In re Ariki (Report) [2005] CKHC 11; App 08.2005 (22 September 2005)

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

Application No. 8/05

IN THE MATTER
of Section 390A of the Cook Islands Act 1915,
Rule 338 of the Code of Civil Procedure of the High Court 1981

AND

IN THE MATTER
of the office of PA ARIKI

AND

IN THE MATTER
of the determinations of Dillon J and Greig CJ delivered in
the High Court at Rarotonga on 21 December 1990 and 2 July 2004
respectively that Pa Marie Teariki Upokotini is the rightful
holder of the office of Pa Ariki

AND

IN THE MATTER
of an application for Rehearing by
PA MOEROA TETIANUI ARIKI of Rarotonga
Applicant

Mr J Ka for applicant
Mr Pale to assist
Mrs T Browne for Respondent

Date of Hearing: 22 September 2005

REPORT TO CHIEF JUSTICE

Background

This is an application by Pa Moeroa Tetianui Ariki to set aside orders made by Dillon J on 21^st December 1990, and C J Greig on 2nd July 2004 both of which addressed and accepted the genealogy and identity of the Kopu Ariki of the current Pa Ariki.

Enquiry

In his application Mr Ka directed inflammatory and derogatory allegations at the Counsel appearing in those matters alleging that she had acted in a "deliberately dishonest" manner.

At page 8 of the application, Mr Ka states that the decision of the Court challenged were:

"deceitfully procured by the misconduct and fraudulent misrepresentation of her counsel by allowing what at first to be unilateral mistakes to be "cooked up" by the Respondents counsel by deliberate dishonesty and fraud in the circumstances or where the relevant requirements in terms of customs and usages were not correctly explained to Dillon J and Greig CJ sitting as the Arbiter of facts."

On the 22^nd September 2005 when the Court conducted the enquiry into the matter, counsel for the Applicant adduced no evidence but said he relied upon the grounds set out in his application and submissions dated 18^th August 2005.

Mrs Browne, Counsel for the Respondent apart from addressing and refuting the allegations declared and argued that since the Applicant had not filed an application to set the orders aside on the grounds of fraud but has applied under Section 390A/15 alleging error or mistake, those allegations are irrelevant.

Counsel also argued that neither the application filed, nor the submissions filed in support provide any evidence which would indicate, however remotely, that the genealogy upon which both decisions were brought down were in any way "cooked up" or intended to mislead.

Mrs Browne produced a copy of the decision of Dillon J of the 21^st December 1990 and attached to it is the genealogy produced to the Court at the time.

For the purposes of comparison, Counsel also appended to the decision, a copy of the genealogy of this family taken from the "Pa" title file. It is exactly the same as that produced to the Court before Dillon J and C J Greig.

On the 17^th July 1998 McHugh J produced his Judgment on applications 334-337/96, 411/97 and 413-415/97 relating to an application to revoke succession amongst the Pa family. There, His Honour Justice McHugh conducted a deep and thorough examination of the genealogies and found in favour of the line from Pa Tepaeru Te Rito Ariki, see page 42.

Whilst the judgment of McHugh J, was some 8 years after that of Dillon J, the thorough examination of the genealogy by McHugh J vindicated the genealogy adopted by both Dillon J and C J Greig.

There is absolutely no evidence to show that the applicant appears on what has been conclusively accepted as the true and Court accepted genealogy of the Pa line.

Further the Kopu Ariki who are to select and appoint holders of the Pa title have been established beyond doubt as the descendants of the three wives of Taputapuatea, the common ancestor.

Recommendation:

In the absence of any evidence to show conclusively that the decisions of Dillon J and C J Greig were made in error the application has failed.

The application should be dismissed.

Costs:

Mrs Browne, counsel for the Respondent claims that her client, Pa Ariki, who now works in New Zealand had to travel from New Zealand to defend this current applicant's claim to the title in March of this year, when the claim was dismissed, and was required to travel back from New Zealand again to defend these proceedings.

The time of the proceedings particularly in regard to the attack on counsel could justify the holding of these proceedings as vexatious warranting the award of costs.

Regardless of this, the persistence with which this applicant has pursued this matter in the face of overwhelming decisions as set out in pages 2 to 6 of the submission of counsel for the Respondent, would warrant an order for costs.

Under Section 92 of the Judicature Act 1980-81 the Court has the widest discretion to make such order as it thinks just for costs.

Rule 300 of the Code of Civil Procedure repeats this discretion, but with a proviso that in the default of any special direction costs shall abide the event the proceedings.

Section 390A (4) of the Cook Islands Act 1915 empowers the Chief Justice to award costs to any person opposing the application.

Accordingly there is a further recommendation that costs be awarded but first counsel should be invited to submit memoranda in respect thereof.

N F Smith
JUDGE