Henry v Teaukura [2006] CKCA 2; CA 12 of 2005 (2 June 2006)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)

CA 12/05

IN THE MATTER of Article 60(1) of the Constitution of the Cook
Islands 1964 and Rule 17 of the Court of Appeal Rules 1981

AND:

IN THE MATTER of the Office of Vaeruarangi Ariki

AND:

IN THE MATTER of an Application for an Order Granting Leave to
Appeal the determination of His Honour Mr Justice Heta Kenneth Hingston
(App No. 280/01) delivered in the High Court at Aitutaki on 23 August 2002 that Teaukura Teaukura is the rightful holder of the Office of Vaeruarangi Ariki by,

STRICKLAND HENRY of Aitutaki
Appellant

AND:

TEAUKURA TEAUKURA
of Aitutaki
Respondent

Mr Ka for Appellant
Mrs Browne for Respondent

Date of Hearing: 01 June 2006
Date of Decision: 02 June 2006

DECISION OF THE COURT

[1]. This is an application for leave to appeal a judgment of Justice Hingston given on the 23rd of August 2002. The application is brought under Article 60 of the Constitution and Rule 17 of the Court of Appeal Rules.

[2]. At the outset it is noted that Mr Ka was given special leave to appear in this Court. He is not qualified to do so. It is the second time in this session that he has been given leave and he has been advised that it is very unlikely that leave will be given to him in the future.

[3]. It is necessary to briefly traverse the background facts in this case because of one or two of the issues raised.

[4]. The dispute goes back approximately five years and the proceeding upon which Justice Hingston gave his judgment was an application under Section 409(1f) of the Cook Islands Act to determine the right of the applicant to hold the office of Vaeruarangi Ariki. At that stage there were two or possibly three contenders for the position.

[5]. Since March 2001, the minutes of various meetings put before the Court shows that various groups in the Kopu Ariki were discussing the position of the Ariki. There were various meetings and it is quite clear that there were two main contenders for the position of Ariki although a third subsequently emerged.

[6]. As early as September 2001, Mr Ka acting for the Applicant in this proceeding wrote to Mr Justice Smith of this Court recognizing that there were two contenders for the position, namely, the Applicant and the Respondent in these proceedings. That letter followed a hearing where another person represented by Mr Ka, sought to obtain an injunction to stop opposition to the Applicant being installed as the Ariki. The Order was not granted because as His Honour said, the effect of an injunction would have been to appoint Mr Henry to the title.

[7]. The application under Section 409 of the Cook Islands Act was made on the 4th of October 2001, the only applicant, was the applicant for leave.

[8]. The Respondent, along with one other, gave notice of opposition, alleging that he was entitled to the title. It appears from the judgment of Justice Hingston that he had actually previously been installed to that title.

[9]. There was a hearing in Aitutaki over two days in August 2001. It is noted that during a discussion of where the venue of the hearing should be, the present applicant offered to contribute towards the costs of the Court sitting at Aitutaki.

[10]. There were two opponents to the applicant’s application in 2002 and it is relevant to read just the introduction to Justice Hingston’s judgment because this is relevant to one of the grounds upon which the application for leave is made. He said;

"Before dealing with the substantive issues, the Court records that at the completion of the case of the Applicant Strickland Henry, Mrs Browne who had been appearing for Katarina Moetiti, consulted with her client and subsequently indicated to the Court that she was able to appear for Teaukura Teaukura, the other candidate who had been formally invested with the title before Mr Henry."

[11]. Mr Mitchell made an oral application to the Court to amend the proceedings to add Teaukura Teaukura as second applicant and the Court amended the application as requested.

[12]. This course of action enabled the Court to deal with the question of this title in its entirety rather than the possibility of having to preside over a further application at a later date. We assume that the reason for the application was that the Judge realized he had to consider which of the two contenders were entitled to become the Ariki and that if he determined it was Mr Teaukura, after due consideration, the application as it then stood, would not have allowed him to have made the necessary Order.

[13]. It is also noted that Mr Mitchell had obviously made extensive submissions on behalf of the applicant and these were all taken into account in the Judge’s decision. It is apparent from that, that Mr Mitchell, apart from the application to have the respondent join as an applicant, discharged his obligations to the applicant.

[14]. The Judgment was given on the 23rd of August 2002 in favour of Mr Teaukura. The application for leave to appeal was lodged on the 26th of August 2005, a day or two more than 3 years later than the judgment.

[15]. On the 12th of September 2002, the applicant filed leave to appeal Justice Hingston’s judgment. The then Chief Justice gave leave on the 17th of September 2002, giving leave and fixing security of costs at $2,500.

[16]. On the 18th of November 2002, Mr Mitchell, acting for the applicant wrote to this Court stating; "I act for the applicant and have instructions to advise you that the appeal is abandoned."

[17]. I turn briefly to the statutory provisions. The Constitution gives the right to appeal under Article 60. Sub-article 3 of that Article gives this Court the right to grant special leave to appeal to the Court.

[18]. Under the Court of Appeal Rules, Rule 17, there is a provision that no appeal to this Court from any decision of the High Court shall be brought after the expiration of 21 days from the time when the appellant first had notice thereof, unless the High Court or this Court should enlarge the time for giving notice of appeal.

[19]. It is relevant at this stage to just comment on two decisions in this jurisdiction. The first of the then Chief Justice, Chief Justice Roper in 1989 in the case of Harmon and Kikorio. He was there referring to the possible interchange of Article 60 sub-article 3 and Section 54 of the Judicature Act. He said;

"If Article 60 stands alone an appeal could be brought at any time after judgment, be it months or years, and with the result that respondents would be left to bear their own costs on unmeritorious appeals. The Constitution could not have intended those unjust results. Furthermore, express words will be necessary to deprive the Court of reasonable control of it’s process, and here, they are lacking."

[20]. That judgment was endorsed by the Court of Appeal in the case of Rake Browne in December 2002 where it said in that case;

"The delay here is substantial, the application was filed over a year from the date of the Order and there should have been an affidavit explaining the reasons to enable the Court and respondent to be properly informed."

[21]. It is the view of this Court that those provisions apply and the provisions which apply to special leave out of time applied in other jurisdictions apply in this Court.

[22]. This Court does have a wide discretion to give leave for applications out of time, but that discretion is not to be exercised lightly. The ultimate test is whether granting leave would meet the interest of justice.

[23]. Case Law, particularly in the southern part of the appeal, has set out various criteria which had taken into account. Two or three are relevant to this application. The first was the delay caused by the mistake for oversight of the applicant solicitor. In this case, that is obviously, tells against the application because an application was made within the prescribed time.

[24]. In this Court’s view, the most important aspect of this application is the length of delay. The cases establish that an applicant is more likely to get leave if the delay has been short, there is an acceptable excuse and there is no prejudice.

[25]. In one case, a delay of six weeks was held to be fatal. Here, the delay has been three years. It is this Court’s view that a delay of that time would be fatal unless there are exceptional circumstances pointing to a serious miscarriage of justice.

[26]. It is necessary that there be an acceptable excuse. The reason given by the applicant is his inability to afford another lawyer. It was only when Mr Ka agreed to act without charge that he was able to bring this application.

[27]. This is a bold assertion without specifics, giving no detail of the applicant’s financial position and in the Court’s view, is not sufficient.

[28]. It is also necessary to show absence of prejudice. Neither counsel really addressed to that point, so this Court does not address it, except to say that the prejudice that has to be taken into account, is not only prejudice to the applicant, it is prejudice to the respondent.

[29]. The only other issue that needs to be commented on is the merits of the case. The proposed grounds of appeal were twofold for the purposes of this application. The first was that the Judge erred in fact and law. The applicant has produced an affidavit in which he really re-asserts the case which was evidently put before Justice Hingston. That in itself is not sufficient to show a serious miscarriage of Justice. There is no evidence to support his assertions.

[30]. The more serious aspect of the application is in effect an allegation his counsel. He alleges that Mr Mitchell made an unauthorized oral application to the Court at the completion of his case to amend the proceeding to add the respondent as second applicant. He did not understand why this was done and the consequences of the action enabled the Judge to hear and determine an application of one of the objectors. He referred to the particular Rules of the Code of Procedure where he said that this was an inappropriate procedure.

[31]. This Court is not able to discern the reasons why the application was made by Mr Mitchell in the form it was, except it would have appeared to have been the practical and pragmatic approach to enable that hearing to have been determined at the time. If the Judge had come to the conclusion that the applicant’s application could not succeed but that the opponent should succeed, he did not, at that time, have an application before him which enabled him to make the necessary order. As the application before the Court was from Mr Henry, it was appropriate in the circumstances for Mr Henry’s counsel to seek an amendment to it. The alternative would have been a costly re-run of the case at a later date.

[32]. It is also noted that no attempt appears to have been made to find out from Mr Mitchell the background to his application. He acted for the applicant and could have been and probably should have been asked to provide this Court with an explanation as to what happened. The applicant had the ability to waive privilege and to request that this be done.

[33]. There is therefore nothing before this Court to suggest a serious miscarriage of justice, or that there was a denial of natural justice.

[34]. Alternatively in this case it is the time factor which is important. Time factors are imposed to bring proceedings to a conclusion. In the Court’s view, to give leave after a three year period when there are no grounds put forward which would show there has been a substantial miscarriage of justice, is contrary to principal.

[35]. In the circumstances, it is not necessary to consider the abandonment of the appeal is a complete barrier to further application. The time delay here in itself is sufficient for this Court to decline the application and the application for leave is therefore declined.

[36]. There may be less involvement in this case, there will be an Order that costs be fixed at $500 plus disbursements.

Barker JA
Henry JA
Paterson JA