Kereopa v Te Roroa Whatu Ora Custodian Ltd
[2013] NZCA 327
•23 July 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA285/2012 [2013] NZCA 327 |
| BETWEEN | GRACE KEREOPA & ORS |
| AND | TE ROROA WHATU ORA CUSTODIAN LIMITED |
| Hearing: | 8 July 2013 |
Court: | O'Regan P, Wild and White JJ |
Counsel: | Appellants in Person (the appellant Mr R M Gregory speaking for all of them) |
Judgment: | 23 July 2013 at 10 am |
JUDGMENT OF THE COURT
AThe application pursuant to r 43(2) Court of Appeal (Civil) Rules 2005 is dismissed.
BThe appellants must pay the respondent’s costs as for a standard application with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
This is an application under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for the allocation of a hearing date and to file the case on appeal. The application is opposed by the respondent.
The appellants are members of a hapū who, since 2009, have occupied visitor lodges in the Waipoua Kauri Forest (the Forest) in Northland. These lodges are located at what formerly was the Department of Conservation headquarters, when the Department administered the Forest for the Crown. The respondent is the registered proprietor of the land which includes the Forest.
At the root of this appeal is a longstanding dispute between the appellants and the respondents over ownership of the land that encompasses the Forest. We revert to that in [16] and [26] below.
The judgment under appeal
In a judgment he delivered orally in the High Court at Whangarei at the end of the hearing on 2 May 2012, Associate Judge Bell granted the respondent orders for possession against the appellants, those orders to take effect three weeks from 2 May 2012.[1] At the same time the Associate Judge struck out the appellants’ counterclaim, which contained causes of action by the appellants against the respondent in trespass, fraud and negligence. He ordered the appellants to pay the respondent costs on the 2B scale.
The course of this appeal
[1]Te Roroa Whatu Ora Custodian Ltd v Kereopa [2012] NZHC 1052 at [43] [High Court decision].
The appellants appealed to this Court from the judgment of Bell AJ on 22 May 2012.
What has – and what has not – happened to this appeal since it was filed is conveniently captured in tabular form:
| Date[2] | Event |
| 22.5.12 | Court of Appeal Registry acknowledges receipt of notice of appeal. Advises appellants: · A hearing date must be applied for within six months otherwise the appeal will be deemed abandoned. The application for a hearing date must be accompanied by the setting down fee of $2,658.40. · Security for the costs of the appeal had been fixed at $5,560, and must be paid within 20 working days. |
| 9.8.12 | Appellants apply to have security for costs dispensed with. |
| 13.8.12 | Respondents oppose application to dispense with security. |
| 16.8.12 | Registrar refuses application to dispense with security. Extends time for payment of security to 13.9.12. |
| 28.9.12 | Appellants apply for hearing date, but do not enclose setting down fee of $2,658.40. |
| 20.11.12 | Registrar writes to appellants informing them a fixture cannot be allocated until the security for costs fixed is given and the fixture fee of $2,658.40 paid. |
| 10.12.12 | Three emails: · Appellants acknowledge Registrar’s 20.11.12 letter. Advise that payment of fixture fee is “no problem” and inquire which is best way of sending the money. · Registry acknowledges appellants’ response. Draws attention to r 43. Advises that the appeal was treated as abandoned on 23.11.12. Draws attention to the appellants’ ability to seek an extension of time under r 43(2), and that an application for extension must be accompanied by a filing fee of $1,087.50. · Appellants advise would like to apply for an extension. |
| 19.12.12 | Registrar receives from appellants a letter enclosing a cheque for $2,658.40 for the fixture fee and confirming appellants wish to apply for an extension of time. |
| 21.12.12 | Registry returns cheque for $2,658.40 to appellants. Confirms appeal was abandoned as at 23.11.12 and can only be pursued if Court grants an extension of time under r 43(3) to pay the setting down fee and file the case on appeal. |
| 9.1.13 | Registry receives from appellants application for extension of time, but returns the application to the appellants as it is defective. Sends them copies of the relevant rules. |
| 13.2.13 | Appellants file present application, but do not serve it on respondent. |
| 19.3.13 | Court notifies respondent of present application. |
| 7.5.13 | Respondent files memorandum opposing the present application. |
[2]The dates given are the dates on which this Court received the various documents.
Was the application made in time?
The short answer is “yes”. The six months period stipulated at the time by r 43(1) expired on 22 November 2012. The additional three months period within which the appellants could apply for an extension of time expired on 22 February 2013. The present application was made in time on 13 February 2013. We adopt that date even though the application was not served on the respondent – it was actually drawn to the respondent’s attention by the Court – until 19 March 2013.
The reduction from six months to three months, effective 4 February 2013, of the period stipulated in r 43(1) has no application here. That is because the six months period had expired well before 4 February 2013.[3]
The merits of the application
[3]Interpretation Act 1999, ss 7 and 18.
We consider these on the now well-established principles.
The reason why the appeal was not prosecuted diligently
The appellants variously advance these explanations: their mail has been tampered with; communication is difficult for them because there is no electric power to the lodges they live in; they have financial difficulties.
In support of the first explanation, the appellant Mr Birch put in evidence an envelope postmarked 2 December 2011 addressed to him at Lodge 1, Waipoua HQ, on which there is the handwritten notation “Return to sender – illegally occupying this address”. However, redirection of that letter, or of Mr Birch’s mail generally, in or about December 2011 would not have affected prosecution of this appeal, which was only filed in May 2012. Further, Ms Murray has filed an affidavit for the respondent denying that the respondent has tampered with the appellants’ mail, deposing that the appellant Ms Kereopa has collected her mail without incident as recently as April 2013, and stating that Ms Kereopa has a telephone at her house. Ms Murray is the acting senior manager of the Te Roroa Development Group.
The chronology we have set out in [6] shows that, at least by 10 December last, Mr Gregory had email. The letter dated 18 December which this Court received from Ms Kereopa on 19 December 2012 gives a telephone contact for Ms Kereopa and three contacts for Mr Gregory: a P O Box in Ngaruawahia, a cell phone number and an email address.
No evidence is offered in support of the other two explanations. We have already noted the tender of the setting down fee on 19 December 2012.
Making all due allowances for the appellants’ difficulties, we do not accept that they have pursued their appeal diligently.
The merits of the substantive appeal
We now turn to the merits of the substantive appeal. We do this, not because we are dealing with the substantive appeal in the context of this interlocutory application, but because, having got out of time, the appellants are no longer able to pursue their appeal as of right. They require “the exercise by this Court of a positive discretion”.[4] Another way of putting that is to say that the appellants require an indulgence from this Court. There is no point in extending time – in granting an indulgence to the appellants – if the appeal is hopeless – if it has no prospect of success. So what are the merits of this appeal?
[4]Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 at [10].
The appellants claim they are the lawful owners and/or kaitiaki of the Forest (the Waipoua land) according to Māori customary law and/or tikanga. That is because they claim they are the whānau/hapū who have descended directly from the common ancestor, Tiopira Kinaki.
The appellants want this Court to overturn Associate Judge Bell’s judgment because it was based on Te Roroa Claims Settlement Act 2008 (the Settlement Act) and the Land Transfer Act 1952. If the application is granted, the appellants intend arguing that those acts of Parliament were not capable of extinguishing their customary title to the Forest, and did not do so. They also intend arguing that Associate Judge Bell’s judgment is “a blatant breach of He Whakaputunga o Nga Rangatira o Nu Tireni 1835[5] and of Te Tiriti o Waitangi 1840 and that these breaches are in need of urgent review by the Court”.
[5]The 1835 Declaration of the Independence of New Zealand which, by 1839, had been signed by 52 Māori chiefs.
Whatever the fundamental merits of these arguments may be, they cannot succeed in this Court. That is because two insuperable obstacles stand in their path. First, ownership of the Forest (the fee simple estate) was transferred to the trustees of the Whatu Ora Trust pursuant to s 88 of the Settlement Act. To facilitate that, s 89 of the Settlement Act required the Registrar-General to create a computer freehold register in the name of the Crown for the Waipoua Forest.
As Associate Judge Bell outlined in his judgment, the Forest was transferred to a number of named trustees of the Whatu Ora Trust on 19 January 2009, under s 97 of the Settlement Act. It was then transferred by those trustees to the respondent on 28 June 2011.
Section 13 of the Settlement Act provides, under the heading “Jurisdictions of courts, etc, removed”:
13 Settlement of Te Roroa historical claims final
(1)The settlement of Te Roroa historical claims effected under the Deed of Settlement and this Act is final, and on and from the settlement date the Crown is released and discharged from all obligations and liabilities in respect of those claims.
(2)Despite any other enactment or rule of law, on and from the settlement date, no court, tribunal, or other judicial body has jurisdiction (including, without limitation, the jurisdiction to inquire or further inquire into, or to make a finding or recommendation) in respect of—
(a) any or all of the Te Roroa historical claims; or
(b) the Deed of Settlement; or
(c)the redress provided under the Deed of Settlement or under this Act; or
(d) this Act.
(3)Subsection (2) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the Deed of Settlement or this Act.
Insofar as the appeal asks this Court to circumvent the Settlement Act, and to re-assert the appellants’ customary title to the Forest, this Court cannot do that. Constitutionally, the Courts of New Zealand must uphold the laws of New Zealand, including those enacted by Act of Parliament. As Professor Joseph states in Constitutional & Administrative Law in New Zealand:[6]
Parliamentary enactment is the highest source of law: “What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country.”[7]
[6]Philip Joseph Constitutional & Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington, 2007) at 502.
[7]Cheney v Conn [1968] 1 WLR 242 (Ch) at 247 per Ungoed-Thomas J, quoted in Haliburton v Broadcasting Commission [1999] NZAR 233 (HC) at 238.
Insofar as the appeal asks the Court to hold that the Settlement Act erred in vesting title to the Forest in the Whatu Ora trustees, this Court cannot do that, because s 13 of the Settlement Act prevents it.
Furthermore, though less fundamentally, this Court has held that customary ownership could be distinguished where land is acquired by the Crown.[8] In his judgment, the Associate Judge traced through the history of ownership of the Forest. We think the Associate Judge drew that from the Preamble in the Settlement Act, which sets out the background comprehensively. Associate Judge Bell pointed out that the status of the land on which the Forest grows changed from Māori customary land to Māori freehold land in the 1870s as a result of the work of the Native Lands Court. When the Settlement Act came into force the Forest became Crown land reserved for Māori. Subsequently, the title we have referred to in [18] above was created, and the transfers, first to the Whatu Ora trustees, and then to the respondent, ensued. As the Associate Judge correctly stated, “The acquisition of title by the Crown also marks the end of customary ownership”.[9]
[8]Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).
[9]High Court decision, above n1, at [23].
The second obstacle preventing this appeal succeeding is that the respondent is the registered proprietor of the Forest. Associate Judge Bell set out in his judgment the various sections in the Land Transfer Act 1952 that protect that title. The most important is s 62 which protects the respondent’s title against all claims, “except in case of fraud”.
The Associate Judge considered but rejected the appellants’ arguments that fraud defeated the respondent’s title. He pointed out that the respondent had obtained title by transfer from the Whatu Ora trustees, who had taken title pursuant to the Settlement Act. He said “there is nothing in those transfers to suggest anything in the way of fraud”.[10]
[10]At [35].
The appellants submitted to us:[11]
The respondents deceived the Crown and fraudulently obtained a certificate title to the Waipoua lands by the creation of a fictitious entity, namely Te Iwi o Te Roroa. Te Roroa was only adopted as an ‘iwi’ and has no genuine bloodlines, ties or whakapapa to the Waipoua land.
[11]Appellants’ submissions, 22 June 2013 at [21].
That is not an allegation of fraud in the sense used in s 62 of the Land Transfer Act. The fraud exception to indefeasibility has been considered by the Courts many times, most recently and authoritatively by the Supreme Court in Nathan v Dollars & Sense Finance Ltd.[12] But for our purposes it is sufficient to set out the original and still authoritative statement of the Privy Council over 100 years ago in Assets Co Ltd v Roihi:[13]
by fraud in these Acts is meant actual fraud, i.e., dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value … must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon.
[12]Nathan v Dollars & Sense Finance Ltd [2008] NZSC 20, [2008] 2 NZLR 557.
[13]Assets Co Ltd v Roihi [1905] AC 176 at 210 per Lord Lindley.
We agree with the Associate Judge’s conclusion that there is not here “any exception to the indefeasibility principle that would give any basis for attacking the [respondent’s] title”.[14]
[14]At [37].
Our assessment is that this appeal has no prospect of success. It follows that there is no point in this Court granting the extension of the time the appellants seek. To extend time could only result in the appellants incurring considerable expense in pursuing an appeal that is doomed to fail. We trust that this Court’s desire to avoid that outcome is understood and shared by the appellants.
Result
The application is dismissed.
The appellants must pay the respondent’s costs as for a standard application with usual disbursements.
Solicitors:
Henderson Reeves Connell Rishworth Lawyers, Whangarei for Respondent
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