Ngai-Tama-Haua v Land Information New Zealand

[2021] NZHC 1898

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-000079

[2021] NZHC 1898

BETWEEN

MARTHA-O-TE-WHĀNAU-HEREWINI

NGAI-TAMA-HAUA of Opotiki Appellant

AND

LAND INFORMATION NEW ZEALAND

(The Chief Executive of Land Information New Zealand)

First Respondent

HER MAJESTY THE QUEEN (Attorney-
General)

Second Respondent

Hearing:	On the papers
Appearances:	G Turanga as purported lay advocate
Judgment:	26 July 2021

JUDGMENT OF WALKER J

[On application for review of Registrar’s decision]

This judgment was delivered by me on 26 July 2021 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

MARTHA-O-TE-WHĀNAU-HEREWINI NGAI-TAMA-HAUA of Opotiki v LAND INFORMATION NEW

ZEALAND (The Chief Executive of Land Information New Zealand) [2021] NZHC 1898 [26 July 2021]

[1]    On 27 November 2020, documents were emailed to the Tauranga High Court purporting to be on behalf of Martha-o-te-whanau-Herewini Ngai-tama-haua. The documents were labelled “writ of certiorari cf appeal” and “ex parte judgement [sic] void of foundation of fact” (the November documents). The documents were similar in form and substance.

[2]    The November documents had been emailed by Georgina-o-te-whanau- turanga (Georgina Turanga) with the descriptor “lay advocate/customary lore/law practitioner”. The documents were not accompanied by a filing fee. Nor were they accompanied by any application for waiver of filing fee.

[3]    On 24 December 2020, the Deputy Registrar of the High Court declined to accept the documents under r 5.2 of the High Court Rules 2016 (the Rules) on the basis that the documents did not comply with rr 5.3–5.16. As such, the documents could only be filed with leave of a Judge or Registrar. The Deputy Registrar declined leave.

[4]    The decision, with reasons, was emailed and posted on 5 January 2020 to the address for service on the documents.

[5]    On 20 July 2021, Georgina Turanga emailed the Tauranga High Court noting that “a registrar has deemed the correct party to be Attorney general”. Attached to the email is a single page PDF which is the coversheet to one of the documents submitted in November 2020.

[6]    A further email was sent that evening asking for a review of the decision. The email referred to “PART 1.5 JUDICATURE ACT 1908 OR AMEND VERSION HIGH COURT RULES 2016.”

[7]    The email was accompanied by a document labelled “Notice of appeal out of time with fee waiver” and a document labelled “Interlocutory notice out of time to appeal cf High Court Rules 2016 (4)(a)(b)”. The email attached a decision of Judge Cameron together with the “Writ of Certiorari” and the Deputy Registrar’s decision.

[8]    The following day, 21 July 2021, the Tauranga High Court received a further email stating, in part:

I require a REVIEW OF DECISION URGENTLY to avoid further injury to the ‘Applicant’ and or a Stay and leave of Court to file into a Court of Competent Jurisdiction to adjudicate substantive law matters of hereditaments known as Land of public importance and international significance on the grounds that the subjective Laws of New Zealand Parliament administered in the NZ Courts do not recognise common law Prerogative Writs therefore the ‘Applicant’ is compromised in a captive jurisdiction with a modified juris prudence [sic] being subjective Law of NZ Parliament.

[9]    Although much of the meaning of this material is not easy to discern, it is clear that this is a request for review of a Registrar’s decision under r 2.11 of the Rules. I pause to note that “Registrar” in the Rules includes a Deputy Registrar.1

Jurisdiction to review

[10]Rule 2.11 provides:

2.11     Review of Registrar’s decision

(1)An affected party to a proceeding or an intended proceeding may apply to a Judge by interlocutory application for a review of any of the following:

(a)a Registrar’s exercise of jurisdiction:

(b)a Registrar’s refusal to file a document tendered for filing:

(c)a Registrar’s refusal to perform a duty placed on him or her under these rules.

(2)The Judge may, on review, make any orders he or she thinks just.

(3)It is not necessary to apply for an order for an extraordinary remedy under Part 30 or to make an application for review under the Judicial Review Procedure Act 2016 when seeking a review under subclause (1)(b) or (c).

(4)Notice of an application for review must be filed,—

(a)if it is made by a party who was present or represented when the decision or refusal of the Registrar was given, within 5 working days of the decision or refusal; or

1      High Court Rules 2016, r 1.3(1).

(b)if it is made by a party who was not present or represented, within 5 working days after the receipt by the party of notice of the decision or refusal.

(5)An application for review under this rule is not a stay of proceeding or a step in the proceeding, unless a Judge, or a Registrar acting under rule 2.5, so directs.

The decision under review

[11]   The decision of the Deputy Registrar sets out in detail the particulars of the irregularities in the November documents and identifies with specificity the non- compliance with the Rules. The non-compliance ranges from matters of formatting to significant and substantive matters, including the identification of the proper parties.

[12]   The Deputy Registrar gleaned that the November documents sought to appeal a decision of Judge Cameron on an appeal from the Tenancy Tribunal, although no copy of the District Court decision had been provided with the November 2020 documents.

[13]   The Deputy Registrar identified in his decision that an appeal of a Tenancy Tribunal matter to the High Court requires the identification of a question of law.2 He noted that it was not immediately apparent that there was a question of law identified but, properly, pointed out that he had no jurisdiction to determine whether or not such question is embedded in the documentation.

[14]   He noted that the documents named “Her Majesty the Queen” as a party. Section 14(2) of the Crown Proceedings Act 1950 requires that a civil proceeding against the Crown names the relevant government department, or where there is doubt as to the appropriate department, names the Attorney-General. The Attorney-General was not a party in the District Court proceedings.

[15]   As the documents did not comply with rr 5.7(1), 5.7(3), 5.8, 5.11(2) or reg 18 of the High Court Fees Regulations 2013 and leave is not granted, the documents were not accepted for filing.

2      Residential Tenancies Act 1986, s 119(1).

Further background

[16]   The oral judgment of Judge Cameron records that Ms Herewini was the occupier of a property in Ōpōtiki.3 She appealed against an order of the Tenancy Tribunal dated 10 July 2020 granting possession of that property to Colliers International New Zealand Limited on behalf of the Crown,  and  in  particular,  Land Information New Zealand as the Crown agency holding the land for the Office of Treaty Settlements. The Tenancy Tribunal was satisfied that no rights of occupation had been granted to Ms Herewini or any other occupier of that property. An application for re-hearing was dismissed by the Tenancy Tribunal on 17 August 2020. The decision recorded that Ms Herewini accepted she had no lawful right to be at the property, a point which is now disputed.

[17]   There was no appearance at the hearing in the District Court by Ms Herewini or any person on her behalf. A lay advocate had filed a memorandum challenging the decisions of the Tenancy Tribunal. There was no appearance by the lay advocate either but, in any event, they would have no legal standing to be heard.

[18]   The Judge recorded that he entirely agreed with the reasoning of the Tenancy Tribunal, both in respect of the initial hearing and the hearing at which the application to re-hear the matter was dismissed. He found the comments, the reasoning and the application of the law as all entirely appropriate and correct. He dismissed the appeal.

Documents filed July 2021

[19]   I reproduce the propounded grounds set out in the document seeking review of the Deputy Registrar’s decision and fee waiver in full:

3.The DECISION OF DEPUTY REGISTRAR HEWLETT dated

24 December 2020 emailed 05 January 2021, is sent to the ‘JUNK MAIL’ and therefore is unnoticed until enquiries today.

4.To date, no wet ink signature document is receive [sic] personally or by Post.

5.A miscarriage of Justice is imminent.

3      Herewini v Land Information New Zealand [2020] NZDC 22647.

6.District Court Judge as being erroneous in amending the correct party to be Land Information New Zealand Ltd when in fact the Registered Owners is HER MAJESTY THE QUEEN. Ref; Exhibit B

DECISION     OF     DEPUTY     REGISTRAR     HEWLETT     DATED 24 DECEMBER 2020

7.There is no mention of sovereignty in the ‘Writ of Certiorari cf. APPEAL dated 25 November 2021’. To assume that the document  is a ‘sovereignty argument’ as is purported by REGISTRAR HEWLETT; is based on ignorance of substantive and common law.

8.The filing ‘Writ of Certiori cf. APPEAL dated 25 November 2020’ is a prerogative writ of the common law therefore is substantive law prior to New Zealand Legislation subjective Laws. Ref; Exhibit C

9.The jurisdiction matter in this case is founded on Maori [sic] custom or usage and not of [sic]

10.“usage” is the English common law definition of “rights”

11.All relevant assertion and affirmations are filed in this matter.

12.To date, the Evidential Documents require to litigate this matter dated 24 August 2020, 18 September 2020, 21 October 2020 are not received.

13.For a court to not recognise this legal requirement is unjust causing further harm and injury in a captive state by intellectual confiscation and digital Assassination.

14.Failing to recognise substantive law and or prerogative writs;

i: therefore seek a stay and leave of court to file into a court of competent jurisdiction to hear matters of Maori [sic] custom or usage as guaranteed protected by the Preamble of Te Tiriti o Waitangi, common law of England recognised internationally.

Ref; The Authentic and Genuine Signing of The Treaty of Waitangi pg 32

on=null

“The slip of paper contained the following words: “E mea ana te Kawana, ko nga whakapono katoa, o Ingarani, o nga Weteriana, o Roma, me te ritenga Maori hoki, e tiakina ngatahitia e ia” (“The Governor says the several faiths [beliefs] of England, of the Wesleyans, of Rome, and also the Maori custom, shall be alike protected by him.”) I got Mr. Williams (though with some little hesitation on his part) to insert “me te ritenga Maori hoki” (“and also the Maori custom, or usage”) as a correlative to that “of Rome.”

15.I: require the law and the court to protect the inherent rights of Martha-te-whanau-Herewini: Ngai Tama Haua o Paakowhai upon her customary land

16.I move the court to acknowledge that Martha-o-te-whanau-Herewini original rights are unsurrendered, therefore the action taken against Martha-o-te-whanau-Herewini is repugnant and abhorrent to the existing common law of England, Martha being under the protection of Her Majesty the Queen Victoria and the Statue of Westminster 1st. Cf. Common law of New Zealand shall be the common law of England as of 1908 cf. compare No. 55 s2

17.Martha-o-te-whanau-Herewini rights are impinged by Court Order to Evict by multiple bodies by overwhelming force.

18.The Court of Hereditaments hears international matters to do with lands.

Discussion

[20]   Rule 2.11(4) provides a time limit to seek review of a decision to refuse to accept documents for filing. The time limit is expressed in mandatory terms. An application for review must be filed five workings days after the decision in the case of parties present or represented, otherwise five working days after the receipt by the party of notice of the decision or refusal.

[21]   Under r 6.9, notice required to be given by the Registrar may be achieved by sending documents through ordinary post to the address given for service.4 What precisely is required for receipt of “notice” has been discussed in the context of various different statutory regimes. For example, s 386A(4) of the Immigration Act 2009 provides that:

(4)A notice or document served or sent by registered post is deemed to be received by the person to whom it is addressed,—

(a)    if the address is in New Zealand, 7 days after the date on which it was sent; and

(b)    if the address is outside New Zealand, 14 days after the date on which it was sent.

4      High Court Rules, r 6.9(b).

[22]   By contrast, the Court of Appeal in Commissioner of Inland Revenue v Sea Hunter Fishing Ltd considered s 14(2) of the Tax Administration Act 1994 which then provided:5

(2) Any notice sent by post to any person, or to any other person authorised to act on behalf of that person, shall be deemed to have been received by that person, or that other person, when in the normal course of post it would have been delivered.

[23]   Indeed, Simon France J observed that a purposive approach to the issue of notification is generally required:6

In the end one must come back to the apparent purpose of the provisions. At the general level that aim seems to be to prescribe a method that can be relied upon to achieve notice being given; at the more specific level it seems to be to provide a methodology that allows a deeming provision to take effect, so that time will run. It is important to recall that the particular statutory method has no intrinsic value or significance. It is not an end in itself but is purely functional. Other methods could have been chosen, and indeed email suffices. It seems difficult to infer there is any magic or intrinsic importance in the method. Rather, the key issue is when service is either achieved or deemed to be achieved.

[24]   In my view, a combination of email and traditional post to the address listed for service on the November documents was sufficient for the purpose of notifying the applicant of the Registrar’s decision. The submission that the decision was not “seen”, although it was received by email and posted in the ordinary way, does not mean that the decision was not notified. More than six months elapsed between notification of the Registrar’s decision and the application seeking review of that decision.

[25]   The acceptance by the Registry of an application for review does not waive the time limit as it is not the function of the Registry to decide whether or not the filing of a particular document is out of time.

[26]   The applicant seeks leave to file this review application out of time. Rule 1.19 provides for extensions of time. The Court has a discretion under this rule to extend time where a proper foundation is laid.

5      Commissioner of Inland Revenue v Sea Hunter Fishing Ltd CA142/01, 13 December 2001 at [2].

6      See Rao v Minister of Immigration [2015] NZHC 2669, [2015] NZAR 1925 at [23] (emphasis added).

[27]   I am not prepared to extend time in this instance as I am not satisfied that there is a proper foundation. The failure to meet the time limit for filing a review application disposes of this application.

[28]   Nevertheless, I have reviewed the decision itself. It is apparent that the irregularities with the November 2020 documents are not merely matters of form. Rather, the documents are substantively defective. The more egregious irregularities include the failure to identify the correct parties and the naming of “Her Majesty the Queen” as a party. Collectively, these errors result in an unintelligible notice of appeal which cannot be responded to in any meaningful way.

[29]   None of the grounds for review are made out. Contrary to the assertion that the Deputy Registrar erred in assuming that the “writ of certiorari” was a “sovereignty” argument, the November documents stated:

The Appeal filed is in the matter of native right, a hereditary right being that Martha-o-te-Herewini is an ascendant of Ngai Tama Haua, Tangatawhenua o Paakowhai unsurrendered: conferred to as; the township of Opotiki; the land wherein is documented in this matter [sic].

[30]   In any event, the sovereignty argument was not the basis of the Deputy Registrar’s decision.

[31]   The application to review the Deputy Registrar’s decision is accordingly declined.

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

Walker J