Ratahi v The Maori Land Court HC NWP CIV 2007-443-689
[2008] NZHC 2315
•12 May 2008
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV 2007-443-689
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF a decision dated 12 October 2005
BETWEEN DANIEL RATAHI AND ORS Applicant
ANDTHE MAORI LAND COURT First Respondent
ANDPARININIHI KI WAITOTARA INCORPORATION
Second Respondent
Hearing: 9 April 2008
Counsel: S W Hughes QC for Applicant
No appearance by or on behalf of First Respondent
G J Judd QC for Second Respondent
Judgment: 12 May 2008
JUDGMENT OF HEATH J
This judgment was delivered by me on Monday 12 May 2008 at 2.00pm pursuant to Rule
540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date
Solicitors:
Quin Law, PO Box 3119, New Plymouth
Halliwells, PO Box 422, HaweraCrown Law Office, PO Box 2858, Wellington (P Gunn) Counsel:
S W Hughes QC, PO Box 8213, New Plymouth
G J Judd QC, PO Box 137273, Parnell, Auckland
RATAHI AND ORS V THE MAORI LAND COURT AND ANOR HC NWP CIV 2007-443-689 12 May 2008
Contents
Introduction [1] The proceedings in the Mäori Land Court [6] The application for judicial review [27] The jurisdictional point
(a) The Mäori Land Court’s jurisdiction [35]
(b) Leave to amend an application [40] (c) Rehearing [49] (d) Section 66 [52] (e) Ability to call further evidence – r 45 Mäori Land Court Rules [55] (f) Jurisdiction – conclusion [58] Ought the Ratahi and Tito whanau interests to have been heard? [62] Should discretionary relief be declined? [65] Result [72] Costs [77]
Introduction
[1] On 19 August 2003, the Parininihi Ki Waitotara Incorporation (the Incorporation) applied to the Mäori Land Court for an order changing the status of land from Mäori land to General land. The application was made under ss 135 and
137 of Te Ture Whenua Mäori Act 1983 (the Act). It was opposed by Ratahi and
Tito whanau interests.
[2] The purpose of the application was to facilitate a sale of the land to lessees, Mr and Mrs Roach. They assert that they can whakapapa both to the land and to the proprietors of the Incorporation. The proposed status change and sale had been endorsed at the Annual General Meeting of the Incorporation, held in 2002. A significant ground of opposition was the need to preserve ancestral land when the affected hapu had already lost mana through earlier confiscation.
[3] The status application was heard in the Mäori Land Court in May and June
2004. After the Incorporation had presented its evidence, counsel for Mr Ratahi submitted that there was no case to answer, asking the Court to strike out the application at that stage. No election to call evidence was made by the Ratahi whanau interests at that time. The Judge reserved his decision.
[4] Judge Layne Harvey gave judgment on 12 October 2005: Re Parininihi Ki
Waitotara Incorporation (2005) 159 Aotea MB 146. The Judge said:
[31] In summary, by its own evidence the Incorporation has made it plain that it has not complied with the strict terms of the Act in the context of status change. There is nothing before the Court to convince me that the sale of this corpus land is clearly desirable. As foreshadowed therefore, the application is declined for this reason.
…
[41] … the application by PKW for status change, as currently framed, is declined. The incorporation has 21 days within which to recast its application, if it wishes, taking into account the issues identified in this decision. I am prepared to have any such amended application dealt with as a special fixture outside of the usual panui and on 21 days notice to all affected parties.
Notwithstanding its failure to prove essential elements of its claim, the Incorporation was empowered to amend its application and adduce further evidence to obtain the orders sought. Those decisions were made without hearing from the Ratahi and Tito whanau interests on those issues.
[5] Ms Hughes QC, for the Ratahi whanau, seeks judicial review of those decisions. The application is opposed by the Incorporation, both on substantive and discretionary grounds. The Mäori Land Court, as is customary, abides the decision of this Court: Attorney-General v Mäori Land Court [1999] 1 NZLR 689 (CA) at
695-696.
The proceedings in the Mäori Land Court
[6] In his judgment of 12 October 2005, Judge Harvey accepted Ms Hughes’ submission that, in order for the application to succeed, all requirements identified in s 137(1)(a)-(e) had to be proved. Sections 135 and 137(1) of the Act provide:
135 Change from Maori land to General land by status order
(1) The Maori Land Court shall have jurisdiction to make, in accordance with section 136 or section 137 of this Act, a status order declaring that any land shall cease to be Maori customary land or Maori freehold land and shall become General land.
(2) The Court shall not make a status order under subsection (1) of this section unless it is satisfied that the order may be made in accordance with section 136 or section 137 of this Act.
(3) A status order under subsection (1) of this section may be made conditional upon the registration of any instrument, order, or notice effecting a conveyance of the fee simple estate in the land to any person or persons specified in the order.
….
137 Power to change status of Maori land
(1) The Maori Land Court may make a status order under section 135(1)
of this Act where it is satisfied that—
(a) The legal estate in fee simple in the land is vested in a Maori incorporation or the trustees of a trust constituted under Part 12 of this Act; and
(b) The title to the land is registered under the Land Transfer Act 1952 or is capable of being so registered; and
(c) The alienation of the land is clearly desirable for the purpose of a rationalisation of the land base or of any commercial operation of the Maori incorporation in which or the trustees in whom the legal estate in fee simple in the land is vested; and
(d) The rationalisation referred to in paragraph (c) of this subsection will involve the acquisition of other land by the Maori incorporation in which or the trustees in whom the legal estate in fee simple in the land is vested; and
(e) The quorum and voting requirements imposed by regulations made under this Act in relation to the resolution necessary to authorise the alienation referred to in paragraph (c) of this subsection are impractical. (my emphasis)
[7] The Judge accepted that there was no evidence to establish the criteria set out in s 137(1)(c) and (d). His Honour reasoned:
a) The Incorporation had not established that alienation of the land was “clearly desirable”, either for the purpose of rationalisation of the land base or for any commercial operation of the Incorporation: s 137(1)(c). The Judge defined “clearly” as “with clarity, obviously;
without doubt”: Concise Oxford Dictionary (11th ed 2004, OUP,
London), at 266.
b)The “rationalisation” did not involve the acquisition of other land held by the Incorporation.
[8] The Judge accepted Ms Hughes’ submission “that the application must fail at this juncture because of a fatal lack of evidence in passing this hurdle” (at [25]) and said “the application is declined for this reason” (para [31]). Nevertheless, he went on to allow an amendment to the application and (implicitly) further evidence (para [41]).
[9] The amended application was filed outside the time contemplated by Judge Harvey’s decision. Contemporaneously, the Incorporation filed an application, under s 59 of the Act, for leave to appeal Judge Harvey’s decision of 12 October
2005. It appears that leave to appeal (from what decision, I am not sure) was declined and the amended status application was accepted by the Court on 24
January 2006. The Court allocated a hearing on 24 February 2006, to enable additional evidence to be called.
[10] Ms Hughes sought an adjournment of the February hearing because of the need to brief further evidence. At that time, she did not raise any issue about the appropriateness of the procedure adopted by Judge Harvey, in allowing the Incorporation to “re-cast” its application. Ms Hughes is recorded as saying, at the February hearing:
And I accept of course that I received notice about a month ago, late January I think, advising me of the date but I wasn’t consulted about whether the date was convenient. The date isn’t convenient for me because of other matters that I’m involved in but more importantly because I’ve now received the evidence from my learned friend I see that he now intends to call valuation evidence and I need to brief a valuer to respond to that evidence. As Your Honour may be aware the Ratahi whanau have obtained legal aid to have me help them present their case in this matter, to engage a valuer and indeed for further legal assistance to be provided requires an application to extend legal aid and I have not as yet had it confirmed that such extension is to be provided so I can go out and brief an appropriate valuer to deal with the matter in that way. I accept entirely that I should have given you notice before today of my application and I should have given that notice to my friend and I apologise for the discourtesy. It was entirely unintended. (my emphasis)
((2006) 166 Aotea MB 248 at 249)
[11] The next hearing took place on 16 June 2006. This was the first occasion on which Ms Hughes raised the question of jurisdiction in relation to “re-casting” of the application. Ms Hughes’ complaint was that because the Incorporation had failed to meet evidential requirements, the application ought to have been dismissed.
[12] The issues were canvassed in an extensive discussion between Ms Hughes and the Judge, relevant parts of which I set out at length:
Ms Hughes: I wonder, Sir, before we commence if I could just seek a little guidance on a matter of process. When we last appeared before you my application was that the applicant had failed to establish its case and that Your Honour should therefore decline the application. That is indeed what Your Honour has done but you have then gone on to find that the applicant was free to recast his application. In my experience in the Civil Court of course, Sir, once you have lost you’ve lost. You don’t generally get another go. I’ve looked through the Act that pertains to this Court and cannot find any reference to an ability to recast an application. I wondered if Your Honour would be able to direct me to where I would be able to find the authority to do that?
Court: Well I took the view, Ms Hughes, that the application failed because of certain problems and if those problems were remedied then I would be prepared to consider it again.
Ms Hughes: With respect, Sir, the application failed because the applicant failed to put before the Court the appropriate evidence to allow Your Honour to do anything else. They lost. In losing it is inconceivable that further opportunities would be provided to simply do it again, addressing the evidential requirements clearly set out by the Act anyway. Again, I must repeat my request, Sir, upon what authority is it that they can simply recast an application having lost? Having been unsuccessful? I mean, Parininihi ki Waitotara is certainly a substantial applicant. It is represented by competent counsel. It put before the Court all of the evidence as thought appropriate to convince you of this matter. The evidential shortcomings in that case were glaringly obvious, with respect. The case was lost. It should not be brought again. The Ratahi whanau should not be facing this matter a second time as far as an act of generosity to Parininihi ki Waitotara. If they have not succeeded then that surely is the end of the matter unless there is some statutory ability to allow people to recast, as you call it, applications and simply keep on repeating them. For instance, today if you find the evidential foundations inadequate are you going to allow them to recast it again? At that point does it end? And why doesn’t it end on a loss as it does in every other Court? Why is this Court different?
Court: Alright, as I say, Ms Hughes, I took the view that it would save us all a lot more time if Parininihi ki Waitotara presented their case more comprehensively so that if at the end of this they wish to appeal they could.
Ms Hughes: Having lost the last time obviously they would have had a ground for appeal then if they felt that Your Honour had erroneously ruled against them. Your Honour ruled on the evidence that they chose to put
before you. Their avenues at that point are to accept. Frankly, on receipt of my application they could have elected a non-suit which would have allowed them to bring the application again having addressed the evidential shortcomings or to press on and say that the evidence we placed before the Court is adequate and invite Your Honour to find that my application was unsuccessful. That didn’t work. Thereafter they are left with only one option and that is to appeal. Surely they are not left with an option that they can simply go away and try again.
Court: Again, in my view, Ms Hughes, to save everyone time I thought this was the best approach. They could have sought a rehearing or appealed and possibly that would have meant a rehearing anyway.
Ms Hughes: For a matter to be reheard there would have had to have been, with respect, Sir, evidence placed before you that would have justified such a rehearing and given the nature of the applicant and the fact that they are represented by counsel in the first instance I would have thought with respect that a rehearing would have been more than an ambitious project. It would have been a project doomed to fail.
Court: Well except for example they could have taken my decision and offered up some new evidence about waahi tapu.
Ms Hughes: And that would have been evidence that wasn’t available at the time?
Court: Potentially, because someone has now come forward to offer it. I mean, it seemed to me that we could have been dealing with this case for several more years and as I say I thought this was the best approach. If you didn’t agree you could have appealed too.
Ms Hughes: You can’t appeal a win. That would be a problematic experience.
Court: I know what you’re saying.
Ms Hughes: It would be a novel concept to appeal when you win, but I
mean I suppose it’s not inconceivable.
Court: You could have appealed the part where I said they could recast for example, that you didn’t agree with that.
Ms Hughes: That with respect, Sir, is not as a result of the hearing. That is something that you have decided subsequent to that so without hearing from anyone anyway with respect that is a unilateral decision made by yourself. I can’t take the matter any further other than to ask that the point be reserved because with respect, Sir, there is no basis to allow an applicant to recast an application.
Court: Yes, but in this Court if someone comes along and files an application again with slightly different facts I can hear that.
Ms Hughes: On that basis you would confidently expect to hear opposition from me because it is simply destining the Ratahi whanau to go on forever defending the matter.
Court: I understand what you’re saying. (my emphasis) ((2006) 170 Aotea MB 287-288)
[13] Ms Hughes submissions were supported by Mr Lawrence, who appeared for Tito whanau interests. The discussion between Mr Lawrence and the Judge resulted in this concluding exchange:
Mr Lawrence: … I question where the jurisdiction comes from as Ms Hughes does. I do that with respect because I can see that Your Honour was perhaps taking the view as you have indicated that a little more time at that point might be the longest way home in the end. But once that application was decided against Parininihi ki Waitotara the matter became res judicata, I submit. It is therefore inappropriate for the same issues to be litigated again between the same parties. Now, I can’t see where the jurisdiction to do this comes from and I can see the matter is res judicata. So we have a situation where from the point of view of the respondents this hearing now should with respect not be taking place at all. There might have been a number of other ways to deal with this current problem procedurally but there was considerable uncertainty over months as to whether I was to be further involved at all. Now that we are here we are not saying stop everything now and decide this point. That would hardly be a good use of the time available.
Court: Given that we have had a conference already and my decision was issued in October of last year.
Mr Lawrence: The problem I had was I wasn’t sure whether I was involved at all. If we are correct that there isn’t any jurisdiction to have this hearing at all and even if the matter is res judicata then whatever might have been done at an earlier conference doesn’t alter the jurisdictional problem.
Court: No, it could have been raised at an earlier conference, this point.
Mr Lawrence: I did attempt to raise it with my friend at one stage. The moment the judgment came out I thought there was a problem about this. I wrote to Mr Bulfin on 9 November 2005 saying, I would have thought that your client was not able to re-litigate the matter because it’s res judicata, thus the fresh application would be an abuse of procedure. Perhaps you will consider this point and come back to me on it.” Now that was eight months ago. I haven’t received a reply to that point. So it is not as if we just sat there. I tried to raise it with Mr Bulfin and got no response. Now we still have the problem of jurisdiction. My approach to that would be that Your Honour can make what you will of the objections that Ms Hughes and I have raised and that if Your Honour’s decision is to proceed then we will participate, but on the basis that that participation is without prejudice to our points about jurisdiction.
…
Court: Thank you, Mr Lawrence. Mr Bulfin are you ready to proceed?
[14] At the Court’s request, Mr Bulfin called evidence on behalf of the Incorporation. At the conclusion of that evidence Ms Hughes renewed her application that there was no case to answer. That application was supported by Mr Lawrence. Submissions were then presented by Mr Bulfin, both on substantive and procedural issues. The hearing ended with Judge Harvey reserving his decision, but with Ms Hughes requesting the ability to call evidence on behalf of the Ratahi whanau in the event that her renewed application were dismissed.
[15] A second judgment was delivered by Judge Harvey on 10 August 2007: Parininihi Ki Waitotara Incorporation v Ratahi (2007) 189 Aotea MB 228. The judgment was termed a “Interim Reserved Judgment”.
[16] Judge Harvey recorded that there were three issues arising out of the June
2006 hearing that required determination: (a) whether there was no case to answer; (b) whether the criteria for a change of status have been met to facilitate sale of the land; (c) whether the application should be dismissed or continued to enable objectors to present further evidence.
[17] The arguments put to Judge Harvey in June 2006 were summarised in his judgment as follows:
[6] Surprisingly, despite the fact that a hearing had been held prior to 16
June, Mrs Hughes raised an issue of jurisdiction. She submitted that, in effect, the matters raised in the application were res judicata. She contended
that the applicants were being given a second chance when their initial application had been declined. Counsel submitted that the Court should not
hear the “recast” application because it had already dealt with the application on its merits and that application had been declined.
[7] Ms Hughes further submitted that an appeal was an appropriate remedy for the applicant or an election for a non-suit. Neither pathway was taken by the applicant and so, it was argued, the amended application should not now be heard.
[8] Mr Lawrence supported the arguments of Ms Hughes. He also contended that the present proceedings were not a rehearing per sections 43 of Te Ture Whenua Mäori Act 1993 and so there was no jurisdiction for the Court to hear the amended application. Counsel then raised the matter of the non-discoverability of the Land Management Plan. He argued, in effect, that unless the plan was disclosed to counsel, the Court could not consider its contents or its relevance to the present application.
[9] In reply, Mr Bulfin submitted that the Court had the discretion to provide the applicants with the opportunity to file a recast application. That opportunity had been availed of so the Court had the jurisdiction to consider the amended application accordingly. He also submitted that the disclosure of the Land Management Plan to the parties would be a very grave step that threatened the future commercial objectives of the incorporation.
[18] Judge Harvey considered that there had been “ample opportunity for [the jurisdictional points] to be submitted for consideration before the actual hearing”: para [16]. His Honour characterised Ms Hughes’ application “as in effect a strike- out or an interlocutory application”. On the jurisdictional point, the Judge said:
[17] … [Ms Hughes’] original argument was that if the application was not struck out then her clients wish to be heard on the substantive proceedings. Consequently I have no difficulty in reconciling my approach in providing the applicant with the opportunity to resubmit a recast application supported by fresh evidence to ameliorate deficiencies that I had identified at the first hearing.
[18] Section 37 of the Act provides the Court with a broad discretion to hear any matter in connection with Mäori freehold land. I am satisfied that, in providing the applicant with the opportunity to submit a recast application, I am subsequently able to hear the recast application. Then there is the ability of the Court to amend any defects or errors in proceedings on its own motion at any time on such terms as it thinks fit, per section 71 of the Act.
[19] I also note that section 43 of the Act provides the court with the jurisdiction to rehear any matter before the same or a new judge. As I indicated at the last hearing grounds for rehearing can include the emergence of new evidence previously unavailable or a material shift in position by one of the principal parties on a key issue. There are of course other grounds. The short point is that, while noting the objections of counsel, I consider that I do have the jurisdiction to hear the amended application. (my emphasis)
[19] Judge Harvey declined to dismiss or strike out the amended application. He did not address the question whether the new evidence had cured the problem identified in his October 2005 judgment, though he did require production of a Land Management Plan to the Ratahi and Tito interests so that they could prepare their opposition to the amended application.
[20] The proceeding was adjourned for a conference on 29 August 2007. Nothing was placed before me to indicate whether the intended conference on 29 August
2007 proceeded and, if so, what happened.
[21] The next step was an application, filed on 18 September 2007 by Ratahi whanau interests, seeking leave to appeal to the Mäori Appellate Court from “the provisional or preliminary determination” of the Mäori Land Court contained in its decision of 10 August 2007. Section 59(1) of the Act requires leave before an appeal may be brought from a “provisional or preliminary determination” of the Mäori Land Court.
[22] The intended grounds of appeal were that the Judge erred in giving an opportunity to the Incorporation to amend its application, having determined that, on the evidence adduced, it ought to be declined. A similar application was made by the Tito whanau interests.
[23] The application for leave to appeal was heard on 17 October 2007. In a judgment given on 12 November 2007, Judge Harvey dismissed that application and directed that the proceeding be set down for a further judicial conference on 13
December 2007, to deal with timetabling issues: Ratahi v Parininihi Ki Waitotara
Incorporation (2007) 195 Aotea MB 25.
[24] Judge Harvey took the view that the Ratahi whanau interests ought to have appealed against his decision to permit the Incorporation to “re-cast” or amend its application. Alternatively, he suggested that they could have sought judicial review in this Court. He added, at para [32], that: “These remedies were available right up until the 16 June 2006 hearing”.
[25] On the jurisdictional points raised by Ms Hughes, the Judge concluded:
[33] My grounds for granting the incorporation the opportunity to recast or amend their application are set out in my 10 August 2007 judgment and need not be repeated here. I also agree with Mr Judd’s submission [for the Incorporation] that there is nothing in the Act to prevent me from inviting a litigant to recast or resubmit their application where deficiencies have been identified. Circumstances do change. I accept that where an applicant attempts to repeatedly file application s on the same subject matter without leave, then that may amount to an abuse of process. But that is not the situation here. Paragraph 41 of my 12 October 2005 judgment is clear: the application “as currently framed” was declined, not dismissed. The incorporation was then given 21 days to file a recast or effectively an amended application. Para 41 also refers to the possibility of hearing “any such amended application” on 21 days notice.
[34] As I mentioned in my 10 August 2007 judgment, I would have expected that any argument on jurisdiction might properly have been raised prior to hearing on 16 June 2006 and certainly by at least the time of the 24
February 2006 hearing, or by way of memorandum from counsel. I remain surprised that matter was raised at the hearing rather than at the February fixture. With the greatest respect to counsel, I continue to hold the view that there had been ample opportunity for such a pivotal matter of jurisdiction to be raised well before the actual hearing. But at the minutes confirm, no such challenge to jurisdiction was raised. Indeed, Mrs Hughes gave the impression that the matter would be proceeding with her comment that further evidence in rebuttal to the incorporation would need to be briefed. And she agreed with the suggestion of at least a full day fixture, clearly envisaging a lengthy sitting.
[35] While Mr Lawrence says that he raised this point with Mr Bulfin and got no response, with respect, I suggest that the correct approach would have been to raise it with me directly by way of memorandum or at a conference. This is of course what eventually occurred at the June hearing but only after the incorporation had been put to the expense of filing additional evidence. A letter from Mr Lawrence received on 7 April 2006, in response to the case manager’s earlier correspondence contains the following statements: “… you asked whether I object to the matter being set down for a special hearing in June 2006, tentatively the 16th. I do not object. It is not yet clear whether I will be instructed to appear further in this matter. If I am you can take it that I will be available on the 16th of June.” Mr Lawrence wrote again by letter received 21 April 2006 dealing with issues of costs. No mention is made of concerns over jurisdiction.
[36] Unsurprisingly, I agree therefore with the submissions of Mr Judd that this matter should proceed to a final conclusion and decision before this Court. It will then be for the parties to consider their positions and any further rights or review or appeal. But to stop now part way through the hearing of the recast application would cause prejudice to the incorporation. The incorporation has now gone to the expense, the time and trouble of filing an amended application and briefing additional evidence. This they were entitled to do by my 12 October 2005 decision.
[37] I am not satisfied that the position of the applicants, taking into account the issues I have raised, will be significantly prejudiced if they elect to continue participating in these proceedings. They are to be given the opportunity to have their say and argue their case against the change of status. That is what they wanted to do from the beginning. In conclusion, regrettably for the applicants, I am not persuaded that leave should be granted to appeal my decision of 10 August 2007. (my emphasis in paras [33], [34] and [36]; Judge Harvey’s emphasis in para [35])
[26] With respect, Judge Harvey’s observations in para [34] clash with the fundamental proposition that a jurisdictional point going to the power of a Court to make a particular order is incapable of being waived, whether expressly or by necessary implication from a party’s conduct: see Reckitt and Colman (New
Zealand) Ltd v Taxation Board of Review [1966] NZLR 1032 (CA) at 1039 (North P), 1042 (Turner J) and 1046 (McCarthy J).
The application for judicial review
[27] On 18 December 2007, the Ratahi whanau interests filed an application for judicial review in this Court. At a case management conference on 29 February
2008, directions were made to procure a prompt hearing. The application was heard on 9 April 2008.
[28] Although the application for judicial review focussed on Judge Harvey’s judgment of 12 October 2005, a number of Ms Hughes’ submissions were directed to the judgment of 12 November 2007, in which the application for leave to appeal to the Mäori Appellate Court was dismissed. I recognise that all three judgments are closely inter-linked. It is difficult to approach the issues by reference to only one of the three judgments given in the Mäori Land Court.
[29] After hearing from both Ms Hughes and Mr Judd QC (for the Incorporation), I granted leave to amend the Statement of Claim to make it clear that what was in issue was Judge Harvey’s direction that the Incorporation may “re-cast” its original application.
[30] Ms Hughes submitted that the Mäori Land Court’s judgment of 12 October
2005 was amenable to review on the following grounds:
a) There was no jurisdiction for the Mäori Land Court Judge to direct, without ruling on Ms Hughes’ original application, that the Incorporation could “re-cast” its application and call additional evidence to that adduced at the May and June 2004 hearing.
b)The Mäori Land Court Judge’s decision to permit an amended application and additional evidence was made without hearing from the Ratahi and Tito whanau interests, contrary to the principles of natural justice.
The second submission was developed during the course of oral argument, following questions posed of counsel by me. But it was also a submission made to Judge Harvey at the June 2006 hearing.
[31] The relief sought by Ms Hughes is two-fold:
a) A declaration that Judge Harvey’s decision to allow the Incorporation to “re-cast” its application was invalid.
b) An order quashing or setting aside that invalid decision.
[32] Mr Judd contended that the Mäori Land Court had jurisdiction to make the orders, primarily on the grounds articulated by Judge Harvey in his discussion with Ms Hughes during the course of the June 2006 hearing and in his judgment of 12
November 2007. Mr Judd also relied on s 66(2) of the Act which requires proceedings before the Mäori Land Court to be “conducted in such a way, as in the opinion of the Judge conducting or presiding over the proceedings, will best avoid unnecessary formality”.
[33] Mr Judd submitted, during oral argument, that the directions made were not such as to require the parties to be heard further before they were made. In any event, he argued, by having an opportunity to make submissions to the Court at the June 2006 hearing, any procedural defect arising from any failure to provide an opportunity to be heard had been cured.
[34] Mr Judd’s final argument was that, even if I were to find that the Mäori Land Court had erred in either of the ways articulated by Ms Hughes, the delay in bringing the application for judicial review, since October 2005, ought to disentitle the Ratahi whanau interests from the relief sought.
The jurisdictional point
(a) The Mäori Land Court’s jurisdiction
[35] Ms Hughes basic proposition is that leave to amend an application is generally given to ensure that it conforms with the evidence actually adduced. This case is different, she submits, because permission to “re-cast” was given to enable the Incorporation to remedy defects in its proof of essential elements of the application. Wrongly, she submitted, the Judge had provided a second opportunity to the Incorporation to bolster its evidence and relitigate a point on which, evidentially, it had failed.
[36] The Mäori Land Court is a Court of record: s 6(1) of the Act. In Hami
Tikitiki v Assets Co Ltd and the District Land Registrar Poverty Bay (1899) 18
NZLR 226 (CA) at 233, it was held that the record of (what was then called) the Native Land Court was to be treated as being regular unless the contrary was clearly proved.
[37] The Mäori Land Court derives its jurisdiction from the Act or any other statute that confers specific powers upon it; for example, the Foreshore and Seabed Act 2004, ss 46 and 47. It has no inherent jurisdiction.
[38] Boast, Erueti, McPhail and Smith, Mäori Land Law (Butterworths Wellington 1999) at 13, para 3.1, describe (by reference to the Act’s Preamble) the kaupapa (or underlying theme) of the legislation as acknowledging “land as a taonga tuku iho (of special significance) to Mäori people and is directed towards the retention and development of Mäori land in the hands of its owners, their whanau, and their hapu”. The Mäori Land Court is directed to interpret the Act “in a manner that best furthers the principles set out in the Preamble”: s 2(1) of the Act.
[39] In my view, the Mäori Land Court Judge was obliged to deal with the issues before him in a manner consistent with those overriding objectives of the legislation.
They included what is said in Preamble and the direction to interpret in accordance with the principles set out in it. Those principles were relevant in this case. The effect of what the Judge did was to promote the possibility of alienation (by giving the Incorporation a second chance to prove its case), as opposed to being guided by the primary object of land retention.
(b) Leave to amend an application
[40] Jurisdiction to amend a proceeding before the Mäori Land Court springs from s 71 of the Act. Section 71 provides:
71 Court may amend proceedings
(1) In the course of any proceedings, the Court may, on the application of any party or of its own motion, amend any defects or errors in the proceedings.
(2) All such amendments may be made on such terms as the Court thinks fit.
[41] The generality of s 71 differentiates the power to amend from that which applies in the High Court, though it is difficult to see any basis on which it could be contended that factors specifically mentioned in the relevant High Court Rules ought to be disregarded, as a matter of discretion, when the Mäori Land Court exercises its jurisdiction.
[42] Rules 11 and 187 of the High Court Rules provide:
11 Power to amend defects and errors
(1) The Court may, either before, at, or after the trial of any proceeding, amend any defects and errors in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.
(2) The Court may, at any stage of a proceeding, make, either of its own motion or on the application of any party to the proceedings, such amendments to any pleading or the procedure in the proceeding as are necessary for determining the real controversy between the parties.
(3) All amendments made under subclause (1) or subclause (2) shall be made with or without costs and on such terms as the Court thinks fit.
…
187 Filing of amended pleading
(1) Subject to subclauses (2) and (5), any party may at any time before trial file an amended pleading and serve a copy thereof on the other party or parties.
(2) After the setting down date for a proceeding, an amended pleading may be filed only with the leave of the Court.
….
(9) Nothing in this rule limits the powers conferred on the Court by rule
11.
[43] McGechan on Procedure, at para HR 11.03, identifies Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) as the leading authority on the topic of late amendments to pleadings as. In that case, on the 63rd day of a hearing and after more than one week of final submissions, the plaintiffs sought leave to amend their Statement of Claim. Tompkins J, at first instance, granted the amendment. The defendants appealed. Primarily, the defendants argued that the application had been made too late and that, for “disciplinary reasons it ought not to be permitted”.
[44] The Court of Appeal referred to an important observation of Lord Griffiths, in Ketteman v Hansel Properties Ltd [1987] 2 WLR 312 (HL) at 339. His Lordship observed that there is a clear difference between allowing amendments to clarify the issues in dispute and those that permit a distinct defence (claim) to be raised for the first time. After referring to Lord Griffiths’ dictum, Cooke P, delivering the judgment of the Court of Appeal in Elders Pastoral Ltd v Marr, said, at 385-386:
As far as there is any analogy between the two cases, and that is not very far, the Judge here was entitled to treat the amendments as more in the category of those clarifying issues in dispute than in the category of those introducing distinct matters for the first time.
As to prejudice to the defendants, plainly a possibility requiring anxious consideration with amendments at the 11th hour or later, the Judge was in a far better position after nearly 70 days to assess any risks under that head than this Court can be after half a day. He saw no sufficient risk of injustice to the defendants to lead to rejection of the application. Again he has enjoyed at least some degree of vindication. Mr Temm indicated to us that the first appellant does not seek to call further evidence in the High Court. Mr Ingram's statements on behalf of the second appellant, Mr Hazard, amounted to the same; and, as counsel put it, he was unable to articulate prejudice to his client in any precise terms. Ms MacCartney made claims of
prejudice of behalf of the third appellant, Peter Stewart Bromiley, but there is nothing before the Court to indicate that he could give any further material evidence and the Judge was in an infinitely better position than we are to assess whether further cross-examination of any other witness was likely to be of any significant help.
On the whole matter what stands out is that this was a careful discretionary decision, overlooking no relevant principle or factor, with which it would be rash in the circumstances for an appellate Court to interfere. The appeals are dismissed.
[45] In this particular case, the term “re-cast” was meaningless. An amendment could take the application no further. The Incorporation was required to prove the statutory criteria to support a change in status of the land, whatever its amended application may have said.
[46] There is no doubt that s 71 of the Act permits the Court, of its own motion, to amend proceedings before it. But, that power is limited to “any defects or errors” in the proceeding. There was no defect or error in the “proceeding” before the Court. Any defect or error related to the Incorporation’s failure to adduce evidence in support of the application to prove the necessary statutory criteria.
[47] Judge Harvey also referred to s 37 of the Act, as a basis of jurisdiction. Section 37 provides:
37 Exercise of jurisdiction generally
(1) Subject to any express provisions of this Act or of the rules of Court relating to the making of applications, the jurisdiction of the Court may be exercised on the application of—
(a) Any person claiming to have an interest in the matter; or
(b) The Minister or the Chief Executive or a Registrar.
(2) Notwithstanding subsection (1) of this section, the Court may grant to any person, body, or association leave to make an application to the Court for the exercise of its jurisdiction where the Court is satisfied—
(a) That a question of importance to the Maori people or any tribe or group of the Maori people is involved; and
(b) That, because of the standing of the proposed applicant among the Maori people concerned and the proposed applicant's relationship to or connection with any land to which the application relates, it is appropriate that leave be granted to the proposed applicant.
(3) In the course of the proceedings on any application, the Court may, subject to the rules of Court, without further application, and upon such terms as to notice to parties and otherwise as the Court thinks fit, proceed to exercise any other part of its jurisdiction the exercise of which in those proceedings the Court considers necessary or desirable.
…
[48] Section 37(3) can only be used to exercise other jurisdiction. Judge Harvey did not exercise any other jurisdiction; he gave the Incorporation an opportunity to bolster its inadequate evidence. Section 37(3) is not a source of jurisdiction for the order made.
(c) Rehearing
[49] The terms on which a rehearing may be granted are set out in s 43 of the Act and r 71 of the Mäori Land Court Rules 1994. They provide:
s.43 Rehearings
(1) Subject to subsection (2) of this section, on an application made in accordance with the rules of Court by any person interested in any matter in respect of which the Court has made an order, the Judge by whom the order was made or any other Judge may order a rehearing upon such terms as the Judge thinks reasonable, and in the meantime may stay the proceedings.
(2) A rehearing under this section shall not be granted on an application made more than 28 days after the order, unless the Judge is satisfied that the application could not reasonably have been made sooner.
(3) An application under this section shall not operate as a stay of proceedings unless the Judge so orders.
(4) The rehearing need not take place before the Judge by whom the proceedings were originally heard.
(5) On any rehearing, the Court may affirm its former determination, or may vary or annul that determination, and may exercise any jurisdiction that it could have exercised on the original hearing.
(6) When a rehearing has been granted, the period allowed for an appeal to the Maori Appellate Court shall not commence to run until the rehearing has been disposed of by a final order of the Court.
…
r.71 Rehearing
(1) An application for rehearing under section 43 of the Act may be made—
(a) In open Court; or
(b) In writing lodged with the Clerk of Court during the sitting at which the decision in the matter sought to be reheard is given; or
(c) In writing lodged with the Registrar.
(2) The application shall set out the grounds upon which the applicant relies for the grant of a rehearing.
(3) The Court—
(a) May require the applicant to supply further particulars in support of the application for rehearing; and
(b) May require the applicant or the Registrar to give notice of the application and the further particulars requested by the Court and any hearing date fixed by the Court in such manner and to such persons as the Court thinks fit.
(4) If the application is granted, the rehearing may take place either before the same or any other Judge, and either at the same sitting or at any other sitting of the Court.
(5) Where the rehearing takes place at any other sitting of the Court, the original application shall be notified and dealt with in accordance with these rules.
[50] Section 43 of the Act provides jurisdiction for a Judge to grant a rehearing on such terms as he or she may think reasonable: s 43(1). But, unlike the power to amend in s 71 of the Act, the jurisdiction is not one to be exercised by the Judge, of his or her own motion. Sections 43(1) and (2) contemplate an application by a party seeking an order; such application to be made, generally, within 28 days of the original order. Further, r 71 of the Mäori Land Court Rules provides for the making of an application in open Court or in writing, with the application setting out the grounds on which the applicant relies: r 71(1) and (2).
[51] Judge Harvey could not have exercised this power because there was no application before him at the time the order was made and there was no opportunity for the Ratahi and Tito whanau interests to be heard before the order was made.
(d) Section 66
[52] Section 66 of the Act provides:
66 Conduct of proceedings generally
(1) Any Judge conducting or presiding over any hearing may—
(a) Apply to the hearing such rules of marae kawa as the Judge considers appropriate:
(b) Make any ruling on the use of te reo Maori during the hearing, additional to the rights provided by section 68 of this Act.
(2) Proceedings before the Court shall be conducted in such a way as, in the opinion of the Judge conducting or presiding over the proceedings, will best avoid unnecessary formality.
(3) Nothing in subsection (1) or subsection (2) of this section shall derogate from any of the powers a Judge has to ensure that the proceedings of the Court are conducted in a proper manner.
(4) No appeal shall lie against any decision of a Judge made for the purposes of this section.
[53] The purpose of s 66 of the Act is to avoid unnecessary formality in the conduct of proceedings before the Court: s 66(2). However, informality of procedure in the courtroom does not equate to a power to bend rules of procedure designed to ensure proceedings before a Court are conducted “in a proper manner”: see s 66(3).
[54] In my view, s 66 does not provide jurisdiction independently to make the order in issue in this case.
(e) Ability to call further evidence – r 45 Mäori Land Court Rules
[55] Although not mentioned in submissions, the judgments of the Mäori Land Court or the comments made by the Judge at the June 2006 hearing, there is an ability to allow further evidence to be adduced: r 45 of the Mäori Land Court Rules. Rule 45(1) and (2) provide:
45 Further evidence
(1) If, in any case, the Court requires further evidence, or thinks that notice of any application should be given to any person or class of persons, or that any such person or class of persons should be heard or represented in any proceedings, it may make such order and give such directions as it thinks fit for the purpose of obtaining the evidence, giving any such notice, or allowing any such person or class of persons to be heard or represented.
(2) Without limiting the generality of subclause (1) of this rule, in any proceedings in which the Court is of the opinion that the production of further evidence is reasonably necessary for the proper exercise of the Court's jurisdiction, the Court may, on the application of any of the parties or of its own motion, give to any of the parties a direction relating to all or any of the following matters:
(a) The giving of additional evidence: (b) The filing of further particulars:
(c) The production of any document for inspection:
(d)The production of copies of entries in any ledgers or other books of account relating to any business. (my emphasis)
[56] Arguably, this provision could have provided jurisdiction for the Mäori Land Court to allow an unamended application to proceed on the basis of additional evidence. However, if the words “is reasonably necessary for the proper exercise of the Court’s jurisdiction” are read carefully, they preclude use of this power for the purpose of providing another opportunity for a claim to be established. Further evidence was not required “for the proper exercise” of its jurisdiction. The Court could have exercised its jurisdiction properly by dismissing the application.
[57] There is nothing in the judgments in issue nor in the comments made by Judge Harvey at the June 2006 hearing to suggest that the Judge relied on r 45 to make the order entitling the Incorporation to “re-cast” its application.
(f) Jurisdiction - conclusion
[58] In my view, no jurisdiction existed to make the order permitting the
Incorporation to “re-cast” its application.
[59] Notwithstanding the reasons given by Judge Harvey for making that order (in his judgment of 10 August 2007), I retain a suspicion that the real intent was to allow the case to be presented more comprehensively, to avoid the possibility that the Incorporation would seek a rehearing or appeal successfully, with the consequence of a rehearing: see the discussion between Ms Hughes and the Judge at para [12] above.
[60] With respect, it is no function of a Judge, in deciding whether a particular application will or will not succeed, to second guess what might happen on appeal. The first instance Judge is required to reach his or her own decision on the evidence adduced and the submissions made. An appellate regime operates to correct error, once a decision has been reached.
[61] There could be no objection to a late application for leave to adduce further evidence being made by a party, but the Court ought not to have allowed further evidence to be adduced without having considered whether there were grounds to allow further evidence to be called, under r 45 of the Mäori Land Court Rules.
Ought the Ratahi and Tito whanau interests to have been heard?
[62] In my view, the Judge ought to have heard from counsel for the Ratahi and Tito whanau interests before making an order of his own motion that the application could be amended rather than dismissed. The need to do so was heightened by the fact that the hearing in June 2004 was left on the basis that the Judge would decide whether there was sufficient evidence to prove the statutory criteria.
[63] It is unnecessary to cite extensive authority for the proposition that an application likely to affect a party ought to proceed on notice: generally, see Martin v Ryan [1990] 2 NZLR 209, Y v X [2003] 3 NZLR 261 and Skelton v Family Court at Hamilton [2007] 3 NZLR 368. Skelton is an example of a case in which it was held that a Judge who was making an order of his own motion ought first to have sought submissions from counsel for affected parties: see Skelton at paras [94], [101] and [105].
[64] However, because Ms Hughes had the ability to advance submissions on the jurisdictional issue at the June 2006 hearing, I am satisfied that any procedural irregularity caused by the failure to hear from the parties was cured: generally, see AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) and Hawthorne v Cox [2008] 1 NZLR 409 at [46] and [47].
Should discretionary relief be declined?
[65] Mr Judd strongly contended that discretionary relief should be refused. With respect, I do not agree.
[66] The only criticism that can be made of Ms Hughes is that she failed to raise the jurisdictional issue at the February 2006 hearing. Instead, it was raised at the June 2006 hearing.
[67] Although Judge Harvey expressed surprise, in his 10 August 2007 judgment, that Ms Hughes had not raised the jurisdictional issue earlier, I consider that comment to have been unwarranted.
[68] The first hearing concluded in June 2004. A judgment on Ms Hughes’ submission that there was no case to answer was not given until some 16 months had passed. The Incorporation was then late in filing an amended application, which was only accepted by the Court on 24 January 2006. A hearing date was allocated for about one month hence, without consultation with Ms Hughes. At the February hearing, Ms Hughes expressed concerns regarding the extent of availability of legal aid. Given that sequence of events, I consider it was inappropriate for the Judge to criticise Ms Hughes for not raising the jurisdictional issue until June 2006.
[69] From June 2006, it took the Judge almost another 14 months to give judgment on the issues raised at the hearing. After the 10 August 2007 judgment was issued, Ms Hughes moved quickly to seek leave to appeal. A judgment was given promptly on 12 November 2007, declining leave. The application for judicial review was filed in this Court in December 2007.
[70] Two years and six months of the time that has elapsed since the first hearings concluded (in 2004) has been taken up by the reservation of judgment. Unless there was something relating to the personal circumstances of the Judge of which I am unaware, delays of that length are unacceptable. There is nothing in the record that could explain the delays. Litigants are entitled to prompt decisions. While some judgments will, necessarily, take some months to prepare and give (particularly in complex cases or where other judicial duties must be given priority) there will rarely be any tenable excuse for delaying judgment on issues of this type for so long.
[71] I am not prepared to refuse relief on grounds of delay.
Result
[72] I have held that there was no jurisdiction for the Judge to make an order allowing the application to be re-cast. The regrettable consequence of that decision is that the clock must be turned back to June 2004, when the first hearing concluded.
[73] In my view, the appropriate relief is to quash the order permitting re-casting of the application and to remit the original status change application to the Mäori Land Court.
[74] I have some misgivings about the approach taken by Ms Hughes in making the “no case to answer” submission. As mentioned earlier, the Mäori Land Court has no inherent jurisdiction: see Laws NZ, Courts at para 11. There is nothing in the Mäori Land Court Rules that contemplates an application of the type Ms Hughes made. In my view, the proper approach, at the end of the June 2004 hearing, was for the Judge to put the objectors to their election whether to call evidence and to rule on the application when all evidence was in. Otherwise, the objectors receive two opportunities to put their case: the very criticism made of the consequence of Judge Harvey’s impugned order. Even in the High Court, where there is undoubted jurisdiction to hear and determine a strike out application at the close of a plaintiff’s case, the discretion to deal with a proceeding in that way is rarely exercised.
[75] In order to restore the status quo as at the end of the June 2004 hearing, the Mäori Land Court should hear any further applications the Incorporation wishes to make (on notice to the objectors) and inquire, after resolution of all relevant issues, whether the objectors elect to call evidence. Once all evidence is in, the Court should determine the application finally.
[76] I make the following orders:
a) The Mäori Land Court’s decision to allow the Incorporation to “re- cast” its original application (set out in para [41] of the judgment of
12 October 2005) is quashed.
b)The Incorporation’s application for change of status of land is remitted to the Mäori Land Court for that Court to hear and determine on the basis set out in para [75].
Determination of the application will be effected on the day on which an order is pronounced, so that appeal periods run from that time.
Costs
[77] There is no reason why costs should not follow the event. The Incorporation is ordered to pay costs on a 2B basis, together with disbursements. Costs and
disbursements shall be fixed by the Registrar.
P R Heath J
Delivered at 2.00pm on 12 May 2008
0
0
1