Tito v M�ori Land Court, Taitokerau

[2022] NZCA 554

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA497/2022
 [2022] NZCA 554

BETWEEN	KEVIN-JOHN TITO AND TUI-DOROTHY TITO Applicants
AND	MĀORI LAND COURT, TAITOKERAU Respondent

Court:	Goddard and Clifford JJ
Counsel:	Applicants in person No appearance for Respondent
Judgment: (On the papers)	17 November 2022 at 10 am

JUDGMENT OF THE COURT

The application for transfer is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. This is an application to transfer proceedings from the High Court to this Court. 

Background

1. In April 2022 Mr Kevin-John Tito and Ms Tui-Dorothy Tito (the applicants) filed an application for judicial review in the High Court.  In general terms it claimed the Māori Land Court and the High Court have no jurisdiction to give judgments in respect of the whenua.  It recited aspects of the historical narrative relating to the  British settlement of New Zealand and the government’s dealings with native title.  The only relief claimed seemed to be for an “urgent and immediate injunction” against decisions and orders of the Māori Land Court, the Māori Appellate Court and the High Court at Whangarei.  Over 200 pages of exhibits accompanied the application.

2. The High Court Registrar referred the application to Brewer J believing it was an abuse of process.  On 13 May 2022, Brewer J considered the application did not sufficiently identify the decisions which the applicants sought to review.  The Judge ordered (noting he had not heard from the applicants):[1]

   (a)The proceeding is stayed until further order of the Court.

   (b)Documents for service are to be kept by the Court and not be served until the stay is lifted.

   (c)No application to lift the stay should be heard until the applicants file an amended statement of claim which complies with r 5.17(1),[2] with such compliance having been first certified by a Judge.

   (d)If no amended statement of claim is received by 16 June 2022 the proceeding will be deemed to be struck out without further order of the Court.

   [1]Tito v Māori Land Court, Taitokerau District [2022] NZHC 1030 [Brewer J judgment] at [19] (footnote added).

   [2]Rule 5.17(1) of the High Court Rules 2016 provides that distinct causes of action founded on distinct facts must if possible be stated separately and clearly.

3. On the final day provided, 16 June 2022, the applicants attempted to file an amended statement of claim, an interlocutory application without notice for an interim injunction, and a memorandum.  After initially being rejected by the Registrar, those documents were accepted for filing on 21 June 2022. 

4. On 4 July 2022, the matter was referred to Gault J to deal with (i) whether the proceeding had been automatically struck out under the terms of Brewer J’s judgment and (ii) whether the amended statement of claim was compliant.[3]  He concluded:

   (a)The applicants’ proceeding was not struck out, as Brewer J’s judgment had used the word “received” and not “filed” by 16 June 2022.[4]

   (b)However, although the applicants had attempted to identify distinct complaints, the amended statement of claim remained difficult to follow.  Causes of action had not been identified.  Accordingly, Gault J was not in a position to certify the amended statement of claim complied with r 5.17(1).  So the stay was to remain in place.[5] 

   [3]Tito v Māori Land Court, Taitokerau District HC Whangārei CIV-2022-488-23, 4 July 2022.

   [4]At [6].

   [5]At [8]–[9].

5. On 22 July 2022 the applicants filed further memoranda in the High Court seeking to clarify matters, including identifying the parties sued and causes of action.

6. The applicants state that the High Court Registry on 19 August 2022 advised them that the file was referred to Brewer J for review.  As best as we can tell, that is where matters stand in that Court.

This application

1. The applicants have now filed an application to transfer the High Court proceeding to this Court.  As they put it:

   Given the fact that the injunction application was officially filed on 16 June 2022; and required urgency against final orders of the Māori Land Court from a hearing held on 31 March 2022; and the review application has been stayed by Justice Brewer since 13 May 2022, Te Parawhau Hapū Māori Incorporation is not able to carry out cultural values and practices under tikanga on their whenua. … We seek an order that the application is removed to the Queens Court of Appeal of New Zealand for natural justice, and Justice Brewer is disqualified and removed.

2. The applicants make that application under rr 10.15–10.16 of the High Court Rules 2016.  Reliance on those provisions is misplaced.  They allow the High Court to order the determination of “any question separately from any other question, before, at, or after any trial” and to order its removal to this Court.  The applicants formulate their question as being whether Brewer J is conflicted.  But, as those provisions make clear, whether there is a separate question for determination and whether it be removed to this Court are matters for the High Court. 

3. Rather, the jurisdiction to transfer civil proceedings from the High Court to this Court is found in s 59 of the Senior Courts Act 2016.  To order transfer, this Court “must be satisfied that the circumstances of the proceeding are exceptional”.[6]

   [6]By way of example, in 2020 Kós P declined to transfer the Borrowdale litigation to this Court, despite the considerable public importance of that case: see Borrowdale v Director-General of Health [2020] NZCA 156, (2020) 25 PRNZ 184.

4. That is clearly not the case here.  Whilst there is no authority on whether a proceeding stayed for the reasons in this case is capable of being transferred, in practice such a proceeding is highly unlikely, if ever, to be transferred.  The proceeding has been stayed because the applicants have failed to formulate their claims to the required standards.  It has thus far amounted to an abuse of process.[7]

   [7]See Brewer J judgment, above n 1, at [17], where he said the statement of claim at that point would have been an abuse of process; and the High Court Rules, r 15.1.

5. Nothing in the material before the Court demonstrates the proceeding is exceptional, and none of the examples of exceptional circumstances listed in s 59(3) are engaged.[8]  The application is declined.

Result

[8]Those are: (a) the party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled; (b) the proceeding raises an issue of considerable public importance that—(i) needs to be determined urgently; and (ii) is unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal: (c) the proceeding does not raise a question of fact or a significant question of fact, but raises a question of law that is the subject of conflicting decisions of the Court of Appeal.

1. The application for transfer is declined.