Urlich v Attorney-General - [2022] NZHC 3393

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2022-488-000021

[2022] NZHC 3393

UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF

An application for review

BETWEEN

ROBERT MATTHEW URLICH
Applicant

AND

ATTORNEY-GENERAL

First Respondent

ZHARN HOWARD URLICH

Second Respondent

Hearing: 5 December 2022

Counsel:

PM Hoskins for Applicant

NC Anderson and RM Fistonich for First Respondent (via VMR) MJ Sharp for Second Respondent (via VMR)

Judgment:

14 December 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 14 December 2022 at 2 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Corban Revell, Auckland. Crown Law, Wellington. Te Whenua Law, Rotorua. PM Hoskins, Whangarei. MJ Sharp, Tauranga.

URLICH v ATTORNEY-GENERAL [2022] NZHC 3393 [14 December 2022]

The issue

[1] This judicial review case has a peculiar history as the Court of Appeal has already determined the decision-maker erred. So, this brief judgment focuses on relief.

Agreed facts

[2]What follows is the suite of facts helpfully agreed between the parties.1

Acquisition of the land

[3] On 6 June 1952, two brothers, Richard and Simon Urlich, purchased Parakerake No. 576N Block.

[4] On 18 March 1953, the brothers agreed to sell part of the block, comprised in Record of Title NA1027/220 (the property), to Her Majesty the Queen, for a Māori school. The Ministry of Education (MOE) acquired the property under the Public Works Act 1928 for a nominal sum of one shilling.

[5] On 6 May 1953, Compensation Certificate K45258 was registered against the title to the property.

[6] On 15 September 1955, proclamation 14699 was published in the New Zealand Gazette, taking the property for a Māori school under the Public Works Act. The property’s existing title, 850139, is derived from that proclamation.

Relationship of the parties to the donors

[7] The applicant, Robert Urlich, is the nephew of Richard and son of Simon. The second respondent, Zharn Urlich, is the grandson of Richard.

[8]Richard and Simon were of Ngāti Kahu descent, as are their descendants.

1 With minor stylistic changes.

Decision to offer the land to Zharn

[9] The property was used for Rangiāwhia Māori School and later Te Kura Kaupapa Māori o Rangiāwhia. The school closed in December 2016.

[10] On 27 May 2018, MOE determined the property was no longer required for educational purposes. On 11 September 2018, it made a corresponding declaration under s 71B of the Education Act 1989.

[11] The property was not required for any other public work or land exchange. Consequently, the disposal process under the Public Works Act 1981 (PWA), which is managed by Land Information New Zealand (LINZ), was utilised.

[12] On 27 February 2019, a delegate acting on behalf of the Chief Executive of LINZ (the decision-maker) determined Zharn was the only living successor to either of the donors pursuant to s 40 of the PWA because:

(a)Richard and Simon were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Urlich v Attorney-General

Details

AGLC: Urlich v Attorney-General [2022] NZHC 3393
Case: [2022] NZHC 3393
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case of Urlich v Attorney-General involved an application for judicial review by Robert Matthew Urlich against the Attorney-General and Zharn Howard Urlich, regarding the disposal of a piece of land that was previously acquired by the Crown for a Māori school. The land was declared surplus and the decision was made to offer it to Zharn alone under the Public Works Act 1981. Robert, who is the nephew of one donor and son of the other, objected to the decision, arguing that the Crown should offer the property back to the descendants of his father and uncle in accordance with Ngāti Kahu tikanga. The Court of Appeal had already determined the decision-maker erred, and this judgment focused on the relief.

The legal issues in the case included whether the decision-maker's errors were grave enough to warrant relief, the extent of prejudice to Robert and Zharn if the decision and agreement were set aside, and the utility of granting relief. The Court considered the gravity of the error, which was significant but not fundamental, and that Robert would suffer a loss of opportunity if relief was not granted. Zharn, an innocent third party, would not suffer significant prejudice if the agreement were set aside. The Court also considered the utility of granting relief, which would provide Robert with an opportunity for reconsideration of the decision in accordance with the law.

The Court set aside the decision and agreement and ordered the Chief Executive of Land Information New Zealand to reconsider the decision in accordance with the judgment of the Court of Appeal, specifically whether it was unreasonable or unfair to offer back to the successor only and whether an application should be made to the Māori Land Court under the Te Ture Whenua Māori Act 1993. The Court also ordered the Crown to pay costs for Robert and Zharn up until a certain date, and all costs thereafter, because the Crown's consent did not remove the need for Robert to bring the claim, and Zharn is an innocent third party.

Orders