IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Rule 4.1 0(3), Maori Land Court Rules 2011

Transcription

1 2015 Chief Judge's MB 215 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Rule 4.1 0(3), Maori Land Court Rules 2011 IN THE MATTER OF BETWEEN Oue 2B3 and other blocks and a decision of the Deputy Registrar to refuse applications for filing BEAU WILSON Applicant Judgment: 01 April2015 RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC

2 2015 Chief Judge's MB 216 Introduction [1] This decision concerns an application by Beau Wilson pursuant tor 4.10(3) of the Maori Land Court Rules 2011 seeking review of the Deputy Registrar's decision to refuse seven applications made by him on 31 July 2014 pursuant to s 45 of Te Ture Whenua Maori Act [2] The applications that were refused were: (a) A relating to Oue 2B3 and an order made on 29 November 1920; (b) A relating to Oue 2B2A, 2B2B, 2B2C, Waima South E19A1 and Waima North A21B and an order made on 3 August 1938; (c) A relating to Oue 2B3A4 and an order made on 8 September 1949; (d) A relating to Oue 2B2B2 and Kaikou C5C3B2 and an order made on 15 April 1958; (e) A relating to Maungapohatu South 1A6C and an order made on 10 August 1964; (f) A relating to Matoa, Ramaroa F2 and Rangaunu 4A and an order made on 3 July 1989; and (g) A relating to Oue 2B3A4 and Oue 2B2B2 and a minute book entry made on 23 May [3] The applications were refused on the basis that the requisite fee for filing seven s 45 applications, amounting to $ , was not provided, and Deputy Registrar was not satisfied that the applicant or his family group could not or should not be called upon to pay the fee. The applicant seeks a review of this decision.

3 2015 Chief Judge's MB 217 Background to the application seeking review of the Deputy Registrar's decision [ 4] On I 0 July 1989, the applicant's father, Poukapua Puru Wirihana Mau, also known as Pou Wilson, filed an application to the Chief Judge under s 452 of the Maori Affairs Act 1953 in relation to succession to his grandfather, Hone Whakaeke. In a letter dated 13 July 1989, the Taitokerau District Maori Land Court acknowledges receipt of the application and filing fee and states that that the applicant would be advised of the judge's decision in due course. [5] Pou Wilson died on 26 December 1989 and there was no further action in relation to the application until his documents resurfaced when the applicant's niece was clearing out her mother's belongings in The applicant states that he took the letter acknowledging receipt of his father's s 452 application to the Whangarei Maori Land Court, but they could not find any record of it. [ 6] The applicant states that in September 2013, he began compiling a Chief Judge application pursuant to s 45 of Te Ture Whenua Maori Act 1993, the provision that replaced s 452 of the Maori Affairs Act He took the application to Legal Aid, and was referred to a lawyer. However, after their first meeting, the lawyer advised that the $96.00 per hour provided by Legal Aid was not enough for him to take the case. After retuming unsuccessfully to Legal Aid, the applicant went to the Taitokerau Community Law Centre and was given an appointment with another lawyer for 16 October [7] The applicant states that by 25 March 2014 he had met with 17 lawyers to no avail, and therefore he filed the s 45 application himself. He received a response dated 31 March 2014 in which the Deputy Registrar advised that the application was not accepted as it required further information. [8] The applicant states that a friend's lawyer referred him to an Auckland law finn. A lawyer agreed to act on his behalf. However, after waiting seven weeks with no word from the firm, the applicant collected his papers from them and set about compiling the application himself. He filed as 45 application on 12 June 2014 (A ). This application was accepted on 21 June 2014 and the filing fee was waived.

4 2015 Chief Judge's MB 218 [9] The applicant states that after filing the June application he found further evidence of what he alleges to be false whakapapa presented to the Court on a number of occasions. On 24 July 2014, the applicant made the seven s 45 applications and requested that the filing fees be waived. [ 1 0] On 5 August 2014, the applicant received a letter from the Deputy Registrar advising that the applications could not be accepted due to non-provision of the required fee. In the letter the Deputy Registrar states: I note that you have filed an applications requesting that the fee be waived or remitted. Rule 4.9 of the Maori Land Comt Rules 2011 and regulation 5(2) of the Maori Land Comt Fees Regulations 2013 requires that, if an application fee is payable, the application must be accompanied by the fee. The fee for seven section 45 applications is $1400. Whilst a Judge or Registrar has the discretion to remit, reduce, or refund an application fee under regulation 7(1 )(a) or (b), the applicant would need to demonstrate that they are unable to pay or ought not be called upon to pay the fee. You have stated that you "have no funds for fee" however you would need to provide evidence to support a claim that you or, as per our business rules, that the family group you represent are unable to pay. Under rule 4.10 of the Maori Land Court Rules 2011, I advise you that your application cannot be accepted for the reasons stated. Should you recast this application please ensure you attach the fee of$1400. [11] On 20 August 2014, the applicant wrote a letter to the Deputy Registrar repeating his request for the fee to be waived and providing an outline of his whanau circumstances, stating in summary that he and the family group he represents cannot and should not be called upon to pay the $ fee. Attached to the letter is a copy of a letter from Work and Income setting out a breakdown of the applicant's weekly income support. [12] The Deputy Registrar responded on 5 September 2014 noting the applicant's second request to have the fee waived and acknowledging the copy of the letter from Work and Income. In the letter, the Deputy Registrar refers the applicant to the letter of 5 August and further states:

5 2015 Chief Judge's MB 219 Once again you have requested that the fee be waived for each of the seven applications and have now attached a copy of a letter from Work and Income, dated 28 August 2014, giving a breakdown of your weekly income. The information you have provided has been reviewed and as per my of letter of 5 August I am not satisfied that you or the family group you represent are unable to pay (reg 7(2)(a)) or should not be called upon to pay (reg 7(2)(b)). I therefore decline to exercise my discretion to waive the fee and advise that under rule 4.10 your application cannot be accepted. Your documentation has been returned with this letter. As per rule 4.10(3) you are free to apply in writing for a review of the Registrars decision. The fee for this proceeding is $20. [13] On 30 September 2014, the applicant filed this application pursuant tor 4.10(3) of the Maori Land Court Rules 20 II seeking review of the Deputy Registrar's decision to refuse his seven applications and decline his request for a fee waiver. Applicant's submissions as to why the filing fee ought to be waived [I4] As noted, as well as submitting a copy of a letter outlining his financial support from Work and Income, the applicant submitted a summary of his whanau's financial situation. He provides details of the circumstances that would prevent his family from being able to pay. He states that of his father's siblings and their children affected by the orders which he seeks to have cancelled or amended: (a) His father had 13 children. Five are deceased. Of those who survive, one has a mortgage and is on a benefit; one is in a mental health unit and is on a sickness benefit; one lives in Sydney; one has full custody of three of his mokopuna and is on a benefit; one has recently been in hospital and is now staying with another sibling; one lives with her 5 year old mokopuna and is on a benefit; and one has full custody of two mokopuna and is on a benefit; (b) His father's eldest brother had four daughters: one is unwell and one lives on Hone Peeti Whakaeke's interests at Oue 2B3A4; and two who are on pensions; (c) His father's next brother had one son who is paralysed on his left side as a result of strokes and is on a sickness benefit;

6 2015 Chief Judge's MB 220 (d) The next brother had five children. They do not want to be involved in the application; (e) The next brother had two children who live in Melbourne and support the application; and (f) His father's sister had seven children and it is their father and his relatives who have presented what the applicant alleges to be false whakapapa to the Maori Land Court. [ 15] In his letter of 20 August 2014, the applicant states: In my knowledge of my family's current financial status, without being too intrusive of their personal financial details, I have nonetheless summarised why the family group I represent cannot and should not pay the $ fee. With the exception of Rauna Wirihana Mau, who lodged the 28 AT application from Melboume in May 2000 that was presented to the Court by Te Otinga Smith and Rangi Thompson, none of the family group that I represent initiated any of the applications that were not accepted. None of my family physically participated in these hearings all initiated by the Hau family. [ 16] Further, in his application for review of the decision to refuse his applications for fee waivers, the applicant states that he has summarised the financial situation of the family group he represents and: As a beneficiary I will never have the $ to file these applications, and the truth of my words that my family group cannot pay the fee can be checked against the New Zealand Government's Community Link Services, where Work and Income can confirm that my siblings are on benefits, and my cousins are on pensions and sickness benefits, and knowing my family, I havent had the heart to tell them to reach into their already empty pockets, and help me pay this $ , because none of this is their doing, they have had nothing to do with any of this... My family understand what the 7 applications entail, they have read the Minutes, and can see that the false genealogical connections I found in the above Minutes, and with our A application being accepted, I decided to follow the same process as I did on 12 June 2014, and filed the 7 applications on 24 July 2014.

7 2015 Chief Judge's MB 221 [ 17] As set out above, on 5 September the Deputy Registrar advised by letter that, after review, she was not satisfied that the applicant and his family group cannot pay the fee, or should not be called upon to pay the fee, and as she declined to exercise her discretion to waive the fee, the applications could not be accepted. [ 18] As noted, before making the seven s 45 applications in July 2014, the applicant made as 45 application on 13 June 2014 which was accepted and had the fee waived. This application covers many of the same issues as the applications that were declined. The law [19] Regulation 5(2) of the Maori Land Court Fees Regulations 2013 (the Regulations) states: "The couti must not accept an application initiating a proceeding unless the fee prescribed for that proceeding has been paid". [20] Rule 4.9 of the Maori Land Court Rules 2011 (the Rules) states: "If an application fee is payable, the application must be accompanied by the fee". [21] Rule 4.10 ofthe Rules states: 4.10 Registrar may refuse to accept proceeding or other document for filing (1) A Registrar may refuse to accept for filing a proceeding or other document for any of the following reasons: (a) it is illegible: (b) if in electronic form, it cannot be opened: (c) it does not comply with a requirement of these rules: (d) it is not in the correct form: (e) it is not accompanied by the prescribed fee: (f) it is not accompanied by other information or documents required by these rules to be filed with it. (2) The Registrar must advise the person filing the proceeding or other document that it is refused and must state the reason for the refusal. (3) The party or person filing a proceeding or other document that has been refused for filing by the Registrar may apply in writing for the review of the Registrar's decision by a Judge, and a Judge must then determine the matter. [22] Regulation 7 of the Regulations contains the power to refund, remit or reduce fees. It states: 7 Power to refund, remit, or reduce fees ( 1) A Judge or Registrar of the court may, if he or she is satisfied that 1 or more of the grounds in subclause (2) apply,- ( a) remit, refund, or reduce any fee payable under these regulations in respect of a proceeding; or (b) remit (in whole or in part) any outstanding fee incurred before the commencement ofthese regulations in respect of a proceeding.

8 2015 Chief Judge's MB 222 (2) The power in subclause (1) may be exercised on the following grounds: (a) the applicant is unable to pay; or (b) the applicant should not be called on to pay; or (c) due to lapse of time, or for any other reason, the fee is not recoverable. (3) The court or any Judge or Registrar may decline to hear or consider any proceeding in respect of which there are outstanding fees, whether the fees were incurred by the applicant or by any other person and whether the fees were incurred before the commencement of these regulations or not. [23] The Maori Land Court Fee Guidelines, dated 26 June 2013 (the Fee Guidelines), state: All requests for remission, reduction or refund of an application fee should be: Submitted on the required request form, which should be completed and signed by the applicant(s); and Accompanied by the required supporting documentation. In considering such a request, the Chief Registrar, Registrar or Deputy Registrar must be satisfied that the applicant is unable to pay or ought not to be called upon to pay the fee or, by reason oflapse of time or any other reason, the fee has become irrecoverable. In making a decision, the Chief Registrar, Registrar or Deputy Registrar should consider whether: A remit, reduction or refund is in keeping with the principles of Te Ture Whenua Maori Act 1993 as set out in section 2(2) and the objectives of the court as set out in section 17; The applicant has the ability to pay any fee; and The whanau, group, trust or incorporation that the applicant represents is able to pay the required fee - and should therefore be called upon to do so. Discussion [24] The applicant did not pay the requisite fee for filing seven s 45 applications. However he did submit forms requesting a fee waiver. Although I am unable to find such an application on file for one of the seven applications - A relating to Oue 2B3 and an order made on 29 November the other six applications, dated 25 July 2014, state that that the applicant has not been granted legal aid and depends on a Work and Income New Zealand benefit for his living expenses. He requests the waiver on the grounds that he has no funds to pay the fee. [25] In response to the first letter from the Deputy Registrar dated 5 August 2014, the applicant provided a summary of his own and his whanau's financial situation dated 20 August 2014, and a letter from Work and Income setting out his weekly income support to support his applications for a fee waiver. [26] In letters to the applicant dated 5 August and 5 September 2014, the Deputy Registrar refers to "business rules", stating that the applicant "would need to provide evidence to

9 2015 Chief Judge's MB 223 supp011 a claim that you or, as per our business rules, that the family group you represent are unable to pay". The authority under which the financial situation of the applicant's family may be assessed is set out the in the Fee Guidelines above. The Deputy Registrar's letter of 5 September states: The information you have provided has been reviewed and as per my of letter of 5 August I am not satisfied that you or the family group you represent are unable to pay (reg 7(2)(a)) or should not be called upon to pay (reg 7(2)(b )). [27] It appears that the applicant made the applications on his own volition, rather than as a whanau representative. He is the sole applicant and while the outcome of the application could affect his whanau, and there is mention of support from members of the whanau for the application, his initial applications do not state that he is making them on behalf of his whanau or in the capacity as their representative. [28] As noted, prior to the refusal of these seven s 45 applications, the applicant had successfully applied for a fee waiver on his June s 45 application. He submitted the application form requesting a fee waiver. On the form, dated 19 March 2014, he specifies that he has not been granted legal aid and depends on a Work and Income New Zealand Benefit for his living expenses. He requests the waiver, reduction or refund on the grounds that: My father paid $55.00 on 10 July 1989 for a section 452/53 application to the Chief Judge to amend a succession order, enabling my father and his 4 brothers to succeed to their grandfather Hone Peeti Whakaeke. It has been 25 years, and we are still waiting for an outcome to his application (re: WH), and I am unemployed. [29] The applicant did not and was not asked to provide a summary of his whanau's financial situation for that application. [30] While the applicant states that he followed the same process for the July applications as for the June one that was accepted, it is noted that the June application mentioned his father's 1989 application while the July applications did not. [31] Nonetheless, it appears that the July applications complied with the Rules, the Regulations, and the Fee Guidelines. The applicant submitted the required forms requesting a fee waiver, completed and signed by him. He also submitted a letter from Work and Income

10 2015 Chief Judge's MB 224 as supporting documentation for his applications. It should also be noted here that the July applications cover many of the same issues as the June application and they can and should be dealt with together. [32] Therefore, although making a decision on applications for fees to be waived involves an exercise of discretion, the refusal in this case does not appear to be justified on the grounds given. While the financial situation of the applicant's family is a relevant consideration under the Court's Fee Guidelines, in taking this into account the Deputy Registrar failed to acknowledge that the application was not made on behalf of the applicant's whanau and their financial status should not be weighed in coming to a decision on the application. In my view the applicant fulfilled the requirements for a fee waiver and no valid reason was given for the refusal of his applications. [33] At any rate, the applicant provided a summary of his whanau circumstances setting out their inability to pay the fees, including outlining their status as beneficiaries or pensioners and encouraging the Comt to verify the information with Community Link and Work and Income. From the information provided, it does not appear that the applicant's whanau group are able to pay the required fee, and therefore they should not be called upon to do so. [34] While the applicant could have conceivably provided more supporting documentation of his whanau's inability to pay the fee, this would have involved gathering documentation from around New Zealand and Australia, from people who are neither applicants, nor interested parties, but who may be affected by the outcome of the applications, and many of whom have expressed their support for the applicant in his pursuit of the applications. This class of people is wide, and it is not closed. The group could include any descendants of his father and his father's four brothers; the applicant's siblings and his cousins, and their children and grandchildren. It is unclear who out of this group would be considered to be represented by the applicant such that they should be considered liable to pay for the applications. It suggests that any person who is the member of a whanau group who may be affected by the outcome of a cancelled or amended order could or should be called upon to pay for an application seeking such cancellation or amendment. This seems like a very wide class of people to consider as possibly able to pay for an application in these circumstances.

11 2015 Chief Judge's MB 225 [35] In my view therefore, the grounds given for the decision to refuse the applications on the basis of non-payment of fees and to decline the request to waive the fees was not justified in terms of the Rules, Regulations, or the Fee Guidelines. Decision [36] The seven s 45 applications of 31 July 2014 should not have been refused on the basis of non-payment of fees and the request for the fees to be waived should not have been declined. The applications should now be accepted and the fees waived. [3 7] As noted, the July applications that were refused appear to cover many of the same Issues as the s 45 application made by the applicant in June 2014 (A ). Therefore when the July applications are accepted, they can all be researched together with the June application, one Report and Recommendation prepared for all, and they can all be heard together. [38] A copy of this decision is to go to all parties. Dated at Wellington this 1st day of April WW Isaac CHIEF JUDGE