Foulagi v Tukiuha [2019] NUCA 5; Application 11843 (2 July 2019)

IN THE COURT OF APPEAL OF NIUE (LAND DIVISION)
Appeal No: 11843
UNDER	Article 55A(3) of the Constitution of Niue Rules 30 and 39, Niue Land Court Rules 1969
IN THE MATTER OF	Block 1 Omahi, Provisional Plan 11264
BETWEEN	FOAHALAMAMAO FOULAGI Appellant
AND	GEORGINA TUKIUHA AND TEREVAEAU HIKU Respondents

Hearing:	14 March 2019
Court:	Coxhead CJ Isaac J Armstrong J
Appearances:	M Talagi for the Appellant C Tukiuha for the Respondents
Judgment:	2 July 2019

DECISION OF THE COURT OF APPEAL

Introduction

[1] On 28 September 2015, the Commissioners (Land Division) determined a common ancestor and appointed a leveki mangafaoa, for Block 1 Omahi, Provisional Plan 11264. Mr Foulagi filed an appeal against that decision, as well as an application seeking a rehearing. Both applications were filed out of time.
[2] The appeal and application for rehearing came before Reeves J. She determined there was no proper basis for the appeal, and the application for a rehearing, to be heard out of time. Both applications were dismissed.^[1]
[3] Mr Foulagi now appeals the decision of Reeves J. This decision determines whether the appeal should be upheld.

What are the issues in this case?

[4] There is no dispute that the appeal and the application for rehearing were filed out of time. Reeves J declined to grant leave to hear those applications out of time. This appeal turns on whether special leave can, or should, be granted in this case.

Discussion

[5] Mr Talagi, for the appellant, argues that the Court has jurisdiction to grant special leave to appeal outside of the prescribed time period per art 55A(3) of the Constitution of Niue. This states:

55A Jurisdiction of Court of Appeal

...

(3) Notwithstanding anything in subclause (2) of this Article, and except where under any Act a judgment of the High Court is declared to be final, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to that Court from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit.

[6] We accept that art 55A(3) allows the Court to grant special leave to appeal out of time against a decision of the High Court.^[2] However, Reeves J considered an appeal out of time against a decision of the Commissioners. This is provided for in s 47D of the Niue Amendment Act (No 2) 1968 and r 39 of the Niue Land Court Rules 1969. Rule 39 states:

39. Appeal from Commissioner

(1) Any party to any proceedings before a Commissioner may appeal from any order or decision of the Commissioner to a Judge of the High Court.

(2) Every such appeal shall be by way of an application in form 1 to the High Court, and shall be filed in the Court office within 28 clear days after the date of the order or decision appealed from.

....

[7] This rule imposes a mandatory requirement that any appeal against a decision of a Commissioner must be filed within 28 days after the date of the decision. This rule is absolute. There is no equivalent to art 55A(3) which gives the Court discretion to grant leave to appeal such a decision out of time.
[8] Mr Talagi argued that the appellant is elderly and is not familiar with Court process. He contends that requiring strict compliance with this timeframe is a breach of natural justice and the principles of the Bill of Rights, as enshrined in the New Zealand Bill of Rights Act 1990.
[9] Filing deadlines are nothing new. Mandatory timeframes for filing proceedings are common, not only in Niue, but in most jurisdictions worldwide. We do not accept that the filing deadlines in this case are a breach of natural justice or the Bill of Rights.
[10] The jurisdiction granted to this Court is purely statutory.^[3] We can only exercise those powers conferred on the Court by statute or regulation. Rule 39 is clear that any appeal against a decision of a Commissioner has to be filed within 28 days. Neither the High Court, or the Court of Appeal, has any discretion to extend that timeframe. Mr Foulagi’s appeal was filed outside of that timeframe. There was no option available other than to dismiss the appeal.
[11] The same applies to an application for rehearing. Rule 30 of the Niue Land Court Rules 1969 states:

30. Application for rehearing

No application under section 45 of the Niue Amendment Act (No 2) 1968 for a rehearing shall be made after the expiration of 14 clear days after the making of the order or determination in the matter in respect of which the rehearing is sought.

[12] This rule is clear that an application for rehearing must be filed within 14 days. Once again, the Court has no discretion to extend this timeframe. Article 55A(3) only applies to an appeal against a decision of the High Court, not an application for rehearing. Mr Foulagi’s application for rehearing was filed outside this timeframe and so is time barred.
[13] While this appeal must be dismissed, we record that occasions will arise where the interests of justice support the grant of an extension to appeal from a decision of a Commissioner, or to seek a rehearing. As noted, at present the Court has no discretion to grant such an extension even where the circumstances support an enlargement of time. We raise this as a matter for the Niue Legislature to consider as a possible amendment to the Niue Land Court Rules 1969.

Decision

[14] The appeal against the decision of Reeves J is dismissed.
[15] If the respondents seek costs, they are to file and serve submissions on costs within two months of this judgment. The appellant is to file and serve any submissions in response within a further two months. We will then make a decision as to costs on the papers.

Pronounced at 2:20pm in Whangārei on the 2^nd day of July 2019.

C T Coxhead W W Isaac M P Armstrong
CHIEF JUSTICE JUSTICE JUSTICE

---

^[1] Foulagi v Tukiuha HC Niue (Land Division) 11339, 1 November 2018.

^[2] Fukava-Funaki v Douglas CA Niue, 11549, 12 February 2019; Hipa v the Crown CA Niue, 9 July 2012; and Mc Coy v the Crown CA Niue, CR 26/09, 1 March 2011.

^[3] See Mc Coy v The Crown CA Niue, CR 26/09, 1 March 2011 at [6].