IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A Rangihamama X3A & Omapere Taraire E (Aggregated)

Transcription

1 118 Taitokerau MB 194 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 19, Te Ture Whenua Maori Act 1993 IN THE MATTER OF BETWEEN AND Rangihamama X3A & Omapere Taraire E (Aggregated) FLETCHER TAHERE, TOKO TAHERE AND CANADIAN TAHERE Applicants TRUSTEES OF RANGIHAMAMA X3A & OMAPERE TARAIRE E TRUST Respondents Conferences: 2 September November 2015 (Heard at Whangarei) Judgment: 21 December 2015 JUDGMENT OF JUDGE M P ARMSTRONG

2 118 Taitokerau MB 195 Introduction [1] The applicants, and other members of the wider Tahere whānau, are currently occupying part of the Rangihamama X3A and Omapere Taraire E block. 1 In 2013, the trustees of the Omapere Taraire E and Rangihamama X3A Ahu Whenua Trust ( the trust ) filed application A seeking their removal from the block. [2] In response, the applicants have filed an application with the Chief Judge per s 45 of Te Ture Whenua Maori Act 1993 ( the Act ) challenging an earlier order of the Court which amalgamated several Māori freehold land blocks into the Rangihamama Topu block. 2 The applicants now seek a stay of application A pending determination of the s 45 application. [3] The issue for determination is whether I should grant the stay of proceeding as sought. Background [4] The trust administers several blocks of Māori freehold land including the Rangihamama X3A and Omapere Taraire E (Aggregated) block ( the block ). This aggregated block is 1, hectares in size and has 3,420 owners. [5] Approximately 40 members of the Tahere whānau are currently in occupation of part of this block on an area formerly known as Punakitere 4J2B. This occupation has caused tension between the trustees and the Tahere whānau for a number of years resulting in several applications before this Court. [6] On 25 February 2013, the trustees filed an application per ss 18(1)(a), 19(1)(a) and 20(d) of the Act ( A ) seeking the following orders: (a) A determination that the Tahere whānau do not have a right to possession of the block; 1 2 Kenneth Brown is also named as an applicant in the application filed. Mr Brown is a lay advocate assisting the Tahere whanau. As such I have not treated him as an applicant for the purpose of this application. A

3 118 Taitokerau MB 196 (b) (c) Removal of the Tahere whānau from the block; and Recovery of possession of the block. [7] On 22 July 2013, Judge Doogan convened a judicial conference to determine whether the issues raised in the application could be settled by consent. 3 Following the settlement conference the application was adjourned to allow further opportunity for the parties to try and resolve the issues. [8] On 26 June 2015, Judge Doogan issued a minute confirming that no agreement had been reached and the application should proceed to hearing. 4 Given that Judge Doogan had participated in the settlement conference the application was referred to me. [9] I convened a telephone conference with the parties on 2 September 2015 to determine whether any further directions were required prior to setting the application down for hearing. Mr Brown appeared as a lay advocate for the Tahere whānau. Mr Brown advised that the Tahere whānau intended to file the s 45 application and that they were seeking a stay of application A pending determination of the s 45 application. [10] I directed that the Tahere whānau were to file the s 45 application with the office of the Chief Judge, and were to file the application seeking a stay, within six weeks. I also noted that if those applications were not filed within that six week period, application A was to be referred to me in Chambers to be set down for hearing. 5 [11] The Tahere whānau did not file those applications within that six week period as directed. As per my earlier indication, on 28 October 2015 I directed that application A was to be set down for a hearing of one day in Kaikohe. 6 [12] On 30 October 2015, the Tahere whānau filed the application seeking a stay. They also filed a copy of the s 45 application which had been filed with the office of the Chief Judge Taitokerau MB 268 (62 TTK 268). 106 Taitokerau MB 204 (106 TTK 204). 109 Taitokerau MB 199 (109 TTK 199). 115 Taitokerau MB 10 (115 TTK 10).

4 118 Taitokerau MB 197 [13] On 23 November 2015, I convened a further telephone conference where both parties agreed that the application seeking a stay should be determined on the papers. 7 Submissions for the Tahere whānau [14] While the applicants have received assistance from Mr Brown, they do not have the benefit of legal representation. As such, the nature of their argument is, at times, cryptic. From reviewing the application and supporting material filed, I understand that the applicants are essentially arguing as follows. [15] On 31 May 1961, Judge Porter granted an order per s 435 of the Māori Affairs Act 1953 which amalgamated several titles into the Rangihamama Topu block. 8 Through subsequent orders this eventually became the Rangihamama X3A and Omapere Taraire E (Aggregated) block which is now administered by the trust. [16] The applicants argue that the owners of the area they currently occupy did not consent to that block being included in the 1961 amalgamation order. They have filed the s 45 application seeking an order from the Chief Judge to cancel or amend that order. 9 [17] The applicants also argue that the owners of the area they currently occupy did not consent to that land being vested in, or administered by, the trust. 10 It appears that the applicants are arguing that the land was vested in the trust as a result of the earlier 1961 amalgamation order. 11 [18] It appears that the applicants are seeking orders from the Chief Judge per ss 44 and 45 of the Act, removing the land they are occupying from the wider Rangihamama X3A and Omapere Taraire E (Aggregated) block, and from the administration of the trust. 12 If such orders are granted, the trustees will no longer have authority to proceed with application A which seeks their removal from the land Taitokerau MB 140 (117 TTK 140). 36 Bay of Islands MB , (36 BI , ) See application A See the affidavit of Fletcher Tahere sworn 14 October 2015,at [12]. Ibid, at [13]. Ibid, at [7] to [18]. Ibid, at [25] to [31].

5 118 Taitokerau MB 198 [19] Therefore the applicants argue that application A should be stayed pending determination of the s 45 application. Submissions for the trust [20] Counsel for the trust, Mr Jones, has filed a notice of opposition to the application for a stay of proceedings. [21] Mr Jones argues that the Court does not have jurisdiction to grant a stay of proceedings. Mr Jones also argues that there is no serious question to be tried, the trustees authority over the land is clear, the balance of convenience is in favour of the trust, and the conduct of the Tahere whānau goes against the grant of a stay. Discussion [22] Two questions arise in this application: (a) (b) Do I have jurisdiction to grant a stay of proceedings? If I have jurisdiction, should a stay be granted? [23] These questions are addressed in turn. Do I have jurisdiction to grant a stay of proceedings? [24] The Tahere whānau seek a stay of proceeding per s 19(1)(b) of the Act. Section 19(1)(b) states: 19 Jurisdiction in respect of injunctions (1) The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction (b) Prohibiting any person, where proceedings are pending before the Court or the Chief Judge, from dealing with or doing any injury to any property that is the subject-matter of the proceedings or that may be affected by any order that may be made in the proceedings; or

6 118 Taitokerau MB 199 [25] The applicants argue that the s 45 application is a proceeding before the Chief Judge as provided for in s 19(1)(b). They further contend that I should grant a stay to prevent any injury to the block which is the subject matter of the s 45 application. 14 [26] Mr Jones argues that there is no explicit authority per s 19 of the Act to grant a stay of proceedings. Mr Jones contends that as a statutory court of defined jurisdiction, this Court has no inherent jurisdiction to grant a stay of proceedings. [27] This Court has specific statutory jurisdiction per ss 43(1), 59(4) and 79(4) to order a stay of proceedings. [28] Section 43(1) states: 43 Rehearings (1) Subject to subsection (2) of this section, on an application made in accordance with the rules of Court by any person interested in any matter in respect of which the Court has made an order, the Judge by whom the order was made or any other Judge may order a rehearing upon such terms as the Judge thinks reasonable, and in the meantime may stay the proceedings. [Emphasis added] [29] Section 43 of the Act relates to an application seeking a rehearing. No such application has been filed and therefore this provision does not apply. [30] Section 59(4) of the Act states: 59 Appeals from provisional determinations (4) When leave to appeal is so given, the Māori Land Court may either stay further proceedings in the matter or continue the same, but no final order shall be made until the appeal has been finally disposed of or dismissed. [Emphasis added] [31] Section 59(4) relates to an appeal from a provisional determination. No such appeal has been filed and as such this provision does not apply. 14 Affidavit of Tahere Fletcher sworn 14 October 2015, at [26].

7 118 Taitokerau MB 200 [32] Section 79(4) of the Act states: 79 Orders as to costs (4) At any stage of any proceedings, the court may require any party to deposit any sum of money as security for costs, and, in default of that deposit being made, the court may stay or dismiss the proceedings either wholly or in respect of the party so in default. [Emphasis added] [33] Section 79(4) of the Act concerns an order requiring payment as security for costs. No such orders have been made in the present case and so, once again, this provision does not apply. [34] There is no other express provision in the Act concerning the grant of a stay of proceedings. However, section 6(2) of the Act states: 6 Maori Land Court to continue (2) In addition to the jurisdiction and powers expressly conferred on it by this or any other Act, the Maori Land Court shall have all the powers that are inherent in a court of record. [35] In Proprietors of Maraeroa C v New Zealand Forest Products Ltd Judge Ambler considered the issue of whether to grant a stay of proceedings. 15 Judge Ambler held: [12] For completeness, I observe that it is well settled that, although a Court of limited jurisdiction does not have inherent jurisdiction, it does have inherent powers subject to the rules of Court and to statute to regulate its procedure, to ensure fairness in its procedures and to prevent an abuse of its process. That inherent power extends to striking out or staying proceedings where an abuse of process would otherwise arise. See section 6(2) of the Act. [36] In that case, Judge Ambler found that there were binding arbitration provisions in the contract between the parties and a stay of proceedings was granted. 15 Proprietors of Maraeroa C v New Zealand Forest Products Ltd (2007) 121 Waikato MB 258 ( 121 W 258).

8 118 Taitokerau MB 201 [37] In Taueki Horowhenua block 11 (Lake Horowhenua), 16 Chief Judge Isaac dealt with an application for stay of execution pending an appeal to the Māori Appellate Court. Judge Isaac found: [13] The only remaining ground on which the Court might issue a stay of proceedings, without there being explicit statutory authority to do so, is in accordance with the principle set out by the Court of Appeal in McMenamin v Attorney-General [1985] 2 NZLR 274. That Court stated that [a]n inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by statute. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of that process. [14] I agree with this principle and consider that the Māori Land Court does have the power to issue a stay of execution in respect of a final order that has been appealed to the Māori Appellate Court, but only in very limited circumstances. In my view, Parliament would not have legislated to allow the right of an appeal from a final order of the Court without the intention that that appeal have effect where the appellant is successful. Therefore, in the situation where an appellants right of appeal under section 58 would be rendered nugatory if a stay of execution were not granted, the Māori Land Court must have the authority to issue a stay. This is comparable to the High Court s assessment of its inherent power to grant a stay where the efficacy of an appeal would be destroyed were this Court not to intervene. [15] In summary, I find that the Māori Land Court has the jurisdiction to issue a stay. [38] This approach has been adopted in a number of cases before this Court, and the Māori Appellate Court, where a stay was sought pending an appeal. 17 In the present case no appeal has been filed. As such, the question remains as to whether the Court can grant a stay pending determination of the s 45 application. [39] As noted in Taueki, a stay can be granted pending an appeal where failing to do so would render the appellant s right of appeal nugatory. This inherent power is to prevent an abuse of process. [40] An application per s 45 of the Act seeks to exercise the special powers of the Chief Judge per s 44 of the Act. Section 44 provides that where an order is erroneous in fact or Taueki Horowhenua block 11 (Lake Horowhenua) (2012) 279 Aotea MB 101 (279 AOT 101). Nicholls v Nicholls W T Nicholls Whānau Trust (2013) 55 Waikato Maniapoto MB 288 (55 WMN 288), Nicholls v Nicholls Part Papaaroha 6B [2013] Māori Appellate Court MB 515 (2013 APPEAL 515), Trustees of the Mangarapa Trust v Anderson Rangitoto Tuhua 70B1B (2015) 106 Waikato Maniapoto MB 201 (106 WMN 201) and Tito v Tito Mangakahia 2B2 2A1A [2011] Māori Appellate Court MB 527 (2011 APPEAL 527).

9 118 Taitokerau MB 202 in law because of any mistake or omission on the part of the Court or the Registrar or in the presentation of the facts of the case, the Chief Judge can cancel or amend the order, or make such other order as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. [41] While a s 45 application is not an appeal, it shares similar characteristics in that it challenges an earlier order of the Court. If successful, the earlier order may be cancelled or amended. 18 As such, the inherent power of the Court to grant a stay pending an appeal must also extend to granting a stay pending a s 45 application, where failing to do so would render the application nugatory. 19 [42] Therefore I consider that I do have jurisdiction to grant a stay of proceedings pending determination of the s 45 application. [43] I note that the application seeking a stay does not refer to, or rely on, the inherent power of the Court to grant such an order. Rather, the applicants rely on s 19 of the Act. That provision concerns the grant of interim and permanent injunctions. It does not provide for the grant of a stay. The application is clearly defective. However, I do not consider that this is significant. [44] While the applicants have been assisted by Mr Brown, they do not have legal representation. It is understandable that the applicants may not be familiar with the inherent powers of the Court, or the basis upon which the Court can grant an interlocutory order such as a stay. [45] It has been clear since the first telephone conference on 2 September 2015 that the applicants are seeking a stay of proceedings. The trustees have legal representation and have filed a notice and affidavit in opposition to this application. They were aware of the nature of the order sought and have had an opportunity to respond. [46] For the avoidance of doubt, I amend the application per s 71 of the Act, so that it is made in reliance on s 6(2) of the Act and the authorities referred to above See the powers of the Māori Appellate Court on appeal per s 56 of the Act. This is also supported by Proprietors of Maraeroa C v New Zealand Forest Products Ltd where a stay was granted due to binding arbitration provisions rather than pending an appeal.

10 118 Taitokerau MB 203 Should a stay be granted? [47] In Dymocks Franchise systems (NSW) Pty Limited v Bilgola Enterprises Limited the High Court found that when considering an application for a stay, the court must balance the various factors and determine the application based on the circumstances of the case. 20 Despite that, Hammond J found that the factors to which courts conventionally address themselves to find this balance include the following: (a) If no stay is granted will the applicants right of appeal be rendered nugatory; (b) The bona fides of the applicants as to the prosecution of the appeal; (c) Will the successful party be injuriously affected by the stay; (d) The effect on third parties; (e) The novelty and importance of the question involved; (f) The public interest in the proceedings; and (g) The overall balance of convenience. [48] Hammond J noted that these factors are not comprehensive and merely illustrate the breadth of the matters which, in any given case, may have to be addressed by the court to balance the overall interests of justice. 21 [49] This approach has been adopted by the Maori Appellate Court in Tito v Tito, 22 and by the Court of Appeal in Clarke v Karaitiana. 23 [50] While each case is to be decided on its own merit, it is essential that the applicant must show that if the stay is not granted, the applicant s rights would be rendered nugatory Dymocks Franchise systems (NSW) Pty Limited v Bill Goaler Enterprises Limited PRNZ 48 at 50. Ibid. Tito v Tito Mangakahia 2B2 2A1A [2011] Māori Appellate Court MB 527 (2011 APPEAL 527). Clarke v Karaitiana (2010) NZCA 485.

11 118 Taitokerau MB 204 [51] In Taueki Horowhenua block 11 (Lake Horowhenua), 24 Chief Judge Isaac found that this Court can only grant a stay in limited circumstances where failing to do so would render (in that case) the appeal nugatory. This approach was also adopted by the Māori Appellate Court in Nicholls v Nicholls. 25 [52] In the present case the applicants have filed the s 45 application challenging the order granted by Judge Porter on 11 May 1961 which amalgamated Punakitere 4J2B (and other blocks) into the Rangihamama Topu block. The applicants also challenge the vesting of this land into the trust and thereby the authority of the trustees to administer the block. Despite that, the s 45 application does not actually challenge the order vesting the land into the trust. It only challenges the amalgamation order. [53] It appears that the Tahere whānau seek to remove the original land they are occupying from the administration of the trust. If successful, the trustees would no longer have authority to seek orders removing the Tahere whānau from that land. As such, the s 45 application is an attempt by the Tahere whānau to thwart application A by removing the trustees authority to bring that application. [54] However, while that strategy may be apparent, the s 45 application does not concern the occupation of that land by the Tahere whānau. The s 45 application simply challenges the order granted by Judge Porter which amalgamated various titles into the Rangihamama Topu block. [55] If I do not grant a stay of application A , this will have no bearing on the outcome of the s 45 application. Even if application A proceeds and is determined, the Tahere whānau are still free to pursue the s 45 application if they wish. While the Tahere whanau seek to use any order granted in the s 45 application as a defence to application A , failing to stay application A will not render the s 45 application nugatory Taueki Horowhenua block 11 (Lake Horowhenua) (2012) 279 Aotea MB 101 (279 AOT 101). Nicholls v Nicholls Part Papaaroha 6B [2013] Māori Appellate Court MB 515 (2013 APPEAL 515). Also see Tito v Tito Mangakahia 2B2 2A1A [2011] Māori Appellate Court MB 527 (2011 APPEAL 527), Naera v Fenwick Whakapoungakau 24[2011] Māori Appellate Court MB 301 (2011 APPEAL 301), Taueki Horowhenua block 11 (Lake Horowhenua) (2012) 278 Aotea MB 172 (278 AOT 172), and Taueki v Proctor Horowhenua block 11 (Lake Horowhenua) (2013) 296 Aotea MB 91 (296 AOT 91).

12 118 Taitokerau MB 205 [56] For these reasons, the applicants have failed to establish that a stay should be granted in this case. [57] Given that the essential requirement for granting a stay has not been met, it is not necessary to consider the other factors to which courts conventionally address themselves as set out in Dymocks Franchise systems (NSW) Pty Limited v Bilgola Enterprises Limited. Had it been necessary to do so, I note that I have doubts as to the bona fides of the applicants as to the prosecution of the s 45 application. I also consider that the applicants conduct in this proceeding would be relevant and goes against the grant of a stay. Decision [58] The application seeking a stay of proceeding A is dismissed. [59] As noted in my direction of 28 October 2015, application A is to be set down for hearing of one day in Kaikohe. Pronounced in open Court in Whangarei at 3 pm on Monday this 21 st day of December M P Armstrong JUDGE