… to serve evidence from a new tikanga expert which the plaintiffs proposed having been unable to obtain the evidence from an earlier expert they wished to engage.
(7) Mr Laurenson for the defendant has strongly opposed any reply or new evidence of any kind being provided at this late stage.
(8) He also strongly opposes a suggestion advanced at one point by Ms Mason for the plaintiffs that, in view of a late provision of evidence and to assist the court, and also to allow the defendant an opportunity himself to respond to the expert tikanga evidence to be served, the hearing scheduled for 30 May 2022 might be adjourned.
(9) As I understand the position, the plaintiffs continue to occupy the property at Lyall Bay at issue here, and there is an urgent need for matters to be addressed at trial before this court.
(10) As I understand it, this urgency has also been confirmed and directed by the Supreme Court.
(11)Given these circumstances, I now make the following directions:
a)The hearing of this proceeding scheduled for seven days to commence in this court on 30 May 2022 is confirmed.
…
c) The plaintiffs are to serve the expert tikanga evidence at the latest by 5pm on Wednesday 25 May 2022.
…
f) So far as the expert tikanga evidence noted at [11](c) above is concerned, before me Mr Laurenson for the defendant contended first, that tikanga issues did not form part of the plaintiffs’ pleading here. And secondly, that a direction should now be made that the pleadings are closed. This direction closing pleadings is now made. The expert tikanga evidence noted above however is allowed by way of indulgence in this case. It is important that the court have all relevant evidence before it in considering this case. Once this evidence is served and filed, the position is reserved for the allocated hearing Judge to consider the plaintiffs’ tikanga evidence and to make a ruling as to its relevance and admissibility here. If the expert tikanga evidence is deemed admissible, then the allocated hearing Judge will no doubt consider whether time should be allowed through the allocated seven day hearing and possibly also after that initial hearing for the defendant to obtain and provide his own expert tikanga evidence in reply. Those, however, obviously are matters for the allocated hearing Judge.
[4] At the hearing today 3 June 2022, I gave my urgent decisions dismissing Mr Laurenson’s application and indicated my reasons would follow. I now give these reasons.
[5] The grounds advanced by Mr Laurenson in support of his present application, as far as I am aware, are:
(a)The evidence of Mr Piripi is not relevant to the four causes of action the plaintiffs have pleaded in their statement of claim. On this, Mr Laurenson contends the statement of claim does not plead a breach of tikanga Māori law in any of the causes of action.
(b)Secondly, by way of further ground here, Mr Laurenson suggests that in her opening submissions for the plaintiffs, Ms Mason did not make specific reference to tikanga Māori as a supporting cause of action or as being directly relevant in this case.
(c)Finally, Mr Laurenson refers to evidence advanced in one of her affidavits by the first plaintiff Christine Cowan where he maintains she specifically suggests the claim here is not one relying on cultural or tikanga Māori grounds.
[6] In responding to Mr Laurenson’s submissions, Ms Mason for the plaintiffs contends it is well accepted that tikanga Māori is part of New Zealand law and therefore she suggests no direct pleading concerning this is necessary here. She refers to the decision of Ngāti Whātua Ōrākei v Attorney-General No. 4 [2022] NZHC 843.1
[7] On the basis of an initial glance at these issues, I accept Mr Laurenson’s submissions that the plaintiffs’ stated first, second, third and fourth causes of action outlined in their statement of claim do not appear to plead directly a breach of cultural or tikanga Māori principles.
[8] However, what does seem clear to me is that a part of the plaintiffs’ claim here pleads loss or damage they are alleged to have suffered, including financial loss and psychological damage, both of which are said to be ongoing. Particularising this alleged financial loss and psychological damage at [33] of the statement of claim, the plaintiffs plead at [33](h):
The financial loss and psychological damage suffered is as follows:
…
h) Christine and Te Rahui’s Māori customary rights to their papakainga has not been recognised by their family.
[9] This in my view is sufficient to address the issue before me. I accept that Mr Piripi’s evidence, relating as it does to tikanga Māori principles, is appropriately admissible here on this damages question. Whether it may be directly relevant to other issues pleaded by the plaintiffs in their claim may well need consideration at a later time.
1 Ngāti Whātua Ōrākei v Attorney-General No. 4 [2022] NZHC 843.
[10] But, overall, it is for these general reasons, and in the overall interests of justice here, that Mr Pirpi’s evidence relating to tikanga māori issues outlined above is admissible. Mr Laurenson’s application is dismissed.
[11] I confirm also my further ruling made as to this issue that, if requested, at the conclusion of Mr Piripi’s evidence,2 the defendant through his counsel Mr Laurenson indicates that Mr John Cowan wishes to obtain and provide his own expert tikanga Māori evidence in reply to the evidence of Mr Piripi, then he is to confirm this with the court. In that event, an adjournment of this hearing is likely as a result, to allow this further evidence to be provided and heard.
Gendall J
2 That notice from Mr Laurenson for Mr Cowan is now to be given by 4pm on Tuesday 7th June 2022.
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