In re Ariki (Judgment) [2005] CKHC 9; App 8.2005 (30 August 2005)

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

APP NO. 8/05

IN THE MATTER
of Section 390A of the Cook Islands Act 1915 and
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

Mrs Browne for Pa Marie Teariki Upokotini Ariki
Date of hearing: 30 August 2005
Date of decision: 30 August 2005

JUDGMENT OF WILLIAMS CJ

This application for a rehearing was lodged on the 18^th of August in the Court accompanied by submissions for a rehearing and the affidavit of Poumanawa Wuatai and another affidavit by the applicant. It relates to the Pa Ariki title and is obviously relevant to the current negotiations between Pa Ariki and the prospective purchasers of the Sheraton Hotel site. Those negotiations may intensify if and when Parliament enacts the Unit Title Bill. Mrs Browne appears for Pa Ariki today as a directly interested party. It is surprising that Pa Ariki was not made a Respondent in this matter especially bearing in mind prior proceedings in the Land Court and it is noted that the application and related documents refer to the Respondent and her counsel. The Court as a first step directs that Pa Ariki is hereby joined as a Respondent to the application and all further intituling in this case shall list Pa Ariki as Respondent.

In applications for rehearing of this kind it is traditional that the Chief Justice should consider exercising his powers under s. 390A(3) to refer any such application to the Land Court for enquiry and report. Mrs Browne advises the Court that she has spoken to the applicant and drawn attention to these powers and suggest that the applicant apply for reference to the Chief Justice under s. 390A(3) but the applicant is apparently diffident about taking such a step. Mrs Browne advised the applicant that she will be coming to Court today to seek such a direction under s. 390A(3).

The Court accepts Mrs Browne's submissions that it is not only the interest of her client but other parties and indeed the country as a whole, that this application be dealt with promptly.

Even if the applicant had appeared and formally opposed such a reference either by himself or his agent I find it inconceivable that sufficient grounds could be developed against any making of such a reference. I believe it is in the interests of justice that there be such a reference and I order accordingly that this application for rehearing be referred to the Land Court for enquiry and report. I direct that this matter be placed before Hon Mr Justice Smith on 22 September 2005. Mrs Browne advises me that Mr Ka will be in Rarotonga on that day. I request that Mrs Browne notify both the applicant and Mr Ka forthwith of the orders I have made today.

CHIEF JUSTICE