Reihana v Rakiura Titi Committee
[2014] NZHC 2436
•3 October 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2014-425-000102 [2014] NZHC 2436
BETWEEN TONI COLIN REIHANA
Plaintiff
AND
RAKIURA TITI COMMITTEE First Respondent
Hearing: 3 October 2014 (On the papers) Judgment:
3 October 2014
JUDGMENT OF DUNNINGHAM J
[1] The applicant, Toni Colin Reihana, applies on an urgent basis, and without notice, for interim injunction orders:
(a) restraining the first respondent, the Rakiura Titi Committee, from conducting any dispute resolution hearing or making any determination under r 6(2) of the Titi (Muttonbird) Regulations 1978, relating to a “supposed dispute” over the land known as Henekuha Manu, until such time as the applicant’s application for judicial review on the subject matter is determined; and
(b)postponing the Beneficial Titi Islands AGM, and election of the first respondent Committee that is usually held in mid February every year, until such time as the applicant’s application for judicial review on the subject matter is determined.
[2] The application is accompanied by a “memorandum as to urgency”. It primarily relies on the fact that the challenged dispute resolution meeting pursuant to
REIHANA v RAKIURA TITI COMMITTEE [2014] NZHC 2436 [3 October 2014]
reg 6(2) of the Titi (Muttonbird) Islands Regulations 1978, between the applicant and some of the applicant’s wider family members, has been set down to proceed on Tuesday 7 October 2014. Effectively there is only one working day between the date of filing of this application and the day on which the meeting is scheduled to be heard.
[3] Given the relatively tight timeframes, I have undertaken an initial review of the application to determine whether there are grounds for such orders, and if so, whether they should be made without notice or not. As will become apparent, I have determined that the application discloses no proper basis on which such orders could be made.
[4] The application for review turns on whether the Titi (Muttonbird) Islands Regulations 1978 have been lawfully applied. Regulation 6(2) of the Titi (Muttonbird) Islands Regulations 1978 provides as follows:
6 Supervisors
...
(2) If there is any dispute between Supervisors concerning the allotting of manus or any other dispute arising out of these regulations, the dispute shall be referred to the Committee who shall call a meeting of the Supervisors or other parties concerned to settle the dispute as soon as possible thereafter. Failing agreement being reached by the Supervisors or parties, or if they do not attend the meeting so called, the Committee shall make the decision, which shall be final and binding on all parties.
[5] Mr Reihana provides affidavit evidence explaining that he is a Supervisor. He has concerns that the first respondent, the Rakiura Titi Committee, is wrongly attempting to intervene in a statutory power of decision-making which he has exercised as a Supervisor, under reg 6(1), by the Committee invoking reg 6(2). He says, that there is no dispute of the sort which triggers the exercise of reg 6(2). Instead, the real dispute is about whether his decision is accepted or not. The Committee therefore is proceeding unlawfully.
[6] His particular concern is that, if agreement is not reached at the meeting to settle the dispute, or if the Supervisors or parties do not attend the meeting, the
Committee has the power to make a decision which is final and binding on all parties. Thus it is not the fact of conducting of the meeting which is of concern, it is the risk that the Committee will then make a decision which is final and binding on the parties.
[7] On the material I have before me, I struggle to accept the applicant’s submission that the dispute he describes is not a dispute that falls within reg 6(2). The language of reg 6(2) is broad and includes “any other dispute arising out of these regulations”. The Rakiura Titi Committee, in a letter dated 10 July 2014 appended to the applicant’s affidavit, outlined the nature of the dispute. The dispute described seemed, on its face, amenable to resolution under reg 6(2). The letter also gave notice of the meeting for 7 October 2014. Thus, there has been ample time for Mr Reihana, should he have wished to seek an interim injunction on notice, to have done so should he have had concerns about the Committee’s jurisdiction to call such a meeting. It is not appropriate for him to delay for nearly three months and then seek the Court’s assistance under urgency.
[8] Furthermore, even if I give the applicant the benefit of the doubt, and assume there is some merit to his claim that reg 6(2) is not engaged, I am not satisfied that his application discloses circumstances which would mean he will then suffer some irremediable harm, if the injunctions are not granted.
[9] The possible outcomes of the reg 6(2) meeting appear to be as follows: (a) the meeting is attended and the dispute is settled by agreement;
(b) the meeting is not attended and/or the dispute is not settled and the
Committee makes a decision;
(c) the lawfulness of the Committee’s decision will be the subject of challenge in the judicial review proceedings and will either be upheld or set aside;
(d)if in fact it is set aside, there is no evidence in the application to say what irremediable loss or harm will be suffered by the applicant in the interim.
[10] Furthermore, while such decisions are expressed as “final and binding” decisions under reg 6(2) are still amenable to judicial review,1 and can be reconsidered by an independent decision maker under reg 9.2 There is therefore, clear avenues for remedy if the decision is unlawful or wrong.
[11] In short, there is simply insufficient material before me to satisfy me, on the balance of convenience, that I should grant the first interim injunction sought.
[12] In respect of the second interim injunction order, Mr Reihana explains it is sought to “prevent the contended culprit respondents from being re-elected back onto the first respondent Committee before they are taken to task and fully investigated or exposed with the above inter-related review action”. In other words, in the event that the application for judicial review is not heard before the February AGM, it is to prevent the existing Committee from being re-elected.
[13] However, it is impossible to see how the balance of convenience favours this interim injunction. The present Committee members are in place, they will remain on the Committee if the order sought is granted. If no order is made, and they are re- elected in February, that does not change.
[14] The outcome of the judicial review application will, at best, determine that they have acted unlawfully on certain counts. Those decisions will be set aside and reconsidered taking into account the Court’s decision on how the Committee has erred in law. If the AGM proceeds in February before the review proceedings are heard it will nevertheless be conducted in the knowledge that Mr Reihana’s judicial review proceedings are on foot. The Committee will be elected in the knowledge of the allegations being made against the current Committee members, and it will be for
those appointing the Committee to decide how that affects their decision.
1 See Reihana v Christchurch Maori Land Court CP94/00, Panckhurst J.
2 As the Court of Appeal confirmed in Reihana v Maori Land Court CA 80/01.
[15] There is nothing disclosed in the application for interim injunction which demonstrates that the balance of convenience favours the second order being made, let alone under urgency and without notice.
Conclusion
[16] For the above reasons, the application does not disclose grounds on which the orders sought could be made. I have therefore determined that a hearing is not required, nor is service on the other parties.
[17] Should the applicant wish the Court to revisit these issues in light of any change in circumstance, it is recommended that any future application proceed on notice.
Dunningham J
0
0
0