Toa Faulkner v Deputy Registrar and Trustees of Allotment 5

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

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.
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.
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.
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

CaseChat Overview and Summary

In Toa Faulkner v Deputy Registrar and Trustees of Allotment 5, the Supreme Court of New Zealand was called upon to decide on an application for leave to appeal from a decision of the Maori Appellate Court. The applicant, Toa Haere Faulkner, sought to directly appeal to the Supreme Court, bypassing the Court of Appeal. The first respondents were the Trustees of Allotment 5, Parish of Tahawai, and the second respondent was the Western Bay of Plenty District Council. The crux of the dispute involved the statutory requirement for exceptional circumstances before an appeal could be granted in such cases.

The legal issues before the Supreme Court centered on whether the exceptional circumstances necessary for a direct appeal to the Supreme Court were present. The applicant argued that the case should be heard directly by the Supreme Court due to the need for Parliament to conform with unwritten universal principles. However, the Court found the applicant's arguments unpersuasive and lacking in both cogency and specificity. The Court also noted that the case cited by the applicant, Saxmere Company Ltd v Wool Board Disestablishment Co Ltd, was distinguishable from the present matter.

The Supreme Court found that the application did not satisfy the statutory requirement for exceptional circumstances, thereby refusing leave to appeal. The Court also highlighted that the proceeding in the Supreme Court appeared to be improperly constituted following the death of the original appellant in the Maori Appellate Court, as no executor or proper representative had been appointed. The refusal to grant leave was primarily due to the lack of exceptional circumstances and the procedural issue regarding the representation of the deceased party. The Court's decision was made without prejudice to any potential grounds for leave or the proper constitution of the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established