FAULKNER v TRUSTEES OF ALLOTMENT 5 PARISH OF TAHAWAI SC 13/2011
Leave to appeal was refused because the applicant failed to demonstrate the required statutory 'exceptional circumstances' to permit a direct appeal to the Supreme Court; the Saxmere decision relied on by the applicant was distinguishable and the applicant's arguments lacked cogency and specificity, and procedural...
Source-derived case information.
- Citation
- SC 13/2011
- Parties
- Applicant: Toa Haere Faulkner; First Respondents: Trustees of Allotment 5 Parish of Tahawai; Second Respondent: Western Bay of Plenty District Council
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 12 April 2011
- Procedural Posture
- Application for Leave to Appeal Directly to the Supreme Court From the Maori Appellate Court / Leave Application Dismissed
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- Leave to Appeal, Exceptional Circumstances, Jurisdiction to Bypass Court of Appeal, Representation of Deceased Party
Source-derived case record
Summary, issues, holding and outcome
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Parties
Toa Haere Faulkner
Applicant
Trustees of Allotment 5 Parish of Tahawai
First Respondents
Western Bay of Plenty District Council
Second Respondent
Procedural Posture
Application for Leave to Appeal Directly to the Supreme Court From the Maori Appellate Court / Leave Application Dismissed
Legal Issues
- 1 Whether exceptional circumstances exist to permit a direct appeal to the Supreme Court from the Maori Appellate Court
- 2 Whether the decision in Saxmere justified dispensing with the Court of Appeal stage
- 3 Whether the proceedings are properly constituted following the death of the appellant
Ratio Decidendi
Leave to appeal was refused because the applicant failed to demonstrate the required statutory 'exceptional circumstances' to permit a direct appeal to the Supreme Court; the Saxmere decision relied on by the applicant was distinguishable and the applicant's arguments lacked cogency and specificity, and procedural issues concerning the deceased appellant further undermined the application.
Court Disposition
Application for leave to appeal dismissed
Orders
- Application for leave to appeal dismissed
- Applicant to pay second respondent costs of $2,500 plus all reasonable disbursements to be fixed if necessary by the Registrar
Full Case Text
Judgment text and source record
1 paragraphs
FAULKNER v TRUSTEES OF ALLOTMENT 5 PARISH OF TAHAWAI SC 13/2011 12 April 2011IN THE SUPREME COURT OF NEW ZEALANDSC 13/2011[2011] NZSC 39BETWEEN TOA HAERE FAULKNERApplicantAND TRUSTEES OF ALLOTMENT 5 PARISHOF TAHAWAIFirst RespondentsAND WESTERN BAY OF PLENTY DISTRICTCOUNCILSecond RespondentCourt: Tipping, McGrath and William Young JJCounsel: M Sharp for First RespondentsR Zame for Second RespondentJudgment: 12 April 2011JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant is to pay the second respondent costs in the sum of $2,500 plus all reasonable disbursements to be fixed if necessary by the Registrar.REASONS[1] This is an application for leave to appeal directly to this Court from a decision of the Maori Appellate Court.1 We are refusing leave because we do not consider that the case satisfies the statutory requirement for there to be exceptional1 Faulkner v Deputy Registrar – Allotment 5 Parish of Tahawai (2010) Maori Appellate Court MB 643, 21 December 2010.circumstances before leave can be granted in cases of this kind. We accept the submissions of the second respondent in this respect.[2] The decision in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd2 upon which the applicant relies is clearly distinguishable. The grounds advanced by the applicant for dispensing with the normal benefit of the views of theCourt of Appeal are unpersuasive. The applicant's reference to the need for Parliament to conform with any unwritten universal principles lacks both cogency and specificity. Overall this is not a case in which the applicant has demonstrated the necessary exceptional circumstances justifying a direct appeal to this Court, thereby bypassing the Court of Appeal.[3] Our refusal to grant leave is without prejudice to:(a) whether there were, in any event, grounds justifying the granting of leave; and(b) whether the proceeding in this Court is properly constituted following the death of the party who was the appellant in the Maori Appellate Court. It is not apparent that any order has been made appointing an executor or other proper representative of the party who is now deceased. The application to this Court is made as if the applicant were still alive.[4] For these reasons, primarily the lack of exceptional circumstances, the application for leave must be refused.Solicitors:Holland Beckett, Tauranga for First RespondentsCooney Lees Morgan, Tauranga for Second Respondent2 Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2008] NZSC 94, (2008) 19 PRNZ 132.