Reihana v Christchurch Maori Land Court Ca131/01

[2002] NZCA 388

IN THE COURT OF APPEAL OF NEW ZEALAND  CA131/01

BETWEEN      TONI COLIN REIHANA, COLIN

HORONUKU REIHANA AND PATRICIA MADINA QUARRIE

Appellants

ANDCHRISTCHURCH MAORI LAND COURT

Respondent

Hearing:                   19 March 2002

Coram:Gault J Tipping J Chisholm J

Appearances:           The appellant Toni Colin Reihana in person

M N Zarifeh as amicus curiae

Judgment:                25 March 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]        The appellants were two trustees and an advisory trustee of a Whanau Trust. They appeal from the decision of Panckhurst J in the High Court dismissing their application for judicial review of a decision of the Maori Land Court. That application was directed not so much to the actual decision of the Maori Land Court but rather to whether on an application to the Maori Land Court for the termination of a Whanau Trust, which application was granted without opposition, the Judge should nevertheless have concerned himself with allegations that two trustees of the Trust which was being terminated had been guilty of misconduct in the administration of the Trust affairs. It is this procedural determination, if it can be called a determination at all, that the appellants wish to have reviewed, rather than the decision made on their substantive application to terminate the Trust which succeeded without opposition.

[2]        As Panckhurst J put it in the High Court, as regards the appellants’ termination application, there was simply no opposition. In effect a consent order was made for the termination of the Trust. Both sides held the same view on the termination issue. The Judge in the High Court went on to say that there was therefore simply no need for the Maori Land Court Judge to test the allegations of misconduct in the course of a full scale hearing. The Judge recorded that when this was pointed out to Mr Toni Reihana, one of the appellants who was representing himself, he responded by saying that he sought at least “observations” from the High Court which might clear the way for Mr Toni Reihana and his co-applicants to oppose the appointment, or to seek removal of, the allegedly errant trustees from their trusteeship of a new Trust which was to be formed as a consequence of the termination of the Trust in respect of which the termination order was obtained.

[3]        Panckhurst J’s judgment of 4 May 2001, from which the present appeal is brought, contains a careful and accurate review of the background to the present case and it is unnecessary for us to go into the matters referred to by the Judge any further. The essence of the Judge’s reasoning was in the following terms:

I can find no basis for the intervention of this Court by way of judicial review. How a Judge sitting in the Maori Land Court should proceed to conduct the hearing of a case is very much a matter for him or her. In this instance the Judge was well seized of the case. He had presided at an earlier hearing on 22 November 2000 at which the same applicants sought orders relevant to the Trust. He heard from various members of the family and in the event declined to make the orders sought. It was that decision which occasioned the previous review application which I heard in December of last year.

At the same time (on 22 November) the Judge directed that there should be a conference of the whanau before a deputy registrar of the court in an endeavour to address some of the dissension which affected the family. I was asked in the course of the last judicial review application to make an order restraining that conference but declined to do so. It occurred but apparently was unsuccessful. Then the  same  Judge,  of  course,  heard  the  present  application  on    30 January. He must, therefore, have had a good feel for the situation.

Section 66 of the [Te Ture Whenua] Act governs the conduct of proceedings generally in the Maori Land Court. It provides:

(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.

In my view this section effectively renders the present application for review hopeless.

It emphasises that the procedure to be followed by a Judge in dealing with an application in that special jurisdiction is very much one for his discretion. As I noted in my last judgment it would not be often that this Court would be inclined to intervene in relation to a matter of procedure in the Maori Land Court unless there had been a plain denial of natural justice or something of that sort. Indeed s66(4) may even call in question whether it is competent for this Court to intervene in relation to a matter of procedure in a judicial review context, but I need not express a concluded view about that.

Nor do I propose to make any observations directed to future hearings before the Maori Land Court. The matters of audience (who may be heard) and of procedure are for the Judge on the day. He or she must direct how a case or application is to be heard in light of the particular matter which is before the Court and in light of all the circumstances in the case. It would be quite wrong, I think, for this Court to seek to fetter or guide the Court by making observations of the kind which Mr Reihana sought in the course of his submissions. For all these reasons the application for judicial review must be, and is, dismissed.

[4]        We entirely agree with this assessment of the case which Mr Toni Reihana seeks to make. There is no basis upon which the High Court could properly have intervened and reviewed the determination of the Maori Land Court not to enter into the complaints about the conduct of the Trustees. The Judge made the termination

order unopposed and he then had no need or justification for inquiring into the conduct of the trustees.

[5]        Mr Reihana argued that the Maori Land Court Judge had a duty to make findings on the affidavits or, as he put it later, a duty to facilitate understanding of the concerns he and the other applicants had about the suitability of certain persons to become trustees of the new Trust. There were, however, no such duties resting on the Judge in the circumstances. His sole duty was to consider and deal with the termination application. He had no duty to make findings which were unnecessary for the purpose of the proceeding before him. Difficulties could well have arisen if the Judge had done what is now said to have been his duty.

[6]        The purpose which Mr Toni Reihana and those sharing his interests were seeking to achieve, ie. to show that the people concerned were not suitable to be trustees of the new Trust, was not something the Judge could properly address in the course of the unopposed termination application in respect of the old Trust. Although the Judge expressed the view that Mr Toni Reihana and those who shared his concerns had no right to be heard in relation to who should be trustees of the new Trust, in which they had no beneficial interest, the Judge gave no formal ruling to that effect which could have been the subject of formal challenge. The oral application to constitute the new Trust which was made at the time when the termination application was being dealt with was adjourned to the next sitting of the Court,  at  which  a  different  Judge   presided.   Although   they   were  present, Mr Toni Reihana and those with him did not seek to be heard when the hearing resumed. No formal ruling was ever made declining them the opportunity to be heard. Even if there had been such a ruling, that ruling would not have been before the Court in the present proceedings.

[7]        Mr Reihana told us about the problems which had arisen as a result of the relationship between the two new Trusts. These are, however, not before this Court either. If necessary they will have to be dealt with in the Maori Land Court.

[8]        It is inherent in what we have said that there are no grounds for finding any breach of Rule 42(2) of the Maori Land Court Rules or s17 of the Act. We have

considered all aspects of Mr Toni Reihana’s detailed written and oral arguments but find that the appeal cannot succeed. Panckhurst J was right in the conclusion to which he came. The appeal is therefore dismissed but without costs.

Solicitors

Crown Solicitor’s Office, Christchurch, as amicus curiae