Kapao v Vainepoto [2010] CKHC 26; JP Appeal 10 of 2010 (10 December 2010)

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

JP APPEAL NO. 10/2010
ATIU FILE NO. 34/2010

IN THE MATTER of Section 76 of the Judicature Act 1980-81

AND

BETWEEN

KAPAO KAPAO
Appellant

AND

TANGATA VAINEPOTO
Respondent

Hearing: 9 December 2010

Counsel: Mr George for Appellant
Mrs T Browne for Respondent

Judgment: 10 December 2010

JUDGMENT OF GRICE J
[Appeal against a Decsion of Justice of the Peace, N Tangaroa, made on 21 October 2010]

N George, Norman George & Associates, Avarua, Rarotonga
T Browne, Browne Harvey & Associates, Avarua, Rarotonga

[1] Kapao Kapao, a retired Pastor, planted taro on the land in Atiu for many years. He received a notice from Tangata Vainepoto, an owner of the land, to stop planting taro and vacate the premises. That notice was sent on the letterhead of the Ministry of Justice and signed by Mr Vainepoto as Deputy Registrar of the Court, which is his position.

[2] The letter of 15 September 2010 was attached to both the Notice of Appeal and as Exhibit A to the affidavit of Mr Vainepoto in su of his Noti Notice of Opposition. Mrs Browne translated the letwhr, which is in Maori, and Mr G agreed the translation waon was correct. The translation indicated that it was a letter in which the Appellant was told th did ave a right to plant taro on the land, nor did heid he have a right to fence the land. He w He was asked not to plant any further and to remove the fences. Mr G submitted, and Mrs B160;Browne d, the letter wter was signed by the Respondent under the designation of "Deputy Registrar".

[3] Following that letter the Respondent applied to the Justice of the Peace seeking an in injunction to recover the the land. He said he did this because the Appellant refused to stop planting, and he received a complaint in his capacity as Deputy Registrar of the High Court in Atiu from Tangata Tauraa, who is related to Mr Vainepoto.


[5] Both the Appellant and Respondent were given a chance to speak at the injunction hearing. Mr Vainepoto says that Mr Kapao agreed th was not a lt a landowner, and agreed he would remove his fence and pay costs of $86 to reimburse the landowners' filing fees.

[6] The interim injunction was granted. The record on the Court file bears the notation:

21.10.10 @ 9:05 am.

Injunction Order granted.

By consent:

(1) Kapao Kapao is to vacate land forthwith.

(2) He is permitted to remove his pig fence forthwith.

(3) Kapao Kapao to reimbursrt fees $86 to complainantsnants.

(4) The taro plot plants (200 shoots) to remain the property of the landowners.

Signed by N. Tangaroa, JP

10.15 am

[7] It indicates the Order was made "by consent".

[8] Mr George foao Kapao is appealppealing both the Order for interim injunction and the costs award. No evidence was filed in support of the aption. The Respondent filed an affidavit in support of his Notice of Opposition, and Mrs&#16s Brolso indicated he was avas available in Court, together with the other landowners, to be cross-examined.

[9] Mr George aed no evidence. He . He madmissions that:

• Mr Kapaounsophisticated and dind di realise that he was involved in a hearing for an injunctionction. He thought the Order for payment of $86 in fact was a Court fine h ordered to pay. The "consent" he gave probably was to leav leave the taro patch.
  
• Mr Kwas taken advantage of. Mrf. Mr Vainepoto was using his title as Deputy Registrar to influence the Appellant. Mr Vainepoto is mophisticated ated in the ways of Court processes and took advantage of Mr Kapao.
  
Mr Kapft the land within four four weeks. He should not now suffe penalty of having to pay costs.

• The interim injunctio no expiry date.
  

[10] Mrs Browne responder client hadt had to fly here today from Atiu, accompanied by two of the other landowners. Mr Voto acted correctly throughroughout and contacted the Deputy Registrar in Rarotonga about ttter, to make arrangements ents for someone to act as Deputy Registrar when the interim injunction was heard.

[11] Mrs Browso submitted that it wait was usual for an interim injunction to be issued in these terms. It was issued under s 409(e) of ook Is Act. JustiJustices of the Peace can only make interim Orders not final Orders. UsualUsually a High Court Judge of the Land Div deals with those Orders.

[12] She sought costs if the appeal was dismissed.


[13] Mr George in his reply ated heed he would not push further on the appeal against the interim injunction. He pointed out that he had seen many injunctioth set expiry dates. This one did not have a set expiry date, which is what he was complainplaining about. However, he did not push the point in that regard.

[14] I am unable to see any grounds to upset either the interim injunction Order or the Order for costs. There is no requirement for an interim injunction to have an expiry date. It also became apparent in the course of the hearing that in fact the $86 Order for costs is not an award of costs but in fact a disbursement, being the filing fee in relation to the interim injunction. I can see no grounds for setting aside the interim injunction nor the award of costs.

[15] Accordingly the two appeals are dismissed.

[16] Costs are reserved. I propose that costs should follow the event as is the usual case. Submissions on costs by counsel are to be filed as follows:

1. Counsel for the Respondent to file and serve submissions within seven (7) days of the date of this Judgment.
   
2. The Appellant to file submissions in response within three (3) days from receipt of the Respondent's submissions.
   

100. Any reply to be filed and served two (2) days after receipt of the Appellant's submissions.
     

Grice J