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Tonitara v Taripo [2004] CKHC 14; Misc54.04 (25 August 2004)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)


Misc No: 54/04


IN THE MATTER of the Section 28 of the Electoral Act 2004


BETWEEN:


TWIN TONITARA of Penrhyn, a registered elector
for the constituency of Penrhyn
Applicant (Appellant)


AND


TEANAU TARIPO Registrar of the constituency of Penrhyn
First Respondent


AND


BRIAN TERENCE HAGAN
Chief Registrar of Electors
Second Respondent

Hearing: 10 August 2003

Appearances:
Mr C Little for Applicant

Mr J McFadzien for First and Second Respondents

Mrs T Browne for Electors

Date of Decision: 10 August 2004

Date of Reasons for Decision: 25 August 2004

REASONS FOR DECISION OF DAVID WILLIAMS J

Solicitors

For Applicant:
Charles Little PC, PO Box 167, Avarua, Rarotonga, Cook Islands.
For Respondents:
McFadzien PC, 1st Floor, T J Browne's Building, Main Road, Avarua,
Rarotonga, Cook Islands.
For Electors:
Browne Gibson Harvey PC, PO Box 144, Pukekura Place, Avarua,
Rarotonga, Cook Islands.

INDEX


INTRODUCTION
RECENT LEGISLATIVE REFORMS
ELECTORAL PROCEDURE — SECTIONS 13 - 28
ELECTORAL ACT 2004
APPEALS TO THE HIGH COURT
THE CIRCUMSTANCES OF THE PRESENT CASE
ISSUES FOR DETERMINATION
LEGITIMATE EXPECTATION
COSTS
CONCLUDING OBSERVATIONS


INTRODUCTION

[1] This case involves an appeal under section 28 of the Electoral Act 2004. The appeal sought to challenge the Registrar's decision rejecting objections filed by the Applicant, now the Appellant: against six electors whose names appeared on the Penrhyn constituency Main Roll namely:
[2] The matter came before the Court by way of a telephone hearing on Saturday 7 August 2004. During that hearing, it became apparent that there was a major issue as to the timeliness of the appeal. There was insufficient information before the Court to rule on the contention made by counsel for the electors that the appeal was out of time. For that reason the matter was adjourned until August 10 when there was placed before the Court a great deal more information and especially a helpful memorandum from counsel for the Respondents on the question of the timing and publication of the Registrars impugned decision.
[3] After hearing argument from all counsel by way of a telephone hearing on August 10, the Court decided that the appeal was out of time and therefore it had no jurisdiction to deal with the substantive matters raised in the appeal. For reasons which will become apparent, the question of costs was reserved and the Court directed that any party might file and serve an application for costs within fourteen days from August 10. In that event the opposing parties would be entitled to reply to any such applications within a further fourteen days.

RECENT LEGISLATIVE REFORMS

[4] New provisions governing the eligibility or otherwise of electors to be enrolled to vote in the Cook Islands or in a particular constituency were introduced by the Constitution Amendment (No 26) Act 2003 and by the Electoral Act 2004. The Constitution Amendment (No. 26) Act 2003 amended Article 1(1) of the Constitution by repealing the definition of "to reside" (that definition having been inserted by the Constitution Amendment (No. 9) Act 1980-81). The Constitution Amendment (No. 26) Act 2003 also substituted a new Article 28 as to the qualification of electors. The Electoral Act, in section 7 followed the Article 28 formula in its new provisions dealing with the qualifications for registration of electors.
[5] These new provisions, through the Articles 28(1)(b), and 28(2), and section 7 of the Electoral Act, introduced the concept that a person becomes eligible to enrol as an elector, upon actually residing in the Cook Islands, or in a particular constituency, for which he or she is then enrolled, until such time as the person leaves the Cook Islands, or the constituency as the case may be, for a continuous period exceeding 3 months: Article 28(2) and section 7(4). If the person leaves the Cook Islands for that period, that person, subject to the exceptions referred to below, loses his or her right to be enrolled in any constituency and is thus disenfranchised. If on the other hand that person remains in the Cook Islands, that person does not become disenfranchised, but instead, on having been actually resident in another constituency for 3 months, simultaneously qualifies for enrolment in that other constituency.
[6] The effect of Article 28(2) and section 7(4) are, however, subject to the exceptions set out in Article 28(4) of the Constitution and in section 7(6) of the Electoral Act. The latter provides:
[7] All of the six challenged electors sought to rely upon one or other of the section 7(6) exceptions.

ELECTORAL PROCEDURE — SECTIONS 13 - 28 ELECTORAL ACT 2004

[8] Section 13 imposes a system of compulsory registration of electors. Section 14 provides for the compilation of the Chief Registrar of Electors of Main Rolls for each constituency, and a Supplementary Roll for each constituency compiled when required for an election or a by-election. Section 15 provides that for the purposes of a general election, which is what is involved in this case, the Main Roll shall be closed 7 days following the date on which the Queen's representative publishes notice of the general election and that the Supplementary Roll shall open the day following the closing of the Main Roll and shall be closed 14 days thereafter. Section 17 provides for public inspection of Rolls. Sections 19 and 20 outline the procedure for applications for registration by electors. Sections 21 - 23 make provision for changes of registration details.
[9] The provisions with which this appeal is concerned are to be found in sections 24 - 28. Section 24(1) provides that an elector may at any time object to the name of an elector whose name appears on the same roll, on the ground that he or she is not qualified to be registered as an elector or is not qualified to be registered on the roll on which his or her name appears. Such objections must be made within 7 days after the closing of the relevant roll for a general election. Under section 25 the Registrar on receipt of such an objection must forthwith serve written notice of the objection on the elector objected to and provide details of the objection. Section 26 provides that the Registrar himself may object to the name of any elector being on the roll for any constituency. The same 7 day time limit applies to objections by the Registrar. Section 27 provides that the Registrar may amend the roll if the elector objected to fails to provide any satisfactory evidence of eligibility or alternatively notify the Registrar that he or she consents to the removal of his or her name from the roll.

APPEALS TO THE HIGH COURT

[10] The precise provision with which this appeal is concerned is to be found in section 28 which provides as follows:
[11] Section 102(1) provides that every determination or order by the Court in respect of any proceedings under section 28 shall be final and conclusive and without appeal. Section 102(2) provides that, notwithstanding subsection (1), where any party to any proceedings under section 28 is dissatisfied with any decision of the Court as being erroneous in any point of law, that party may appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only. In appeals under section 102, the Court of Appeal has powers to refer appeals back for reconsideration.
[12] As to evidentiary matters on appeals it is relevant to note that section 99 of the Electoral Act provides as follows:
[13] While this provision is not expressly made applicable to appeals under section 28, it is clear that a similar approach should be adopted, especially when the Court is dealing with the democratic right to vote. In any event, as was pointed out by counsel for the Respondents, an appeal under section 28 is a civil proceeding to which section 3 of the Evidence Act 1968 applies. That provision, which is of universal application to civil proceedings, states as follows:
[14] This approach required by section 99 of the Electoral Act 2004 can be seen at work in the Chief Justice's recent decision in the Manahiki election case to which reference is now made.
[15] In the present context, the critical part of section 28 is the phrase "may within seven days of the Registrar's decision being made appeal". This phrase was considered in the recent judgment of the Chief Justice in the Manahiki Election Case, Kairua v Solomona and Hagan [2004] CKHC 15 Application OA 14/2004. The Chief Justice said:

THE CIRCUMSTANCES OF THE PRESENT CASE

[16] The appeal was against the "decision of the First Respondent and/or the Second Respondent or both of them for rejecting the objections filed by the Applicant against the following electors whose names appear on the Penrhyn constituency main roll". The Notice of Appeal was dated 23 July 2004.
[17] Counsel for the Applicant advised that he received instructions to act late on the .afternoon of 21 July 2004. On 22 July 2004 counsel consulted with his client and was able to determine in respect of which elector the Applicant wished to lodge an appeal and prepared the appeal documents accordingly. At approximately 2.00pm on 23 July 2004, counsel's secretary attended the High Court in Avarua to file the appeal but the High Court had closed early because of the Constitution Celebrations. Counsel had not been aware that this was going to occur. Being mindful of the time limits counsel faxed a copy of the application on 23 July 2004 to the High Court at 2.26pm. The time of transmission recorded on the facsimile is 2.26pm on 23 July 2004. I find that the appeal was lodged on 23 July 2004.
[18] On behalf of the electors Mrs Brown made the following submissions to support her contention that the appeal was out of time.
[19] Thus the crucial issue in this case is the date from which time runs. The Applicant submitted that time ran from the date the Applicant received the letter from the Registrar dated 19 July 2004. That letter was from the Electoral Office of the Cook Islands at the Ministry of Justice Office in Avarua, Rarotonga, and stated as follows:
"Electoral Office
Cook Islands

July 19, 2004
Ministry of Justice
Post Office Box 111
Rarotonga
Cook Islands
Twin Tonitara
Registered Elector
Penrhyn Constituency
Penrhyn
Kia orana,
Objections to Elector Registration
On 29th June 2004 you lodged ten (10) objections to electors on the Penrhyn Main Roll. In accordance to Sec 25 of the Electoral Act "... notice shall be deemed to have been given if the Registrar delivers the notice to that elector's last known address in the constituency." Most of those you have objected to are not within the constituency making it difficult to contact and obtain responses from them.
I am attaching a list of those objections including the decisions of the Registrar.
If you are dissatisfied with a decision made, you may within 7 days after receipt of this letter, appeal to a Judge of the Court for a review of that decision.
Regards
Taggy Tangimetua
Registrar of Electors
All Constituencies
cc:
Teanau Taripo

Registrar of Electors

Penrhyn Constituency"
[20] Putting to one side for the moment the effect of the 19 July letter, it was apparent that the critical question as to this appeal was the date upon which the Applicant was notified of the decision because, applying the Chief Justice's decision in the Manahiki case, that date would be the date from which the 7 day appeal period runs. This in turn was connected to the question of date of publication of the Supplementary Roll and when the Applicant came to know of its publication and its contents.
[21] It is first necessary to record several matters confirmed in the Applicant's affidavit of the 2nd of August 2004. First, the Applicant resides in the village of Omoka, Penhryn and has been so resident there for all of his life. Second, the population of the Island of Penhryn is small. Third, on the 29th of June 2004 the Applicant lodged with the First Respondent 10 objections against electors whose names appeared on the main roll for the Penhryn constituency. All objections against the 10 electors were rejected, and 6 of those electors were the subject of this appeal. It is clear from these matters and from the fact that the applicant was chosen by his political party as the elector who would have the responsibility for pursuing appropriate objections on Penrhyn, that the question of the publication of the Supplementary Roll would be a matter of intense interest to the applicant.
[22] Next the court must address the circumstances surrounding the publication of the Supplementary Roll. The Court is obliged to counsel for the Respondents who investigated the matter through Mr Teanau Taripo, the Deputy Registrar of Electros for Penrhyn. In submissions to the Court counsel for the Respondents stated as follows:

ISSUES FOR DETERMINATION

[23] The issues for determination were helpfully summarised in the submissions of counsel for the Respondents as follows:
The reference to the fax of 19 July is of course a reference to the letter of 19 July.
[24] Counsel for the Applicant strongly contended that time should run from the date of receipt of the 19 July letter and not any earlier. Since there was no evidence that it was faxed, it was submitted that the Applicant should be taken to have received it several days later. However, even if time ran from the date of the letter of 19 July, it would make no difference because that would mean the application should have been filed by 26 July 2004 and it was lodged by fax on 23 July. Counsel for the Applicant submitted that:
[25] In approaching this matter I respectfully agree with the Chief Justice in his Manahiki decision that the word "made" in section 28 must be read as meaning made known to the objector or other relevant party. To do otherwise would render the section 28 procedure unworkable and deprive objectors of their statutory rights because the 7 days could expire without them having become aware that the Registrar had made his decision.
[26] It is relevant to note the definition of "public notice" in section 2 of the Electoral Act 2004 which states:
In this present context one should read the phrase "throughout the Cook Islands" as being "in the constituency".
[27] I accept the evidence of Mr Taripo that everyone in Penrhyn, including the Applicant, had notice of the publication of the Supplementary Roll with its inclusion of the electors objected to, on 12 July, especially since:
It follows that I cannot accept the claim made in the Applicant's submissions at paragraph 9 that "the Applicant in this matter was not actually aware of the Registrar's decision to retain the electors on the Penhryn Roll until he received a letter from Taggy Tangimetua, Registrar of Electors to himself dated 19 July 2004".
[28] Even if one takes the word "made" literally, the Applicant must have known by the very fact of the publication of the Supplementary Roll that the Registrar had made his decision on the objections.
[29] Accordingly, time ran from 12 July and the appeal is out of time unless the Court is to uphold the submissions for the Applicant that in the particular circumstances of this case, time should only run from the date of receipt of the letter from the Registrar of 19 July.

LEGITIMATE EXPECTATION

[30] Although not couched in the language of legitimate expectation, the essence of the argument of counsel for the Applicant was that delivery of the letter of July 19 created a legitimate expectation that the Applicant was still able to file a timely appeal so long as this was done within seven days. In short, a legitimate expectation arose from the statement or assurance given in the letter that a valid appeal could be lodged within seven days from July 19 2004. The Applicant was therefore entitled to and did rely on the letter in that regard and his appeal should be allowed to proceed.
[31] It is true that the doctrine of legitimate expectation, first introduced by Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1968] EWCA Civ 1; [1969] 1 All ER 904 at 909, is now well embedded in Commonwealth administrative law: see eg GDS Taylor Judicial Review (1991) at 13.06 - 13.13 and Lawson v Housing New Zealand [1997] 2 NZLR 474 at 488.
[32] Nevertheless it has always been accepted that the doctrine cannot operate to enforce the assurance or promise which has given rise to a legitimate expectation if to do so would be inconsistent with the statutory duties imposed on the person making the promise or inconsistent with the relevant statutory scheme. This qualification has often been made in English cases: see for example, R v Devon County Council [1995] 1 All ER 73 per Simon Brown LJ at 88. It was made by the Privy Council in AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629. There the government of Hong Kong announced that certain illegal immigrants, who were liable to deportation, would be interviewed individually and treated on their merits in each case. The Privy Council quashed a deportation order where the immigrant had only been allowed to answer questions without being able to put his own case, holding that "when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should not implement its promise, so long as implementation does not interfere with its statutory duty".
[33] The same fundamental point has been made in New Zealand cases, for example, in Brierley Investments Limited v Bouzaid [1993] 3 NZLR 655, a case involving the relevance and enforceability of a letter written by an Inland Revenue Department official indicating that the Department did not regard certain gains as taxable. Later the Commissioner sought to take a different stance. It was held that the taxpayer was not entitled to a judicial review of the Commissioner's decision to re-open the matter and reinvestigate the affairs of the taxpayer since the Commissioner could not by contract or conduct abdicate or fetter the exercise of the Commissioner's duty to collect tax which was due. Richardson J said at page 661 that:
[34] These principles are fatal to the Applicant's contentions in this case. The statutory scheme provides that an appeal must be lodged within 7 days of the making of the Registrar's decision, subject to the necessary gloss as to the word "made" placed upon it by the Chief Justice in the Manihiki case. To hold that by the letter of 19 July the Registrar validly altered or extended the time for appeal would to be hold that Registrar has the ability to ignore the statutory time limits and grant extensions of time or to dispense altogether with the time limits. This would be improper and illegal as a matter of principle as is shown by the Brierley case, especially as the statute makes no provision for the Registrar or indeed the Court to grant extensions to the 7 day time limit.

COSTS

[35] As noted above in paragraph [3] above I have reserved leave for any party to file an application for costs.
[36] Without making any final decision it seems to me that the Applicant would have an arguable basis for claiming costs on the basis that the letter of July 19 mistakenly led him to believe that, as at July 19, there was still seven days to file an appeal and that thereafter he incurred costs by taking the letter at face value and lodging the appeal.

CONCLUDING OBSERVATIONS

[37] It will be apparent from the decision of the Chief Justice in the Manahiki case and from my decision in this case that there are problems with the way in which the commencement of the seven day appeal period is connected to the time at which the Registrar's decision is "made".
[38] It may be appropriate for counsel for the Respondents to consider this issue and decide whether to suggest to the relevant authorities that the language of section 28 might be suitably re-cast.

SIGNED at Auckland on the 25th day of August 2004 at 4 45 pm

DAVID WILLIAMS J

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