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High Court of Niue |
IN THE HIGH COURT
OF NIUE
(LAND DIVISION)
App No. 11339
UNDER Section 45 of the Niue Amendment Act 1968
AND Rule 39 of the Land Court Rules 1969
IN THE MATTER OF the Land known as PART OMAHI, ALOFI DISTRICT
BETWEEN FOAHALAMAMAO FOULAGI
Applicant
AND GEORGINA TUKIUHA and TEREVEAU HIKU
Respondents
Hearing: 14 November 2017
(Heard at Alofi)
Appearances: M Talagi for the applicant
P Allan for the respondent
Judgment: 1 November 2018
DECISION OF JUSTICE S F REEVES
Introduction
[1] This case concerns applications for appeal and rehearing from a decision of the Commissioners (Land Division) made on 28 September 2015, determining a common ancestor, and the appointment of leveki magafaoa for Block 1 Omahi, Provisional Plan 11264 (the land).
[2] On 23 November 2015, Foahalamamao Foulagi (the applicant) filed an appeal of the decision, and then on 27 November 2015, he also filed an application for rehearing. Both applications were filed out of time.
[3] Mr Foulagi appeals the decision in its entirety. He says that because he was unfamiliar with the Land Court process, he was disadvantaged by not being able to put forward his case at the hearing, which has resulted in a breach of natural justice. The application for re-hearing covers the same grounds.
Background
[4] Mr Foulagi filed the original application for determination of title of Part Omahi and appointment of leveki on 9 June 2015.
[5] The survey of the land was conducted on 7 September 2015. The respondents, Georgina Tukiuha, and Tereveau Hiku, disputed the boundaries claimed by Mr Foulagi, and on 9 September 2015, they filed cross applications for the same land.
[6] Both applications were heard on 28 September 2015, before a panel of five Commissioners, and the proceedings were conducted in Niuean. At the end of the hearing, the Commissioners issued a decision determining that Puakafa was the common ancestor, and the leveki magafaoa was Terevaeau Hiku.[1]
[7] The translated minutes of the hearing record the Court’s decision:
The Court have agreed and accepted the family’s decision to have Puakafa as the Common Ancestor for the land because of these reasons:
Issues
[8] The issues to be determined are:
- (a) Should the Court grant leave to appeal out of time?
- (b) Should the Court grant an appeal of the orders issuing from the Commissioners decision?
- (c) In the alternative, should the Court grant a rehearing of the orders?
Preliminary issue – leave to appeal out of time
[9] The regulations relating to appeals from a Commissioner are set out in r 39 of the Land Court Rules 1969 (the LCR) and state:
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.
(3) On the filing of such an appeal, the Commissioner shall, unless a Judge otherwise orders, stay further proceedings on the order or decision appealed from.
(4) Every such appeal shall be by way of rehearing.
(5) Before hearing an appeal, a Judge may impose such conditions on the appellant as the Judge thinks fit as to security for costs or otherwise.
(6) If the appellant fails to prosecute the appeal with due diligence, or fails to observe or perform any of the conditions imposed on him under paragraph (5), the Judge may dismiss the appeal.
(7) (a) The appellant may, at any time before the hearing of the appeal, discontinue his appeal, either wholly or in part, by filing in the Court a notice of discontinuance.
(b) If an appeal is wholly discontinued, the order or decision may be immediately carried into effect and the appeal shall be deemed to have been dismissed under paragraph (6) and the Court shall give directions as to the disposal of any sum deposited as security for costs.
(8) A Commissioner may at any stage of any proceedings before him adjourn the proceedings for hearing and determination by a Judge.
(9) No appeal from an order or decision of a Commissioner shall, save with the leave of the Court or the Court of Appeal, be brought in the Court of Appeal.
[10] Rule 39 must be read alongside s 47D of the NAA:
47D Appeals from decisions of Commissioners
(1) Any party to any proceedings before Commissioners of the Land Court may appeal from the judgment of the Commissioners to a Judge of the Land Court.
(2) Every such appeal shall be by way of rehearing and section 45 of this Act and rule 39 of the Land Court Rules 1969 shall apply accordingly.
Discussion
[11] The appeal filed on 23 November 2015, is against the decision to name Puakafa as common ancestor, and to appoint leveki magafaoa. The grounds of appeal are:
- (a) That the applicant had understood the purpose of the hearing on 28 September 2015 was to clarify boundaries, and not to determine title and appoint leveki magafaoa;
- (b) The applicant only received the respondents written submission on the morning of the court sitting;
- (c) The applicant was not prepared for a process whereby a tupuna was named and a leveki magafaoa appointed;
- (d) There is an issue of natural justice.
[12] Rule 39 of the LCR, requires an appeal to be filed within 28 clear days after the date of the order appealed from. The applicant filed his appeal 60 days following the order, and in these circumstances the Court must first determine whether to grant leave for the late filing.
[13] On 25 May 2017, the Chief Justice directed that the appeal be set down.[2] As presiding judge, it is my decision whether the appeal should be allowed out of time. The overarching consideration for the Court is where the overall interests of justice lie. The relevant factors are: [3]
- (a) The length of delay and the reasons for it;
- (b) The parties conduct;
- (c) The extent of prejudice caused by the delay;
- (d) The prospective merits of the appeal; and
- (e) Whether the appeal raises any issue of public importance.
[14] In relation to the delay, it is the applicant’s responsibility to bring the appeal before the Court as soon as possible after becoming aware of the terms of the order appealed from,[4] and the onus is on the applicant to explain the delay.[5]
[15] The applicant was present in court when orders were pronounced, following his agreement. Without any explanation, I can only infer that he changed his mind some time later, which led to the appeal. The applicant has not sought to explain the delay, and I do not see any reason why he could not have reasonably filed the appeal earlier.
[16] In addition, I am not satisfied that the merits of the appeal are sufficient to warrant granting leave. Mr Talagi confirmed that the decision is appealed in its entirety, but none of the grounds of appeal allege that the decision is wrong, in either fact or law.
[17] Neither does the appeal raise any issue of public importance. The principal complaint is of a breach of natural justice because the applicant was unfamiliar with Court process. However, it is well accepted that procedural issues are not amenable to appeal, and should be dealt with by rehearing.[6]
[18] In relation to prejudice caused by delay; orders were made following agreement by the applicant, and the respondents would have had a reasonable expectation that the issue was finalised. In these circumstances, it was incumbent on the applicant to make his application to appeal as soon as reasonably possible.
[19] I conclude that it is not in the interests of justice to allow this appeal to proceed out of time, and the appeal will be dismissed. On that basis, there is no need to further consider the grounds of appeal.
Rehearing
[20] The applicant also filed an application for rehearing on 27 November 2015, 64 days after the orders made by the Court on 28 September 2015. The grounds set out are essentially the same as those for the appeal, and the issue is whether the Court should grant the application for rehearing.
Discussion
[21] Rule 30 of the LCR, states that an application of rehearing under s 45 must be filed within 14 days of the order or determination in respect of which it is sought.
[22] Section 45 of the NAA, provides:
45 Rehgs
(1)&#(1) On tplication of any personerson interested, the Land Court may, if it thinks fit, grant a rehearing of any matter either wholly or as to any part thereof.
(2) On any such rehearie Couy emay either affirm, irm, vary, or annul its former determination, and may exercise any jurisdiction which it might have exercin the original hearing.
(3) When a rehearing has beegrao granted, the peri period allowed for an appeal to the Land Appellate Court shall not commence to run until the rehearing has been disposed of by a final order of the Court.
(40;Any such rehearing may beay be granted on such terms as to costs and otherwise as the Court thinks fit, and the granting or refusal thereof shall be in the absolute discretion of the Court.
(5) No order shall bvaried or a or annulled at any time after the signing and sealing thereof.
[23] These provisions contemplate a two-step approach; first, the applicant must have made the application within 14 days of the order, and then the Court will consider whether a rehearing should be granted. The Niue Court of Appeal, has determined that the Court has discretion to grant a rehearing but only in the following circumstances:[7]
- (a) Where further material of a credible nature has been discovered which was not available at the original hearing;
- (b) Where there has been a breach of process or procedure which may have disadvantaged one of the parties to the extent that there has been a miscarriage of justice; and
- (c) Where judicial error is involved, a party is entitled to a retrial if the result of the error is a fundamental miscarriage of justice.
[24] Even if one of the above criteria is met, grant of a rehearing is still subject to the absolute discretion of the Court, and is not an opportunity to relitigate,[8] to fix omissions in the presentation of an earlier case, or to reshape that case.[9] The fundamental principle for consideration is whether there has been a miscarriage of justice that justifies granting a rehearing.[10]
[25] In this case, the application for rehearing was filed more than two months after the original decision of the Commissioners. The applicant has not provided any explanation for why he was unable to file within the 14-day time limit as set out in r 30 of the LCR, or given reasons why the Court should consider the application out of time.
[26] The application for rehearing is out of time and will be dismissed for this reason. However, for completeness, I briefly set out the reasons why I consider the application for rehearing would not have succeeded in any event.
- (a) The allegation that the applicant was unfamiliar with Court procedure and so unfairly disadvantaged, is not borne out by the record of the proceedings:
- It was the applicant who filed the initial application to determine title and appoint leveki magafaoa, which prompted the cross-application and subsequent hearing.
- The applicant was advised by Justice Ministry staff at the survey to hold a family meeting;
- At the start of the hearing, the applicant confirmed to the Commissioners that it was his intention to title the land and appoint leveki;
- The applicant had prepared a statement for the hearing and had a support person present with him who read his statement to the Court.
- (b) The transcript of the hearing does not support the allegation that the applicant was pressured. He was given several opportunities to ask questions, and when queried about whether he understood the consequences of agreeing the common ancestor, confirmed that he did.
- (c) The primary motivation behind the application is to re-run the case in the hope of a different decision. But even with a lawyer present, it is unlikely the Commissioners would have come to a different decision based on the evidence available at the hearing.
- (d) There is no suggestion that additional material filed by the applicant was not available at the time of the hearing. In any event, it does not appear to challenge the decision of the Commissioners that Puakafa is the appropriate common ancestor for the land.
- (e) There is no miscarriage of justice. The Commissioners followed the principles of natural justice by hearing and testing the evidence concerning the appropriate common ancestor, before making their decision based on the applicant’s agreement, as well as their assessment of the evidence.
Decision
[27] The applications for appeal and rehearing are dismissed.
[28] A copy of this decision is to go to all parties.
Dated at Wellington this 1st day of November 2018.
S F Reeves
JUSTICE
[1] Minute Book No.20 Folio 69.
[2] Direction contained in email to Deputy Registrar Celina Tiakia, dated 25 May 2017.
[3] Matchitt v Matchitt – Te Kaha 65 [2015] Maori Appellate Court MB 433 (2015 APPEAL 433).
[4] Ross – Part Rangatira E Block (1998) 1 Waiariki Appellate MB 111 (1AP 111) at 114.
[5] Tahere v Tau – Rangihamama X3A and Omapere Taraire E (Aggregated) [2017] Maori Appellate Court MB 62 (2017 APPEAL 62).
[6] Taylor v Department of Corrections HC Wellington CRI-2005-485-158, 3 March 2006 at [7].
[7] Koligi v Iakopo [2017] NUHC 1; Land Division 11213 (12 October 2017) at [26].
[8] Tahega v Kapaga – Part Limu Namukulu CA Niue, App 11346, 17 August 2016.
[9] Realtycare Corporation Ltd v Cooper (1989) 2 PRNZ 426.
[10] Above n 8.
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