TONI COLIN REIHANA v RAKIURA TITI COMMITTEE & ORS [2017] NZCA 628

TONI COLIN REIHANA v RAKIURA TITI COMMITTEE & ORS [2017] NZCA 628 [21 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA559/2016[2017] NZCA 628BETWEEN TONI COLIN REIHANAAppellantAND RAKIURA TITI COMMITTEEFirst RespondentMARAMA COOPERSecond RespondentSTEWART BULLThird RespondentCA560/2016BETWEEN TONI COLIN REIHANAAppellantAND RAKIURA TITI COMMITTEEFirst RespondentSTEWART BULLSecond RespondentRON RANUI BULLThird RespondentSONIA RAHITIFourth RespondentCounsel: Appellant in personC M Lenihan for First RespondentJudgment:(On the papers)21 December 2017 at 4 pmJUDGMENT OF COOPER J(Review of Registrar's Decision)A The application for review of the Registrar's decision is granted in part.B Security for costs in CA559/2017 is fixed at $6,600, to be paid on or beforeFriday 26 January 2018.C Security for costs in CA560/2017 is dispensed with.D The application for an extension of time to file a case on appeal and apply fora hearing date is granted. The appellant must comply with his obligationsunder r 43 of the Court of Appeal (Civil) Rules 2005 on or before Monday19 February 2018.____________________________________________________________________REASONSIntroduction[1] The appellant, Mr Reihana, has filed two appeals against interlocutorydecisions of the High Court: one against a decision of Gendall J (recorded in a minute)declining Mr Reihana's application for interrogatories in connection with one of threejudicial review proceedings Mr Reihana has initiated in that Court (CA559/2016); andthe other against a judgment of Gendall J granting the first respondent Rakiura TitiCommittee's application for a stay of Mr Reihana's three judicial review proceedings(CA560/2016).[2] Mr Reihana applied to the Registrar to dispense with security for costs underr 35(6)(c) of the Court of Appeal (Civil) Rules 2005 in both his appeals. Mr Reihana'sapplications were declined by Deputy Registrar McGrath (the Registrar).The Committee applied for security to be increased under r 35(6)(a). The Registrargranted the application for the interrogatories appeal and increased security by $2,000.The Registrar declined the application for the stay appeal. Mr Reihana has nowapplied for a review of the Registrar's decisions.[3] Mr Reihana also applies for an extension of time in which to file his case onappeal and apply for a hearing date under r 43 of the Rules. His reason for seekingthe extension is the present review of the Registrar's decisions. The Committeeconsents to this application and it should be granted accordingly.The High Court proceedingsBackground[4] The Titi Islands encompass Rakiura (Stewart Island) and adjacent islands.Rakiura Māori are members of Ngāi Tahu or Ngāti Māmoe who are descendants ofthe original Māori owners of Rakiura. Some of these Rakiura Māori have a beneficialinterest in one or many of the Titi Islands by way of a succession order from the MāoriLand Court.[5] Access to some of the Titi Islands is restricted. Regulation 3(1)(a) of theTiti (Muttonbird) Islands Regulations 1978 provides that non-Rakiura Māori cannotenter without first obtaining a permit. Beneficiaries do not need a permit. Use of theislands is also restricted. By way of reg 5(1) no person authorised to enter an islandcan erect a building other than one on a site approved by a majority of the beneficiaries.The removal of the building is governed by the Regulations.[6] The Regulations also established the Committee. One of its roles is to callannual meetings. At this meeting the membership of the Committee is formed.The Committee also issues access permits at the annual meeting (though it can do soat other times of the year).1 The Rakiura Māori who frequent an island may, at theannual meeting, nominate a person to be a supervisor of the island. The supervisor isresponsible for ensuring, among other things, a fair and equitable distribution of therights under the regulations of all persons authorised to enter an island.2[7] A beneficiary who is dissatisfied with a decision of the Committee may applyto the Committee for the matter to be referred to an independent decision-maker for1 Titi (Muttonbird) Islands Regulations 1978, reg 7(1)(a).2 Regulation 6(1).resolution. The procedure for the determination by the independent decision-maker isprescribed by reg 9.[8] All of Mr Reihana's applications for judicial review concern various andnumerous alleged procedural errors in decisions the Committee have made that affector relate to Mr Reihana. The following summaries are adopted from Gendall J'sjudgment.[9] Mr Reihana's first application concerns a time when he was a supervisor of anisland. He requested the Committee to ban a beneficiary from an island.The Committee decided it had no jurisdiction to do so. Correspondence betweenMr Reihana, the beneficiary and the Committee ensued for the purpose of invokingthe mediation procedure under reg 9 of the Regulations. However, this broke downand before the mediation took place Mr Reihana initiated judicial review proceedingsagainst the Committee and its members.[10] Mr Reihana's second application concerns two separate decisions ofthe Committee:(a) The first was a decision of the Committee declining Mr Reihana'sapplication to take two non-Rakiura Māori builders to one of theislands. It was declined on the basis that the requested permit relatedto a building project at a site involving heavily disputed boundary andbuilding site issues between Mr Reihana and other beneficiaries of theisland.(b) The second was a decision of the Committee declining Mr Reihana'sapplication to be a supervisor for one of the islands. It was declinedbecause the members who nominated Mr Reihana were not present onthe day of the annual general meeting, as is required by reg 7(1)(b).[11] The third application relates to four buildings that Mr Reihana claims wereunlawfully erected on one of the islands. He requested that the Committee make anorder requiring the buildings to be removed. The Committee considered there was nobreach of the Regulations because the buildings were not a "house, whare or otherbuilding" in terms of reg 5(1) and thus there was no jurisdiction for the buildings tobe removed.The decisions under appeal[12] Gendall J declined Mr Reihana's application for interrogatories in his firstjudicial review proceeding.3 He said that the matter had already been dealt with byDunningham J. He also said, citing McGechan on Procedure, that interrogatories injudicial review proceedings are extremely rare and Mr Reihana's case is not anappropriate one to allow interrogatories.4[13] In the separate judgment, Gendall J dealt with the Committee's applicationsfor all of Mr Reihana's proceedings to be struck out or stayed.5 Gendall J declined thestrike-out application but granted the application for a stay. His reason for doing sowas that the various complaints should be addressed by an independentdecision-maker in accordance with reg 9 of the Regulations.6 That is a moreappropriate forum for hearing Mr Reihana's claims thus it was appropriate to stay thejudicial review proceedings until the reg 9 procedure has been exhausted.The Registrar's decisions[14] The Registrar made her decisions applying the principles summarised in Reekiev Attorney-General and taking into account submissions she received fromMr Reihana and the Committee.7The interrogatories appeal[15] Mr Reihana informed the Registrar that he receives an Invalid's Benefit,resides on his own in a caravan that was recently lost in a flood, and has no support orfinancial assistance from family members in respect of his High Court proceedings.3 Reihana v Rakiura Titi Committee HC Auckland CIV-2014-425-102, 7 June 2016 (Minute ofGendall J).4 McGechan on Procedure (looseleaf ed, Thomson Reuters).5 Reihana v Rakiura Titi Committee [2016] NZHC 2048.6 Applying Telecom New Zealand Ltd v Christchurch City Council HC Christchurch CP68/02,18 March 2003.7 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.Bank statements, details of any attempts to receive funding from third parties or legalaid, and other requested information was not provided to the Registrar. Without thisinformation she could not conclude Mr Reihana was impecunious.[16] The Registrar next recorded her view that any benefits to Mr Reihana areoutweighed by the potential costs award of $8,920 if his appeal is unsuccessful.Success would enable him to obtain interrogatories in his judicial review proceeding,which he says will assist the Law Society to assess a complaint againstthe Committee's previous lawyer and will allow him to pursue a private prosecution.The Registrar thought this was a fishing exercise and pointed out that it is dependenton his appeal against the stay succeeding.[17] Turning to the merits of the application for interrogatories, the Registrar sawno substance to any of the points of appeal, which are as follows:(a) Gendall J did not know enough about the proceeding or the necessityof seeking further interrogatories;(b) Gendall J failed to take into account that a previous judge had allowedinterrogatories, which produced information that formed the basis of aprivate prosecution; and(c) the refusal was an uneven exercise of judicial power with the potentialto bring the judiciary into disrepute.The Registrar refused to dispense with security accordingly.[18] The Registrar went on to consider the Committee's application under r 35(6)(a)for increased security. The grounds for the application were that the appeal isvexatious by reason of the fact Mr Reihana is appealing a decision regardinginterrogatories, and seeks to use the interrogatories to support the unrelatedproceedings. The Registrar accepted these submissions. She thought the appeal wasvexatious because the appeal involved the making of an extreme claim anddemonstrated unreasonable and tendentious conduct by the appellant. She increasedsecurity for costs by $2,000.The stay appeal[19] For the same reasons mentioned above, the Registrar concluded that she couldnot be satisfied Mr Reihana is impecunious. She also thought the costs of this appealoutweighed the benefits: there is not much to gain from the appeal because thealternative procedure provided for in the Regulations is an adequate remedy.[20] Turning to the merits of the appeal, the Registrar concluded that the issuesraised are arguable but not strong. The grounds are that:(a) Gendall J failed to take into account affidavit evidence showingrepeated breaches by the Committee of its duties under the Regulations;(b) the issues cannot effectively be resolved by the independentdecision-maker dispute resolution procedure under the Regulationsbecause they lack the required power and are ill-equipped to resolveadministrative and complex legal claims; and(c) there is no right of appeal from the decision of the independentdecision-maker.[21] Having considered the reasons addressed by Gendall J the Registrar consideredthat following the dispute resolution procedures provided for in the Regulations wasthe more appropriate course of action. A failure to exhaust that procedure firstrendered the judicial review proceedings an abuse of process. Mr Reihana will not beprejudiced by going down the path provided in the Regulations in the first instancebecause the stay could then be lifted and the judicial review proceedings re-initiated.All this meant that the prospects of success on the appeal were "fairly slim".[22] However, she rejected the Committee's contention that security for costs onthis appeal should be increased on the ground the appeal is vexatious. She consideredMr Reihana has a genuine purpose in pursuing the appeal on the basis of his concernthat the independent decision-maker could not adequately resolve his claims.The applications for review of the Registrar's decisionSubmissions[23] Mr Reihana's submissions on the application for review are at times difficultto follow. However, the following points can be distilled:(a) Mr Reihana is impecunious. This is demonstrated by his fee waivers,which followed from him being on an Invalid's Benefit. To help provehis impecuniosity he has supplied bank details and a letter from theAustralian Taxation Office proving he has no taxable income there.(b) The interrogatories appeal is arguable. Interrogatories in the firstjudicial review proved that perjury had been committed.These interrogatories are relevant to all of the judicial reviewproceedings. It follows that the appeal is not vexatious and securityshould not have been increased.(c) The stay appeal concerns a matter of public interest because Gendall Jneedlessly and incorrectly applied a principle of law. His substantivejudicial review applications have the potential to affect every statutorybody in New Zealand.(d) The stay appeal is arguable. The judicial review proceedings arepreferable to the alternative independent dispute resolution procedurebecause Mr Reihana is seeking to review the Committee's unlawful anddeliberate misuse of its statutory power of decision-making, which onlyjudicial review can address. The procedure provided in the Regulationsis inappropriate for addressing Mr Reihana's complaint. The Registrarfailed to understand the nature of Mr Reihana's judicial reviewproceedings, which tainted her view of the appeals and thus herassessment as to whether security for costs should be dispensed with.[24] The Committee has not made any further submissions in support of itsopposition to Mr Reihana's application for review and instead relies on those initiallymade to the Registrar.Decision[25] The question that has to be answered is whether it is right to require theCommittee to defend the decisions under appeal without the usual protection as tocosts provided by security.8 This will be so if Mr Reihana is impecunious and a solventappellant would reasonably wish to pursue his appeals.9(a) The interrogatories appeal[26] Mr Reihana says in his submissions for review that the interrogatories arerequired to "glean the information needed — again, in the interests of justice, and tocomplete the Law Society investigation". On the basis of the information that hasbeen provided, it appears his complaint against the Committee's lawyer is unrelatedto any of his applications for judicial review of the Committee's decision-making. Theproposed interrogatories are therefore unnecessary and irrelevant to his judicial reviewproceedings. It follows that this appeal can be fairly classed as lacking in merit. TheCourt would not contemplate administering interrogatories for a collateral purpose,which is effectively the only basis proffered in Mr Reihana's written submissions.On the face of it, the appeal has so little chance of success that a reasonable and solventlitigant would not proceed with it. Thus, regardless of any of the other considerations,there is no proper basis for dispensing with security for costs.[27] There remains the issue as to whether the security should be increased by$2,000 because the appeal is vexatious. The Registrar relied on the statement in Reekiethat protecting respondents from vexatious appeals is a legitimate purpose of thesecurity for costs regime.10 That statement was not addressed at an increased order asto security. However, this Court in Houghton v Saunders stated that vexatious appealsmay justify an increase in security for costs:118 Reekie v Attorney-General¸ above n 7, at [21] and [31].9 At [35].10 At [39].11 Houghton v Saunders [2015] NZCA 141 (footnotes omitted).[8] An increase in security can be justified for a number of reasons. [9] Second, it may be obvious that the proposed appeal lacks any merit.Protecting respondents from vexatious appeals is an important objective ofsecurity. This does not mean that additional security will be ordered where,as in this case, the respondents contend that the appeal is weak. The Courtdoes not ordinarily allow itself to be drawn into evaluating the merits whendealing with security.[28] Something additional to a lack of merit is required in order for an appeal to beclassed as vexatious so as to justify an increase in security for costs, otherwise allapparently hopeless appeals will be met with increased security. This would be anunsatisfactory position because, as was pointed out in the passage just quoted,the Court is reluctant to evaluate the merits in any great depth at this early stage of theproceedings.[29] With that in mind, while Mr Reihana's appeal appears to be hopeless, on thematerials before the Court I am not prepared to describe it as vexatious.His application for interrogatories is not before the Court. And there is a chance that,as a lay person, he has not given adequate written expression to the matters able to beadvanced in support of the appeal. As mentioned, his written materials are difficult tounderstand. In the circumstances it would be unjust to order an increase in securityfor costs. For that reason, security for costs for the interrogatories appeal should befixed at the standard sum of $6,600.(b) The stay appeal[30] As set out above, Gendall J essentially held that the use of the independentdecision-maker provided for in reg 9 of the Regulations is the more appropriate forumfor hearing Mr Reihana's claims. In his submissions on this review, Mr Reihanadisputes this and maintains that his judicial review proceedings are challengingvarious procedural matters of the Committee. This, he says, can only be addressed injudicial review proceedings.[31] As the Registrar recognised, it cannot be said that Mr Reihana's appeal ishopeless. A cursory read of reg 9 suggests it is solely concerned with the outcome ofthe Committee's decision. While a procedural challenge may be remedied through adecision of the Committee being changed following an independent review, thatreview does not appear to be aimed at assessing the Committee's procedure. That ispotentially an appropriate subject for judicial review, particularly having regard to theCommittee's ongoing role, and remains so notwithstanding the fact an independentreview has not been sought. A reasonable and solvent litigant might pursue this appeal.But that is not the end of the matter. Two further features require consideration inorder to render it just for the Committee to defend the appeal without the protection ofcosts.[32] The first is whether Mr Reihana is impecunious. Mr Reihana relies on his feewaivers as evidence of this. However, as the Supreme Court said in Reekie, a feewaiver is merely indicative of impecuniosity; it is not conclusive.12 Mr Reihana hasprovided the Court with additional information in support of his impecuniosity to thatwhich was before the Registrar. His bank account details from January 2017 toMay 2017 show that his only source of income is the Invalid's Benefit, which hewithdraws as cash shortly after it is received. A letter from the Australian TaxationOffice shows that he need not file an income tax return for the years ending30 June 2009, 2011–2012 and 2014–2016, which suggests he has no other source oftaxable income in Australia. This additional information, together with Mr Reihana'slack of assets, is indicative of impecuniosity.[33] As the Registrar recognised, Mr Reihana has recently travelled back to the TitiIslands. This suggests he may in fact not be impecunious and is able to pay for securityfor costs. For example, it is possible that he has another bank account, the details ofwhich he has not provided to the Court. However, the preponderance of the availableinformation suggests impecuniosity and we proceed on the basis that issue is satisfied.[34] The second question is whether the cost of the appeal outweighs the benefits.The Registrar pointed out that the monetary payment of costs to the Committee ifMr Reihana were to lose on the appeal will likely amount to some $8,200. She thoughtthe benefits were low because the remedies he sought could be obtained through themediation provided for in the Regulations.12 Reekie, above n 7, at [42].[35] However, from Mr Reihana's perspective there are wider benefits to the appeal.Essentially they turn on his being able to challenge the Committee's actions in a forumthat he considers to be superior to that offered by the procedure provided in theRegulations. Mr Reihana also insists that initiating judicial review proceedings is theonly means by which he can seek redress for the Committee's failure to comply withthe Regulations. If the appeal is successful both parties will avoid the need to spendtime and money in the alternative dispute resolution process because the applicationfor judicial review will proceed.[36] Thus from Mr Reihana's point of view the benefits of proceeding in theHigh Court outweigh the costs. Further, without a full inquiry, which is not possibleon an application such as that presently before me, it is not possible to conclude thatthe alternative process provided by the Regulations should result in Mr Reihana beingdeprived of his right to proceed with judicial review. The importance of that rightjustifies dispensing with security to preserve access to the Court by an impecuniousappellant.13 This conclusion is also supported by the fact that it was the Committeethat sought the stay that has given rise to Mr Reihana's appeal.Result[37] The application for review of the Registrar's decision is granted in part.Security for costs in the interrogatories appeal is fixed at $6,600. That sum is to bepaid on or before Friday 26 January 2018. Security for costs in the stay appeal isdispensed with.[38] The application for an extension of time to file a case on appeal and apply fora hearing date is granted. Mr Reihana must comply with his obligations under r 43 ofthe Court of Appeal (Civil) Rules on or before Monday 19 February 2018.Solicitors:Scholefield Cockroft Lloyd, Invercargill for First Respondent13 See New Zealand Bill of Rights Act 1990, s 27(2).