INIA v JULIAN [2020] NZCA 423

INIA v JULIAN [2020] NZCA 423 [17 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA498/2019[2020] NZCA 423BETWEEN WHAEARANGI INIA, LARAINEIRITANA INIA AND MARILYNWHARETOROA INIA-MCGARVEY ASTRUSTEES OF THE INIA WHANAUTRUSTAppellantsAND TUI KUIAKAHA JULIANRespondentHearing: 31 August 2020Court: Kós P, Cooper and Courtney JJCounsel: J M Pou for AppellantsJ P Kahukiwa for RespondentJudgment: 17 September 2020 at 9 amJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs for a standard appeal on a band A basisand usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mrs Moehuarahi Te Ruri (Inia) died aged 89 on 27 July 1994. She left sevensurviving children. By her will she left her Māori land interests to two only of thosechildren, Te Pakiorangi (Paki) Inia and Oriwia Clarke. As the Māori Appellate Courtobserved, the other five were in effect disinherited.1 Mrs Clarke renounced herentitlement to succeed. In an application to the Māori Land Court in October 1994,Mr Inia sought succession orders otherwise in accordance with his mother's will. InFebruary 1995, the late Judge Hingston vested the land interests of Mrs Te Ruri solelyin Mr Inia (the succession order). By further order he constituted the Inia WhānauTrust (the Trust) and vested those interests in Mr Inia and Audrey McCaull as trustees(the trust order).2 The beneficiaries of the Trust did not include the disinheritedsiblings or their uri. No tipuna was named in the trust order.[2] The respondent, Mrs Tui Kuiakaha Julian, is one of the five disinheritedchildren. In 2007 she filed an application under s 45 of the Te Ture Whenua MāoriAct 1993 (the Act) seeking orders vesting the land in all seven children. In 2017 sheamended this application seeking that the succession and subsequent orders becancelled. A number of grounds were advanced, including that the 1994 applicationshould have been adjourned to inquire into the interests of the other children and thatthe Judge should not have decided the matter because of apparent bias.3 TheChief Judge recused himself and the Deputy Chief Judge sat instead.[3] In September 2018 Deputy Chief Judge Fox delivered a decision onthe cancellation application. She found the disinherited siblings had not been notifiedof the February 1995 hearing.4 However, the Judge found this would not have madea difference and that it was unlikely that Mrs Julian would have maintained a challengeto succession by her brother, Mr Inia.5 The Judge said, "[t]his goes to whether it isnecessary in the interests of justice to remedy this error of law".6 The Judge went on1 Inia v Julian – Estate of Moehuarahi Inia [2019] Māori Appellate Court MB 333 (2019 APPEAL333) [Appellate Court judgment] at [1].2 Inia – Estate of Moehuarahi Inia Te Ruri (1995) 237 Rotorua MB 74 (237 ROT 74).3 The Judge had acted for the deceased's husband's estate and was named in that capacity in hiswill.4 Julian v Inia-McCaull – Estate of Moehuarahi Te Ruuri [2018] Chief Judge's MB 493 (2018 CJ493) [Māori Land Court judgment] at [37].5 At [40]–[42].6 At [42].however to find apparent bias by Judge Hingston because he had been solicitor "of theEstate".7 The key passages of the judgment follow:8Having regard to the special and unique circumstances of this case, I do notconsider that it is in the interests of justice to remedy the errors of law in thiscase by cancelling the order for succession complained of.However, errors of law were made and the applicant has innocent children andmokopuna who have a whakapapa relationship with the land, which it seemssome wish to enjoy. Taking into account the preamble and ss 2 and 17, I willamend the order constituting the Inia Whānau Trust by naming the tīpuna asMoehuarahi Te Ruuri also known as Mere Huarahi Rotohiko and therebyincluding the applicant, her natural children and grandchildren as beneficiariesof the trust. Also included will be any other natural children of this tipuna,and/or their issue.(Emphasis original.)The Judge then amended the trust order by naming the tipuna as Moehuarahi Te Ruri.In effect, this meant Mrs Julian, her siblings and their uri were included asbeneficiaries of the Trust.[4] The appellants are the trustees of the Trust. They appealed that decision to theMāori Appellate Court. They did so on the grounds that:(a) the finding of bias by the Judge of the Māori Land Court in the original1995 order was based upon an incorrect finding of fact; and(b) the expansion of class of beneficiaries was irrational as it granted rightsto lands to those who could not whakapapa to those lands.[5] The Appellate Court upheld both grounds of appeal and annulled the ordervarying the terms of the Trust.9 It held that simply because the Judge had once beensolicitor to the estate of the late husband of Mrs Te Ruri, he was not disqualified fromhearing the case.10 In any event, the Court said it could see nothing in the record ofappeal that would excite any suspicion that a fair minded lay observer might7 At [43].8 At [45]–[46].9 Appellate Court judgment, above n 1.10 At [32]."apprehend a risk of a perception of bias".11 As to the second ground of appeal,the Court said that while it could understand the Judge's intention behind her decisionto vary the trust order by adding Moehuarahi Te Ruri as the tipuna, this had resultedin the siblings of Mr Inia and their uri becoming beneficiaries to the lands of his wife,Hilda Inia, which had been merged into the Trust after its formation. The Court saidthere could be no basis for the in-laws of Mrs Inia to share in her lands without herconsent. Therefore, the order varying the terms of the Trust by naming the tipuna asMoehuarahi Te Ruri was accordingly annulled.12[6] The Court recorded notice did not appear to have been given of the hearingbefore Judge Hingston to the other children of the deceased who are directly affectedby the will. It noted, correctly, that that did not appear to be a matter of dispute.13It was clear that the terms of the application were for the benefit of Mr Inia and his urialone.14 Exercise of the Court's powers in those circumstances was unjust, becausethe five disinherited children were entitled to notice of the 1995 hearing andthe opportunity to take advice and be heard.15 The Court noted that it took a differentview on the evidence from the Māori Land Court as to whether Mrs Julian hadunreasonably delayed in pursuing her application under s 45 of the Act to cancelthe succession and vesting orders. It did not agree with the Judge's conclusion thatMrs Julian had effectively waived her right to pursue that claim because of tardinessor other failures.16 Accordingly, the Court said:17Therefore, we direct that the original s 45 application be referred back to theDeputy Chief Judge for a rehearing on four grounds. First, the issue of thelack of notice of the 1995 succession hearing before Judge Hingston. Second,on the basis that we disagree with Judge Fox's conclusion that, even if therehad been notice, a claim under the Family Protection Act 1955 would havebeen unsuccessful. Third, that on the balance of probabilities, Mrs Julian'sassertion that she first became aware of the will and its implications in 2005was sustainable and explained the delay, in part, between 1995 and 2007.Fourth, that it is arguable that Judge Hingston may have been mistaken as to11 At [33].12 At [63].13 At [36]. In argument before the Appellate Court, counsel for the appellant trustees stated, "I didnot contest that there was a deficiency in notice I accept that deficiency in notice has occurred".14 At [37].15 At [40].16 At [59].17 At [61]. The fourth matter referred to is the possibility identified on the basis of the transcript ofthe 1995 hearing that Judge Hingston may have been under the misapprehension that the Trustwould in fact benefit all the deceased's children: at [39].what he understood was the basis for the creation of the whānau trust in 1995,given his exchange with Harris Martin at the hearing, which could also fallwithin the ambit of s 44 of the Act.The successful appellant in the Appellate Court appeals to the Court of Appeal[7] Despite the fact that the appellant trustees succeeded before theAppellate Court they appeal further to this Court. They do so because while they likethe findings noted above at [5], they do not like the further findings noted at [6]. Theyappeal on two grounds:1. The Court erred in overturning a finding of fact of the Deputy ChiefJudge regarding the impact of lack of notice, in circumstances where ithas failed [to] observe the principles of natural justice:a. determining the appeal on grounds that were not raised by anyparty; andb. providing inadequate opportunity to be heard on issues raisedwithout notification;2. The Court erred in challenging the basis of the refusal of theDeputy Chief Judge to exercise her jurisdiction pursuant to section 45of the Act, failing to have regard for the lack of jurisdiction to challengesuch refusal pursuant to section 44(5) of the Act.Submissions[8] For the trustees, Mr Pou argued that the Appellate Court had failed todistinguish properly between those parts of the Judge's decision which wereevaluative, and those which were discretionary in nature. The remedial finding waspurely discretionary in nature, and the findings on notice did not give rise to a generalappeal. It was also based on findings of reliability and credibility in relation toMrs Julian, and the Appellate Court did not place sufficient weight on the Judge'sadvantage in making her assessment of that witness. Secondly, r 8.21(2) ofthe Māori Land Court Rules 2011 provides that an appellant may not, except withthe leave of the Appellate Court, rely on a ground of appeal not set out in the notice ofappeal. Mr Pou argued that the same applied to a respondent, and there was nonotification here that Mrs Julian sought to overturn the decision of the Judge onthe basis of notice. Thirdly, the Judge had found that failure to notify would have hadno ultimate bearing on the matter. It therefore fell within the provision in s 44(5) ofthe Act which provides that no appeal lies to the Appellate Court from the Judgedeclining to exercise jurisdiction under s 44.[9] For Mrs Julian, Mr Kahukiwa supported the decision of the Appellate Court.He submitted that the Act's provisions for appeal permit more than a merelyconventional re-hearing, referring to s 55(2) and (3) permitting additional evidence.Section 44 provides a special jurisdiction to remedy mistakes or omissions, witha broad remedial power to correct. An appeal from this power under s 49(1) shouldexemplify that function, not diminish it. It was uncontroversial here that no notice hadbeen given of the hearing in 1995. Mr Kahukiwa suggested, further, that [45] and [46]in the first instance judgment indicated that the remedial order varying the vestingorder was responsive not only to bias but also to the uncontroversial notice error.Analysis[10] We accept the argument made by Mr Pou (largely accepted also byMr Kahukiwa) that the powers vested in the Chief Judge under s 44(1) of the Act fallin two parts. The first is an evaluative decision as to whether the order made was"erroneous in fact or in law because of any mistake or omission on the part of the courtor the Registrar or in the presentation of the facts of the case to the court orthe Registrar". The second is a power, which is likely in most cases to involvediscretion, to "cancel or amend the order or make such other order as, inthe opinion of the Chief Judge, is necessary in the interests of justice to remedythe mistake or omission". We note that in making that decision, and exercising thatpower, the preamble to the Act and ss 2 and 17 are of particular significance.Section 2(2) provides, inter alia, that "it is the intention of Parliament that powers,duties, and discretions conferred by this Act shall be exercised, as far as possible, in amanner that facilitates and promotes the retention, use, development, and control ofMāori land as taonga tuku iho by Māori owners, their whanau, their hapu, and theirdescendants". Section 17(2)(e) and (f) emphasise the need for the Māori Land Courtto ensure fairness in dealings with land in multiple ownership, and to promote practicalsolutions in land disputes.[11] Secondly, we are satisfied that in determining that the vesting order should beamended, the Judge had in mind both the notice and bias errors that occurred inFebruary 1995. Her use of the plural "errors of law" in both [45] and [46] of herjudgment — quoted at [3] above — makes that entirely clear. That cannot relatesimply to the singular bias finding. While it is true that the Judge did not consider thatthe notice error alone would have justified exercise of the second-stage remedialpower in s 44(1), it appears that the two errors in combination did. In particular,the finding about the interests of Mrs Julian's children and mokopuna in the landsuggest that both errors prompted the remedial determination. Even if Mrs Julianwould not have maintained a challenge to Mr Inia's succession, the Judge clearly didnot think that disentitled her "innocent" children and mokopuna.18 We thereforeaccept Mr Kahukiwa's submission to that effect. In any case, as a matter of logic,there could be no justification for distinguishing remedially as between the two errors.Both went to fundamental process; if bias required a remedy, so too must lack ofnotice.19[12] Thirdly, we do not accept Mr Pou's argument that the Judge's determinationregarding the notice error fell within s 44(5) of the Act, precluding appeal to theAppellate Court. While the Judge said, "I decline to exercise my jurisdiction unders 45 of the Act to cancel the succession order", that observation was remedial innature.20 It did not fall within the limited scope of s 44(5). We consider that provisionapplies only where the Chief Judge has not entered at all upon the exercise ofexamining whether there was a mistake or omission or whether to exercise his or herdiscretion. That is not so in this case, for either error.[13] Fourthly, it is clear the Judge erred in her evaluation of the evidence in relationto apparent bias. Judge Hingston's former professional relationship was with theestate of Mrs Te Ruri's late husband only, and there was no arguable apparent bias in18 Māori Land Court judgment, above n 4, at [46].19 And, correspondingly, if want of notice did not require a remedy, because it would have made nodifference to Mrs Julian's response, nor too would apparent bias. The prevailing view inNew Zealand is that neither would make the original decision void, merely prospectively invalid:KI Commercial Ltd v Christchurch City Council [2019] NZCA 645 at [15]; and Attorney-Generalv Howard [2010] NZCA 58, [2011] 1 NZLR 58 at [114]–[115]. See Philip A Joseph Constitutionaland Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 917–918.20 Māori Land Court judgment, above n 4, at [47] (emphasis omitted).his sitting in 1995 on an issue concerning Mrs Te Ruri's will.21 The Judge also erredin varying the vesting order to provide the tipuna of the Trust be Mrs Te Ruri, therebybringing Mrs Julian, her children and mokopuna into the Trust as beneficiaries. As theAppellate Court found, by this stage things had moved on. In reliance on the 1995orders, Mr Inia's wife had brought her own separate land interests into the Trust.The new beneficiaries had no whakapapa connection with those additional landinterests. This consequence had not been appreciated by the Judge. In terms ofthe authorities controlling the scope of appeals from exercises of discretion,the enlargement of the Trust in those circumstances was "plainly wrong".22[14] Fifthly, although Mrs Julian had not filed a formal cross-appeal in response tothe trustees' appeal against the Judge's orders, we do not think that fatal.The evaluative finding as to apparent bias by Judge Hingston in 1995 was based onerrors of fact and law. The variation of the Trust was done without appreciation ofthe enlarged capital of the Trust. These errors went to the heart of the evaluation, andthen remedial orders, made by the Judge. If the remedial order was at all responsiveto the notice error, which it was, that error and its consequence had to be reassessed.It did not follow that the only available outcome of the appeal would be reversal ofthe remedial order varying the Trust and nothing more. The interests of justice, whichunderpins the statutory role of the Appellate Court, required that it then examine theremaining affected aspects of the judgment on appeal to the extent consistent with bothrelevance and natural justice.23[15] Sixthly, in terms of relevance, it was incontestable that Mrs Julian and the otherdisinherited siblings had not been given notice of the 1995 hearing, and the Judgecorrectly found that was an error of law. That conclusion too was uncontested.The notice error in part resulted in the remedial order to vary the Trust. That orderrectified the error. But if the remedial order had to be set aside then, as we haveobserved, the issue of remedy for the notice error was required to be revisited unlessprecluded by reason of natural justice.21 See at [5] above.22 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].23 See, for example, s 55(2) of the Act: the Court may receive such further evidence on appeal as isnecessary to enable it to reach a just decision on the case.[16] Seventhly, in terms of natural justice, the issue of the notice error and remedywas clearly raised ahead of the Appellate Court hearing in written submissions filedfor Mrs Julian.24 It occupied three-and-a-half pages of the 18-page submissions.It was advanced as a back-up to her argument that the trust variation (which rectifiedthe error) should not be revoked on appeal. The point being taken was the obviousone that if the variation was reversed, the Court needed to revisit the Judge's otherfindings (including on remedy). Despite the absence of a cross-appeal, for which pt 8of the Māori Land Court Rules makes no provision in any case, the trustees cannotclaim they were not put on notice of this argument. No additional evidence wasreceived; the Appellate Court proceeded by examination of the record below. It heardfrom both counsel on the issue of the notice error. It is obvious from the record thatthe Appellate Judges were very concerned about the conclusion below that the failureto notify might be immaterial. No objection was taken by counsel for the trusteesbeyond a formal one that the point had not been pleaded. The advantages of the Judgeseeing the witnesses was referred to, and it was contended that the Judge was right inher conclusions as to the effect of the error and that those findings should not bedisturbed on appeal.25 No adjournment was sought. Nor the opportunity to file furthersubmissions. No prejudice is identified, and we are satisfied there was no breach ofnatural justice by the Appellate Court in re-examining the implications of setting asidethe bias finding and variation order (as the trustees sought) in the context ofthe remaining uncontested error as to notice.[17] Eighthly, in these circumstances, we consider the approach taken bythe Appellate Court cannot be impeached. Revisiting the findings below on the noticeerror (and what if any remedy should be given) was required as soon as the trusteesprevailed in setting aside the variation order. That order in part responded to the noticeerror and reflected the fact that the Judge found Mrs Julian had innocent children andmokopuna who had a whakapapa relationship with the land which some at least wishedto enjoy. By unravelling the remedial order, the rest of the decision unravelled withit.24 Mr Pou accepted that it was advanced in the original set of submissions filed by Mr Kahukiwa, aswell as in later "updated" submissions.25 And recognised by the Appellate Court in its judgment: Appellate Court judgment, above n 1, at[53].[18] Finally, given its mixed findings in favour of both sides, it was also entirelyproper for the Appellate Court to remit Mrs Julian's s 45 application for rehearing bythe Māori Land Court in light of the findings at [5] and [6] above.[19] For these reasons we consider the decision below cannot be impeached onprocedural grounds, and that the appeal must be dismissed.Result[20] The appeal is dismissed.[21] The respondent is entitled to costs for a standard appeal on a band A basis andusual disbursements.Solicitors:Tu Pono Legal Ltd, Rotorua for AppellantsCorban Revell, Auckland for Respondent