TITO v THE MAORI LAND COURT [2022] NZHC 2542

TITO v THE MAORI LAND COURT [2022] NZHC 2542 [4 October 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2022-488-23[2022] NZHC 2542IN THE MATTER of He Whakaputanga O Te Rangatira 1835,Te Tiriti o Waitangi 1840, and Her MajestiesTrustee Ship and Fiduciary Duty to theBeneficial Owners to the Fee Tail Title toland deemed Crown land for certainpurposesIN THE MATTER of New Zealand Supreme Court Wakatu vsAttorney General SC 13/2015 [2017] NZSC17IN THE MATTER of Te Ture Whenua Maori Land Act 1993Preamble S2(3), S5, S19(1); the JudicialReview Procedure Act 2016, the Bill ofRights Act 1990 S27, and Imperial LawsApplication Act 1988 S5, S6BETWEEN KEVIN-JOHN TITO & TUI-DOROTHYTITOApplicantsAND THE MAORI LAND COURTRespondentJudgment:(On the papers)4 October 2022JUDGMENT OF BREWER JThis judgment was delivered by me on 4 October at 2.30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy Registrar[1] In my Judgment of 13 May 2022,1 I gave the Applicants a chance to regularisetheir pleading. The alternative was to strike it out as an abuse of the process of theCourt.[2] I made directions:(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), 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.[3] An amended statement of claim was filed.2 So too were an interlocutoryapplication without notice for interim injunction and a memorandum.[4] It fell to Gault J to decide whether the amended statement of claim complieswith r 5.17(1), which says that distinct causes of action founded on distinct facts mustif possible be stated separately and clearly. The Judge said:3[8] The applicants have made some attempt to identify distinctcomplaints, but the statement of claim in its amended form remains difficultto follow. The complaints (and the relief sought) appear to be:(a) challenging the establishment of the Ahu Whenua Trust by theMaori Land Court in 1998 (and seeking an order appointingtrustees);(b) challenging an interim injunction by Judge Ambler dated19 August 2011 (and seeking release of funds);(c) challenging an injunction granted by Judge Armstrong on31 January 2017 and upheld by the Maori Appellate Court on29 September 2017 (and seeking to overturn the injunctionand criminal or like charges against the applicants and theMaori Land Court);1 Tito v The Maori Land Court, Taitokerau District [2022] NZHC 1030.2 The first attempt at filing was made on 16 June 2022 but was unsuccessful because filing feeswere not paid and the documents were in an Eastlight folder. The documents were accepted forfiling on 21 June 2022.3 Tito v The Maori Land Court, Taitokerau District HC Auckland CIV-2022-488-23, 4 July 2022(Minute).(d) challenging Brewer J's judgment dated 21 May 2020 (andseeking immediate possession of land, quashing contempt ofcourt order, and charges against individuals including theRegistrar of the Maori Land Court);(e) challenging the process of Judge Wara (and seeking aninjunction to prevent final orders being made following ahearing on 31 March 2022).[9] Despite the attempt to separate the complaints, causes of action havenot been identified. I am no (sic) position to certify that the amendedstatement of claim complies with r 5.17(1), as required under Brewer J's orderbefore an application to lift the stay should be heard. Accordingly, the stay isto remain in place until further order of the Court.[10] I record that the proceeding appears to seek to relitigate matters thathave been determined in the Maori Land Court, in some cases many years ago.In one case, the matter was unsuccessfully appealed to the Maori AppellateCourt. Judicial review does not equate to a further right of appeal out of time.A challenge to a judgment of this Court is by way of appeal, not judicialreview. Seeking that charges be brought against individuals is not anappropriate form of relief. Most, if not all, of these complaints appear to haveno jurisdictional basis. Even if any did, the correct parties appear not to havebeen named, and it is inappropriate for the injunction application to be madeon a without notice basis. The requisite grounds raised for proceeding withoutnotice are not made out and there is no memorandum as required by r 7.23(3)of the High Court Rules 2016.[5] On 22 July 2022, the Applicants filed a memorandum addressing Gault J'sMinute and a memorandum "in support" of the interim injunction application.[6] As to the memorandum addressing Gault J's Minute, the Applicants say:To assist this court in determining a fair and just conclusion, the intention isnot to re-litigate matters, nor to further appeal matters held in the jurisdictionof the Maori Land Court and Maori Appellate Court, but to review orders andjudgments of the complaints identified in clause [8] of the Minute of Gault J,and those not identified, with distinct clarity and entirety, as follows:[8](a) The parties identified are: The Registrar, Maori Land Court v Mr lanDick of the Maori Development Board (Te Puni Kokiri), and the events aroundthe granting of an Ahu Whenua Trust and Trust Order, initiating part ofhistorical unlawful acts which took place in 1997/98.(i) Causes of action are:- breach of fiduciary duty;- fraudulent misrepresentation,- fraudulent conveyance of language, and- negligence(ii) The distinct facts are:- The order/Trust order is granted from an invalid meeting thatfailed to present a quorum of beneficially entitled owners;- Those in attendance of said meeting held on 15 October 1997 toestablish said trust did not have any "vested ownership" in theland, and ownership was misrepresented;- There was no debt remaining on the land to the MaoriDevelopment Board (Te Puni Kokiri), at the time of the meeting.- The Maori Land Court erred at law granting the constitution of anAhu Whenua Trust, and was negligent to investigating its ownadministrative record.- In paragraph 331 of Her Majesties Supreme Court of New Zealanddecision Wakatu vs Attorney General SC13/2015 [2017] NZSC17: There is no prerogative power in the Crown to interfere withproperty in times of peace. Interference without lawful authorityconstitutes the officers of the Crown trespassers. The Crown isalso liable in equity on the same basis as a citizen for breach oftrust or other equitable duty, including those to which it may besubject as a fiduciary.(iii) Remedy: Where there is cause for remedial action of exemplarydamages for oppressive, arbitrary and unconstitutional actions byservants of government; where conduct was 'calculated' for the unjustenrichment of another, and liability for unjust (or unjustified)enrichment or the concept thereof can be traced back to Roman lawand the maxim that "no one should be benefited at another'sexpense".Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu MaoriIncorporation, instead seek the law of restitution for the return of theirland in fee tail title, which is described and recorded in the MemorialSchedule of the Maori Land Court as Mangakahia 2B2 No:2A1A andNo:2G, to live out their cultural values for the benefit of Te ParawhauHapu Maori Incorporation.[8](b) The parties identified are: The Registrar, Maori Land Court v ArohaTito, John Andrews, in relation to an injunction order of A20110008150.(i) Causes of action are:- breach of fiduciary duty;- fraudulent conveyance of language, and- negligence.(ii) The distinct facts are:- false allegations by the applicants, Aroha Tito and John Andrewsand- failure to act for the benefit of the beneficially entitled owners bywithholding income derived from the use of the land, and- failure by either parties to progress the matter under r5.11 of theMaori Land Court Rules 2011, for outstanding applications, ofeleven (11) plus years.(iii) Remedy: "Every right when with held, must have a remedy."Kevin-John & Tui-Dorothy Tito of Te Parawhau Hapu MaoriIncorporation seek a High Court order to the Registrar, Maori LandCourt, Taitokerau, to cancel the injunction and the immediatelyrelease "accumulated funds" with held since February 2010, to: TeParawhau Hapu Maori Incorporation, so that the Hapu can rebuildstructures and reinstate the papakainga (homestead) that was removedfrom the land in 2008 and 2015.[8](c) The parties identified are: The Registrar, Maori Land Court v ArohaTito, Gordon Little, in relation to an "interim" injunction order -A20170001117, including the parties identified are: The Registrar, MaoriLand Court v Richard Booth, in relation to amending the said "interim"injunction order to "permanent" injunction order - A20190011369.(i) Causes of action are:- breach of fiduciary duty;- breach of trust;- fraudulent misrepresentation, and- fraudulent conveyance of language.(ii) The distinct facts are:- arbitrary interference by judicial decisions of prejudice andpreference, not fact or law in granting said injunction (a judicialdecision of individual discretion); -- omission of the fact that there is no renewal or extension of lease,or any valid contract to RC & SA Booth;- allowing a trustee, Aroha Tito to act alone;- fraudulent misrepresentation by applicants to injunction, as being"the trustees". Gordon Little is not a trustee;- fraudulent conveyance of language by Aroha Tito stating there isan approved lease that exists;- false allegations and defamation by the applicants, and- fraudulent misrepresentation by Richard Booth, who is not anapplicant of the injunction order, and is not an interested partywithout any lawful contract to the Trust, and has no authority toamend said order from interim to permanent.(iii) Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau HapuMaori Incorporation do not seek charges against the applicants of eachapplication, instead, a High Court order to the Registrar, Maori LandCourt, Taitokerau, for an immediate counter-injunction to stop andreverse the amendment to a "permanent" injunction order ofA20190011369, and to cancel the "interim" injunction order ofA20170001117, so that the hapu of Te Parawhau Hapu MaoriIncorporation can enter upon their land, as their inherent entitlement,without fear of arrest or imprisonment, and to live out their culturallives, while the outcome of this review is pending.[8](d) The parties identified are: The Registrar, High Court, WhangareiRegistry v Richard Booth, in relation to transmission of the Maori Land Court"permanent" injunction order for enforcement - CIV-2020-488-23(i) Causes of action are:- breach of fiduciary duty;- fraudulent misrepresentation,- fraudulent conveyance of language,- false imprisonment, and(ii) The distinct facts are:- The High Court, Whangarei Registry Registrar - Mr Paul Lincolngranted a "Possession order" of the Fee Simple title of land"contained in Certificate of Title 55A/1194" to Richard Booth,without any proof of claim to any contract;- No hearing was held.- The injunction order was not transmitted to the High Court by "theapplicants" of the injunction order;- The injunction both interim and permanent, protects RC & SABooth who have "no written contract", and is therefore "notenforceable" under the High Court Rules 2016;- fraudulent misrepresentation and conveyance of language byRichard Booth, who is "not an applicant" of the injunction order,and– fraudulent misrepresentation of an imprisonment order of the HighCourt by Richard Booth, Aroha Tito and Gordon Little.(iii) Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau HapuMaori Incorporation do not seek charges against the applicants, butseek recission of all High Court orders granted to Mr Richard Booth,Aroha Tito and Gordon Little; to reverse the Possession Order grantedto RC & SA Booth; to revoke all orders for Arrest, Contempt of Courtand Imprisonment of Kevin-John Tito, and to rescind said undertakingwhile incarcerated, including any fines, and reimbursement for alllegal costs incurred by Kevin-John Tito.An immediate Trespass order is sought against the applicant, RichardBooth to quit the land, so that Kevin-John & Tui-Dorothy Tito and TeParawhau Hapu Maori Incorporation can immediately return to theirland, to carry out cultural practices and values.[8](e) The parties identified are: The Registrar, Maori Land Court v ArohaTito, John Andrew, in relation to an application to remove and replace trustees- A20170002155.(i) Causes of action are:- breach of fiduciary duty;- negligence- fraudulent misrepresentation, and- fraudulent conveyance of language(ii) The distinct facts are:- The Maori Land Court confused the orders of the higher courts toappoint permanent trustees to the Ahu Whenua Trust undersection 220 of the Ture Whenua Maori Act 1993. Applicationsunder section 239 to remove and replace trustees were not requiredand were a further delay to achieving an outcome;- The Maori Land Court has breached its fiduciary duty as anadministrative court again in its discretionary decision from theZoom hearing held 31 March 2022, and dismissed an applicationon prejudice and preference, not fact or law;- The Court dismissed a valid meeting held 20 June 2021A20210008662, and with prejudice and preference made adiscretionary decision to accept an invalid meeting that was heldon 02 December 2021, without legal notice of 21 days given, failedto meet legal quorum requirements; an appointed facilitatoradvertised a meeting before the court order was issued appointingsaid facilitator, The application A20170002155 filed in 2017 oughtto have been dismissed in November 2020, and was void abnitio;- Failure by Mr Brandon Ward, Registrar for the Maori Land Court,Taitokerau to progress the application A20210008662 filed23 June 2021, where legal process was denied and a just outcomeunattainable. This was administrative interference, andnegligent.- False allegations made to the New Zealand Police by CourtRegistrar, Brandon Ward, to discriminate against Kevin-John &Tui-Dorothy Tito, and to affect future proceedings, Mr Ward fileda Trespass order against them.(iii) Remedy: Kevin-John & Tui-Dorothy Tito of Te Parawhau HapuMaori Incorporation do not seek charges against the applicants, butinstead seek a High Court order to the Registrar of the Maori LandCourt, Taitokerau, striking out all outstanding applications fromAroha Tito and John Andrew, and appointing the permanenttrustees of application A20210008662 under section 220 of the TureWhenua Maori Act 1993, andA High Court order to revoke the Trespass Order made by theRegistrar of the Maori Land Court, Brandon Ward, and any otherissues of any court initiated by said Trespass Order; and finally,To grant the urgent injunction that has been filed with this applicationto the Queens High Court of New Zealand to prevent furtherirreparable harm and injury to Te Parawhau Hapu Maori Incorporationby further FINAL ORDERS of the Maori Land Court.[7] The application (without notice) for interim injunction appears to relate to threeapplications heard in the Maori Land Court on 31 March 2022 by Judge TM Wara. Ina Minute dated 1 April 2022, the Judge recorded the outcome of the hearing and setout the orders made. Essentially, the Judge appointed four people as responsibletrustees of the Ahu Whenua Trust in question, in replacement of all existing interimtrustees, and vested in them the Trust's land and assets. The order sought is notspecified. But at 3(c) there is the following:Primarily, Kevin-John & Tui-Dorothy Tito do not want the Final Orders to bemade by the Maori Land Court, but more importantly, the release of any fundsheld in Trust until Kevin-John & Tui-Dorothy Tito have had said applicationsand all orders of the Maori Land Court currently being reviewed before theHigh Court CIV-2022-488-23.[8] In the supporting memorandum of 22 July 2022, the Applicants say:[3] The application for interim injunction is sought to prevent the MaoriLand Court from doing irreparable harm and injury to the beneficially entitledowners of the land, pending the outcome of a judicial review intodeterminations already made that have had a detrimental affect over a periodof more than two decades.[4] The grounds are clarified as follows:a) On 31 March 2022, the Maori Land Court did hear three (3)applications by Zoom. Two of the said applications have beenoutstanding for between five (5) years – A20170002155 andeleven (11) years – A20110008150. This is not acceptable.Under r 5.11 of the Maori Land Court Rules 2011 –Outstanding applications, the Registrar had failed to progressthese applications, and to contact the parties, Aroha Tito andJohn Andrews, to set down a hearing for final determination.These applications were not forwarded to the Judge of theCourt by the Registrar for final determination.b) A20210008662 – This application was filed by Kevin-JohnTito on 23 June 2021. It was accepted for hearing on 28 June2021 and was legally convened. A hearing date was to be setdown, but was with held by the Registrar, Mr Brandon Ward.(Marked "B" in Interlocutory Application).c) All applications were heard on 24 November 2020. See(Marked "I" in Interlocutory Application). No court orderappointing a facilitator was issued to all parties from thishearing.d) The legal requirements of 21 days notice was not met, and isnot legally convened. See (Marked "L" in InterlocutoryApplication).e) The court order appointing said facilitator was issued18 November 2021, (Marked "L1" in InterlocutoryApplication) 14 days before the meeting, and after facilitatorhad already placed advertisements on 13 November 2021.This is out of order.f) The meeting held did not have seven (7) beneficially entitledowners present or legally represented, and failed to meet thequorum requirements in the Trust order (Marked "G" inInterlocutory Application).g) The Court has "erred at law" with its administration of saidapplications, in dismissing a valid application at b) above,by exercising a discretionary decision which was arbitraryinterference and based on prejudice and preference, ratherthan fact or law.h) After all of the delays in obtaining a just outcome movingforward, the reality is that the higher courts had ordered theappointment of permanent trustees to be made at an AGM,and to replace the interim trustees under section 220 of theTure Whenua Maori Act 1993.i) This did not mean that separate applications under section239 of the Ture Whenua Maori Act 1993, to remove andreplace trustees was needed to be filed to achieve this at all.All that was required was a minute from an AGM with theappointed permanent trustees to be produced to the Court.j) The injunction is made without notice, as any further delay isa delay with natural justice.[9] Decisions of the Maori Land Court and the Maori Appellate Court areamenable to judicial review. But every final decision of the Maori Land Court isappealable to the Maori Appellate Court and from there to the Court of Appeal. Itseems that at least a part of the process identified by the Applicants has been referredto the Court of Appeal.[10] Decisions of this Court and of the Court of Appeal are not amenable to judicialreview.[11] The Applicants have done their best. But what they seem to want, in the guiseof judicial review, is to have this Court reconsider decisions of fact and law made byCourts of specialist jurisdiction dating back to 1998. It is unclear whether rights ofappeal have been exhausted.[12] In my view, in the absence of clear pleadings complying with the rules and inthe absence of clear jurisdiction, it would be an abuse of the process of the Court toembark on such a wide-ranging inquiry. There would effectively be no limits to it. Iagree with the comments of Gault J at [10] of his Minute, which I quote at [4] above.[13] I appreciate that the Applicants are lay litigants. But that does not excuse themfrom compliance with the rules which are designed, in part, to ensure that issues andjurisdiction are properly defined.[14] I make an order striking out the proceeding.[15] I point out to the Applicants that they have the right to appeal this decision.________________________________Brewer J