Simon v Taupo District Council HC Rotorua CIV 2010-463-453
[2010] NZHC 1699
•23 August 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV 2010-463-000453
BETWEEN DAWN PATRICIA SIMON AND STANLEY PHILLIP SIMON Appellants
ANDTAUPO DISTRICT COUNCIL Respondent
Hearing: 19 August 2010
Appearances: D P Simon and S P Simon (in Person) M D Whitlock for the Respondent
Judgment: 23 August 2010 at 11:15 am
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 23 August 2010 at 11:15 am
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Whitlock & Co, P O Box 100 449, North Shore 0745
Copy to:Mr and Mrs Simon, 44 Hirangi Road, Turangi
D P SIMON AND ANOR V TAUPO DISTRICT COUNCIL HC ROT CIV 2010-463-000453 23 August 2010
[1] Mr and Mrs Simon appeal a decision of Judge C G McGuire given in the District Court at Taupo. His Honour dismissed a challenge to the Court’s jurisdiction and found that rates had been properly assessed by the respondent Council. Judgment was entered in favour of the respondent Council for $2,973.89.
Background facts
[2] In October 2009, the Council filed a statement of claim citing Mr and Mrs
Simon as defendants.
[3] The statement of claim asserted that:
a) the Council, as a local authority, had the power to levy rates on every rateable property within its district;
b) Mr and Mrs Simon were the owners of a property situated at 44
Hirangi Road, Turangi;
c) rates had been levied against the property pursuant to the relevant provisions in the Local Government (Rating) Act 2002; and
d) the rates had not been paid.
[4] Mr and Mrs Simon filed a statement of defence. They asserted that:
a) they were the native aboriginal inhabitants of Niu Tireni;
b)they appeared only as a courtesy as the Court had no jurisdiction to hear the matter;
c) the proper defendants were a body corporate pursuant to s 250 of Te
Ture Whenua Maori Land Act 1993;
d)on 25 November 2005, the land was incorporated, and that since then, it has been held in accordance with tikanga;
e) they were only the occupiers of the property;
f) the Council had been informed as to the status change, and g) the Council had no authority to demand rates from them.
The District Court hearing
[5] The matter proceeded to a hearing before Judge McGuire on 26 March 2010. [6] Two briefs of evidence were filed — one by Mrs Simon on behalf of her and
her husband; the other by a Ms Wilkinson, who is a revenue manager employed by the Council. Ms Wilkinson was called to give evidence before the Court. Mrs Simon was not called for cross-examination.
[7] The Judge’s decision was given on 4 May 2010. He found as follows:
a) the certificate of title reference in respect of the land is CT32C/100 (Wellington Land Registry);
b) the certificate of title records that the land is Maori freehold land;
c) pursuant to s 91 of the Local Government (Rating) Act 2002, Maori freehold land is liable for rates unless otherwise provided by Part 4 of that Act;
d)the only way in which the legislation allows for Maori freehold land to be exempt from rates is as set out in s 116(1) — namely by an Order in Council;
e) no Order in Council has been made by the Governor-General under s 116(1) relevant to Mr and Mrs Simon’s land;
f) the defendants are not exempt from liability for rates;
g) their liability for rates and penalties, as at March 2010, was $2,973.89;
and
h) judgment was entered in favour of the Council for that amount.
The notice of appeal
[8] In their notice of appeal, Mr and Mrs Simon questioned whether this Court has jurisdiction over mana whenua, mana tangata and kaitiakitanga. It was also asserted that Mr and Mrs Simon were statutory bodies, being members of Kotahi Whanau Maori Incorporation, and that they had a birthright to be judged under the Te Ture Whenua Maori Act 1993. The notice of appeal asserted that neither the District Court, nor this Court, has jurisdiction to pass judgment upon them and that the matter should be called in a Court of competent jurisdiction in tikanga, or dismissed on the grounds that this Court has no jurisdiction to make a judgment in this matter.
[9] The notice of appeal was filed out of time. Mr and Mrs Simon filed an application to leave to extend time, and an affidavit explaining that the notice of appeal had been filed mistakenly in the District Court in Taupo, and that it was only belatedly filed in this Court. Mr and Mrs Simon also explained that on the day that judgment was given by Judge McGuire, they had received correspondence from the Official Assignee in regard to their bankruptcy, and that they had to take care of their mokopuna. They stated that they had been under pressure and that as a consequence, time had elapsed.
[10] I have jurisdiction to extend time — r 20.4(3) of the High Court Rules. The District Courts Act 1947, under which the appeal is brought, does not limit the time prescribed for bringing an appeal.
[11] An extension of time is an indulgence within the discretion of the Court. Here an explanation has been advanced by Mr and Mrs Simon. That explanation has been provided in an affidavit. There appears to have been some confusion as to the correct registry of the Court in which to file the appeal. It seems that notice of
appeal was filed, albeit in the wrong Court, within the correct time period. Although the Council initially opposed the application, Mr Whitlock withdrew that opposition when the matter was called before me. In the circumstances, I am satisfied that it is appropriate to grant leave to extend the time for lodging the notice of appeal, and I do so.
Submissions on the substantive issues
[12] Mrs Simon asserted that she and her husband hold the land as tikanga. She submitted that there is no process whereby tikanga can be recognised on their title, but that the indigenous peoples of Aotearoa have a right to their land at law. She explained tikanga by saying that it means Maori values and practices. She acknowledged that the land had been given to her by her parents, and that at that time a transfer had been registered putting the land into her and her husband’s names. She also acknowledged that rates were initially paid, and stated that she and her husband only ceased to pay rates when the status of the land was changed over
2005 to 2006. She explained that she and her husband had worked through a process with local whanau and hapu, and obtained their approval to the land being held as tikanga. As she put it, she and her husband occupy the land, and they are looking after it for the next generation.
[13] Mr Simon affirmed what his wife had said. He detailed to me the process which he and his wife went through by which they say the status of the land has been changed.
[14] Both Mr and Mrs Simon asserted that the appeal has nothing to do with money, or a debt, and that it has everything to do with principles.
[15] Mr Whitlock for the respondent submitted that the statutory framework provides a complete answer to Mr and Mrs Simon’s claims. He submitted that rateability depends on the legal status of land, and that Mr and Mrs Simon’s land is rateable under s 7 of the Local Government (Rating) Act. He noted that Mr and Mrs Simon’s land is Maori freehold land, and not Maori customary land, and that there is no provision in the Act, or in any other legislation exempting Mr and Mrs Simon’s
land from liability for rates. He pointed out that Maori freehold as such is rateable, and that Mr and Mrs Simon, as the registered proprietors of the land, are liable to pay the rates. He submitted that the evidence of Ms Wilkinson showed that Mr and Mrs Simon are correctly entered as ratepayers, and that they are liable to pay rates levied by the Council on the property.
Analysis
[16] The arguments made by Mr and Mrs Simon in relation to the jurisdiction of the District Court and of this Court cannot succeed.
[17] Challenges to the Court’s jurisdiction to construe and apply legislation passed by Parliament have consistently been rejected by the Courts in New Zealand at all levels. I refer to and adopt the helpful analysis by Randerson J in Barrett v Police.[1]
[1] HC Hamilton CRI-2003-419-64, 14 June 2004.
His Honour there observed as follows:
[7] It is axiomatic under our constitutional arrangements that the legislative authority of Parliament is supreme. The sovereignty of the New Zealand Parliament was canvassed in a helpful discussion by Fisher J in Berkett v Tauranga District Court. His Honour examined all the relevant constitutional enactments and concluded there was an unbroken chain of constitutional authority to support the validity of statutes passed by the New Zealand Parliament including, in particular, the Crimes Act 1961. The New Zealand Parliament has had full and exclusive power to legislate since the adoption in 1947 of the United Kingdom Statute of Westminster 1931. The power to legislate now continues under the Constitution Act 1986 which is not affected by the Imperial Laws Application Act 1988. To similar effect, see the unreported decision of the Court of Appeal in R v Knowles.
...
[10] ... This court's duty is to apply enactments made by the legslature: Hoani Te Heuheu Tukino v Aotea District Maori Land Board and New Zealand Maori Council v Attorney-General.
(citations omitted)
[18] Here the position is governed by the Te Ture Whenua Maori Act 1993 and by the Local Government (Rating) Act 2002. I am required to recognise and uphold these statutes.
[19] Section 129 of the Te Ture Whenua Maori Act provides as follows:
(1) For the purposes of this Act, all land in New Zealand shall have one of the following statuses:
(a) Maori customary land; (b) Maori freehold land;
(c) General land owned by Maori; (d) General land;
(e) Crown land;
(f) Crown land reserved for Maori. (2) For the purposes of this Act,—
(a)Land that is held by Maori in accordance with tikanga Maori shall have the status of Maori customary land;
(b)Land, the beneficial ownership of which has been determined by the Maori Land Court by freehold order, shall have the status of Maori freehold land;
...
Section 130 provides as follows:
No land shall acquire or lose the status of Maori customary land or of Maori freehold land otherwise than in accordance with … this Act, or as expressly provided in any other Act.
Section 131 gives the Maori Land Court non-exclusive jurisdiction to determine and declare by a status order the particular status of any parcel of land.
[20] Here Ms Wilkinson gave evidence that Mr and Mrs Simon’s property is Maori freehold land. She produced a copy of the certificate of title. The historical title is annexed to the current title. It has a narration signed by an Assistant Registrar of Lands recording that the land is Maori freehold land. Ms Wilkinson gave evidence before Judge McGuire. Mrs Simon was offered the opportunity to cross- examine her. She declined to do so. The evidence before the Judge was clear. Mr and Mrs Simon’s land at all relevant times was and still is Maori freehold land.
[21] The liability of Maori freehold land for rates is expressly declared by s 91 of the Local Government (Rating) Act. It provides as follows:
Except where this Part otherwise provides, Maori freehold land is liable for rates in the same manner as if it were general land.
[22] Section 91 is in Part 4 of the Act. There is no provision in Part 4 which otherwise provides and which applies so as to exempt Mr and Mrs Simon’s land.
[23] The expression “general land” is not defined in the Act. However, s 7 of the
Act provides as follows:
(1) All land is rateable.
(2) However, land is not rateable if this Act or another Act states that the land is non-rateable.
[24] Schedule 1 of the Act sets out various categories of land which are non- rateable. Clause 11 exempts Maori customary land from the liability to pay rates. Further, there are categories of Maori freehold land that are not rateable. I refer to cls 13 and 14 in the First Schedule. Those provisions exclude from the liability to pay rates Maori freehold that does not exceed two hectares and on which a meeting house is erected, and Maori freehold that is non-rateable by virtue of an Order in Council made under s 116 of the Act, to the extent specified in any Order.
[25] Mr and Mrs Simon’s land does not come within cl 13 of the First Schedule. There is no Maori meeting house erected on their land. Rather, Mr and Mrs Simon live in a residential dwelling on the land. Nor does Mr and Mrs Simon’s land come within cl 14 in the First Schedule. Section 116(1) provides as follows:
The Governor-General, by Order in Council made on the recommendation of the Maori Land Court and with the consent of the local authority in whose district the land is situated, may exempt Maori freehold land, as specified in the order, from some or all liability for rates.
There is no applicable Order in Council exempting Mr and Mrs Simon’s land from the liability to pay rates.
[26] Nor is there any other Act that I am aware of which applies to Mr and Mrs
Simon’s land that states that it is non-rateable.
[27] It follows that Mr and Mrs Simon’s land is rateable in terms of the relevant statutes. It is non-exempt Maori freehold land.
[28] Section 92(1) of the Local Government (Rating) Act provides as follows:
If Maori freehold land is owned legally and beneficially by 1 or 2 owners, the names of the owners must be entered as ratepayers in the rating information database and the district valuation roll.
The unchallenged evidence is that the land is owned legally and beneficially by Mr and Mrs Simon. Their names are recorded on the title. Ms Wilkinson produced copies of the Council’s rating information database and district valuation roll. Mr and Mrs Simon’s names appear in the database and on the roll. Again there was no cross-examination on or evidential challenge to these documents.
[29] Under the Act — s 10 — a ratepayer is the person who is named as a ratepayer in the rating information database and the district valuation roll. The name of the owner of a rating unit must be entered in the database and roll in respect of a rating unit. The ratepayer for the rating unit is liable to pay the rates that are due on that unit.
[30] As noted, Mr and Mrs Simon are named as ratepayers in the rating information database and the district valuation roll. It follows that they are liable to pay the rates levied by the Council on their property.
[31] That is enough to dismiss the appeal. I do note, however, that there is a further answer to the appellants’ complaints. I refer to s 60 of the Act. It provides as follows:
A person must not refuse to pay rates on the ground that the rates are invalid unless the person brings proceedings in the High Court to challenge the validity of the rates on the ground that the local authority is not empowered to set or assess the rates on the particular rating unit.
In terms of the section, Mr and Mrs Simon cannot refuse to pay the rates levied by the Council. Proceedings have not been brought in this Court challenging the validity of the rates. If such an application were to be brought on the same grounds
as have been advanced on this hearing of this appeal, it seems to me that it would inevitably fail.
[32] There was no challenge to the quantum of outstanding rates assessed by the
Council.
[33] While I do not doubt Mr and Mrs Simon’s sincerity, this Court is bound to interpret and apply the law as set down by Parliament in the relevant legislation. I have considered the applicable legislation. It could not be clearer. Mr and Mrs Simon are liable to pay rates on their property. The consequence is that the appeal must be dismissed.
[34] The Council is entitled to costs, although it may be that there is little or no point in seeking to recover the same. If the Council wishes to seek costs, it should file a memorandum in that regard within 10 working days from the date of this judgment. Mr and Mrs Simon may reply within a further period of 10 working days. I will then deal with the question of costs on the papers, unless I require the assistance of the parties.
Wylie J
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