|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 20 March 2023
|
|
|
|
BETWEEN |
TE WAKAMINENGA O NGA HAPU KI WAITANGI Appellant |
|
|
AND |
WAITANGI NATIONAL TRUST BOARD Respondent |
|
Hearing: |
21 February 2023 |
|
Court: |
Gilbert, Ellis and Davison JJ |
|
Counsel: |
W U Ripia in person, for Appellant No appearance for Respondent |
|
Judgment: |
14 March 2023 at 2 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
[1] Messrs Ripia and Epiha, on behalf of the appellant, have brought an appeal under r 5.35B(3) of the High Court Rules 2016 (the HCR) against a decision of the High Court under r 5.35B(2) to strike out their proceeding without service, as an abuse of process.[1]
The relevant rules
[2] Rules 5.35A and 5.35B were inserted into the HCR as from 1 September 2017. They respectively provide:
5.35A Registrar may refer plainly abusive proceeding to Judge before service
(1) This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.
(2) The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.
(3) However, the Registrar may,—
(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.
5.35B Judge’s powers to make orders and give directions before service
(1) This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.
(2) The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a) the proceeding be struck out:
(b) the proceeding be stayed until further order:
(c) documents for service be kept by the court and not be served until the stay is lifted:(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
(3) Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.
(4) A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.
(5) See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.
What happened in this case
[3] Mr Ripia explained to us that he and Mr Epiha had had constructive discussions with Registry staff in the Auckland High Court with a view to ensuring that the appellant’s statement of claim complied with the HCR. That is evident from the drafting of the claim itself, which follows a format suggestive of a template or form whose headings mirror the requirements of the HCR.
The statement of claim
[4] Although we do not have a copy of the intituling page of the statement of claim as filed, it seems plain from the High Court minute striking out the claim that the named parties (plaintiff and defendant) were the appellant and respondent respectively in this appeal. The intituling also records that the claim was brought under the:
... Waitangi National Trust Board Act 1932
Waitangi National Trust Board
Act 1932 (UK) (23 Geo. V. 1932 No. 28.)
Old Land Claims: SO 930A James Busby
Esq
1834 to 1839. – Crown grant: 9374 acres; 1871
The Land Claims
Arbitration Act 1867 [Repealed]
[5] We set out the remainder of the statement of claim more or less in full:
The Plaintiff(s) Claims: James Busby Esquire, should have been gifted a parcel of land by the Chiefs at Waitangi to establish and build a residence for himself and his family to fulfil his sole statutory function as stipulated in his 1833 Instructions.
From April 1833 to June 1834 Busby initiated his unsanctioned land acquisitions.
Background to Cause(s) of Action
Here specify the facts, in
chronological order, that led to your cause/s of action Note: a cause of action
is your legal ground for
bringing your action against the defendant/s
Re: 1832 relayed orders of Lord Ripon for Instructions to James Busby Esq. 1833. Re: 1834 to 1839 ; James Busby had unwittingly entered into a series of nine separate land transactions comprising of nine written deeds with various Chiefs at Waitangi. None of the deeds are lawful because Busby sort the advice and he relied on the pre-empted actions of the Missionaries of the Church Missionary Society regarding their own unwitting, unsanctioned land purchases— ie; De-facto Trust Deeds.
In 1871 James Busby was awarded 9374 acres at Waitangi and he died in England on July 1871. His son’s [sic] sold the estate to John Harris in 1882. The land went into decline and was subject to several mortgages. One of the mortgages was to Busby's sons and in mid-1900 the land was sold from under Harris in a mortgagee sale. Mr Irving’s land is not clear from research to date. The land was put up for auction and the price went for £1,400. The estate was sold back to James Busby’s sons James and William Busby. They then on‑sold the estate again at the end of 1900 to Mr Gordon Eustace Hewin.
In 1909 Hewin divided the Waitangi estate where a portion was acquired by a Taranaki consortium: Charles Jones, James Sanderson, David Wylie, John Roy, Walter Bewley and Francis Fagan. The balance of the land in the east and what is now the Waitangi National Trust land and all of the Waitangi Endowment Forest, comprised 2447 acres was retained by Hewin. In 1909, Hewin cut out a 100 acre parcel of land and Busby’s house was sold to Francis Fagan where he subdivided it. Hewin retained 2345 acres of his claim.
In 1916 Hewin sold 2330 acres including the section around Busby’s old house to Matthew Whitelaw for £11,000. Whitelaw got into financial difficulties in the 1920s (Hewin held one of two large mortgages registered against Whitelaw's title). In 1928 he sold a piece of land comprising of 84 acres to Martha Buckby to stay afloat.
From Busby to Bledisloe. 1932; Mortgagee sale: Whitelaw had defaulted on his loan.
Whitelaw acquired a loan of £5000 from the Bank of New South Wales. In April 1932, the Bledisloe’s [sic] paid £6,200 to the Bank of New South Wales for the 2,333 acres at Waitangi.
The land was then gifted to the nation under a trust set up by Lord Bledisloe, and the establishment of the Waitangi National Trust was provided for in British legislation later that year, (23 Geo V 1932 No. 28) and in New Zealand legislation.
Causes of action
Here specify your causes of action
James Busby made nine individual Deeds of Sale for various lands at Waitangi from 1834 to 1839. The pretensions made in the nine trust deeds are unfounded.
The Statutory Test
There is no British Authority to confer any such transactions regarding land
purchases by British subjects in New Zealand.
The Deeds were not lawful or legal in accordance with British statute law; 1834 - 1839.
Application for Relief
The whenua land is to be returned to the ‘Confederation of Hapu ki Rangatira o Te Wakaminenga o Nga Hapu ki Waitangi’ in accordance with the relevant Statute Authority.
...
Filing and referral to the Judge
[6] Although not entirely clear, we understand that appellant filed this statement of claim in the Auckland Registry of the High Court who then forwarded it to the Whangārei Registry. That was because (as will be seen shortly) the named defendant is the Waitangi National Trust Board and so Whangārei is the proper office of the Court in terms of r 5.1.
[7] We assume that the Registrar in Whangārei then formed the view that the proceeding was plainly an abuse of process and referred it to a judge, under r 5.35A of the HCR.
The decision under r 5.35B
[8] We also set out the relevant High Court minute more or less in full. After noting the referral under r 5.35A, it recorded:[2]
[2] Rule 5.35B codifies a Judge’s authority to prevent a proceeding which is plainly an abuse of the process of the court from tying up the resources of the court which should be employed dealing with regular proceedings.
[3] In this case the statement of claim does not comply with rr 5.3 to 5.16.
[4] Further, there is nothing upon which the court could rule. At the beginning of the “statement of claim” is the following:
The Plaintiff(s) Claims: James Busby Esquire, should have been gifted a parcel of land by the Chiefs at Waitangi to establish and build a residence for himself and his family to fulfil his sole statutory function as stipulated in his 1833 Instructions.
[5] Under the cause of action there is the following:
James Busby made nine individual Deeds of Purchases for various lands at Waitangi from 1834 to 1839. The pretensions made in the nine trust deeds are unfounded.
[6] Finally, the following relief or remedy is sought:
The whenua land is to be returned to the ‘Confederation of Hapu ki Rangatira o Te Wakaminenga o Nga Hapu ki Waitangi’ in accordance with the relevant Statute Authority.
[7] Attached to the statement of claim are many documents of an historical nature.
[8] I direct the proceeding be struck out as an abuse of process,
[9] In compliance with r 5.35B, the Judge then advised the appellant of their right of appeal against his decision.
Plainly an abuse of the process of the court?
The history of rr 5.35A and 5.35B
[10] In considering the proper ambit and application of rr 5.35A and 5.35B it is instructive to review the history of the rules and the process leading to their promulgation.
[11] Under earlier iterations of the HCR, a registrar could only refuse documents for filing where they failed to comply with the formal requirements of the HCR. The exercise of that power was reviewable by a judge.
[12] Although it was generally accepted that High Court judges could exercise their inherent power to strike out plainly abusive proceedings at the filing stage, there was concern about the lack of clarity and process around that.
[13] Rules 5.35A–5.35C were intended to address these issues. In response to access to justice concerns raised by the New Zealand Law Society in the consultation phase, the Rules Committee proposed that the new rules would apply only to proceedings that were “plainly frivolous, vexatious, or an abuse of the process of the court”,[3] and later simply to proceedings that were “plainly an abuse of the process of the court”.[4] Notably absent from the rules as finally promulgated was any reference to the grounds referred to in r 15.1(a) which enables the Court to strike out all or part of a pleading if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the proceeding. These rules serve different functions. A genuinely brought claim or cause of action that may later be shown to be misconceived or legally untenable and which may be struck out under r 15.1 is not, in and of itself, abusive for the purposes of r 5.35B.
[14] The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute.[5] Lord Bingham described abuse of process as simply being “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.[6] Courts have a duty to prevent such abuse.
[15] The power under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.
This case
[16] In the present case, we accept that the claim sought to be advanced by the appellant may later be shown to be untenable as a matter of law. We do not know, for example, whether the named appellant is a legal entity capable of bringing proceedings. We do not know whether the claim might be defeated by indefeasibility of title. The court would require further information (most likely from the named defendant) before it could safely reach such conclusions.
[17] We have no reason to doubt that the appellant in this case is genuine in their grievance. The statement of claim makes a decent attempt at setting out the historic facts relied on, the nature of the claim advanced (that various trust deeds relating to the land in question were fraudulent) and the relief sought (the return of the land). Claims challenging the legality of land transfers in the 19th century are far from unheard of in this country.[7] What is entirely missing here is any reasonable basis for suggesting that the appellant is seeking to use the processes of the court for some ulterior or improper purpose. It is not for the court at the very preliminary and pre‑service stage to take it upon itself to form the view that such a claim discloses no reasonable cause of action or is untenable.
[18] It follows that we consider the Judge was wrong to regard the appellant’s proceeding as plainly abusive of the process of the court and wrong to strike it out under r 5.35B. That order is quashed. The claim is reinstated and is to be released for service on the named respondent. Matters can then progress from there in the High Court.
Result
[19] The appeal is allowed.
[20] The High Court decision is set aside and the proceeding is reinstated.
[21] The Registrar is to release the notice of proceeding and attached
memorandum for service.
[1] Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board HC Whangārei, 3 August 2022.
[2] Above n 1.
[3] The Law Society nonetheless remained firmly opposed to these new rules on the grounds (amongst others) that the amendment still conflicted with s 27 of the New Zealand Bill of Rights Act 1990.
[4] Proceedings that are properly termed frivolous and vexatious will, nonetheless, generally be an abuse of process.
[5] Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1982] AC 529 at 536 per Lord Diplock; and Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [21].
[6] Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
[7] See, most notably, Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2023/63.html