Faulkner v The Trustees of Allotment 5 Parish of Tahawai
[2011] NZCA 196
•18 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA66/2011 [2011] NZCA 196 |
| BETWEEN TOA HAERE FAULKNER |
| AND THE TRUSTEES OF ALLOTMENT 5 PARISH OF TAHAWAI |
| AND WESTERN BAY OF PLENTY DISTRICT COUNCIL |
| Counsel: P Rupe for Appellant |
| Judgment: 18 May 2011 at 4 pm |
JUDGMENT OF CHAMBERS J
AThe application to review the Registrar’s decision not to refund the filing fee is dismissed.
B The application to review the Registrar’s decision with respect to security for costs is dismissed. Security for costs must be paid within 10 working days of the date of this judgment.
REASONS
This is a most unusual appeal. The nominal appellant is Toa Haere Faulkner. But he is dead. Tio Faulkner purports to bring this appeal in the name of Toa Haere Faulkner. Whether he is entitled to do that is presently unclear.[1]
[1]I note in this regard that Tio Faulkner applied unsuccessfully for leave to appeal from the Maori Appellate Court directly to the Supreme Court. The Supreme Court, when declining leave to appeal, expressly raised the issue of whether Tio Faulkner was entitled in any event to bring the application: see Faulkner v Trustees of Allotment 5 Parish of Tahawai [2011] NZSC 39 at [3].
Tio Faulkner also wishes to have Phillip Rupe represent him in this court. In the Maori Appellate Court, from which this appeal emanates, it is possible to be represented by someone other than “a barrister or solicitor of the High Court”[2]. That is not possible, however, in this court. If Tio Faulkner wishes to continue with this appeal, he must either represent himself or obtain the services of a lawyer. If Mr Faulkner wishes to represent himself, he may, with the leave of the Court, be permitted to have Mr Rupe as a “McKenzie friend”. McKenzie friends, where allowed, may provide advice to a litigant in person, but may not file documents, file submissions, or address the Court.
[2] See Te Ture Whenua Maori Act 1993, s 70(1).
This is not the occasion to resolve Tio Faulkner’s entitlement to bring this appeal. Rather, I confine my attention to two applications:
(a)An application to review the Registrar’s decision not to refund a filing fee; and
(b)An application to review the Registrar’s decision to fix security for costs at $5,560.
I deal with those applications in turn.
Review of refusal to refund fees
To bring this appeal Mr Faulkner paid a filing fee of $920. He applied for a refund of that sum on the basis that this was an appeal concerning “a matter of genuine public interest”. On 2 May, the Registrar issued a decision, declining to order a refund.
Mr Faulkner now challenges that decision under s 100B of the Judicature Act 1908. That section provides for reviews to be dealt with on the papers.
The Registrar, in determining whether to refund fees, had to apply reg 8 of the Court of Appeal Fees Regulations 2001. That meant she had to be satisfied on three matters. First, that no application, under reg 5, for waiver of the fee was made. Secondly, that the fee would have been waived, in accordance with reg 5, had the application been made. Thirdly, that the criteria that would have justified that waiver still applied at the date of the application of the refund.
There is no dispute on the first matter. The Registrar concluded that Mr Faulkner had not established the second criterion. This is not a matter where the applicant relied on his inability to pay the fee in terms of reg 5(3). Rather, he contended that the matter was of genuine public interest in terms of reg 5(4)(a). The case concerns the status of Allotment 5 Parish of Tahawai in terms of Te Ture Whenua Maori Act 1993.
I am satisfied that the Registrar’s decision that this appeal did not fall within reg 5(4)(a) was correct. The question sought to be answered in this case does not give rise to “a question of law that is of significant interest to the public or to a substantial section of the public”.
Further, there is no evidence to support the contention that the appeal “is unlikely to be commenced or continued unless the fee was waived”.[3]
[3] Court of Appeal Fees Regulations 2001, regs 5(2)(b)(ii).
Mr Faulkner raised the point that the Supreme Court had waived the filing fee on Mr Faulkner’s (unsuccessful) application for leave to appeal straight to the Supreme Court. A Supreme Court case officer has advised that the application was granted “on public interest grounds, as it was the first one of its type to [the Supreme] Court”. That may have been the view of the Supreme Court Registrar with respect to that Court’s jurisdiction and the circumstances in which leave can be granted in that Court – although I note in that regard that the Supreme Court did not ultimately grant leave to appeal. The Court of Appeal Registrar was not bound to come to the same conclusion as the Supreme Court Registrar in any event.
The Registrar was right not to refund the filing fee.
Review of decision regarding security for costs
Standard security for costs under the Court of Appeal (Civil) Rules 2005 would, in this case, have been $11,120. The Registrar, by decision dated 15 April 2011, decided to reduce the amount of security payable to $5,560. That decision was made under r 35(6). The reason for the reduction in the amount of security was that the Trustees of Allotment 5 Parish of Tahawai, the first respondents, did not seek to have any security for costs. This may be because the trustees do not plan to take part in the appeal. There is no record of them being represented before the Maori Appellate Court. Accordingly, the security of $5,560 is entirely for the benefit of the Western Bay of Plenty District Council, the second respondent.
Tio Faulkner seeks a review of that decision under r 7(2) of the Civil Rules.
I am quite satisfied that the Registrar’s decision was correct. First, it is uncertain at this stage whether Tio Faulkner even has standing to bring this appeal. In those circumstances, the Court should be particularly cautious before denying a party the benefit of standard security.
Secondly, it is relevant that Toa Faulkner, who was, prior to his death, one of the trustees of Allotment 5 Parish of Tahawai, was in a minority. The other trustees support the Maori Appellate Court’s decision that Allotment 5 is Maori freehold land. So we have the position that the Maori Land Court, the Maori Appellate Court, all the other trustees and the Council consider the land in question to be Maori freehold land; only Toa Faulkner considered the allotment to be Maori customary land. That does not mean that the appeal is hopeless, of course. But it does give rise to the distinct possibility that Tio Faulkner will have an uphill battle in persuading this Court that the Maori Appellate Court’s decision is wrong. One can infer from the fact that neither Tio Faulkner nor his father have or had a lawyer acting for them that the Faulkners’ stance has never been the subject of a favourable legal opinion.
Thirdly, there is no evidence to suggest that Mr Faulkner’s appeal right will be rendered nugatory if he has to pay security. Mr Faulkner has not put any financial information before the Court. His application for a refund of filing fees was not put on the grounds of hardship but exclusively on the grounds of public importance.
Fourthly, I do not consider the status of Allotment 5 is a matter of sufficient public interest.
Finally, Mr Faulkner submits that it is unfair he should have to provide security for the Council, when it should not even be a party. The Maori Appellate Court, however, decided the Council did have “a significant interest in the outcome of the decision to warrant its participation”.[4] In light of that decision, the Council has correctly been named as a party to the appeal. It should accordingly be given security. If, on the hearing of the appeal, it turns out the Council was wrongly joined before the Maori Appellate Court, then it may be it will ultimately turn out not to be entitled to costs in this Court. But that is a downstream matter.
[4] Faulkner – Allotment 5 Parish of Tahawai [2010] Maori Appellate Court MB643 at [23].
Further, this Court has a definite interest in the Council’s continued participation as, without it, there would not be a contradictor. The trustees have not indicated an intention to play an active role on the appeal.
I give Mr Faulkner a further ten working days in which to pay security for costs. I also caution Mr Faulkner that, if the appeal is dismissed, he may well find he is liable for costs not only to the Council but also potentially to the trustees. While they have not sought security, they have not ruled out the possibility of seeking costs should the appeal fail.
Solicitors:
Holland Beckett, Tauranga for First Respondents
Cooney Lees Morgan, Tauranga for Second Respondent
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