Enjoy v Newport [2010] CKHC 11; Application 97 of 2010 (13 October 2010)

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

APPLICATION 97/2010

IN THE MATTER of Section 50 of the Cook Islands Amendment Act 1946

AND

IN THE MATTER of an Application to (1) revoke an Occupation Right granted by error under Section 450 of the Cook Islands Act 1915 and (2) an injunction under Section 409(d) preventing CHRISTINA NEWPORT, her husband and agents from entering this land

AND

IN THE MATTER of the land known as OTAKE SECTION 12F MAII, NGATANGIIA

BETWEEN

TAPU ENJOY and PURETU HEATHER
Applicants

AND

CHRISTINA NEWPORT
Respondent

Hearing: 13 October 2010

Appearances: Norman George for Applicants
Charles Petero and Nooroa Tuoro for Respondent

Judgment: 13 October 2010

JUDGMENT OF SAVAGE J

Solicitors:

N George, Norman George & Associates, Avarua, Rarotonga
Charles Petero

[1] When the application was called Mr Petero took the view that Mr George could not apply for a rehearing, he was outside the 14 days plus reasonable time as contemplated in Rule 221. I pointed out to him that Rule 338, insofar as the Land Court was concerned, is somewhat different and did allow Mr George's client to proceed with an application for rehearing. There was then discussion as to how many owners there were at the date of the hearing before the Justice of the Peace. It is now accepted there were 60. Mr Petero says that he had 38.

[2] Mr George's clients' objection is on the basis that people appeared to represent their family when there was no Power of Attorney or proof that they did so express a wish for their family. I turn back to Section 50 of the 1946 Amendment. It does not require consent. It requires that the Court be satisfied that the majority of the owners wish for the Occupation Order to be made. It is common and usual in Polynesian terms, particularly where there has been a diaspora around the world - and you see it in New Zealand, in this jurisdiction and in Niue - for leaders who have remained in the kainga, as New Zealand Maori would put it 'on the canoe', to speak for their family. That is usual and proper.

[3] In this case there was a meeting. At that meeting Mr George's client contested the matter, but she did not contest it on the basis that these three people who consented for their family did not have the power to do so. The matter was then called before the Justice of the Peace and was uncontested. The standard of evidence required in an uncontested hearing will inevitably be less rigorous than is required when there is a full adversarial contest. In this case, as I say, the matter was uncontested. The Justice of the Peace was entitled to be satisfied that there was a majority of 38 out of 60, and it appears she was so satisfied. She had a proper basis to be satisfied, and I decline to grant a rehearing or to amend or revoke the order.

[4] The application is dismissed.

P Savage J