Tavioni v Baudinet [2009] CKCA 1; CA 1 of 2009 (10 July 2009)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA

CA 1/09, 2/09 and 3/09

IN THE MATTER of Article 60(3) of the Constitution

AND

IN THE MATTER of Section 391, 401(a), 416, 421 & 450 of the Cook Islands Act 1915 and Sections 9 & 44 of the Judicature Act 1980-81

AND

IN THE MATTER of the land known as TUAREANUI SECTION 40, TAKITUMU

BETWEEN

ELLENA TAVIONI for and on behalf of the Makea Kopu Ariki
Appellant

AND

JUNE MARGARET BAUDINET of Rarotonga
Respondent

AND

BETWEEN

MEREMARAEA VELMA
TINIRAU MACQUARIE, retired of Nikao, daughter of the late Makeanui Teremoana Ariki
Applicant

AND

JUNE MARGARET BAUDINET of Rarotonga
Respondent

Coram: Barker JA (Presiding)
Fisher JA
Grice JA

Hearing: 6 July 2009

Counsel: T Browne for appellant Tavioni
N George for appellant MacQuarrie
R Holmes for respondent

Judgment: 10 July 2009

JUDGMENT OF THE COURT

Introduction

[1] The two appellants, Ellena Tavioni and Meremaraea MacQuarrie, apply for special leave to appeal against the decision of Hingston J given in the Land Division of the High Court on 8 April 2008. By that decision Hingston J determined in favour of the respondent, June Baudinet, certain preliminary matters affecting her application to the High Court to correct or annul an order on investigation of title made by the Land Titles Court on 10 August 1903.

Background

[2] On 3 June 1903 in the Land Titles Court Judge Gudgeon heard an application for investigation of the title to a 53 acre area of land known as Tuarea Nui Section 40 Takitumu.

[3] At the hearing of the application the land was claimed by Makea Takau. There being no objection from others, Judge Gudgeon awarded the land to her, noting in his minute that the land was restricted from sale or lease except by permission of the Court. There is a dispute as to whether he also recorded in the minute the further words "a life interest only no power by devise".

[4] Four months later the decision was recorded in a formal order of 10 August 2003. The order was signed by Judge Gudgeon and sealed with the seal of the Court. It did not limit Makea Takao's interest to a life interest.

[5] Over the ensuing hundred years sundry succession orders were made in favour of Makea Takao's descendants. In each case it was assumed that the line of descent from Makea Takau was unrestricted by any life interest.

[6] In 1937 Ngati Raina unsuccessfully challenged the title of Makea Takau's descendants in the High Court. Chief Judge Ayson pointed out that as Ngati Raina did not allege fraud there was no jurisdiction to challenge the title. He went on to point out that on the merits, members of the Raina family had been present at the 1903 hearing and had raised no objection to the award to Makea Takau.

[7] In 1950 Ngati Raina again unsuccessfully challenged the title of Makea Takau's descendants, this time in the equivalent of the Court of Appeal. The Court recorded that "The applicants for rehearing set out to show that the Order on Investigation made on 3 June 1903 in favour of Makea Takau was wrong and that if a rehearing were granted they could show that the land should have been awarded to those they represent". The Court held that "We have considered this evidence and are satisfied that there is no prospect of the applicants being able to show title before the Native Land Court if given the opportunity of doing so. It would take much more than has appeared to shake the Makea's title to the land..."

[8] In 2004 the present respondent brought the current proceedings in the Land Division of the High Court on behalf of Ngati Raina. This was the family who had applied unsuccessfully in 1937 and again in 1950. The two material remedies sought in the respondent's application were (i) an order correcting the 1903 Order under s 44 of the Judicature Act 1980-81 on the ground that it failed to correctly record the Judge's decision and (ii) an order annulling the 1903 Order under s 391 of the Cook Islands Act 1915 on the ground that it had been obtained by fraud. The application also sought an order for certiorari, and other consequential orders, which have not yet been addressed in the High Court.

[9] Faced with the respondent's application, Hingston J decided three issues which he regarded as preliminary ones. First, he decided that res judicata did not flow from the 1937 and 1950 decisions because "neither section 44 of the Judicature Act 1980-81 or allegations of fraud were before those Courts".

[10] Secondly Hingston J decided that s 44 of the Judicature Act conferred on him the jurisdiction to revisit the 1903 decision and further that he should immediately exercise it. In his view what Judge Gudgeon had really intended in 1903 was that Makea Takau's entitlement would be confined to a life interest. Hingston J directed that the record be amended accordingly.

[11] Thirdly, Hingston J considered the respondent's allegation that Makea Takau had obtained the title by fraud. Hingston J did go so far as to accept that Makea Takau was not entitled to take the land and furthermore that in giving it to her Judge Gudgeon knew that she was not entitled to it. Curiously, however, Hingston J considered that as Mrs Baudinet was alleging perjury on Makea Takau's part, and the record did not show whether Makea Takau had been sworn in when she claimed the land, fraud was not established.

[12] Hingston J concluded that "the current records of this block do not reflect the intention of the Court; therefore there is an order that the ownership records in the Court pertaining to this block be amended to accord with this finding." This has been interpreted by counsel as effectively a direction that Judge Gudgeon's order of 10 August 1903 be amended to limit Makea Takao's interest to a life interest with the consequence that when she died she left no interest capable of passing to her descendants. We have approached the appeal on that basis.

Special leave to appeal

[13] The current appellants, Ellena Tavioni and Meremaraea MacQuarie, claim the land on behalf of their families as descendants of Makea Takau. They seek leave to appeal from Hingston J's decision. Both require special leave to appeal pursuant to Art 60(3) of the Constitution.

[14] In the case of Meremaraea MacQuarie, the lack of justification for the delay of nearly a year before filing an appeal would normally be fatal to the application for special leave. However in the present case the order of 1903 is one of considerable public importance, affecting as it does so many people who have relied upon it over the last hundred years. In the special circumstances of this case we would not want to see a matter with such far-reaching ramifications determined on the technicality that one of the individuals concerned failed to adhere to a procedural time limit. The delay can be recognised when it comes to costs. Special leave to appeal is granted.

[15] In the case of Ellena Tavioni, the position is more unusual. As to the delay 10 months before applying for leave to appeal, she points out that she had thought that at first instance she was one of those family members represented at the hearing by Mr Manarangi. Mr Manarangi has since filed a memorandum making it clear that the branch of the family that he represented did not include Ms Tavioni or the family branches she represented. It was only when Ms Tavioni learned of Hingston J's decision in February of this year that she realised that she needed to initiate her own appeal.

[16] However Mr Holmes submits that quite apart from delay, Ms Tavioni has no standing to appeal as she was not a party to the original proceedings. He cited New Zealand authorities in support of the general proposition that only those who were parties to the hearing at first instance have the standing to appeal.

[l7] We do not consider that the New Zealand authorities on standing to appeal apply to a case having the peculiar features of this one. Whether or not all relevant individuals are specifically named, Cook Islands litigation over family land impacts upon all those family members who have a present or future interest in that land. As a person whose interests were adversely affected by Hingston J's decision, Ms Tavioni was directly involved in the original hearing, whether or not named or formally represented at the original hearing. Makea Nui Ariki v Nooroa Sadaraka Matua (CA 8/99) 16 November 2001 is authority for permitting a family member to appeal in similar circumstances. Ms Tavioni's misunderstanding over representation at the original hearing was an understandable one given the complexities of the relationships and lines of descent involved. Allowing her a right of appeal would not significantly prejudice the respondent given that Meremaraea MacQuarie has been given leave to appeal in any event. For all of those reasons Ms Tavioni is granted special leave to appeal as well.

Grounds for appeal

[18] The appellants challenge Hingston J's decision on grounds which could be expressed in the following terms:

[a] There was no jurisdiction to amend the 1903 court order under s 44 of the Judicature Act given ss 390A(10) of the Cook Islands Act 1915.

[b] Even if there would otherwise have been jurisdiction under s 44, the 1937 and 1950 decision meant that the matter was res judicata.

[c] Even there had been jurisdiction under s 44 of the Judicature Act, the respondent had failed to establish the grounds for amendment of the 1903 order on the merits.

[19] We deal with these in turn.

(a) Jurisdiction under s 44

[20] Section 44 of the Judicature Act 1980-81 provides:

44. Amendments —A Judge may at any time amend any minute or judgment of the Court or other record of the Court in order to give effect to the true intent of the Court in respect thereof or truly to record the course of any proceeding.

[21] The provision is essentially a "slip rule" which permits the Court to correct a failure to accurately record a Judge's intention at the time that he or she promulgated a decision. In no sense is it a revision of the actual decision. It is merely a clerical correction to ensure that the decision already made is properly recorded.

[22] In a land law context, the slip rule in s 44 must be read subject to s 390A of the Cook Islands Act 1915.

[23] Section 390A(l) confers on the Chief Justice the power to remedy a mistake, error or omission in an order in certain prescribed circumstances including a situation in which the Land Court "by its order has in effect done or left undone something which it did not actually intend to do or leave undone ...". This too is a slip rule, albeit one which is contained within a provision which includes other grounds for intervention.

[24] However in land matters the slip rule is qualified in two important respects. One is that the power conferred by s 390A can be exercised only by the Chief Justice. It is not a power which can be exercised by other judges. Secondly it can not be used to interfere with certain kinds of order. Section 390A(10) provides that:

(10) This section shall not apply to any order made upon investigation of title or partition save with regard to the relative interests defined thereunder, but the provisions of this subsection shall not prevent the making of any necessary consequential amendments with regard to partition orders.

[25] It is not difficult to see why the power to modify land title records has been hedged around with special limitations. Unlike most other kinds of court order, an order declaring title to land creates a right in rem. Its impact extends beyond the personal interests of the immediate parties to the litigation. Such orders enure from one generation to the next. Many people will order their affairs on the strength of the order. Certainty of title is one of the chief objectives of land law. Consistent with that objective, only the Chief Justice can interfere with such orders once they are made, and even he is precluded from doing so in the case of orders made upon investigation of title save with regard to the relative interests defined thereunder.

[26] In our view the general slip rule in s 44 of the Judicature Act was not intended to override the specific code for amending Land Court orders in s 390A of the Cook Islands Act. To hold otherwise would be contrary to the priority normally afforded to specifically focused legislation of the latter kind. It would also be contrary to the implied inviolability of orders determining the title to land except in the special circumstances spelled out in s 390A.

[27] The 1903 order in the present case illustrates the reason for s 390A(I0). The order was "an order made upon investigation of title". The amendment sought by the respondent was not one with regard to the relative interests defined thereunder. The amendment sought would effectively nullify the order for the purpose of all generations subsequent to Makea Takau. It is too late to suggest that the order as sealed was a mistake. By now many generations have relied on it. That is the point of s 390A(10).

[28] We have studied the submissions of Mr Holmes which were prepared with particular care and thoroughness. On this point he argued first that s 44 was not a mere "slip rule". However the wording of s 44 makes it plain that it is confined to a variance between the court's intention and the form in which that intention has been recorded.

[29] Secondly Mr Holmes argued that s 44 was not subject to s 390A(10). For reasons by now outlined, we are unable to agree.

[30] Thirdly Mr Holmes argued that the decision that mattered was not the sealed order of 10 August 1903 but the antecedent decision of 3 June 1903. In our view the point of reducing a judge's decision to a formal court order is to express the form and wording of the decision in its final form and to remove any room for argument over its authenticity by the formal manner in which it is executed. A formal order is prepared after opportunity for reflection as to its precise wording. As to authenticity, it bears both the seal of the court and the signature of a judge or court official. It is for those reasons that whenever there is variance between an informal note or minute of a judge's decision and the formal order in which it is embodied, it is the latter which takes precedence.

[31] In the present case the formal order was the document of 10 August 1903. That is the document that has been acted upon ever since. If there were to be a challenge to the 1903 decision, it had to be a challenge to that document, not the informal note made on 3 June 1903. The respondent herself recognised this in her notice of application which was directed to the order, of 10 August 1903, not the decision or note of 3 June 1903.

[32] We understand that s 390A(10) was not drawn to the attention of Hingston J. Had he been aware of it he would doubtless have declined to intervene. As he lacked the jurisdiction to amend the order the appeal must be allowed on that ground alone.

Res judicata

[33] Given our conclusion as to jurisdiction under s 44, the other grounds for appeal can be traversed more briefly.

[34] Ngati Raina had already challenged the validity of the title of Makea Takau and her descendants without success in 1937 and in 1950. Without citing authority for this proposition, the Judge thought that res judicata did not apply because "neither section 44 of the Judicature Act 1980-81 or allegations of fraud were before those Courts". However the rule in Henderson v Henderson ((1843) [1843] EngR 917; 3 Hare 100) is that res judicata embraces not only those matters which a party elected to advance in previous litigation but also those which it could and should have advanced but neglected to do so.

[35] We have not been referred to any evidence or argument in support of the respondent's present application that would not have been available to her predecessors in 1937 and 1950. Subject to express statutory exceptions, such as s 390A(10), the courts have always had the power to rectify inconsistencies between the decision they intended, and the recorded text, in their own records. Section 44 is merely a recent embodiment of that long-standing power. As to fraud, Hingston J ultimately rejected the allegation in any event. But the essence of the "fraud" alleged on the part of Makea Takau was no more than the allegation that she claimed land to which she was not legally entitled. That was the very allegation pursued without success in 1937 and 1950. Nor is it an allegation of fraud per se. It is merely the allegation that she pursued a claim without legal or customary justification. Res judicata applied.

Grounds for rectification

[36] The respondent's family have clearly had a long-standing sense of grievance over the events of 1903. By this point we have concluded that the courts have no jurisdiction to inquire into the matter. It is too late to call the order of 10 August 1903 into question.

[37] It may be of some consolation to the family to understand that even if there had been jurisdiction, it is far from clear that as a question of fact, the order of 10 August 1903 fails to reflect the Judge's intention at the time.

[38] Mr Holmes sought to rely upon the surrounding events, and the Judge's journal, to suggest that as a matter of inference the Judge must have limited Makea Takau's interest to a life interest on 3 June 1903. However as Mr Holmes ultimately conceded, that conclusion is at least open to serious debate. Mrs Browne provided a possible explanation as to how that could have come about. There is some support for her explanation in the spacing and wording of the minute book. The respondent's theory fails to explain why the Judge would sign something so different in the formal order itself.

[39] Had it been appropriate for a court to embark upon this factual question over a hundred years later, the onus would have been on the respondent to persuade the court that Judge Gudgeon did not know what he was doing when he signed the order on 10 August 1903. After this lapse of time, that would have been a difficult onus to discharge.

Conclusion

[40] The appeal is allowed. Hingston J's decision of 8 April 2008 was made without jurisdiction. His direction that the order of 10 August 1903 be amended so as to limit Makea Takau's interest to a life interest is quashed.

[41] The respondent is to pay costs of $2500 to the appellant Ellena Tavioni together with disbursements to be fixed by the Registrar.

[42] As between the appellant Meremaraea MacQuarrie and the respondent there will be no order as to costs given the delay in seeking leave to appeal.

SIGNED this 10th day of July 2009

Barker JA

Fisher JA

Grice JA