Ngati Tahinga and Ngati Karewa v The Attorney-General of New Zealand

In the case of Ngati Tahinga and Ngati Karewa Trust and N N Clark and others as trustees v The Attorney-General of New Zealand, the Ngati Karewa Te Hinga Trust sought to appeal a decision of the Court of Appeal of New Zealand. The Trust had previously applied for special leave to appeal to the Privy Council from a judgment delivered by Randerson J in the High Court on 5 November 2001. The Court of Appeal had dismissed the application for special leave to appeal out of time on the grounds that the proposed appeal was hopeless and that it would be contrary to the interests of justice to grant leave. N N Clark, on behalf of the Trust, sought to waive the fee payable on an application for conditional leave to appeal to the Privy Council.

The legal issues that the Court of Appeal was required to decide were whether it had jurisdiction to make an order for the waiver of the fee, whether Mr Clark had the right to act for the Trust, and whether Mr Clark had provided sufficient information concerning his personal financial circumstances to warrant a waiver of the fee. The Court of Appeal found that it had no jurisdiction to make an order for the waiver of the fee as the application in respect of which waiver was sought was for an order that the Court of Appeal had no jurisdiction to make. The Court of Appeal also found that Mr Clark did not have the right to act for the Trust as he had been removed by Randerson J’s order. Finally, the Court of Appeal found that Mr Clark had not provided sufficient information concerning his personal financial circumstances to warrant a waiver of the fee.

The Court of Appeal upheld the Registrar’s decision to decline to waive the fee payable on the application for conditional leave to appeal to the Privy Council. The Court of Appeal found that the application for review faced three formidable difficulties, and that the points were such that no waiver of fee was appropriate on Mr Clark’s original application to the Registrar. The Court of Appeal dismissed the application for review. The Court of Appeal dealt with the review on the papers in accordance with s100B(4)(b) of the Judicature Act 1908.

The final orders of the Court of Appeal were that the application for review was dismissed and that the Registrar’s decision to decline to waive the fee payable on the application for conditional leave to appeal to the Privy Council was upheld.