PARAHA v DAWSON & ORS [2023] NZCA 148

PARAHA v DAWSON & ORS [2023] NZCA 148 [4 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA534/2022[2023] NZCA 148BETWEEN TE AHO PARAHA (also known as SirChristian, Christian Crown, ChristianSurnamecrown or Christian Aio) ANDDOREEN PARAHAApplicantsAND MARIA DAWSON, ROBERT FOX,PAORA PAATU HUNIA AND NEWTONTHEODORE KAREKARE AS TRUSTEESOF THE KAWERAU A4 AHU WHENUATRUSTRespondentsCourt: Gilbert and Courtney JJCounsel: Applicants in personN R Coates and A A Grant for RespondentsJudgment:(On the papers)4 May 2022 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicants must pay the respondent costs calculated for a standardinterlocutory application on a band A basis, and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] This is an application for leave to appeal against an interlocutory judgment ofthe High Court declining to stay execution of a final judgment of the Māori Land Courtthat has not been appealed. For the reasons set out below, the application must bedeclined. In short, the high threshold that must be satisfied to justify the grant of leaveto appeal against an interlocutory judgment is not met. The proposed appeal has norealistic prospects of success in the present circumstances where the final judgment,execution of which is sought to be stayed, has not been appealed.Background[2] The respondents are the trustees of the Kawerau A4 Ahu Whenua Trust(the Trust) who administer on behalf of 480 beneficiaries a large block of Māorifreehold land situated in Kawerau (the land). The respondents are the registeredproprietors of the land.[3] The applicants commenced occupation of the land in January 2022, withoutthe authority of the trustees, bringing with them various items including a tent,caravan, vehicles, shipping container and fruit trees. The applicants reject the trustees'authority over the land and their legal title (and the concept of legal title in general).They assert that they are the descendants of the original owners of the land's parentblock and thus have an inherent right to live on the land.[4] These arguments did not find favour in the Māori Land Court. In a judgmentdelivered on 25 March 2022, the Māori Land Court granted the respondents'application for a permanent injunction pursuant to s 19 of Te Ture Whenua Maori Act1993 (the Act) restraining the applicants from residing on the land and requiring themto remove all objects and structures that they had taken onto and erected on the land.1The Court was satisfied that the trustees had the right to determine the use andoccupation of the land and the authority to administer the land on behalf ofthe beneficial owners.2 The applicants were trespassers, having entered onto andremained on the land without lawful justification.3 The Court accepted therespondents' arguments that the circumstances of the trespass were more than minorgiven the applicants were erecting structures and living on the land free of charge andwithout consent, despite numerous requests for them to vacate. The applicants'1 Dawson v Crown – Kawerau A4 (2022) 272 Waiaiki MB 191 (272 WAR 191).2 At [37].3 At [33].occupation hindered the trustees' ability to administer the Trust and develop the landfor the benefit of its beneficial owners. An order by way of permanent injunction wasthe only effective remedy.4[5] The applicants did not comply with the Māori Land Court order, nor have theyappealed against it.[6] On around 24 May 2022, the Chief Judge of the Māori Land Court transmitteda copy of the injunction to the Registrar of the High Court pursuant to s 85 of the Actto enable the High Court's enforcement powers to be accessed. An order was dulysealed in the High Court on 3 June 2022.5[7] The applicants then applied to the High Court for a stay of execution ofthe order. This application was declined by Moore J in a results judgment deliveredon 16 June 2022 for the reasons set out in his reasons judgment delivered on 20 June2022.6 The Judge found that a stay was not necessary to prevent a miscarriage ofjustice.7 He rejected the applicants' arguments, including that the injunction was inbreach of tikanga and their customary right to occupy as descendants of the originalowners. This was effectively a challenge to the correctness of Māori Land Court'sjudgment and the proper course would be to appeal that decision, not simply to applyfor a stay of its enforcement. He noted that the High Court was seized of the mattersolely for the purpose of enforcing the order made in the Māori Land Court and hetherefore could not accept that the trustees were not the lawful owners of the land.8[8] The Judge also rejected the applicants' argument that the laws of New Zealanddid not apply to them. He observed that this submission sat somewhat awkwardlywith the relief being sought by the applicants themselves. Accepting the submissionwould render the Court unable to determine the applicants' application. In any event,4 At [34]–[40].5 Paraha v Dawson [2022] NZHC 1443 [High Court reasons judgment] at [13]–[14].6 Paraha v Dawson [2022] NZHC 1420 [High Court results judgment]; and High Court reasonsjudgment, above n 5.7 High Court reasons judgment, above n 5, at [23].8 At [18].he noted that similar claims made by persons that they are outside the courts'jurisdiction have been consistently rejected.9Grounds of the present application[9] In seeking leave to appeal, the applicants say, among other things, that a "hugemiscarriage of justice has occurred creating a trespass by way of alienation ofcustomary land"; the trustees have no legal standing to prevent them from occupyingthe land; the trustees breached tikanga and kawa of Aotearoa by enforcing anerroneous order; the trustees stole their property (vehicles and a kitset bach) and that"needs to be repaid"; and "[a]ll the orders should be overturned."[10] In summary, the applicants argue that:(a) They have a right to occupy the land to the exclusion of the Trust.(b) New Zealand laws do not apply to them.(c) The Trust's actions have breached tikanga, parts of He Whakaputangaand Te Tiriti o Waitangi, rights said to be derived from Christianity,Waitangi Tribunal claims, the decrees of McBride and the Ngā Puhi andMuriwhenua covenants.[11] They also argue that in refusing to stay execution, the High Court relied onirrelevant and misleading material. For example, they argue that:(a) The Judge had no evidence to find that Mr Paraha's various aliases(Sir Christian, Christian Crown, Christian Surnamecrown andChristian Aio) are in fact the same person.(b) The Judge was wrong to find that the land at issue is vested in the Trust.(c) Their application for a stay of the enforcement order was filed withoutnotice but this was changed by court staff without authority.9 At [20].(d) They sought resumption of the land through a hui that was called viaFacebook and a miscarriage of justice would occur if this was not giveneffect to.Assessment[12] Leave to appeal against an interlocutory decision should not be granted unlessthe proposed appeal raises some question of law or fact capable of bona fide andserious argument in a case involving some interest, public or private, of sufficientimportance to outweigh the costs and delay of the appeal.10[13] The high threshold for the grant of leave to appeal against an interlocutoryjudgment has not been made out. As Moore J pointed out, the arguments the applicantsseek to advance are challenges to the correctness of the Māori Land Court judgment.11If the applicants wish to pursue those challenges, the proper course is for them toappeal against the Māori Land Court judgment. They do not justify a stay of that finaljudgment in circumstances where there has been no appeal from it.[14] Nothing that the applicants have put forward suggests the High Court madeany arguable error of law or fact in determining there were no grounds to stayexecution of the Māori Land Court judgment in the absence of any appeal from thatjudgment. The proposed appeal has no realistic prospect of success. It does not raiseany seriously arguable question of sufficient public or private importance to justifythe grant of leave. The application must accordingly be declined.Result[15] The application for leave to appeal is declined.[16] The applicants must pay the respondent costs calculated for a standardinterlocutory application on a band A basis, and usual disbursements.10 Greendrake v District Court of New Zealand [2020] NZCA 122.11 High Court reasons judgment, above n Error! Bookmark not defined., at [18].Solicitors:Kāhui Legal, Wellington for Respondents