Rota

[2017] NZHC 1445

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-485-510 [2017] NZHC 1445

IN THE MATTER OF

the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF

an application by TAREWA ROTA for orders recognising Customary Marine Title and Protected Customary Rights

CIV 2017-485-511

IN THE MATTER OF       the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF       an application by CHRIS SHENTON for an order recognising Customary Marine Title and Protected Customary Rights

CIV 2017-485-512

IN THE MATTER OF       the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF       an application by CLETUS MAANU PAUL for an order recognising Customary Marine Title

CIV 2017-485-513

IN THE MATTER OF       the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF       an application by CLETUS MAANU PAUL for orders recognising Customary Marine Title and Protected Customary Rights

Re Rota [2017] NZHC 1445 [27 June 2017]

CIV 2017-485-514

IN THE MATTER OF       the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF       an application by DAVID POTTER for orders recognising Customary Marine Title and Protected Customary Rights

CIV 2017-485-515

IN THE MATTER OF       the Marine and Coastal Area (Takutai

Moana) Act 2011

AND

IN THE MATTER OF       an application by ELVIS SHAYNE RETI for orders recognising Customary Marine Title and Protected Customary Rights

On the papers
Judgment:	27 June 2017

JUDGMENT OF MALLON J

[1]      On 15 May 2017 I issued the following minute:

Introduction

[1]       Decisions of the Registrar to reject applications for filing have been referred to me for review.  The rejected applications seek recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act).

[2]       The Act provides that any such application:1

must be filed not later than six years after the commencement of this Act, and the Court must not accept for filing or otherwise consider any application that purports to be filed after that date.

[3]       The Act commenced on the day after the date on which it received royal assent.2   The last day for filing was 3 April 2017.   The Registrar

1      Marine and Coastal Area (Takutai Moana) Act 2011, s 100(2).

2      Section 2.

refused to accept the applications for filing on the basis that they were received outside of this deadline.

The applications

[4]       There  are  three  decisions  of  the  Registrar  which  are  subject  to review.

The first decision

[5]       The first decision concerns applications from Phoenix Law Limited, on behalf of five applicants, submitted electronically for filing in the High Court at Whangarei and at Rotorua on 3 April 2017 sometime after 5 pm.3

[6]       Phoenix Law advises that they had only just received instructions from the applicants many of whom lived in remote areas far from the nearest High Court.  A law clerk from Phoenix Law spoke to an official from the Ministry of Justice on 3 April 2017 who advised that the only available option was to file the applications electronically.  The official also advised that the courts sometimes accepted and sometimes rejected electronic filing. Phoenix Law understood from their own practice that the court had a discretion to accept electronic filings, but it was now common practice in the High Court at Wellington to file most documents electronically with the exception of statements of claim.

[7]       One   of   the   electronically   filed   applications   was   forwarded electronically by the Whangarei registry to the Wellington registry the following morning.  The Deputy Registrar advised that the application could not be accepted for filing because the original application needed to be filed in the High Court by 5 pm on 3 April 2017.

The second decision

[8]       The  second  decision  concerns  an  application  by  Mr Shenton,  on behalf of Te Rūnanga Ngā Wairiki Ngāti Apa, submitted electronically for filing in the High Court before 5 pm on 3 April 2017.  A hard copy was also presented for filing before 5 pm but was not accompanied by an affidavit.

[9]       Mr Shenton advises that the application was emailed to the High Court at 4.10 pm on 3 April 2017.4    He received an email from the Deputy Registrar at 4.14 pm seeking confirmation that a hard copy would be filed. Mr Shenton responded at 4.17 pm to the effect that he had not filed a hard copy because he did not know he had to.  He also asked where the closest registry to Bulls was.  The Deputy Registrar responded at 4.23 pm that there were High Court registries in Whanganui and Palmerston North and that they closed at 5 pm.  Mr Shenton left immediately for Whanganui.  It took him approximately 30 minutes to arrive.   He arrived at 4.55 pm.   He met with an officer of the High Court and handed him the signed application.  He was informed that an affidavit in support of the application was required in order for it to be accepted.  Mr Shenton was not aware of that.  The officer

3      I have been provided with a copy of the email for only one of the five applications referred to by Phoenix Law. This email relates to an application by Elvis Shayne Reti forwarded electronically to the Whangarei Registry at 9.30 pm on 3 April 2017.

4      Mr Shenton does not advise to which registry the electronic application was sent.

then informed Mr Shenton that if he got the affidavit completed and sworn in front of a Registrar the next day, and filed the application with the affidavit in support, he would accept it as if it was filed on Monday 3 April 2017. Mr Shenton did this and understood it had been accepted.  The filing fee was also paid.

[10]     The application received by the High Court at Whanganui was date stamped 4 April 2017 with the time of 4.15 pm.   It was forwarded to the Wellington  registry.    The  Deputy  Registrar  advised  Mr Shenton  that  the application could not be accepted because it had not been received by 5 pm on 3 April 2017.

The third decision

[11]      The third decision concerns an application on behalf of the Hokianga Hapū  which  Mr Watkins  (the  applicant’s  barrister)  purported  to  submit electronically via an online form on the Ministry of Justice’s website on

3 April 2017.

[12]      Mr Watkins advises that the online website provides two options: (1) an application to the High Court; and (2) an application to the Crown.  He understood  he  was  selecting  the  High  Court  option  and  proceeded  to complete the form.   Mr Watkins telephoned the 0800 number provided on the website to determine the deadline time on 3 April 2017.  He was told it was  midnight.    It  was  not  until  he  pressed the “submit”  button for the application that he became concerned because there was no request to pay the filing fee.

[13]      It transpired that the online form Mr Watkins had completed was the form for an application to commence negotiations with the Crown.   The applicant has subsequently received a letter of confirmation from the Attorney-General to the effect that the application was filed with the Crown on time.  The applicant intended to file both with the Crown and with the High Court, but the High Court jurisdiction was its preferred option.

[14]      On  5 April  2017  Mr Watkins  travelled  to  Whangarei  to  file  the application.  The application was date stamped 5 April 2017 and forwarded to Wellington.  It was received in Wellington on 6 April 2017 along with an application for leave to file out of time.  The Deputy Registrar rejected the application on the basis that it had not been received by 5 pm on 3 April

2017.

The governing provisions and rules

The Act

[15]      As set out above, the Act provides a deadline for filing applications to the Court for a recognition order.  It also expressly provides that the Court may not accept for filing any application that purports to be filed after that date.5

5      Marine and Coastal Area (Takutai Moana) Act, s 100.

[16]      There are provisions concerning the contents of an application,6  its service,7   and  the  giving  of  public  notice.8   There  is  also  a  provision concerning who may appear on an application for a recognition order.9

[17]      The Act confers certain powers on the Court intended to provide some flexibility in dealing with an application and further provides that these powers “[do] not affect the Court’s inherent jurisdiction”.10   It provides11 that rules governing the procedure, which are not inconsistent with the Act, may be made under s 148 of the Senior Courts Act 2016.12     But no such rules have been made.

The High Court Rules

[18]      Absent any provision to the contrary, the High Court Rules apply to an application under the Act insofar as they are not inconsistent with any provision in the Act.13

[19]      Applications   under   the  Act   are   to   be   made   by   originating application.14      An originating application “is commenced when the originating application is filed in the proper registry of the court, as determined in accordance with rule 5.1 …”.15   The relevant rules potentially bearing on how and when a document is filed appear to be the definition of “to file”16 and the Court registry opening hours.17

[20]      The  rules  provide  that  an  affected  party  to  a  proceeding  or  an intended proceeding may apply to a Judge for a review of “a Registrar’s refusal to file a document tendered for filing”.18   On such a review, the Judge may “make any orders he or she thinks just”.19    Other potentially relevant rules are r 1.5 (non-compliance with the High Court Rules), r 1.6 (cases not provided for) and r 1.9 (amendment of defects and errors).

Issues

[21]      The issues that arise are:

(a)      whether the applications may be filed electronically;

(b)      if so, whether an application filed electronically after 5 pm but before midnight on 3 April 2017 has been filed by 3

April 2017;

6      Section 101.

7      Section 102.

8      Section 103.

9      Section 104.

10     Section 107(b).

11     Section 108.

12     Formerly s 51C of the Judicature Act 1908.

13     High Court Rules 2016, r 1.4 and the definition of “civil” and “proceeding” in r 1.3(1).

14     Rule 19.2(na).

15     Rule 19.7.

16     Rule 1.3(1).

17     Rule 3.1.

18     Rule 2.11(1)(b).

19     Rule 2.11(2).

(c)       whether  an  application  is  not  filed  until  a  supporting affidavit is filed; and

(d)       whether an application accidently filed in the wrong place (with the Crown via the online website) may be treated as filed in the High Court.

Submissions

[22]      Phoenix Law submits that the applications it purported to file should be accepted because:

(a)       it was counsel’s understanding that electronic filing would be acceptable and constituted normal practice for most documents in the High Court at Wellington;

(b)       the applicants did not have the means to engage lawyers and have not had access to legal aid, which would have assisted with the timely completion of the applications to enable the physical filing of the applications by the due date;

(c)       the applicants do not live near any High Court registry; and

(d)       the applicants would suffer extreme hardship because of the risk that their customary rights will be permanently extinguished through not being able to pursue their applications under the Act.

[23]      Mr Shenton says it was his ignorance of the procedures that has caused the difficulty for the applicant which he represents.   He apologises for his error and notes the significant importance of the application to the iwi.

[24]      Mr Watkins submits that the claimants for whom he is acting were not at fault.   The mistake was his and the claimants should not be disadvantaged because of this.

Preliminary assessment

[25]     The first issue is whether an originating application can be filed electronically  or  whether  a  paper  copy  must  be  physically  filed  in  the relevant High Court registry.   As to that, there does not appear to be any specific rule requiring the filing of a physical paper copy.  The rules define “to file” as follows:20

[T]o file, in relation to any document, means to lodge the document in the form required by these rules in, or to send it by post or electronically in accordance with these rules to, the proper registry of the court, together with the fee (if any) payable for filing it.

[26]     The rules appear to be silent on whether an originating application may be filed electronically.   My preliminary view is that I cannot see any basis  for  rejecting  the  applications  on  the  basis  that  they  were  filed

20     High Court Rules 2016, r 1.3(1).

electronically on 3 April 2017, and the paper copy was received after the

3 April 2017 date.

[27]      The second issue is whether the electronic copy must be received by

5 pm on 3 April 2017, or whether the electronic application has been filed on this date if it is received after 5 pm and before midnight on 3 April 2017.

Again, there does not appear to be any specific rule that deals with this issue.

Rule 3.1 provides that “the court’s registries must be open from 9 am to

5 pm on every day that is not a court holiday”.   That, however, does not

specifically address whether an electronically filed document received after

5 pm and before midnight on a particular day is received on that day.  My preliminary view is that the electronic transmission time should prevail.  The Act refers to the “date” by which an application must be filed.  The ordinary meaning of “date” would encompass any time up to midnight on that date.

[28]      The third issue is whether there must be a supporting affidavit filed on 3 April 2017 in order for the application to have been filed by this date. My preliminary view is that it is the application that must be received by that date.  If there is no supporting affidavit there is a defect in the application. However  it  does  not  render  the  application  itself  as  being  outside  the statutory timeframe.

[29]     The fourth issue is more problematic.  My preliminary view is that, because the application was not filed in the Court on 3 April 2017, it was not filed within the statutory timeframe.  However I note that the Māori Council has filed an application which purports to extend to the marine and coastal area of the entire country.   I understand this may have been intended to protect Māori interests where applicants failed to meet the statutory timeframe.  The Act provides that any person may appear and be heard on an application  if  they  have  filed  a  notice  of  appearance  by  the  due  date. Mr Watkins’  claimants  could  potentially  file  a  notice  of  appearance  in respect  of  the  Māori  Council  application.    It  may  be  that  Mr Watkins’ claimants can liaise with the Māori Council about how best to progress their interests.

The next steps

[30]     Before finalising my decision on the review of the three decisions rejecting the applications, I consider it is appropriate to provide the Crown and the Māori Council with the opportunity to make written submissions on the matter.   They have two weeks from today’s date to take up that opportunity. Any such submissions should also be provided to Phoenix Law, Mr Shenton and Mr Watkins (Jo Carrell ([email protected]) from the Wellington registry can assist with providing contact details if they are needed).  It may also be necessary to seek further details from the applicants about what occurred and to have those details provided by way of affidavit evidence.   However, I will consider whether that is necessary once I have considered any written submissions which may be filed by the Crown or the Māori Council.

[2]      Following    my    minute    I    received    submissions    from    Phoenix    Law, Mr Shenton, Mr Watkins and the Attorney-General. The position is that:

(a)      Phoenix  Law  confirms  that  it  continues  to  seek  review  of  the Registrar’s decision to reject the five applications made by the applicants it represents.21   It supports the preliminary views set out in my minute.

(b)Mr Shenton confirms he continues to seek review of the Registrar’s decision and he has confirmed the position was as set out at [9] of my minute.22

(c)      Mr Watkins advises that my preliminary view, that the Court does not have discretion to accept the late application he filed,23  is accepted and the applicant intends to join as interested parties to other applications that have been made.

(d)      The Attorney-General advises he abides the decision of the Court.

[3]      In  these  circumstances  I  confirm  my  preliminary  views.    In  particular, Phoenix Law’s five applications and Mr Shenton’s application are to be accepted for filing. The Registrar’s decision to reject Mr Watkins’ application is upheld.

[4]      I note that I have received a submission from an interested party (Mr Walker) which, amongst other things, requests that the Court refuse to accept the applications filed by Maanu Paul (which are two of the five applications for whom Phoenix Law is acting).   This objection goes to the substance of the application rather than the procedural  issue  of  whether  the  Registrar  was  correct  to  reject  the  application. Mr Walker may wish to become an interested party to Mr Paul’s application if and when it is progressed.

Mallon J

21     Applications by Elvis Reti, Tarewa Rota, Maanu Paul x2 and David Potter.

22     Application by Mr Shenton on behalf of Te Rūnanga o Ngā Wairiki Ngāti Apa.

23     Application by a collective of Hokianga hapu.