Mihinui v Attorney-General for the Ministry of Education

[2017] NZHC 654

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2016-463-000181 [2017] NZHC 654

UNDER

the Residential Tenancies Act 1986

IN THE MATTER

of an appeal from a decision of the District
Court in Taupo

BETWEEN

JOANNE MIHINUI, MATATAHI MIHINUI, TANIA MIHINUI Appellants

AND

ATTORNEY-GENERAL FOR THE MINISTRY OF EDUCATION

First Respondent

WESTERMAN PROPERTY SOLUTIONS LTD

Second Respondent

Hearing:

5 April 2017

(Heard at Auckland via AVL)

Appearances:

J Mihinui, H Mihinui,and H Kuru, in person

S S Eccles for First Respondent

Judgment:

7 April 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 7 April 2017 at 11.00 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Party/Solicitors:

H Mihinui, J Mihinui, H Kuru

Crown Law, Wellington

MIHINUI & ORS v ATTORNEY-GENERAL FOR THE MINISTRY OF EDUCATION [2017] NZHC 654 [7

April 2017]

Introduction

[1]      On 1 February 2017 I declined an appeal of possession orders granted to the Crown over 16 properties in Tūrangi.1     I found the arguments of unextinguished aboriginal title and non-recognition of the Crown’s sovereignty or laws were not sustainable.  The appellants now apply for leave to appeal.  They also apply for a stay of execution of the judgment.  I decline the applications.

Leave to appeal

[2]      Under s 120 of the Residential Tenancies Act 1986 I may grant leave to appeal to the Court of Appeal if, in my opinion, “the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision”.

[3]      The  grounds  for  the  application  for  leave  to  appeal  are  set  out  in  the appellants’ notice of application and written submissions.  These emphasise the same sort of arguments about Māori sovereignty and aboriginal title I dismissed in the previous judgment.  In oral argument, Ms Mihinui emphasised the primary question of law they seek to be submitted to the Court of Appeal concerns the extinguishment of aboriginal title and law. The appellants want proof that was valid.

[4]      The Crown submits the evidence in the case demonstrates aboriginal title was validly extinguished and the courts have previously disposed of sovereignty arguments.  The Crown submits no question of law has been identified let alone any of general or public importance.

[5]      I consider there is no question of law here that ought to be submitted to the Court of Appeal.   The  previous judgment sets  out the basis on which,  at New Zealand law, aboriginal title was extinguished in relation to the property at issue.  It also makes clear sovereignty in New Zealand today lies with the Crown in right of

New Zealand.2  These arguments have no chance of success.

1      Mihinui & Ors v Attorney-General for the Ministry of Education & Anor [2017] NZHC 56.

2      Since then, the Supreme Court has noted that similar challenges have been rejected by the Supreme Court and any appeal on that ground would have no prospect of success.   Warren v Chief Executive of the Department of Corrections [2017] NZSC 20 at [7].

Stay

Law

[6]      Under r 20.10 of the High Court Rules 2016, I may order a stay of execution of a judgment pending appeal.  The balance to be struck is between the right of a successful litigant not to be deprived of the fruits of litigation and the need to ensure an appeal by an unsuccessful party is not rendered nugatory. There are a number of factors that are typically weighed as discussed in Dymocks Franchise Systems (NSW)

Pty Ltd v Bigola Enterprises Ltd,3 and Keung v GBR Investment Ltd.4

(a)       whether the appeal may be rendered nugatory by the lack of a stay; (b)         the bona fides of the applicant as to the prosecution of the appeal;

(c)       whether the successful party will be injuriously affected by the stay; (d)       the effect on third parties;

(e)       the novelty and importance of questions involved; (f)  the public interest in the proceeding; and

(g)      the overall balance of convenience.

[7]      In addition, the Court of Appeal has stated a stay cannot be granted if, on the merits of a case, an appeal is not readily arguable.5

The parties’ positions

[8]      On 15 February 2017 the appellants filed an application for a stay of the previous judgment.  The application is based on similar grounds as those for leave to

appeal.  It is supported by an affidavit with an account of the respondents failing to

3           Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd (1999) 13 PRNZ 48.

4           Keung v GBR Investment Ltd [2010] NZCA 396 at [11].

5           Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-

3230, 11 February 2009.

appear at a “Marae Kooti Rangatira Āteha/Native Assessors Court”.   None of this

material constitutes relevant evidence supporting a stay.

[9]      In oral argument, Ms Mihinui stated there are 13 families in Tūrangi who have no other homes to go to.   She says they are Tūrangitukua descendants with several babies, it is the brink of winter and they have nowhere else to go.  No formal evidence of this has been provided.

[10]     The application was mentioned in, and was the subject of, my timetabling orders of 8 March 2017 which also identified the need for notices of opposition.  The application appears to have been served on the respondents by email on 20 March

2017.  But the Crown does not appear to have filed any notice of opposition to the application as required by r 7.24 of the High Court Rules.  Nor did it provide written submissions or evidence.   However, Mr Eccles responsibly reminded  me at the hearing that the application was outstanding.  He opposed the application on behalf of the Crown in oral argument.

[11]     Mr Eccles, for the Crown, responsibly agreed that, if a stay is not granted, the appellants’ right of appeal may be rendered nugatory.   The Crown submits that is outweighed by other factors in the public interest in honouring the Treaty settlement agreement under which Ngāti Tūrangitukua have a right of first refusal over the properties.  Mr Eccles did not have instructions on what stage of that process had been reached.  Mr Eccles advised me the Crown has not decided whether to seal the judgment or enforce possession orders at this point.  He says the Crown is currently trying to establish who the occupants are in order to give vacant possession to Ngāti Tūrangitukua if they decide to take up their first right of refusal over the properties. There is no formal evidence of any of this before me either.

Decision

[12]     The formal positions of the parties regarding the stay are relatively even.  The appellants  made  a  valid  application  but  it  is  supported  by  no  relevant  formal evidence.  The Crown did not file a notice of opposition and did not file any relevant formal evidence either.

[13]     Surprisingly, the failure to file a notice of opposition has no formal legal effect under the High Court Rules 2016.  The purpose of a notice of opposition is to ensure the parties and the court are aware in advance of the precise issues in dispute. Ordinarily, the failure to file a notice of opposition will be a factor counting in favour of the application being granted.  But the court must still assess any application on its merits, according to law.  Failure to file a notice of opposition does not guarantee an application’s success.

[14]     Here, I look to the reality of the parties’ positions.   I concluded above that there is no basis on which I can grant leave to appeal, because the appellants’ case has no chance of success on the merits.  If there is no appeal, I cannot grant a stay pending that appeal.  As the Court of Appeal has stated, “[i]t is axiomatic that an appellant should not be granted a stay if the Court can readily determine that the appeal is not seriously arguable”.6

[15]     The appellants have one final chance of obtaining an appeal, by seeking leave from the Court of Appeal itself, under s 120(3) of the Residential Tenancies Act

1986.   The appellants need to understand, given what I’ve said in this and the previous judgment, I consider they have no chance of success in such a last ditch attempt. And if they fail, they may well be liable to the Crown for costs.

[16]     I have considered whether the right to seek leave to appeal from the Court of Appeal means I should grant a stay.  There is no evidence or submissions the Crown intends to take any action in relation to the properties in the near future – rather the reverse – so the Crown would not be particularly prejudiced by a stay. By contrast, as the Crown acknowledges, failure to issue a stay would render the appeal nugatory. The balance of convenience must favour those living in the properties.   I am told they are of Ngāti Tūrangitukua descent and might, therefore, be beneficiaries of the settlement which is the reason the Crown seeks the possession orders.

[17]     For these reasons, if I considered the appellants had even a possibly arguable case, I would be inclined to grant a stay for the purpose and period of allowing the

appellants to seek leave from the Court of Appeal.

6      Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 at [5].

[18]     But, in the end, I come back to my conclusion that the appellants’ case has no chance of success on the merits before a New Zealand court.  In that circumstance, I consider granting a stay, when I have not granted leave to appeal, would only give the appellants false hope and encourage them to make a doomed application which would result in the award of further costs against them.

[19]     I am reinforced in my view by the fact the Crown does not appear to be contemplating any immediate enforcement action.   So, if the appellants are determined to seek leave to appeal to the Court of Appeal, they can also seek a stay of my judgment from the Court of Appeal, under r 12 of the Court of Appeal (Civil) Rules 2005.

[20]     Finally, irrespective of when the judgment is enforced, I doubt the Crown will want to evict babies in Tūrangi with nowhere else to go on the brink of winter. And it appears the Crown’s processes have still some way to go.   I encourage the parties to discuss the future of those affected by the possession orders before they are enforced, if they are enforced.  That is likely to be a more productive course than further litigation.

Result

[21]     I decline the applications for leave to appeal and for a stay of execution of the judgment of 1 February 2017.

[22]     The Crown has succeeded in relation to the application for leave to appeal and I grant costs on a 1A basis for that application.  The appellants did not succeed on the stay application but that was not due to any action by the Crown so costs will lie where they fall on that application.

..................................................................

Palmer J