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The President of the Land and Titles Court v Attorney General [2022] WSSC 8 (14 April 2022)

IN THE SUPREME COURT OF SAMOA
The President of the Land and Titles Court v The Attorney General [2022] WSSC 8 (14 April 2022)


Case name:
The President of the Land and Titles Court v The Attorney General


Citation:


Decision date:
14 April 2022


Parties:
THE PRESIDENT OF THE LAND AND TITLES COURT (Applicant) v THE ATTORNEY GENERAL (Respondent)


Hearing date(s):
14 March 2022


File number(s):
MISC41/22


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Vui Clarence Nelson
Justice Niavā Mata Tuatagaloa


On appeal from:


Order:
(a) We consider the judicial appointments made under the LTA 1981 continue to have jurisdiction only insofar as expressly saved and provided for under s 67(2) LTA 2020, with respect to petitions filed before the commencement of the LTA 2020; and pursuant to s.67(4), with respect to a claim, title, right, interest, instrument or document created or vested under the LTA 1981.
(b) The President and Judges who were appointed under the 1981 LTA do not have the authority to exercise jurisdiction with respect to the other provisions of the 1981 LTA, or under any of the provisions of the LTA 2020.
This determination is reasonably attributed to Parliament. It is a matter for Parliament to now consider how to take these matters forward.

Decision:
We grant declaratory relief in the following way:
The Applicant is entitled to immediate relief from the Executive by their provision of support services, such services to resume immediately, to enable the Applicant and Judges of the LTC to carry out their normal business in accordance with the above-referred transitional provisions of the LTA 2020.

Given the significance of the issues in this case, and recognising each party was partially successful in their respective claims, we consider that costs should lie where they fall.


Representation:
L Vaa-Tamati for the Applicant
S H Wallwork, Attorney General, and D Fong for the Respondent


Catchwords:
Judicial independence – Land and Titles Court jurisdiction – separation of powers – judicial immunity


Words and phrases:
“MJCA staff prohibited from providing administrative support” – “revocation of judicial appointments” – “Beijing statement of principles”


Legislation cited:
Acts Interpretation Act 2015, ss. 7, 7(1), 7(2), 7(3), 7(4), 7(5), 7(6), 25(1)(a), 25(1)(b), 25(1)(c);
Canadian Charter of Rights and Freedoms, s.11(d);
Constitution Amendment Act 2020, s. 9(3);
Constitution of the Independent State of Samoa 1960, Articles 35, 68, 70(1)(b), 103, 104, 111(6), Part IX;
Declaratory Judgments Act 1988;
Evidence Act 2015, ss. 10(1), 10(2);
Government Proceedings Act 1964, s. 12(1)(a);
Land and Titles Act 1981, ss. 25, 26, 26D, 29(2), 29(2B), 29(4);
Land and Titles Act 2020, ss. 2, 32(2), 32(3), 32(6), 33(3), 67(2), 67(4), 67(6);
Ministerial and Departmental Act 2003, s. 35;
Native Land and Titles Protection Ordinance 1934, ss. 36, 37;
Samoa Land and Titles Protection Amendment Act 1966, s. 2.


Cases cited:
Attorney General v Chapman [2011] NZSC 110;
Claydon v Attorney General [2004] NZAR (CA) 16;
Halsbury’s Laws of England/Constitutional and Administrative Law (Volume 20 2014);
Hilder v Port Otago Ltd [1995] NZCA 222; [1996] NZLR 289;
Joseph on Constitutional and Administrative Law (5th ed) Thomson Reuters, Wellington, 2021;
MD Foods v Baines [1997] UKHL 7; [1997] AC 524;
Samoa Party v Attorney General [2009] WSSC 23;
Sirros v Moore [1975] QB 118;
Tafililupetiamalie v Attorney General [2015] WSSC 62;
Valente v The Queen [1985] 2 SCR 673;
Wright v Attorney General [2006] NZAR 66.


Summary of decision:

MISC41/22


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


Article 70(1)(b), Part IX, and Article 104 of the Constitution of the Independent State of Samoa


A N D:


IN THE MATTER OF:


The Declaratory Judgments Act 1988 and the Government Proceedings Act 1964


BETWEEN:


THE PRESIDENT OF THE LAND AND TITLES COURT


Applicant


A N D:


THE ATTORNEY GENERAL


Respondent


Coram: Chief Justice Satiu Simativa Perese
Justice Vui Clarence Nelson
Justice Niavā Mata Tuatagaloa


Counsel: L Vaa-Tamati for Applicant
S H Wallwork, Attorney General, and D Fong for Respondent


Hearing: 14 March 2022


Judgment: 14 April 2022


JUDGMENT OF THE COURT

INTRODUCTION

  1. The Applicant asserts he is the President of the Land and Titles Court (“LTC”), and his Court cannot carry out their business because the Executive has prohibited Ministry of Justice and Courts Administration (“MJCA”) staff from providing administrative support. The LTC has not had any hearings since its final sitting in December 2021.
  2. The Respondent, sued on behalf of the Minister of the MJCA, appears to acknowledge that administrative services are not being provided to the Judges, but the Minister maintains that she has not breached the principle of judicial independence because she has not tried to influence the Judges ability to act in an impartial and fair way.
  3. The Minister asserts she is advised the Applicant and other Judges of the LTC have no jurisdiction to act as Judges of the LTC because their appointments were revoked when the Land and Titles Act 2020 came into force on 15 March 2021 (“LTA 2020”). These are significant issues, for even if this Court were to make a declaration that the Minister is constitutionally bound to ensure the Applicant and his Judges have adequate administrative support to do the things they are being prevented from doing, there is another high level constitutional issue concerning whether and under what authority the Applicant and the Judges have been in law exercising the jurisdiction of the LTC and how they can continue to do so if their appointments have been revoked?
  4. The LTC since the coming into force of the Constitution Amendment Act 2020 (“CAA 2020”) on 15 March 2021, has a hierarchy of three levels: as per Article 104, the Court is comprised of The Land and Titles First Court, The Land and Titles High Court, and the Land and Titles Court of Appeal and Review.
  5. The LTC jurisdiction is headed by a President. In terms of the operation of the Land Titles Act 1981 (“LTA 1981”) and the Constitution, we take judicial notice of the fact that administrative and other support services were provided to the LTC by the Executive arm of Government, by a chosen Minister of Cabinet (“the Minister”) through the Ministry of Justice and Courts Administration (“MJCA”), right up until the beginning of 2022 when the Minister received advice concerning the revocation of appointments made under the LTA 1981, the repealed Act.
  6. We hasten to note that the Judges continue to be paid and enjoy the other benefits of office. They also continue to have access to the Court building, their offices, and to secretariat services.
  7. We begin with an assessment of the facts; we note that only the Applicant filed affidavit evidence.

THE BACKGROUND

  1. The allegation that the Minister has prohibited staff from providing material assistance to the Applicant and Judges of the LTC is a gravely serious charge. We accordingly, consider it appropriate to take some time to consider the communications between the parties.

15 February 2022

  1. We begin with noting an administrative notice published by the Acting Registrar (“Registrar”) of the LTC, for the benefit of the general public, advising that the LTC would commence its work for 2022 on 21 February 2022.
  2. On 15 February 2022, a week before the LTC intended to begin its work on 21 February 2022, the Minister wrote to the Registrar, to

18 February 2022

  1. The Applicant provided a response, by letter dated 18 February 2022. We note the following points which appear particularly pertinent.

(emphasis added – bold only)

(b) The Applicant concludes:
Therefore with due respect, I note for the record my disagreement with your request, as the President of the Land and Titles Court which was continued under the Constitution.
(c) However, despite his disagreement, the Applicant advised that as the LTC had been left without staff support, he had to instruct the Deputy Registrar to adjourn matters scheduled for February and March 2022 to await the outcome of the Parliamentary Commission of Inquiry.
(d) The letter seems to suggest that the Applicant was left in a rather dire situation – he was forced to direct that matters scheduled for February and March 2022 be adjourned because he did not have any support staff.

22 February 2022

  1. On 22 February 2022, the Minister responded to the Applicant’s letter of 18 February 2022. In her letter she advised the Applicant that she had been receiving the advice of the Attorney General. The Minister further said the issues raised in the Legislative Assembly concerned the legislative process, and this in turn might impact on the legitimacy of the “three bills” which she said purported to provide the new framework for the Land and Titles Court.
  2. We note that the Minister’s concern beyond simply s.67(6) LTA 2020, was referred to in the Attorney General’s submissions as a justification for her “stance” of having acted within her powers when she made her request to the Acting Chief Executive Officer to put on hold LTC proceedings.
  3. The Minister also disputes directing the MJCA staff:

24 February 2022

  1. The Applicant upon receiving the Minister’s advice replied by letter dated 24 February 2022; he said:

28 February 2022

  1. The Minister responded to the Applicant’s letter dated 24 February 2022, with her own letter dated 28 February 2022. We consider relevant the following:
  2. The Applicant says this paragraph is evidence of the Minister expressly prohibiting the CEO and Ministry staff from providing assistance to the LTC. We do not agree with that submission. The Minister having just a few days earlier provided her advice that she had not directed staff, we see no change in circumstance which would justify the type of capitulation the Applicant suggests. Our view of the evidence is that this is simply the Ministers articulation of her preference of the Applicant’s different views. The Applicant’s submissions needed to be based on something firmer and more direct, which evidenced the Minister instructing the CEO and Ministry staff not to provide administrative support.

THE PLEADINGS

  1. The Applicant’s response to the Minister’s letter of 28 February 2022 was to file a Notice of Motion dated 2 March 2022, on a Pickwick basis, for the making of the following orders:
  2. During the course of argument, Ms Tamati properly withdrew the application seeking the making of a mandatory order against the Minister. That type of application is clearly met by s.12(1)(a) of the Government Proceedings Act 1974 (“the GPA”), which provides:
  3. Turning to the respondent, on behalf of the Minister, the Attorney General filed a notice of opposition, dated 8 March 2022. The opposition submits, the Minister acted within her powers and authority to protect the administrative functions, responsibilities, and liabilities of the MJCA. In particular, that the Minister bears ultimate responsibility for the actions of the Ministry, including but not limited to potential liability via a civil suit or judicial review arising from a decision of the LTC due to “statutory deficiencies”, and any decisions made by Judges not properly authorized being at risk of being legally challenged.[1] The respondent fleshed out her opposition in Counsel’s submissions, dated 11 March 2022 at paragraphs 50 to 66. We summarise the main points:
  4. The Court raised with Counsel whether the savings clause in s. 9(3) of the CAA 2020 applied. The Attorney General took the position that the savings provision did not apply because the CAA 2020 does not have any impact on the LTA 1981, which had been repealed by the LTA 2020. The Applicant’s position was to rely on Article 111(6) of the Constitution, which for convenience we set out as follows:
  5. For the reasons which we set out later in this judgment, we do not consider it necessary to consider either the Article 111(6) or the doctrine of de facto officer. We consider that the issue of whether the President and the Judges continue to have jurisdiction are matters that can be resolved by ordinary principles of statutory interpretation.
  6. There was no affidavit filed in support of the Notice of Opposition, upon the basis that the grounds relied on were purely legal.

THE SUBMISSIONS

  1. The Applicant’s argument proceeded on the basis that the Minister’s suspension of the official duties of the LTC was “ludicrous”, and it was necessary for this Court to order the Minister to desist from prohibiting the work of the LTC.
  2. The Applicant’s complaint alleging the Minister “prohibited” support staff from providing administrative support to the Court, include the following impacts:
  3. The Applicant argued that declaratory orders were necessary to enable the proper and effective administration of justice. It was submitted there was a clear violation of the separation of powers. Ms Tamati argued the very act of the Minister directing administrative staff of the LTC to not assist the LTC was a breach of judicial independence. Ms Tamati submitted the Minister’s actions were unwarranted and unjustified and indeed allegedly usurps the LTC’s constitutional functions and duties.
  4. Further, Ms Tamati submitted this Court has the duty of upholding the law and to make orders to preserve the rule of law in Samoa. Ms Tamati submitted if there was any remedial work required to carry out on the existing legislation, that this could always be done later in the form of amending legislation with retrospective effect.
  5. The Attorney General in her response argued the Minister acted within her powers and authority to protect the administrative functions, responsibilities and liabilities of the MJCA. Particulars of the Minister’s defence included a submission that the Minister did not interfere with the functions of the LTC or its administrative staff, therefore there was no violation of the doctrine of separation of powers. Ms Wallwork submitted the Minister acted within the scope of her Constitutional duties contained in Article 35, and pursuant to the obligations under s.7 of the Ministerial and Departmental Act 2003. The Minister was ultimately responsible for the actions of the Ministry and the Minister was concerned about the potential liability of the MJCA and the Government of Samoa arising from decisions of Judges not properly appointed under the law.

THE LEGISLATIVE BACKGROUND

  1. To understand the significance and context of the LTA 2020 changes we consider it necessary to provide a brief overview.
  2. The Constitution by Article 103 established a Land and Titles Court –
  3. The principal Act at that time was the Native Land and Titles Ordinance 1934, which had a name change to Samoan Land and Titles Ordinance in 1952, and was repealed with the passing of the LTA 1981, which came into force on 4 March 1981.

Land and Titles Court overview

  1. The Court began its life in 1934 as a court of record consisting of a President, being the Chief Judge of the then High Court, and Assessors and Samoan Commissioners, having exclusive jurisdiction over Samoan names, titles, customs and native lands under the Native Land and Titles Protection Ordinance 1934.[2]
  2. The Ordinance established a Court, defined as a Native Land and Titles Commission. Amendments and during the 1930s, removed the word “native” and substituted the word “Samoan”; and in 1951 the reference to the work of the Commission was deemed to be a reference to the work of the Land and Titles Court.
  3. Samoan Judges were first able to preside over sittings of the Court under s.2 of the Samoan Land and Titles Protection Amendment Act 1966. The Court by the 1966 Amendment was comprised of the Chief Justice, Assessors and Samoan Judges, and any Supreme Court Judge authorised by the Chief Justice to preside. This was a significant advancement on the role of Samoan Judges, whom previously were advocates with a right of audience, enjoying the privilege of an advisory role to the Court.
  4. The LTA 1981 declared that “[t]here shall continue to be a Court of record called the Land and Titles Court, which is the same Court as that existing under the same name prior to the commencement of this Act”.[3] The composition of the Court was a President – being the Chief Justice, or a Judge of the Supreme Court as appointed under the Constitution, Samoan Judges as appointed in accordance with the Act and Assessors.[4]
  5. We note that of particular relevance to the issues in this case is the introduction of statutory protections for Judges in the LTA 1981. Section 26D provided that a Samoan Judge appointed as President may be suspended or removed in the same manner as provided for a Judge of the Supreme Court under Article 68 of the Constitution. On the other hand Samoan Judges under s.29(4) were able to be removed by the Head of State acting on the advice of the Judicial Services Commission for inability or misbehaviour. Both these protections guard against arbitrary removal without cause and undoubtedly support judicial independence.
  6. Two further provisions in the now repealed Act might also be interposed for they touch on the tenure of an appointment: first, s 29(2)

The LTA 2020

  1. The LTA 2020 was one of a trilogy of constitutional changes made by the previous government, rung in before the April 2021 general election. The other two enactments were the Judicature Act 2020 and the Constitutional Amendment Act 2020.
  2. The LTA 2020 is expressed to be an Act to replace the Land and Titles Act 1981. That seems to be its sole purpose. The LTA 2020 makes significant changes from the antecedent legislation. Unlike the earlier iterations there is no declaration of a Land and Titles Court in the LTC Act 2020 itself, but reference to the Court structure set out in the CAA 2020. Section 2 of the LTA 2020 defines the Court as being established under the Constitution:
  3. There are three other relevant s. 2 definitions:
  4. We note there is no definition for the office of “Judge” in either the LTA 2020 or the CAA 2020, despite ss.33(2), (3), and (6) of the LTA 2020 authorising the President to appoint Judges to “mediate” at a judicial settlement conferences.[5] Before concluding that under the LTA 2020 Samoan Judges have lost their power to adjudicate, account needs to be made of the passing reference in s.33 (3) which provides that a Judge who acts as a facilitator must not “sit” as a Judge on any of the same issues. It is not necessary for the purposes of this dispute to determine the meaning of “Judge” under the LTA 2020. All we note is that the term is not specifically defined in either the LTA 2020 or in the CAA 2020. What we need to consider is whether the lack of a specific provision for the appointment of “Judges” has any impact on the meaning of s.67(6) LTA 2020?
  5. The legislative history suggests that perhaps by as early as 1966, when Samoan Judges had the power to sit on cases; but most certainly by 1981, Samoan Judges could properly be regarded as Judicial Officers and under the Constitution and the legal doctrine of the separation of powers, are protected by the principles of judicial independence. They were appointed in accordance with a transparent process and served pursuant to the terms of a Warrant issued by the Head of State.

WHAT ARE THE ISSUES THAT THE COURT NEEDS TO DETERMINE?

  1. We consider the issues in this case are as follows:

JUDICIAL INDEPENDENCE

  1. The central plank of the Applicant’s case is his allegation that there has been a breach of the principle of judicial independence – he is unable to carry out his function as President of the LTC and as a Judge for lack of adequate resources: namely, no assistance from support staff.
  2. We consider the principle of judicial independence and what it means may not be well understood, so we take a moment to discuss the commentary and authorities.

General principles

  1. The principle of judicial independence is essential to the rule of law and to the continuance of the judiciary’s authority and legitimacy:[6]
  2. This Court acknowledges that judicial independence is one of a number of overlapping ideas, which when taken together describe the concept of separation of powers: Samoa Party v Attorney General. [7]
  3. In the New Zealand Court of Appeal, Her Honour Glazebrook J, in Claydon v Attorney-General, a decision relied on by the Attorney General, observed:[8]

The elements of judicial independence

  1. There are three essential conditions of judicial independence, referred to in the leading authority of Valente v The Queen;[9] a determination of the Canadian Supreme Court concerned a dispute about whether a Provincial Court (Criminal Division) in Ontario is an independent tribunal within the meaning of s.11(d) of the Canadian Charter of Rights and Freedoms.
  2. The Canadian Supreme Court identified the essential conditions of judicial independence as being the security of tenure, financial security, and institutional independence. These essential, but not exhaustive conditions, can be summarised as follows:
  3. A discussion of the meaning of institutional independence in a lower court judgment in Valente, delivered by Howland CJO, succinctly frames the correct position in Samoa concerning institutional independence:[10]
  4. We note this reasoning was applied by his Honour Justice Venning in Wright v AG: [11] His Honour held the executive had complied with its obligation to provide sufficient resources for the Court, such as courtrooms and cells to enable the Court to conduct its business.
  5. Finally, we note the Learned author Professor Phillip A Joseph, in his seminal work Joseph on Constitutional and Administrative Law, where he discusses institutional independence,[12] with reference to the Beijing Principles:[13]
  6. Professor Joseph’s commentary seems to suggest a mandatory obligation, a degree of compulsion on the executive to provide adequate resourcing and administrative support. We consider that in the context of a relationship which might properly be categorised as one founded on mutual-cooperation:[14] it is more apt to describe the Executive’s role as an expectation. Especially in Samoa’s context where the Judicial branch is entirely dependent on the Executive for its budget. The fiscal dependency means the Court must be vigilant to ensure that the Executive provides adequate resources; and such provision serves to observe and protect the rule of law, and the legitimacy and authority of the Judiciary. We also note that what we say is not new to our country and the relationships between the executive and judicial branch – we have already taken notice of the fact that the Executive has funded the provision of support services for the Judges since Independence, and before.
  7. We note the protection of the independence of the Judiciary is a matter of considerable public interest. By way of example, the availability of judicial immunity in civil proceedings is acknowledged to be founded on the existence of a public interest in the protection of judicial independence: Tafililupetiamalie v Attorney General;[15] Sirros v Moore;[16] Attorney General v Chapman.[17]

Institutional independence in Samoa

  1. The Judiciary of Samoa is not fiscally independent; never has been. The Judges rely on the Executive who control the budget, and its allocation, to fund the work of the judiciary. Given this fiscal control, the Executive must observe both parts of the institutional independence equation, in observance of the principle of judicial independence.
  2. Eminent jurist Sir Andrew Tipping, speaking extra-judicially in a speech marking his retirement from the New Zealand Supreme Court, referred to the relationship between the Executive and the Judiciary in New Zealand as being a relationship of mutual cooperation. The Executive has a hands-off approach to the Judiciary’s control of its administration, but it also has a cooperative role to provide the Judiciary with support services – o lima ma vae, o le Matagaluega - the hands and feet, is the Ministry. We endorse a relationship of mutual cooperation as a bastion for the observance of the rule of law in Samoa.

THE APPLICANT’S COMPLAINT

  1. The Applicant asserts in his affidavit, dated 2 March 202, his court does not have support staff. The Applicant deposes:
  2. This statement contains the gravamen of the complaint, yet it is not without its difficulties in terms of whether in law the evidence is admissible. The first part of this evidence is admissible only if the relevant parts of the Evidence Act 2015 (“EA 2015”) are satisfied: namely, s.10(1). We are not so satisfied.
  3. The assertion does not disclose how the Applicant became “aware” of the alleged “instruction and warning”. It is not that we disbelieve the Applicant; we simply have no way of independently assessing the accuracy of the Applicant’s recollection, particularly since the Minister asserts in her communication that she did not direct MJCA staff as charged. The impression is that either another person, or other persons, told the Applicant what the Minister is alleged to have said, if that impression is in fact correct, then the Applicant’s evidence amounts to hearsay and inadmissible, but for s.10(1). It may be that the Applicant’s awareness is based on the Applicant’s personal observations - and he has assumed that the Minister has directed staff to not provide support. Opinion evidence is rarely ever admissible except when given by expert witnesses. The Court was not advised whether any person whom might have been involved in informing the Applicant’s awareness was not available to act as a witness; nor did the Applicant comply with s.10(2) of the EA, which obliged him to give notice of the intention to rely on a hearsay statement.
  4. However, leaving aside the personal allegations against the Minister, which we reject as discussed above; we nevertheless consider that the second part of the statement – referring to not having support staff available is a matter of very serious concern. This evidence is admissible as it is evidence of the Applicant’s personal experience.
  5. We take it from the nature of the declarations the Applicant asks this Court to make, that he and the other Judges of the LTC do not have administration staff to assist them to carry out the business of the LTC. The evidence noted above supports an inference that the “struggle to attend without the necessary support staff”, refers to the Applicant not having any administration staff, as pleaded.
  6. We determine, as a matter of fact, the Applicant does not have any administration staff available to him to be able to carry out his work as President or as a Judge of the LTC. We conclude the Executive has not provided this administrative staff as it has done through the years. This lack of provision is a breach of the Applicant’s judicial independence in the institutional independence sense, and this breach remains un-remedied and is subject to the terms of the declaration to be made at the end of this judgment.

REVOCATION

  1. We turn now to the Minister’s concern the Applicant may not have jurisdiction under the LTA 2020, given s.67(6) of that Act, which is in the following terms:
  2. The Attorney General submits this transitional provision extends to all judicial appointments made under the LTA 1981 as having been revoked at the commencement of the LTA 2020, because the LTA 1981 judicial appointments have not been provided for under the LTA 2020. We consider it necessary for us to analyse this submission; for if we were to accept the literal meaning the Attorney General contends, that would have considerable impact on the outcome of this matter.

Principles which guide the Court about the intent of Parliament.

  1. Statutory interpretation or the meaning of the law passed by Parliament is a question of law, for the Court. In this regard, the Court is required to be guided by established legal principles of interpretation which are contained in relevant provisions of the Constitution: enactments such as the Acts Interpretation Act 2015: and the common law. It is a complex and robust process. Lord Nichols neatly sums up the Court’s overall objective in MD Foods v Baines:[18]
  2. It is also a well-established common law principle the Court only attributes to Parliament an intention that is fairly and reasonably attributable to Parliament.
  3. The first Statutory guidance we turn to is the Acts Interpretation Act 2015.

Acts Interpretation Act 2015 (“the AIA”)

  1. We start with an analysis of the AIA. The principles set out in s. 7 of the AIA requires the Court to interpret an Act of Parliament as follows:
  2. We also consider s. 25(1)(a),(b) and (c) may also be relevant:

Savings and transitional context

  1. The general principles concerning savings and transitional provisions of legislation, were referred to by His Honour Justice Thomas, formerly of the New Zealand Court of Appeal in
    Hilder v Port Otago Ltd; we respectfully endorse His Honour’s summary as being applicable in Samoa.[19]
  2. Section 67(6), the revocation provision, is contained in the savings and transitional part of the LTA 2020.
    1. All Matai Titles entered onto and deleted by the Registrar under the repealed Act is treated as having been entered onto or deleted from the Register by the Register under this Act, at the commencement of this Act.
    2. The provisions of the repealed Act are saved for the purpose of determination of a petition filed before the commencement of this Act, at the commencement of this Act.
    3. All records, instruments, nominations, appointments, warrants, decisions, orders and generally all documents and acts of authority originating under the repealed Act, and which are subsisting at the commencement of this Act, shall ensure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act and accordingly shall, where necessary, be deemed to have so originated.
    4. The repeal of the Land and Titles Act 1981 does not affect any claim, title, right or interest created or vested under that Act, nor any instrument or document in support, and every such claim, title, right, interest, instrument or document shall continue in force and have effect as if this Act had not been passed or as if made or done under the corresponding provisions of this Act.
    5. Employees employed under the repealed Act are taken to be employed under this Act, at the commencement of this Act.
    6. An appointment under the repealed Act that is not provided for in this Act is revoked at the commencement of this Act.
    7. The Appellate Division of the Land and Titles First Court is the Land and Titles High Court at the commencement of this Act.
  3. The Attorney Generals submits in her written submissions:
  4. The literal reading of s 67(6) contended for by the Attorney General, is based on an interpretation that the phrase “not provided for” has as its ordinary meaning “not expressly provided for”. There is no discernible logic in giving the phrase this narrow meaning, particularly if it results in the consequences referred to by the Attorney General. It is difficult to comprehend either of these possibilities – either Parliament contemplating a wholesale statutory and summary removal without due process of all LTC Judges etc; or attributing to Parliament the intention of enacting legislations which would leave the LTC without any Judges, at all.
  5. In our view a wider interpretation must be given to s.67(6) so that other savings and transition provisions (which give effect to the purpose of the LTA 2020) are able to be given effect. We refer in particular to., ss. 67(2) and 67(4):
  6. The matters referred to in these savings provisions go to the core work of the LTC jurisdiction – the hearing and determination of petitions, and the recognition of claims, titles, rights or interests. We do not attribute to Parliament the intention that this important work should come to a complete standstill, for an indeterminate time. Parliament is of course well aware of the principle that justice delayed is justice denied.
  7. In other words, in the absence of express provisions dealing with the appointment of Judges to determine these matters, Parliament must reasonably be understood to intend for the President and Judges/Assessors, appointed under the LTA 1981, to continue to have jurisdiction over petitions which were filed before the LTA 2020 came into force; and, to deal with claims, titles, rights, interests created or vested under the LTA 1981. In this regard, it may be said that the phrase “not provided for in this Act” in s.67(6) must mean - not provided for in this Act either expressly or by necessary implication. We consider the ordinary meaning of the phrase has both meanings.
  8. Without reservation we accept the Minister has acted in good faith to protect the integrity of the new judicial system and for this, we commend her. The Applicant needs also to be commended for his strong defence of the Principles of Judicial Independence.
  9. However, for the reasons advanced, we conclude as follows:
  10. This determination is reasonably attributed to Parliament. It is a matter for Parliament to now consider how to take these matters forward.

DECISION

  1. We grant declaratory relief in the following way:

The Applicant is entitled to immediate relief from the Executive by their provision of support services, such services to resume immediately, to enable the Applicant and Judges of the LTC to carry out their normal business in accordance with the above-referred transitional provisions of the LTA 2020.

  1. Given the significance of the issues in this case, and recognising each party was partially successful in their respective claims, we consider that costs should lie where they fall. We thank Counsel for their helpful submissions.

HONOURABLE CHIEF JUSTICE
HONOURABLE JUSTICE NELSON
HONOURABLE JUSTICE TUATAGALOA


[1] The respondent’s notice of opposition to the Applicant’s motion for orders on a Pickwick basis and affidavit in support dated 2 March 2022: para A(iii), (iv) and (vi).
[2] Refer ss 36 and 37.
[3] Refer s 25
[4] Refer s 26
[5] Refer s. 33
[6] Halsbury’s Laws of England/Constitutional and Administrative Law (Volyume 20 (2014)/3. The Judiciary/2 The Independence of the Judiciary/130. The principle of judicial independence.
[7] [2009] WSSC 23, para 98.
[8] [2004] NZAR (CA) 16, at 45 [108]
[9] [1985]2 SCR 673
[10] Valente para 47
[11] [2006] NZAR 66 at [55]
[12] Philip A Joseph Joseph on Constitutional and Administrative Law(5th ed) Thomson Reuters, Wellington, 2021 at 21.3.5.
[13] Twenty Chief Justices (including Samoa) signed the Beijing Statement of Principles of the Independence of the Judiciary (1995), adopted at the sixth Biennial Conference of Chief Justices of Asia and the Pacific. The Beijing Principles recognise that:
36. The principal responsibility for court administration, including appointment, supervision and disciplinary control of administrative personnel and support staff must vest in the judiciary....
37. The budget of the courts should be prepared by the courts of a competent authority in collaboration with the courts having regard to the needs of the independence of the judiciary and its administration. The amount allotted should be sufficient to enable each court to function without an excessive workload.
[14] D Bennington “Judges and the Ministry of Justice - mutual cooperation but no partnership says retiring Supreme Court Judge” NZLawyer extra (online ed, New Zealand, 31 August 2012)
[15] [2015] WSSC 62
[16] [1975] QB 118, 132 per Lord Denning
[17] [2011] NZSC 110, para 97 per McGrath and William Young JJ
[18] [1997] UKHL 7; [1997] AC 524 at 532
[19] [1996]1 NZLR 289, at 294-295

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