Gregory v District Court at Hamilton
[2025] NZHC 861
•10 April 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-318
[2025] NZHC 861
UNDER the Judicial Review Procedure Act 2016 for judicial review of a summary judgment BETWEEN
REWI MANIAPOTO GREGORY
Applicant
AND
THE DISTRICT COURT AT HAMILTON
First Respondent
WAIKATO DISTRICT COUNCIL
Second Respondent
Hearing: 6 March 2025 Appearances:
Applicant in person (with Peter Martin, McKenzie Friend) C L Pidduck for Second Respondent
Judgment:
10 April 2025
JUDGMENT OF GARDINER J
This judgment was delivered by me on 10 April 2025 at 11.30 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
C Pidduck, Ngāruawāhia
Copy to: Applicant
GREGORY v THE DISTRICT COURT AT HAMILTON [2025] NZHC 861 [10 April 2025]
Introduction
[1] Mr Gregory applies for judicial review of a decision made by Judge AIM Tompkins to decline to stay or set aside a judgment entered in default against Mr Gregory for unpaid rates.1 The first respondent, the District Court at Hamilton, abides the decision of this Court. The second respondent, Waikato District Council, opposes the application.
Background
[2] Mr Gregory is the registered owner of a property situated at River Road, Ngāruawāhia. The property is freehold land. Waikato District Council is the territorial authority where the property is situated.
[3] On 11 October 2022, the Council obtained judgment by default against Mr Gregory pursuant to the Local Government (Rating) Act 2002 (the Rating Act) for unpaid rates of $64,108.56 and costs of $1810.68, totalling $65,919.24. The Council has unsuccessfully sought to enforce the judgment, including by way of examination of Mr Gregory and through seizure of property. The judgment debt remains unpaid and the total outstanding rates on the property to this date (including the judgment debt) amounts to $165,251.54.
[4] In August 2024, Mr Gregory filed applications in the Hamilton District Court to stay the judgment in default or to have it set aside. Mr Gregory filed an affidavit in support.
[5] On 12 August 2024, Judge Tompkins declined the application due to “there being no substantive basis for such an application to be accepted by the Court”. The Judge made the decision in chambers without hearing from Mr Gregory or Waikato District Council.
[6]Mr Gregory now applies for judicial review of Judge Tompkins’ decision.
1 Waikato District Council v Gregory DC Hamilton CIV-2022-024-89, 12 August 2024.
[7]Mr Gregory advances the following grounds:
(a)Judge Tompkins failed to consider that the land is Māori customary land and should be exempt from rates.
(b)The Judge failed to provide sufficient reasons for the decision.
(c)Summary judgment was inappropriate as there was a defence.
(d)The decision ignored the principles of Te Tiriti o Waitangi.
[8] Mr Gregory seeks an order quashing the judgment of Judge Tompkins, a declaration that there has been a breach of natural justice, and a rehearing.
[9] On 2 December 2024, the Council sought that the application for judicial review be struck out as failing to disclose a reasonably arguable cause of action, relitigating matters already determined and that, given the passage of time since judgment was entered, to allow the application to proceed would be unduly prejudicial to the Council and ratepayers of the Waikato district. Lang J declined that application and set the application for judicial review down to be heard.
Mr Gregory’s submissions
[10] The starting point for Mr Gregory’s case is that he does not accept that the Crown lawfully extinguished native title to the land. While he accepts that the land is presently classified as freehold general land, he maintains that this is a misclassification. He says that the land should be classified as Māori customary land under s 129(2)(a) of Te Ture Whenua Māori Act 1993 and therefore exempt from rates under the Rating Act.
[11] Expanding on this, Mr Gregory submits that there are irregularities in the historical record for the property meaning that there is no record of native title to the land being extinguished. He says that the original 1913/1914 titles for the property are disputed because the titles pre-1920 for Ngāruawāhia have been deemed invalid. The 1925 certificate of title is “completely obscured”. The first available certificate
of title issued in 1947 records Patrick Morunga as the registered owner of the estate in fee simple. The next certificate of title was issued in 1989 and records a transfer from Patrick Morunga to William Morunga on 13 July 1989. On 17 August 2007, William Morunga transferred the property to Mr Gregory. Mr Gregory says that this was a gift according to tikanga Māori.
[12] Second, Mr Gregory says that the land has always been held for cultural purposes according to tikanga. He submits that the property has been used as a learning centre, a base for carving waka, and for cultural and social events including by members of the Māori royal family.
[13] Third, Mr Gregory says that he tried to engage in the rates proceeding but received mixed messages about what he was required to do and to which court he needed to go for the hearing. Mr Gregory, through his friend, expressed his frustration at the barriers to engaging in the court processes as a lay litigant.
Waikato District Council’s submissions
[14] Ms Pidduck submits that Judge Tompkins did not err in his decision to decline Mr Gregory's applications to either stay the judgment or to set the judgment aside.
[15] Ms Pidduck says that the land is fee simple freehold land subject to the assessment of rates pursuant to the Rating Act. It is neither Māori customary land nor land held under native title. Section 129 of Te Ture Whenua Māori Act establishes several categories of land, including Māori customary land, which is land held in accordance with tikanga Māori; however, there is very little land that falls within this category. She says that there is no evidence to support the applicant's assertion that this land is Māori customary land or Māori freehold land under Te Ture Whenua Māori Act. There is also no evidence of any application to the Māori Land Court in relation to the status of this land.
[16] Ms Pidduck explained that there is continuity of title for Mr Gregory’s property from the original survey plan taken in 1913 through to the present record of title. At my request, Ms Pidduck filed a memorandum tracing the history of title:
(a)On 31 January 1913, the survey plan was conducted for the subdivision allotments.
(b)Then, there is a certificate of title dated 12 May 1913, recording a transfer from William Duncan and Charles Robert Williamson to Robert Snell Laud.
(c)A certificate of title dated 14 November 1925 records a transfer to Norman Charles Laud entered on 17 December 1935 then to Te Puea Hērangi of Ngāruawāhia on an indecipherable date. This certificate of title also records further transfers of certain lots to Patrick Morunga on 17 September 1947 and Selwyn Gregory on 21 November 1947.
(d)The 17 September 1947 certificate of title records that the title was declared lost and accordingly cancelled, and a new certificate of title was issued being the one dated 10 August 1989.
(e)The final certificate of title records the transmission from Patrick Morunga to William Morunga on 13 July 1989, and subsequent transfer to William Morunga on the same date. This title also records the transfer from William Morunga to Mr Gregory on 17 August 2007.
[17] In response, Mr Gregory states the entire memorandum treats the land as purely Crown-derived, without recognising its customary status before 1913. Mr Gregory acknowledges the land transactions which occurred after 1913, but the issue remains that there was no legitimate conversion from customary title to Crown title which renders these transactions invalid.
[18] Ms Pidduck also refers to a land status report dated 3 December 2024 by The Property Group. The report confirms that the property is freehold land subject to the Land Transfer Act 2017. The report notes that as Mr Gregory is Māori, the property could be considered “General land owned by Māori” for a beneficial estate in fee simple under s 129(1)(c) and (2)(c) of Te Ture Whenua Māori Act. However, even if that was the case, rates would be payable.
[19] Ms Pidduck submits that there was no breach of natural justice in Judge Tompkins’ decision. Mr Gregory failed to take any steps or file any defence to the Council's application to obtain judgment for the substantial rates arrears in respect of the property. It was some twenty-two months from the date judgment by default was awarded to when Mr Gregory filed his applications to stay or set aside the judgment. She submits that Mr Gregory had options to put forward these arguments in defence to the rates proceeding but he did not do so.
[20] She further submits that it was not unreasonable for Judge Tompkins to conclude that there was no substantive basis for the application to be accepted by the Court. The application did not set out any grounds that would support either an application to stay the default judgment or to set that judgment aside.
Assessment
[21] This is an application for judicial review of Judge Tompkins’ decision, not an appeal. In C P Group Ltd v Auckland Council, Gilbert J helpfully set out the principles for judicial review in relevant factual circumstances:2
… unlike a general appeal, on an application for judicial review the Court is not engaged in considering the merits of the decision, nor does it substitute its own view for that of the decision-maker. The focus is on the decision-making process and whether the decision has been made in accordance with the law.
(emphasis added)
[22]The issues raised by Mr Gregory raise three questions:
(a)Is the decision unlawful because the Judge declined the applications without hearing from Mr Gregory in breach of the principles of natural justice?
(b)Is the decision unlawful because the Judge failed to consider Te Tiriti o Waitangi and that the land is Māori customary land?
2 C P Group Ltd v Auckland Council [2021] NZCA 587 at [83].
(c)Was the decision unlawful because the Judge did not give reasons for his decision?
Is the decision unlawful because the Judge declined the applications without hearing from Mr Gregory?
[23] The Judge made the decision in chambers, without hearing from Mr Gregory or the Council. The decision is recorded in a minute, signed on the Judge’s behalf by the Deputy Registrar.
[24] In declining the applications, the Judge was making an interlocutory order. Rule 7.36(3) of the District Court Rules 2014 provides that, in exercising the power to make any interlocutory order on their own initiative, a Judge must give the parties an opportunity to be heard.
[25] The right to be heard does not always mean a right to be heard orally. Gendall J in Gapuzan v District Court at Christchurch stated:3
Natural justice requires that those who will be affected by a decision have an opportunity to be heard, before a final view on a decision is reached, by an impartial decision-maker — Churms v District Court at Auckland. In order to have an opportunity to provide a response or to be heard, some form of notice of the issue that is to be decided is usually required. A physical hearing however will not always be required.
[26] In Re Dunstan, the appellant submitted her natural justice rights were breached as the Judge did not hold an oral hearing in imposing an interlocutory order under the Senior Courts Act 2016, rather determining the matter on the papers. The Court of Appeal stated that there was no such breach as the appellant did not request an oral hearing; the decision was made in consideration of the written submissions; and there was nothing in the circumstances to suggest an oral hearing should have been convened, such as a need for cross-examination.4
3 Gapuzan v District Court at Christchurch [2014] NZHC 870 at [27].
4 Re Dunstan [2024] NZCA 683 at [39]–[41].
[27] More generally, the Supreme Court made the following helpful statements in interpreting the right to be heard pursuant to s 27 of the New Zealand Bill of Rights Act 1990:5
the requirements of natural justice, which will vary with the circumstances, must be complied with. The application must be considered by a judge, who first will decide whether the parties to the proceedings in which the order was made should have the opportunity to respond and generally how the application should be addressed. These matters, including whether the applicant should be heard orally before the application is decided, will always depend on the circumstances of the case, such as the nature of the interests at stake and any potential disruptive effect on continuing proceedings.
[28]I will return to this issue at the end of this judgment.
Is the decision unlawful because the Judge did not give reasons for his decision?
[29] The Judge gave his reasons which were that “there was no substantive basis for the application”. The issue is whether this explanation was sufficient.
[30] The context for the very brief reasons is that the applications were filed nearly two years after the default judgment. Even accounting for the fact that Mr Gregory is a lay litigant, he waited too long to make the applications.
[31] Furthermore, the documents did not set out any grounds to support either an application to stay the default judgment or to have that judgment set aside. To have the default judgment set aside, Mr Gregory needed to persuade the court that there had been a miscarriage of justice.6 To obtain a stay of enforcement, Mr Gregory needed to satisfy the court he was unable to pay and discharge the sum recovered against him under the judgment.7
[32] The application for a stay gave the grounds that the property is indigenous land and subject to a customary rights claim. The application to have the default judgment set aside essentially relied on the same grounds.
5 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [182]. Note this is in the context of an application to review a suppression order.
6 District Court Rules 2014, r 15.10.
7 Rule 19.9.
[33] The material filed in support comprises the title deed to the Ngāruawāhia property, an affidavit of cultural use and significance, a certificate of incorporation for the Wikitoria Te Ngahue Trust, a notice dated 18 June 2002 in the New Zealand Gazette of the dissolution of Parliament, and legal precedents and legislation relied upon by Mr Gregory.
[34] The material filed by Mr Gregory did not engage with the legitimate issues raised by his applications. That is, whether there had been a miscarriage of justice; and whether Mr Gregory was financially able to pay the judgment sum.
[35] The desirability of giving reasons is unquestionable. However, courts have declined to lay down an inflexible requirement.8 Rather, as stated in R v Awatere, “the real issue is to assess what is practically possible against the ideal”, and courts being asked to exercise their supervisory jurisdiction (on review or on appeal) must be careful to keep in mind the multiplicity of cases dealt with in the District Courts.9
[36] In an ideal world, the Judge would have given a more extensive explanation of his reasons for decline the applications. But the brevity of the decision must be seen in the context of the lateness of the applications, the fact that they did not engage with the grounds for the orders sought but instead put forward a range of irrelevant material, and the District Court’s busy caseload.
Is the decision unlawful because the Judge failed to consider Te Tiriti o Waitangi and that the land is Māori customary land?
[37] This question can be answered briefly. The decision is not unlawful on this basis because Te Tiriti o Waitangi is not a relevant consideration in this application for a stay of enforcement or an application to have a default judgment set aside. I note that the applications and supporting material did not refer to Te Tiriti o Waitangi.
[38] The decision is not unlawful on the basis the Judge failed to consider that the land is Māori customary land because there was no evidence in the supporting material filed with the applications that the land is customary land. I emphasise that I have
8 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [83]–[84].
9 R v Awatere [1982] 1 NZLR 644 (CA) at 648.
reviewed the material that the Judge would have reviewed. There is no evidence at all to support the assertion that the land is Māori customary land.
[39] For the same reasons, the Judge’s decision was not irrational or unreasonable as Mr Gregory submitted at the hearing.
[40] This brings us to the crux of Mr Gregory’s grievance: that the land is non-rateable because it is Māori customary land. I will address this briefly even though this is an application for judicial review rather than an appeal.
[41] All land is rateable unless the Rating Act provides otherwise.10 These exceptions are set out in s 8 and described in pt 1 of sch 1.11 Of note are Māori customary land,12 land used for a marae, Māori freehold land on which a meeting house is erected, a Māori reservation under Te Ture Whenua Māori Act, as well as Māori freehold land that is non-rateable by virtue of an Order in Council made under s 116 of the Rating Act.13
[42] There is nothing on the certificate of title for Mr Gregory’s land or elsewhere to indicate that the land is Māori customary land, Māori freehold land, or any other category of land that is non-rateable under the Rating Act.
[43] Mr Gregory seems to accept this but says that the land has been wrongly classified because native title (by which I take them to mean Māori customary title) was never extinguished.
[44] If Mr Gregory considers that he can prove that the land is Māori customary land he can apply for a determination under Te Ture Whenua Māori Act. The Māori Land Court has jurisdiction under s 18(1)(h) of Te Ture Whenua Māori Act to determine whether any specified land “is or is not Maori customary land or Maori freehold land or general land owned by Maori or general land or Crown land”. The
10 Local Government (Rating) Act 2002, s 7.
11 Section 8(1).
12 Sch 1, pt 1, cl 11.
13 Sch 1, pt 1, cl 14.
Court also has jurisdiction to make declarations by way of status orders under s 131(1) that land has the status of Māori customary land.14
[45] In the meantime, his land is classified as freehold land under the Land Transfer Act. Councils are not required to go behind the land registration system and can rely on the certificates of title. Accordingly, as the registered owner, Mr Gregory is obliged to pay rates for the property.
Conclusion
[46] Returning to the Judge’s decision under review, I reject that the decision is unlawful because the Judge failed to consider Te Tiriti o Waitangi and that the land is Māori customary land.
[47] I accept that Mr Gregory should have been given the opportunity to be heard on his applications before they were declined. I also accept that the Judge’s explanation of the reasons for his decision could have been more fulsome.
[48] However, I decline to set aside the decision or order any other relief. Having reviewed the materials filed by Mr Gregory and heard from him, I am satisfied that the outcome would not have differed had the Judge heard from Mr Gregory. Furthermore, with this judgment Mr Gregory has a fully reasoned response to the matters he raised in his applications to the District Court.
Result
[49]Mr Gregory’s application for judicial review is dismissed.
Gardiner J
14 The jurisdiction of the High Court to determine any question relating to the particular status of any land is not affected (s 131(3)).
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