Tito v Maori Land Court

[2022] NZHC 2542

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-23

[2022] NZHC 2542

IN THE MATTER

of He Whakaputanga O Te Rangatira 1835, Te Tiriti o Waitangi 1840, and Her Majesties Trustee Ship and Fiduciary Duty to the

Beneficial Owners to the Fee Tail Title to land deemed Crown land for certain purposes

IN THE MATTER

of New Zealand Supreme Court Wakatu vs Attorney General SC 13/2015 [2017] NZSC 17

IN THE MATTER

of Te Ture Whenua Maori Land Act 1993 Preamble S2(3), S5, S19(1); the Judicial Review Procedure Act 2016, the Bill of Rights Act 1990 S27, and Imperial Laws Application Act 1988 S5, S6

BETWEEN

KEVIN-JOHN TITO & TUI-DOROTHY TITO

Applicants

AND

THE MAORI LAND COURT

Respondent

Judgment:

(On the papers)

4 October 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 October at 2.30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

TITO v THE MAORI LAND COURT [2022] NZHC 2542 [4 October 2022]

[1]                  In my Judgment of 13 May 2022,1 I gave the Applicants a chance to regularise their pleading. The alternative was to strike it out as an abuse of the process of the Court.

[2]I made directions:

(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), 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.

[3]                  An amended statement of claim was filed.2 So too were an interlocutory application without notice for interim injunction and a memorandum.

[4]                  It fell to Gault J to decide whether the amended statement of claim complies with r 5.17(1), which says that distinct causes of action founded on distinct facts must if possible be stated separately and clearly. The Judge said:3

[8]        The applicants have made some attempt to identify distinct complaints, but the statement of claim in its amended form remains difficult to follow. The complaints (and the relief sought) appear to be:

(a)challenging the establishment of the Ahu Whenua Trust by the Maori Land Court in 1998 (and seeking an order appointing trustees);

(b)challenging an interim injunction by  Judge Ambler  dated 19 August 2011 (and seeking release of funds);

(c)challenging an injunction granted by Judge Armstrong on  31 January 2017 and upheld by the Maori Appellate Court on 29 September 2017 (and seeking to overturn the injunction and criminal or like charges against the applicants and the Maori Land Court);

1      Tito v The Maori Land Court, Taitokerau District [2022] NZHC 1030.

2      The first attempt at filing was made on 16 June 2022 but was unsuccessful because filing fees were not paid and the documents were in an Eastlight folder. The documents were accepted for filing on 21 June 2022.

3      Tito v The Maori Land Court, Taitokerau District HC Auckland CIV-2022-488-23, 4 July 2022 (Minute).

(d)challenging Brewer J’s judgment dated 21 May 2020 (and seeking immediate possession of land, quashing contempt of court order, and charges against individuals including the Registrar of the Maori Land Court);

(e)challenging the process of Judge Wara (and seeking an injunction to prevent final orders being made following a hearing on 31 March 2022).

[9]        Despite the attempt to separate the complaints, causes of action have not been identified. I am no (sic) position to certify that the amended statement of claim complies with r 5.17(1), as required under Brewer J’s order before an application to lift the stay should be heard. Accordingly, the stay is to remain in place until further order of the Court.

[10]      I record that the proceeding appears to seek to relitigate matters that have been determined in the Maori Land Court, in some cases many years ago. In one case, the matter was unsuccessfully appealed to the Maori Appellate Court. Judicial review does not equate to a further right of appeal out of time. A challenge to a judgment of this Court is by way of appeal, not judicial review. Seeking that charges be brought against individuals is not an appropriate form of relief. Most, if not all, of these complaints appear to have no jurisdictional basis. Even if any did, the correct parties appear not to have been named, and it is inappropriate for the injunction application to be made on a without notice basis. The requisite grounds raised for proceeding without notice are not made out and there is no memorandum as required by r 7.23(3) of the High Court Rules 2016.

[5]                  On 22 July 2022, the Applicants filed a memorandum addressing Gault J’s Minute and a memorandum “in support” of the interim injunction application.

[6]As to the memorandum addressing Gault J’s Minute, the Applicants say:

To assist this court in determining a fair and just conclusion, the intention is not to re-litigate matters, nor to further appeal matters held in the jurisdiction of the Maori Land Court and Maori Appellate Court, but to review orders and judgments of the complaints identified in clause [8] of the Minute of Gault J, and those not identified, with distinct clarity and entirety, as follows:

[8](a) The parties identified are: The Registrar, Maori Land Court v Mr lan

Dick of the Maori Development Board (Te Puni Kokiri), and the events around the granting of an Ahu Whenua Trust and Trust Order, initiating part of historical unlawful acts which took place in 1997/98.

(i)         Causes of action are:

-   breach of fiduciary duty;

-   fraudulent misrepresentation,

-   fraudulent conveyance of language, and

-   negligence

(ii)The distinct facts are:

-     The order/Trust order is granted from an invalid meeting that failed to present a quorum of beneficially entitled owners;

-     Those in attendance of said meeting held on 15 October 1997 to establish said trust did not have any “vested ownership” in the land, and ownership was misrepresented;

-     There was no debt remaining on the land to the Maori Development Board (Te Puni Kokiri), at the time of the meeting.

-     The Maori Land Court erred at law granting the constitution of an Ahu Whenua Trust, and was negligent to investigating its own administrative record.

- In paragraph 331 of Her Majesties Supreme Court of New Zealand decision Wakatu vs Attorney General SC13/2015 [2017] NZSC 17: There is no prerogative power in the Crown to interfere with property in times of peace. Interference without lawful authority constitutes the officers of the Crown trespassers. The Crown is also liable in equity on the same basis as a citizen for breach of trust or other equitable duty, including those to which it may be subject as a fiduciary.

(iii)Remedy: Where there is cause for remedial action of exemplary damages for oppressive, arbitrary and unconstitutional actions by servants of government; where conduct was ‘calculated’ for the unjust enrichment of another, and liability for unjust (or unjustified) enrichment or the concept thereof can be traced back to Roman law and the maxim that “no one should be benefited at another’s expense”.

Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu Maori Incorporation, instead seek the law of restitution for the return of their land in fee tail title, which is described and recorded in the Memorial Schedule of the Maori Land Court as Mangakahia 2B2 No:2A1A and No:2G, to live out their cultural values for the benefit of Te Parawhau Hapu Maori Incorporation.

[8](b) The parties identified are: The Registrar, Maori Land Court v Aroha

Tito, John Andrews, in relation to an injunction order of A20110008150.

(i)         Causes of action are:

-   breach of fiduciary duty;

-   fraudulent conveyance of language, and

-   negligence.

(ii)The distinct facts are:

-     false allegations by the applicants, Aroha Tito and John Andrews and

-     failure to act for the benefit of the beneficially entitled owners by withholding income derived from the use of the land, and

-     failure by either parties to progress the matter under r5.11 of the Maori Land Court Rules 2011, for outstanding applications, of eleven (11) plus years.

(iii)       Remedy: “Every right when with held, must have a remedy.”

Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu Maori Incorporation seek a High Court order to the Registrar, Maori Land

Court, Taitokerau, to cancel the injunction and the immediately release “accumulated funds” with held since February 2010, to: Te Parawhau Hapu Maori Incorporation, so that the Hapu can rebuild structures and reinstate the papakainga (homestead) that was removed from the land in 2008 and 2015.

[8](c)   The parties identified are: The Registrar, Maori Land Court v  Aroha

Tito,   Gordon   Little,   in   relation   to   an   “interim”   injunction   order   -

A20170001117,  including  the  parties  identified  are:  The  Registrar, Maori

Land Court v Richard Booth, in relation to amending the said “interim” injunction order to “permanent” injunction order - A20190011369.

(i)         Causes of action are:

-   breach of fiduciary duty;

-   breach of trust;

-   fraudulent misrepresentation, and

-    fraudulent conveyance of language.

(ii)The distinct facts are:

-     arbitrary interference by judicial decisions of prejudice and preference, not fact or law in granting said injunction (a judicial decision of individual discretion); -

-     omission of the fact that there is no renewal or extension of lease, or any valid contract to RC & SA Booth;

-     allowing a trustee, Aroha Tito to act alone;

-     fraudulent misrepresentation by applicants to injunction, as being “the trustees”. Gordon Little is not a trustee;

-     fraudulent conveyance of language by Aroha Tito stating there is an approved lease that exists;

-     false allegations and defamation by the applicants, and

-     fraudulent misrepresentation by Richard Booth, who is not an applicant of the injunction order, and is not an interested party without any lawful contract to the Trust, and has no authority to amend said order from interim to permanent.

(iii)Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu Maori Incorporation do not seek charges against the applicants of each application, instead, a High Court order to the Registrar, Maori Land Court, Taitokerau, for an immediate counter-injunction to stop and reverse the amendment to a “permanent” injunction order of A20190011369, and to cancel the “interim” injunction order of A20170001117, so that the hapu of Te Parawhau Hapu Maori Incorporation can enter upon their land, as their inherent entitlement, without fear of arrest or imprisonment, and to live out their cultural lives, while the outcome of this review is pending.

[8](d) The parties identified are: The Registrar, High Court, Whangarei

Registry v Richard Booth, in relation to transmission of the Maori Land Court “permanent” injunction order for enforcement - CIV-2020-488-23

(i)         Causes of action are:

-   breach of fiduciary duty;

-    fraudulent misrepresentation,

-    fraudulent conveyance of language,

-    false imprisonment, and

(ii)The distinct facts are:

- The High Court, Whangarei Registry Registrar - Mr Paul Lincoln granted a “Possession order” of the Fee Simple title of land “contained in Certificate of Title 55A/1194” to Richard Booth, without any proof of claim to any contract;

-   No hearing was held.

-   The injunction order was not transmitted to the High Court by “the applicants” of the injunction order;

-   The injunction both interim and permanent, protects RC & SA Booth who have “no written contract”, and is therefore “not enforceable” under the High Court Rules 2016;

-   fraudulent misrepresentation and conveyance of language by Richard Booth, who is “not an applicant” of the injunction order, and

– fraudulent misrepresentation of an imprisonment order of the High Court by Richard Booth, Aroha Tito and Gordon Little.

(iii)Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu Maori Incorporation do not seek charges against the applicants, but seek recission of all High Court orders granted to Mr Richard Booth, Aroha Tito and Gordon Little; to reverse the Possession Order granted to RC & SA Booth; to revoke all orders for Arrest, Contempt of Court and Imprisonment of Kevin-John Tito, and to rescind said undertaking while incarcerated, including any fines, and reimbursement for all legal costs incurred by Kevin-John Tito.

An immediate Trespass order is sought against the applicant, Richard Booth to quit the land, so that Kevin-John & Tui-Dorothy Tito and Te Parawhau Hapu Maori Incorporation can immediately return to their land, to carry out cultural practices and values.

[8](e)   The parties identified are: The Registrar, Maori Land Court v  Aroha

Tito, John Andrew, in relation to an application to remove and replace trustees

- A20170002155.

(i)Causes of action are:

-   breach of fiduciary duty;

-   negligence

-   fraudulent misrepresentation, and

-    fraudulent conveyance of language

(ii)The distinct facts are:

-     The Maori Land Court confused the orders of the higher courts to appoint permanent trustees to the Ahu Whenua Trust under section 220 of the Ture Whenua Maori Act 1993. Applications under section 239 to remove and replace trustees were not required and were a further delay to achieving an outcome;

-     The Maori Land Court has breached its fiduciary duty as an administrative court again in its discretionary decision from the Zoom hearing held 31 March 2022, and dismissed an application on prejudice and preference, not fact or law;

-     The Court dismissed a valid meeting held 20 June 2021 A20210008662, and with prejudice and preference made a discretionary decision to accept an invalid meeting that was held on 02 December 2021, without legal notice of 21 days given, failed

to meet legal quorum requirements; an appointed facilitator advertised a meeting before the court order was issued appointing said facilitator, The application A20170002155 filed in 2017 ought to have been dismissed in November 2020, and was void abnitio;

-     Failure by Mr Brandon Ward, Registrar for the Maori Land Court, Taitokerau to  progress  the  application  A20210008662  filed  23 June 2021, where legal process was denied and a just outcome unattainable. This was administrative interference, and negligent.

-     False allegations made to the New Zealand Police by Court Registrar, Brandon Ward, to discriminate against Kevin-John & Tui-Dorothy Tito, and to affect future proceedings, Mr Ward filed a Trespass order against them.

(iii)Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu Maori Incorporation do not seek charges against the applicants, but instead seek a High Court order to the Registrar of the Maori Land Court, Taitokerau, striking out all outstanding applications from Aroha Tito and John Andrew, and appointing the permanent trustees of application A20210008662 under section 220 of the Ture Whenua Maori Act 1993, and

A High Court order to revoke the Trespass Order made by the Registrar of the Maori Land Court, Brandon Ward, and any other issues of any court initiated by said Trespass Order; and finally,

To grant the urgent injunction that has been filed with this application to the Queens High Court of New Zealand to prevent further irreparable harm and injury to Te Parawhau Hapu Maori Incorporation by further FINAL ORDERS of the Maori Land Court.

[7]                  The application (without notice) for interim injunction appears to relate to three applications heard in the Maori Land Court on 31 March 2022 by Judge TM Wara. In a Minute dated 1 April 2022, the Judge recorded the outcome of the hearing and set out the orders made. Essentially, the Judge appointed four people as responsible trustees of the Ahu Whenua Trust in question, in replacement of all existing interim trustees, and vested in them the Trust’s land and assets. The order sought is not specified. But at 3(c) there is the following:

Primarily, Kevin-John & Tui-Dorothy Tito do not want the Final Orders to be made by the Maori Land Court, but more importantly, the release of any funds held in Trust until Kevin-John & Tui-Dorothy Tito have had said applications and all orders of the Maori Land Court currently being reviewed before the High Court CIV-2022-488-23.

[8]                 In the supporting memorandum of 22 July 2022, the Applicants say:

[3]        The application for interim injunction is sought to prevent the Maori Land Court from doing irreparable harm and injury to the beneficially entitled

owners of the land, pending the outcome of a judicial review into determinations already made that have had a detrimental affect over a period of more than two decades.

[4]The grounds are clarified as follows:

a)On 31 March 2022, the Maori Land Court did hear three (3) applications by Zoom. Two of the said applications have been outstanding for between five (5) years – A20170002155 and eleven (11) years – A20110008150. This is not acceptable. Under r 5.11 of the Maori Land Court Rules 2011 – Outstanding applications, the Registrar had failed to progress these applications, and to contact the parties, Aroha Tito and John Andrews, to set down a hearing for final determination. These applications were not forwarded to the Judge of the Court by the Registrar for final determination.

b)A20210008662 – This application was filed by Kevin-John Tito on 23 June 2021. It was accepted for hearing on 28 June 2021 and was legally convened. A hearing date was to be set down, but was with held by the Registrar, Mr Brandon Ward. (Marked “B” in Interlocutory Application).

c)All  applications  were  heard  on  24  November  2020.  See ( Marked “I” in Interlocutory Application). No court order appointing a facilitator was issued to all parties from this hearing.

d)The legal requirements of 21 days notice was not met, and is not legally convened.                   See ( Marked “L” in Interlocutory

Application).

e)The court order appointing said facilitator was issued

18 November 2021, ( Marked “L1” in Interlocutory

Application) 14 days before the meeting, and after facilitator had already placed advertisements on 13 November 2021. This is out of order.

f)The meeting held did not have seven (7) beneficially entitled owners present or legally represented, and failed to meet the quorum requirements in the Trust order (Marked “G” in

Interlocutory Application).

g)The Court has “erred at law” with its administration of said applications, in dismissing a valid application at b) above, by exercising a discretionary decision which was arbitrary interference and based on prejudice and preference, rather than fact or law.

h)After all of the delays in obtaining a just outcome moving forward, the reality is that the higher courts had ordered the appointment of permanent trustees to be made at an AGM, and to replace the interim trustees under section 220 of the Ture Whenua Maori Act 1993.

i)This did not mean that separate applications under section 239 of the Ture Whenua Maori Act 1993, to remove and replace trustees was needed to be filed to achieve this at all. All that was required was a minute from an AGM with the appointed permanent trustees to be produced to the Court.

j)The injunction is made without notice, as any further delay is a delay with natural justice.

[9]                  Decisions of the Maori Land Court and the Maori Appellate Court are amenable to judicial review. But every final decision of the Maori Land Court is appealable to the Maori Appellate Court and from there to the Court of Appeal. It seems that at least a part of the process identified by the Applicants has been referred to the Court of Appeal.

[10]              Decisions of this Court and of the Court of Appeal are not amenable to judicial review.

[11]              The Applicants have done their best. But what they seem to want, in the guise of judicial review, is to have this Court reconsider decisions of fact and law made by Courts of specialist jurisdiction dating back to 1998. It is unclear whether rights of appeal have been exhausted.

[12] In my view, in the absence of clear pleadings complying with the rules and in the absence of clear jurisdiction, it would be an abuse of the process of the Court to embark on such a wide-ranging inquiry. There would effectively be no limits to it. I agree with the comments of Gault J at [10] of his Minute, which I quote at [4] above.

[13]              I appreciate that the Applicants are lay litigants. But that does not excuse them from compliance with the rules which are designed, in part, to ensure that issues and jurisdiction are properly defined.

[14]I make an order striking out the proceeding.

[15]I point out to the Applicants that they have the right to appeal this decision.

Brewer J