The Proprietors of Wakatu v The Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

SC 68/2012
[2012] NZSC 102

BETWEEN THE PROPRIETORS OF WAKATU
First Applicant

AND RORE PAT STAFFORD
Second Applicant

AND RORE PAT STAFFORD, PAUL TE POA KARORO MORGAN, WAARI WARD-HOLMES AND JAMES DARGAVILLE WHEELER, SUING AS TRUSTEES OF TE KAHUI NGAHURU TRUST
Third Applicants

AND THE ATTORNEY-GENERAL, SUED IN RIGHT OF THE CROWN
Respondent

AND NGATI RARUA IWI TRUST, NGATI KOATA TRUST, NGATI TAMA MANAWHENUA KI TE TAU IHU TRUST, TE RUNANGA O NGATI KUIA TRUST AND NGATI APA KI TE RA TO TRUST
Interveners

Court: Elias CJ, McGrath and Glazebrook JJ

Counsel: B W F Brown QC and K Feint for Applicant
D J Goddard QC, J Gough and J Prebble for Respondent

Judgment: 28 November 2012

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

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REASONS

The applicants seek leave to appeal directly from a decision of the High Court.[1] Such direct appeal is permitted by s 14 of the Supreme Court Act 2003 only if the Supreme Court gives leave on the basis that there are “exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court”. The threshold for granting leave is set by s 14 to ensure that the Supreme Court has the assistance of consideration by the Court of Appeal.[2]
[1] Proprietors of Wakatu Incorporated v Attorney-General [2012] NZHC 1461 (Clifford J).
[2] Ngan v R [2006] NZSC 41 at [9].
The basis on which it is suggested that there are exceptional circumstances here is that the Court has given leave to appeal in Paki v Attorney-General[3] and the grounds on which the Court is to hear further argument in that case in February are said to be substantially the same as those the applicants wish to raise.
[3] Partly dealt with in Paki v Attorney-General [2010] NZSC 88.
In Wakatu the applicants claim that the Crown failed to implement reserves of one-tenth of the land acquired for the New Zealand Company settlement in the 1840s which were promised to the Maori vendors. In the High Court, Clifford J rejected the applicant’s claims based on express trust, resulting trust and constructive trust. The Court also rejected further claims based on a relational duty of good faith and breach of fiduciary duty.
Claims of trust and fiduciary obligation are also put forward in Paki. In Paki the claimed constructive trust and fiduciary duties arise however out of Crown acquisitions between 1887 and 1899 along the Waikato River, in quite different circumstances.
The claims made by Wakatu are more extensive and raise a number of issues which do not overlap with those in Paki.Although there is superficial similarity in respect of the claims based on equitable obligations said to be owed by the Crown to Maori owners of land, they arise in very different contexts. Whether fiduciary duties or relationships of trust exist fall to be determined against a close examination of the facts in each case. There is insufficient commonality between the claims to warrant depriving the Court of the benefit of consideration of the applicants’ claim by the Court of Appeal.
The application for leave to appeal directly to the Supreme Court is therefore declined. Should any discrete matter of law common to both claims arise in the Paki appeal, it would be open to the present applicants to seek intervener status if that course were thought appropriate and can be justified.

Solicitors:
Pitt & Moore, Nelson for Applicants
Crown Law Office for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to consider an application for leave to appeal from a decision of the High Court in a case involving claims against the Crown for failing to implement reserves promised to Māori vendors. The applicants, The Proprietors of Wakatu, sought leave to appeal directly to the Supreme Court under section 14 of the Supreme Court Act 2003, which requires the Supreme Court to consider whether there are exceptional circumstances justifying the direct appeal. The legal issues before the court were whether the claims made by the applicants were sufficiently similar to those in a related case, Paki v Attorney-General, to warrant the Supreme Court hearing the appeal directly, bypassing the Court of Appeal.

The Supreme Court examined the arguments presented by the applicants, who contended that the grounds for their appeal were substantially similar to those in Paki v Attorney-General. However, the court found that while there was a superficial similarity in the claims based on equitable obligations, the factual contexts of the two cases were quite different. The court held that the claims in Wakatu were more extensive and raised issues not present in Paki. Given the differences in the claims and the need for the Court of Appeal to consider the applicants' claims, the Supreme Court declined the application for leave to appeal directly, emphasising that any common legal issues could be addressed if the applicants sought intervener status in the Paki appeal.

The Supreme Court's reasoning was grounded in the need to ensure that the Court of Appeal had the opportunity to consider the applicants' claims, as required by section 14 of the Supreme Court Act 2003. The court concluded that the differences in the factual and legal contexts of the Wakatu and Paki cases were significant enough to warrant the usual appellate process. The applicants' request for direct appeal was therefore denied.

The final orders of the court were that the application for leave to appeal directly to the Supreme Court was declined. The applicants were left to pursue their appeal through the Court of Appeal, with the option of seeking intervener status in the Paki appeal if any common legal issues arose.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established