Reihana v Rakiura Titi Committee

[2022] NZHC 3258

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-74

[2022] NZHC 3258

BETWEEN

TONI COLIN REIHANA

Applicant

AND

RAKIURA TITI COMMITTEE

First Respondent

NGAI TAHU NOMINEE, JASMINE STEWART

Second Respondent

Hearing:	(Determined on the Papers)
Judgment:	6 December 2022

JUDGMENT OF EATON J

[1]    The Registrar  has  referred  to  me  a  proceeding  tendered  for  filing  by  Mr Reihana pursuant to r 5.35A of the High Court Rules 2016 (the Rules) which provides:

Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

REIHANA v RAKIURA TITI COMMITTEE [2022] NZHC 3258 [6 December 2022]

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[2]    Mr Reihana has a long running dispute with the Rakiura Titi Committee (the Committee) concerning  buildings  he  says  were  unlawfully  erected  on  Taukihepa Island by members of his whānau. That dispute resulted in Mr Reihana issuing a proceeding in 2016. That proceeding and two others (concerning other disputes) issued by Mr Reihana were stayed by Justice Gendall in 2016.1

[3]    Periodically, Mr Reihana has sought to advance his 2016 proceeding notwithstanding the stay.

[4]    Gendall J stayed the proceedings before him “[u]ntil conclusion in each case of the independent decisionmaker dispute resolution procedure provided for in reg 9 of the 1978 regulations”.2 Gendall J’s decision was unsuccessfully appealed to the Court of Appeal3 and Supreme Court.4 The Regulations referred to by the Judge are the Titi (Muttonbird) Islands Regulations 1978 (the Regulations).

[5]    Associate Judge Lester has issued  a  number  of  minutes  in  response  to  Mr Reihana seeking to  revive  his  proceeding.  Those  minutes  refer  to  whether Mr Reihana has complied with the dispute resolution process as required  by  Gendall J’s judgment. In each case the application filed by Mr Reihana (on a without notice basis) was not accepted for filing.

[6]    In the first minute of 2 September 2020, Associate Judge Lester recorded that Mr Reihana had apparently at that time decided not to make a written application pursuant to reg 9. The Associate Judge concluded that until Mr Reihana had pursued the reg 9 process there was no basis to revisit the stay.

[7]    The next minute of the Associate Judge is dated 17 November 2020. It refers to Mr Reihana having sought to commence the dispute resolution process under reg 9

1      Reihana v Rakiura Titi Committee [[2016] NZHC 2048, 2016] NZAR 1491.

2      Reihana v Rakiura Titi Committee, above n 1, at [53].

3      Reihana v Rakiura Titi Committee [2018] NZCA 325, [2018] NZAR 1652.

4      Reihana v Rakiura Titi Committee [2018] NZSC 119.

of the Regulations. Having done so, Mr Reihana received a response from the Committee which requested he clearly and succinctly outline the specific issues he requested to be referred to an independent decisionmaker.

[8]    The Committee also asked Mr Reihana to outline all of the parties involved in the issues that Mr Reihana sought to be resolved. Mr Reihana was dissatisfied with this response and sought an order requiring the Committee to follow through on the dispute resolution process.

[9]    The Associate Judge concluded that whether Mr Reihana had properly commenced the dispute resolution process was a matter that could not be dealt with on a without notice basis. The Associate Judge recommended that Mr Reihana revisit his application to commence the dispute resolution process to ensure it succinctly identified the date and subject matter of the decision he disputed and ideally that he give a brief statement as to why he thinks the decision was wrong. As to the request that Mr Reihana identify the parties involved in the issues which Mr Reihana seeks to be resolved, the Associate Judge noted that unless the notice pinpointed a decision subject to the dispute, the Committee could not identify the other parties who may be affected.

[10]   The next minute of Associate Judge Lester  is  dated  28  September  2021. Mr Reihana had filed further without notice applications seeking orders that certain members of the Committee be excluded from consideration of his complaint because he considered his use of the dispute resolution process was being stalled by the Committee.

[11]   It will be noted that the Committee had asked Mr Reihana to provide details of his complaint and he responded by referring the Committee to the statement of claim he had filed in the stayed High Court proceeding.

[12]   The Associate Judge agreed with the Committee’s response that it was not enough for Mr Reihana to refer to his statement of claim in stayed proceedings. The Associate Judge again indicated what he considered a compliant reg 9 notice should contain and commented that it was not for the Committee to have to work out from

Mr Reihana’s statement of claim, the issues he wanted referred to an independent decision-maker.

[13]   Finally, on 3 February 2022, the Associate Judge issued another minute referring to Mr Reihana again filing applications on a without notice basis seeking that current members of the Committee be removed from further involvement in his dispute.

[14]   The Associate Judge noted, as he had in the past, that the matters raised by Mr Reihana were not suitable to be dealt with on a without notice basis and again noted that a compliant reg 9 notice had not been issued by Mr Reihana.

[15]   The Associate Judge observed that the Committee had said it would not engage further with Mr Reihana until he had paid costs awarded against him by the Supreme Court. The Associate Judge expressed the view, acknowledging that he had not heard from the Committee on the issue, that it may not be open to the Committee to refuse to action a proper reg 9 notice on grounds that fall outside those permitted by the Regulations. However, the Associate Judge concluded that the “fundamental stumbling point for Mr Reihana remains that he has not provided the Committee with a compliant Regulation 9 notice”.

[16]   It is against that lengthy background that I consider whether the latest proceeding tendered for filing by Mr Reihana should be struck out.

[17]   Mr Reihana’s latest proceeding seeks judicial review of decisions of the Committee. The real issue I must determine is whether the proceeding tendered for filing by Mr Reihana is an abuse of process because it is a collateral attack, on/in relation to the stay ordered by Gendall J or, whether it is without merit because it represents Mr Reihana seeking to challenge the decision of the Committee without first using the compulsory dispute resolution process under the Regulations.

[18]   I am satisfied Mr Reihana’s latest filing relates to the same issue that was the subject of the 2016 proceeding. I say that for the following reasons:

(a)The third paragraph on page two of the claim refers to what is described as the mishandling by the Committee of a matter on 1 November 2022 concerning Mr Reihana’s unlawful buildings complaint which he says was:

… effectively, a new / updated … application with new affidavit and photographic evidences; to the same … application put before the first respondents on 2nd June 2015 for resolution of.

(b)The fourth paragraph on page two of the claim refers to Mr Reihana trying, on 5 December 2021, to get both respondents:

… to revisit and resolve this new … unlawful buildings complaint initially put before the first respondent on 2nd June 2015.

(c)On page six of the statement of claim under the heading “Second Cause of Action”, Mr Reihana makes allegations against the Committee which he says have continued since 2015 - being the date of his complaint about the unlawful buildings.

(d)The last paragraph on page six of the claim under the heading “Application for Relief”, reads:

An order of or in the nature of Certiorari invaliding the 2nd June 2015 decision of the first respondent upon the Plaintiff’s … unlawful building complaint …

[19]   Notwithstanding Mr Reihana’s assertions in the final paragraph on page four of his claim that his claims are separate from his earlier proceedings, I have no doubt that Mr Reihana is seeking to revisit his unlawful building dispute complaint, the subject of his 2016 proceeding. That he has new evidence or new grounds in support of that complaint does not alter the fact that he must see through the reg 9 dispute resolution process.

[20]   Mr Reihana’s new proceeding therefore amounts to an attempt to circumvent Gendall J’s stay. This is because Mr Reihana’s purported new proceeding challenges the same decision in issue in the stayed proceeding.

[21]   Further, even if Mr Reihana had an entirely new complaint unrelated to his 2015 complaint he would still have to advance that complaint through the dispute resolution process.

[22]   Accordingly, I am satisfied that the proceeding is an abuse of process and should be struck out.

Orders

[23]I order that the proceeding is struck out under r 15.1 High Court Rules 2016.

[24]   Mr Reihana is given notice, pursuant to r 5. 35B(3) of the Rules, of his right to appeal against this decision. As a case of an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.

[25]    Pursuant to r 5.35B(4) of the Rules, I direct the Registrar to forward a copy of this judgment to the respondents.

Observation

[26]   Associate Judge Lester, in one of his minutes, doubted whether the Committee could refuse to engage in the dispute resolution process under the Regulations on the grounds that Mr Reihana had not paid costs awarded against him in the Supreme Court. Again, the Associate Judge’s views were tentative as he had not heard from the Committee in respect of that issue.

[27]   Mr Reihana, in his latest statement of claim, notes that he referred the Associate Judge’s above comment to the Committee. The Committee’s present position is unclear. I doubt that the Committee could refuse to participate in a compulsory dispute resolution process on the basis it is owed money by a complainant.

[28]   I have made an order that the Registrar is to provide a copy of this decision to the named respondents so that they can consider the issue if they have not already done so. If the Committee accepts it cannot use the unpaid costs to decline to engage in the

dispute resolution process, then I request the Committee advise Mr Reihana of that so that the process can continue. Conversely, if the Committee considers it can rely on the unpaid costs to not so engage then I request the Committee to advise Mr Reihana of why it considers it can refrain from participating in a process derived by the Regulation.

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

Eaton J

Copies to:

Toni Reihana – Applicant

Rakiura Titi Committee – First Respondent

Ngai Tahu Nominee, Jasmine Stewart – Second Respondent