Whaanga v Smith - [2013] NZCA 606

IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/2013
[2013] NZCA 606

BETWEEN	MERE JOSLYN WHAANGA Applicant
AND	CASSINO EGYPT SMITH, JEFFERSON POWDRELL, RAYMOND DAVID GREENING-CROMBIE, RUKANIANIA, TOM TE KAHU, TUMANAKO WALTER WILSON AND WHETI MANUEL AS TRUSTEES OF THE ANEWA TRUST Respondents

Court:

Wild, White and Miller JJ

Counsel:

T H Bennion for Applicant
M Lawson for Respondents

Judgment:

(On the papers)

3 December 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe applicant is to bring her appeal by the close of Friday 20 December 2013.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

This is an application for an extension of time to appeal. It is governed by r 29A of the Court of Appeal (Civil) Rules 2005. Ms Whaanga seeks to appeal against a judgment of the Māori Appellate Court delivered on 12 February 2013.[1]
[1]Whaanga v Smith (2013) Māori Appellate Court MB 45 (2012 APPEAL 6) [MAC decision].
In the judgment sought to be appealed the Māori Appellate Court dismissed an appeal from a judgment of the Māori Land Court given on 5 June 2012.[2] The latter judgment declined an application by Ms Whaanga and her late sister, under s 287(1) of the Te Ture Whenua Maori Act 1993. Their application sought an order for partition of 121.4 hectares (300 acres) called the “Rata farm” from the Anewa block into which it had been amalgamated by order of the Māori Land Court on 24 October 1967. The Rata farm was owned by Ms Whaanga’s father, the late Te Hore Epanaia Whaanga. He consented to its amalgamation into the Anewa block. Ms Whaanga’s great grandfather, Puhara Timo, had been the principal owner of the block of land (Tutuotekaha 1B5) out of which the Rata farm was partitioned.[3] So Ms Whaanga’s whanau interest in Rata farm can be traced through Native Land Court records back to the 1860s.
[2]Whaanga (2012) 22 Tairāwhiti MB 167.
[3]This somewhat simplifies the complex historical position.
The respondents are the trustees of the Anewa Trust which controls the Anewa block. The block comprises 1911.4 hectares (4,721 acres), about 53 per cent of which is farmed by the Trust. Rata farm (despite its name) is mainly in bush and scrub, not part of the land farmed by the Trust, and is situated roughly in the middle part of the block.
Ms Whaanga’s partition application was originally dismissed by the Māori Land Court in a decision given on 14 December 2010.[4] Ms Whaanga appealed successfully to the Māori Appellate Court. In a judgment it delivered on 19 August 2011 that Court revoked the Māori Land Court’s dismissal of Ms Whaanga’s partition application and directed the Māori Land Court to rehear that application.[5] Judge Coxhead gave both decisions of the Māori Land Court. However, the two decisions of the Māori Appellate Court were given by entirely differently constituted courts.
[4]Whaanga 11 Tairawhiti MB 46 (11 MB 46).
[5]Whaanga v…

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 Whaanga v Smith

Details

AGLC: Whaanga v Smith [2013] NZCA 606
Case: [2013] NZCA 606
Decision Date: 3 December 2013 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Wild, White and Miller JJ heard an application for an extension of time to appeal from Mere Joslyn Whaanga against the trustees of the Anewa Trust. Whaanga sought to appeal a decision from the Māori Appellate Court, which dismissed her appeal against a judgment of the Māori Land Court. The latter judgment had declined an application for partition of a parcel of land called the "Rata farm" from the Anewa block. Whaanga’s application for an extension of time was governed by rule 29A of the Court of Appeal (Civil) Rules 2005. The key issues before the Court were the length of the delay in seeking leave to appeal, the reasons for the delay, the parties’ conduct, the extent of prejudice caused by the delay, the prospective merits of the appeal, and whether the appeal raised any issue of public importance. Whaanga filed her application 23 working days out of time due to the death of her mother, for which she had been responsible for organising the tangi and other related matters. The respondents did not contest the delay or suggest any disqualifying conduct on Whaanga’s part. They also did not contest Whaanga’s submission that the delay had not caused them any prejudice. Given the respondents' neutral stance, the Court granted the application for an extension of time. The Court directed Whaanga to bring her appeal by the close of Friday 20 December 2013. The Court also noted that the Māori Appellate Court had regretted that the respondents had not attended the first hearing before it, and encouraged the respondents to take an active part in the substantive appeal. The Court made no order for costs given the respondents' neutral stance on the present application.

Orders