WHAANGA V SMITH & ORS AS TRUSTEES OF THE ANEWA TRUST CA214/2013 [2013] NZCA 606

WHAANGA V SMITH & ORS AS TRUSTEES OF THE ANEWA TRUST CA214/2013 [2013] NZCA 606 [3 December 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA214/2013[2013] NZCA 606BETWEEN MERE JOSLYN WHAANGAApplicantAND CASSINO EGYPT SMITH, JEFFERSONPOWDRELL, RAYMOND DAVIDGREENING-CROMBIE, RUKANIANIA,TOM TE KAHU, TUMANAKOWALTER WILSON AND WHETIMANUEL AS TRUSTEES OF THEANEWA TRUSTRespondentsCourt: Wild, White and Miller JJCounsel: T H Bennion for ApplicantM Lawson for RespondentsJudgment:(On the papers)3 December 2013 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The applicant is to bring her appeal by the close of Friday 20 December 2013.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] This is an application for an extension of time to appeal. It is governed by r 29A of the Court of Appeal (Civil) Rules 2005. Ms Whaanga seeks to appeal against a judgment of the Māori Appellate Court delivered on 12 February 2013.1[2] In the judgment sought to be appealed the Māori Appellate Court dismissed an appeal from a judgment of the Māori Land Court given on 5 June 2012.2 The latter judgment declined an application by Ms Whaanga and her late sister, under s 287(1) of the Te Ture Whenua Maori Act 1993. Their application sought an order for partition of 121.4 hectares (300 acres) called the "Rata farm" from the Anewa block into which it had been amalgamated by order of the Māori Land Court on 24 October 1967. The Rata farm was owned by Ms Whaanga's father, the lateTe Hore Epanaia Whaanga. He consented to its amalgamation into the Anewa block.Ms Whaanga's great grandfather, Puhara Timo, had been the principal owner of the block of land (Tutuotekaha 1B5) out of which the Rata farm was partitioned.3 So Ms Whaanga's whanau interest in Rata farm can be traced through Native LandCourt records back to the 1860s.[3] The respondents are the trustees of the Anewa Trust which controls the Anewa block. The block comprises 1911.4 hectares (4,721 acres), about 53 per cent of which is farmed by the Trust. Rata farm (despite its name) is mainly in bush and scrub, not part of the land farmed by the Trust, and is situated roughly in the middle part of the block.[4] Ms Whaanga's partition application was originally dismissed by the Māori Land Court in a decision given on 14 December 2010.4 Ms Whaanga appealed successfully to the Māori Appellate Court. In a judgment it delivered on 19 August 2011 that Court revoked the Māori Land Court's dismissal of Ms Whaanga'spartition application and directed the Māori Land Court to rehear that application.5Judge Coxhead gave both decisions of the Māori Land Court. However, the two1 Whaanga v Smith (2013) Māori Appellate Court MB 45 (2012 APPEAL 6) [MAC decision].2 Whaanga (2012) 22 Tairāwhiti MB 167.3 This somewhat simplifies the complex historical position.4 Whaanga 11 Tairawhiti MB 46 (11 MB 46).5 Whaanga v Niania (2011) Māori Appellate Court MB 428 (2011 APPEAL 428).decisions of the Māori Appellate Court were given by entirely differently constituted courts.[5] The present application is not opposed by the respondent trustees, who have also indicated an intention not to participate in the substantive appeal, should leave be granted. We comment on that indication in [12] below.[6] The now well established considerations on a r 29A application are:6(a) the length of the delay in seeking leave to appeal, and the reasons for it;(b) the parties' conduct;(c) the extent of prejudice caused by the delay;(d) the prospective merits of the appeal; and(e) whether the appeal raises any issue of public importance.[7] As to (a), Ms Whaanga filed her application 23 working days out of time, on 12 April. Ms Whaanga's mother had died on 24 February, and Ms Whaanga had the main responsibility for organising the tangi, and for all the other matters that neededto be attended to following her mother's death. That provides a ready explanation for the delay, which is anyway quite short. The respondents obviously accept that.[8] As to considerations (b) and (c), the respondents do not suggest there isdisqualifying conduct on Ms Whaanga's part, and they do not contest her submissionthat the delay has not caused them any prejudice. That takes us to considerations (d)and (e). In his 19 July memorandum, the respondents' solicitor states "the trustees believe that the [applicant's] case has no merit". Given their intention to abide the Court's decision if leave is granted, we gather the respondents do not consider the appeal raises any issue of public importance.6 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.[9] Beyond the comments that follow, we prefer to say nothing about the prospective merits of the appeal, or whether it raises an issue of public importance. Ms Whaanga could have appealed to this Court as of right, but for her short, entirely explicable, delay.7 It is on that basis that we grant leave.[10] We offer three comments about the substantive appeal. First, we commend to Ms Whaanga and her advisers careful consideration of the respondents' submissionsas recorded in [12](c)–(g) of the Māori Appellate Court's 12 February 2013 judgment, and of the Court's decision on those submissions in [32], [33] and [37].8The Court was obviously not satisfied that Ms Whaanga and her whanau could not achieve everything they proposed for the Rata farm (short, of course, of having it vested in their own names) without a partition. It was that conclusion that stoodfirmly in Ms Whaanga's way, given the mandatory terms of s 288(4)(a) of the Act:The Court must not make a partition order unless it is satisfied that the partition order–(a) is necessary to facilitate the effective operation, development, and utilisation of the land;[11] Second, given that Ms Whaanga's appeal involves both findings of fact andstatutory interpretation, we draw attention to this Court's comment in Kameta v Nicholas:9[10] In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court acknowledged an appellate hesitancy to interfere where the lower court had a particular advantage in making findings of fact, or of fact or degree, while recording of course that the appellate court retains the ultimate responsibility of making its own assessment of the merits.10 In an appeal such as this which raises a question of statutory construction we must reach our own view.11 Nevertheless we are satisfied that the Maori Appellate Court enjoyed a particular advantage in determining the key issues by virtue of its expertise. We are satisfied also that factor merits respect when addressing the arguments advanced in support of this appeal.7 Ms Whaanga's right of appeal is provided by s 58A of Te Ture Whenua Maori Act 1993.8 MAC decision, above n 1.9 Kameta v Nicholas [2012] NZCA 350, [2012] 3 NZLR 573.10 Citing Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].11 Citing Attorney-General v Māori Land Court [1999] 1 NZLR 689 (CA); McGuire v Hastings District Council [2002] 2 NZLR 577 at [7].[12] Third (and we direct this comment to the respondents), we note that the Māori Appellate Court much regretted that the respondents had not attended the first hearing before the Māori Appellate Court on 10 May 2011. This is what it said in its second (12 February 2013) judgment:12 The previous Anewa decision must be seen as an unusual decision heardin unusual circumstances. It was very unfortunate that the trustees of the block did not attend the hearing of that appeal, so that the Māori Appellate Court did not have the benefit of considered submissions putting the case inopposition. In her 2 October minute, and assuming the present application was granted, French Jrecorded "the Court's strong preference for the trustees to take an active part in the hearing". We endorse that, and invite the trustees to reflect on the comments ofthe Māori Appellate Court just set out. A one-sided hearing is never a good hearing.Result[13] The application is granted.[14] The applicant is to bring her appeal by the close of Friday 20 December 2013.[15] Given the respondents' neutral stance on the present application, no order forcosts is appropriate.Solicitors:Bennion Law, Wellington for ApplicantLawson Robinson, Napier for Respondents12 At [38].