TITO v MĀORI LAND COURT, TAITOKERAU [2022] NZCA 554

TITO v MĀORI LAND COURT, TAITOKERAU [2022] NZCA 554 [17 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA497/2022[2022] NZCA 554BETWEEN KEVIN-JOHN TITO AND TUI-DOROTHYTITOApplicantsAND MĀORI LAND COURT, TAITOKERAURespondentCourt: Goddard and Clifford JJCounsel: Applicants in personNo appearance for RespondentJudgment:(On the papers)17 November 2022 at 10 amJUDGMENT OF THE COURTThe application for transfer is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application to transfer proceedings from the High Court to this Court.Background[2] In April 2022 Mr Kevin-John Tito and Ms Tui-Dorothy Tito (the applicants)filed an application for judicial review in the High Court. In general terms it claimedthe Māori Land Court and the High Court have no jurisdiction to give judgments inrespect of the whenua. It recited aspects of the historical narrative relating to theBritish settlement of New Zealand and the government's dealings with native title.The only relief claimed seemed to be for an "urgent and immediate injunction" againstdecisions and orders of the Māori Land Court, the Māori Appellate Court and theHigh Court at Whangarei. Over 200 pages of exhibits accompanied the application.[3] The High Court Registrar referred the application to Brewer J believing it wasan abuse of process. On 13 May 2022, Brewer J considered the application did notsufficiently identify the decisions which the applicants sought to review. The Judgeordered (noting he had not heard from the applicants):1(a) The proceeding is stayed until further order of the Court.(b) Documents for service are to be kept by the Court and not be serveduntil the stay is lifted.(c) No application to lift the stay should be heard until the applicants filean amended statement of claim which complies with r 5.17(1),2 withsuch compliance having been first certified by a Judge.(d) If no amended statement of claim is received by 16 June 2022 theproceeding will be deemed to be struck out without further order ofthe Court.[4] On the final day provided, 16 June 2022, the applicants attempted to file anamended statement of claim, an interlocutory application without notice for an interiminjunction, and a memorandum. After initially being rejected by the Registrar, thosedocuments were accepted for filing on 21 June 2022.[5] On 4 July 2022, the matter was referred to Gault J to deal with (i) whether theproceeding had been automatically struck out under the terms of Brewer J's judgmentand (ii) whether the amended statement of claim was compliant.3 He concluded:(a) The applicants' proceeding was not struck out, as Brewer J's judgmenthad used the word "received" and not "filed" by 16 June 2022.41 Tito v Māori Land Court, Taitokerau District [2022] NZHC 1030 [Brewer J judgment] at [19](footnote added).2 Rule 5.17(1) of the High Court Rules 2016 provides that distinct causes of action founded ondistinct facts must if possible be stated separately and clearly.3 Tito v Māori Land Court, Taitokerau District HC Whangārei CIV-2022-488-23, 4 July 2022.4 At [6].(b) However, although the applicants had attempted to identify distinctcomplaints, the amended statement of claim remained difficult tofollow. Causes of action had not been identified. Accordingly, Gault Jwas not in a position to certify the amended statement of claimcomplied with r 5.17(1). So the stay was to remain in place.5[6] On 22 July 2022 the applicants filed further memoranda in the High Courtseeking to clarify matters, including identifying the parties sued and causes of action.[7] The applicants state that the High Court Registry on 19 August 2022 advisedthem that the file was referred to Brewer J for review. As best as we can tell, that iswhere matters stand in that Court.This application[8] The applicants have now filed an application to transfer the High Courtproceeding to this Court. As they put it:Given the fact that the injunction application was officially filed on 16 June2022; and required urgency against final orders of the Māori Land Court froma hearing held on 31 March 2022; and the review application has been stayedby Justice Brewer since 13 May 2022, Te Parawhau Hapū Māori Incorporationis not able to carry out cultural values and practices under tikanga on theirwhenua. We seek an order that the application is removed to the QueensCourt of Appeal of New Zealand for natural justice, and Justice Brewer isdisqualified and removed.[9] The applicants make that application under rr 10.15–10.16 of the High CourtRules 2016. Reliance on those provisions is misplaced. They allow the High Courtto order the determination of "any question separately from any other question, before,at, or after any trial" and to order its removal to this Court. The applicants formulatetheir question as being whether Brewer J is conflicted. But, as those provisions makeclear, whether there is a separate question for determination and whether it be removedto this Court are matters for the High Court.5 At [8]–[9].[10] Rather, the jurisdiction to transfer civil proceedings from the High Court tothis Court is found in s 59 of the Senior Courts Act 2016. To order transfer, this Court"must be satisfied that the circumstances of the proceeding are exceptional".6[11] That is clearly not the case here. Whilst there is no authority on whether aproceeding stayed for the reasons in this case is capable of being transferred, inpractice such a proceeding is highly unlikely, if ever, to be transferred. The proceedinghas been stayed because the applicants have failed to formulate their claims to therequired standards. It has thus far amounted to an abuse of process.7[12] Nothing in the material before the Court demonstrates the proceeding isexceptional, and none of the examples of exceptional circumstances listed in s 59(3)are engaged.8 The application is declined.Result[13] The application for transfer is declined.6 By way of example, in 2020 Kós P declined to transfer the Borrowdale litigation to this Court,despite the considerable public importance of that case: see Borrowdale v Director-General ofHealth [2020] NZCA 156, (2020) 25 PRNZ 184.7 See Brewer J judgment, above n 1, at [17], where he said the statement of claim at that point wouldhave been an abuse of process; and the High Court Rules, r 15.1.8 Those are: (a) the party to the proceeding intends to submit that a relevant decision of the Courtof Appeal should be overruled; (b) the proceeding raises an issue of considerable publicimportance that—(i) needs to be determined urgently; and (ii) is unlikely to be determined urgentlyif the proceeding is heard and determined by both the High Court and the Court of Appeal: (c) theproceeding does not raise a question of fact or a significant question of fact, but raises a questionof law that is the subject of conflicting decisions of the Court of Appeal.