Pirake v Pierre [2012] CKLC 3; CA01.2012 (27 June 2012)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
CA 1/2012

IN THE MATTER of Section 58 of the Judicature Amendment Act 2011

AND

IN THE MATTER of Section 429 and 430 of the Cook Islands Act 1915 and Rule 348 of the Code of Civil Procedure 1981

AND

IN THE MATTER of the land known as PUE SECTION 130, LOT 7, AVARUA

AND

IN THE MATTER of an application for Partition between MANOA PIRAKE of Rarotonga
Applicant

AND

INA PIERRE for the Landowners
Respondents

Hearing: 27 June 2012

Counsel: Ms Inder for the Applicant
Ms Pierre in person for the Respondents

Date: 27 June 2012

JUDGMENT OF THE COURT

[1] This is an amended application for leave of the High Court to appeal to the Court of Appeal against a judgment of Isaac J dated 5 March 2012. It must immediately be noted that, according to Ms Inder, the judgment may be misdated and in fact may have been delivered on 5 April 2012.

[2] The amended application is based on the grounds that the land in question is worth more than $4,000 - a matter which does not seem to be in dispute - and it is said that the appeal involves matters of general or public importance, the magnitude of the interest affected requires to be revisited on appeal and for the justice of the case requires that to occur.

[3] The amended notice of appeal sets out what are said to have been the errors of law into which Isaac J fell, those of course being matters the applicant seeks to cover again on appeal.

[4] Ms Pirake who appeared at the substantive hearing in this Court for the owners, appeared again as a lay person on the leave application. It was first called on 22 June 2012 but then adjourned to 27 June 2012 because of Ms Pierre’s parliamentary duties. She on 26 June 2012 filed a detailed objection to the amended application supported by a number of other documents.

[5] At the hearing on 27 June 2012 it was explained to Ms Pierre that what was in issue was not the merits of the proposed appeal but whether the High Court’s permission was required before an appeal could be brought or whether this was an appeal now capable of being brought as of right because of the enabling provisions of the Judicature Amendment Act 2012. It was further explained to Ms Pierre that the factual issues she had raised before Isaac J, and again in her submissions and notice of opposition, were matters she could raise again at the hearing of the appeal, expected to be in November of this year.

[6] It seems clear from the amended application to appeal, taken in combination with the Judicature Amendment Act 2012, that this is an appeal which can be brought as of right and accordingly leave or permission of the Court is not required.

[7] Ms Inder suggested that security for the appeal should be in the sum of $1,000 payable within 28 days on the basis the appeal was unlikely to take more than half a day to hear. However, given that the opposition is likely to be argued by Ms Pierre, possible lack of economy in addressing the facts and the complexity of the legal issues suggest it would be prudent, at least provisionally, to set aside a day for the hearing of the appeal and, if possible, to give the Court of Appeal an opportunity to deliver an oral judgment.

[8] In those circumstances the preferable course is to direct that the security for the costs of appeal should be fixed in the sum of $2,000 with that sum being directed to be paid within 28 days of today’s date.

[9] The Applicant is directed to use all reasonable despatch to ready the appeal for hearing in the hope it can be disposed of in the next sitting of the Court of Appeal here in Rarotonga in November this year.

Hugh Williams, J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.