Toa Faulkner v Deputy Registrar and Trustees of Allotment 5

[2011] NZSC 39

IN THE SUPREME COURT OF NEW ZEALAND

SC 13/2011
[2011] NZSC 39

BETWEEN  TOA HAERE FAULKNER
Applicant

AND  TRUSTEES OF ALLOTMENT 5 PARISH OF TAHAWAI
First Respondents

AND  WESTERN BAY OF PLENTY DISTRICT COUNCIL
Second Respondent

Court:             Tipping, McGrath and William Young JJ

Counsel:         M Sharp for First Respondents
R Zame for Second Respondent

Judgment:      12 April 2011

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant is to pay the second respondent costs in the sum of $2,500 plus all reasonable disbursements to be fixed if necessary by the Registrar.

REASONS

1. This is an application for leave to appeal directly to this Court from a decision of the Maori Appellate Court.[1]  We are refusing leave because we do not consider that the case satisfies the statutory requirement for there to be exceptional circumstances before leave can be granted in cases of this kind.  We accept the submissions of the second respondent in this respect.

   [1]Faulkner v Deputy Registrar – Allotment 5 Parish of Tahawai (2010) Maori Appellate Court MB 643, 21 December 2010.

2. The decision in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd[2] upon which the applicant relies is clearly distinguishable.  The grounds advanced by the applicant for dispensing with the normal benefit of the views of the Court of Appeal are unpersuasive.  The applicant’s reference to the need for Parliament to conform with any unwritten universal principles lacks both cogency and specificity.  Overall this is not a case in which the applicant has demonstrated the necessary exceptional circumstances justifying a direct appeal to this Court, thereby bypassing the Court of Appeal.

   [2]Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2008] NZSC 94, (2008) 19 PRNZ 132.

3. Our refusal to grant leave is without prejudice to:

   (a)whether there were, in any event, grounds justifying the granting of leave; and

   (b)whether the proceeding in this Court is properly constituted following the death of the party who was the appellant in the Maori Appellate Court.  It is not apparent that any order has been made appointing an executor or other proper representative of the party who is now deceased.  The application to this Court is made as if the applicant were still alive. 

4. For these reasons, primarily the lack of exceptional circumstances, the application for leave must be refused.

Solicitors:
Holland Beckett, Tauranga for First Respondents
Cooney Lees Morgan, Tauranga for Second Respondent