IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA498/2019
 [2020] NZCA 423

	
BETWEEN	
WHAEARANGI INIA, LARAINE IRITANA INIA AND MARILYN WHARETOROA INIA-MCGARVEY AS TRUSTEES OF THE INIA WHANAU TRUST 
Appellants	
	
AND	
TUI KUIAKAHA JULIAN
Respondent	

Hearing:	
31 August 2020	

Court:	
Kós P, Cooper and Courtney JJ	

Counsel:	
J M Pou for Appellants
J P Kahukiwa for Respondent	

Judgment:	
17 September 2020 at 9 am	

JUDGMENT OF THE COURT

A	The appeal is dismissed.
B	The respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)
[1]	Mrs Moehuarahi Te Ruri (Inia) died aged 89 on 27 July 1994.  She left seven

surviving children.  By her will she left her Māori land interests to two only of those children, Te Pakiorangi (Paki) Inia and Oriwia Clarke.  As the Māori Appellate Court observed, the other five were in effect disinherited.  Mrs Clarke renounced her entitlement to succeed.  In an application to the Māori Land Court in October 1994, Mr Inia sought succession orders otherwise in accordance with his mother’s will.  In February 1995, the late Judge Hingston vested the land interests of Mrs Te Ruri solely in Mr Inia (the succession order).  By further order he constituted the Inia Whānau Trust (the Trust) and vested those interests in Mr Inia and Audrey McCaull as trustees (the trust order).  The beneficiaries of the Trust did not include the disinherited siblings or their uri.  No tipuna was named in the trust order.
[2]	The respondent, Mrs Tui Kuiakaha Julian, is one of the five disinherited children.  In 2007 she filed an application under s 45 of the Te Ture Whenua Māori Act 1993 (the Act) seeking orders vesting the land in all seven children.  In 2017 she amended this application seeking that the succession and subsequent orders be cancelled.  A number of grounds were advanced, including that the 1994 application should have been adjourned to inquire into the interests of the other children and that the Judge should not have decided the matter because of apparent bias.  The Chief Judge recused himself and the Deputy Chief Judge sat instead.
[3]	In September 2018 Deputy Chief Judge Fox delivered a decision on the cancellation application.  She found the disinherited siblings had not been notified of the February 1995 hearing.  However, the Judge found this would not have made a difference and that it was unlikely that Mrs Julian would have maintained a challenge to succession by her brother, Mr Inia.  The Judge said, “[t]his goes to whether it is necessary in the interests of justice to remedy this error of law”.  The Judge went on however to find apparent bias by Judge Hingston because he had been solicitor “of the Estate”.  The key passages of the judgment follow:
Having regard to the special and unique circumstances of this case, I do not consider that it is in the interests of justice to remedy the errors of law in this case by cancelling the order for succession complained of. 
However, errors of law were made and the applicant has innocent children and mokopuna who have a whakapapa relationship with the land, which it seems some wish to enjoy.  Taking into account the preamble and ss 2 and 17, I will amend the order constituting the Inia Whānau Trust by naming the tīpuna as Moehuarahi Te Ruuri also known as Mere Huarahi Rotohiko and thereby including the applicant, her natural children and grandchildren as beneficiaries of the trust.  Also included will be any other natural children of this tipuna, and/or their issue. 
(Emphasis original.)
The Judge then amended the trust order by naming the tipuna as Moehuarahi Te Ruri.  In effect, this meant Mrs Julian, her siblings and their uri were included as beneficiaries of the Trust.
[4]	The appellants are the trustees of the Trust.  They appealed that decision to the Māori Appellate Court.  They did so on the grounds that:
(a)	the finding of bias by the Judge of the Māori Land Court in the original 1995 order was based upon an incorrect finding of fact; and
(b)	the expansion of class of beneficiaries was irrational as it granted rights to lands to those who could not whakapapa to those lands.
[5]	The Appellate Court upheld both grounds of appeal and annulled the order varying the terms of the Trust.  It held that simply because the Judge had once been solicitor to the estate of the late husband of Mrs Te Ruri, he was not disqualified from hearing the case.  In any event, the Court said it could see nothing in the record of appeal that would excite any suspicion that a fair minded lay observer might “apprehend a risk of a perception of bias”.  As to the second ground of appeal, the Court said that while it could understand the Judge’s intention behind her decision to vary the trust order by adding Moehuarahi Te Ruri as the tipuna, this had resulted in the siblings of Mr Inia and their uri becoming beneficiaries to the lands of his wife, Hilda Inia, which had been merged into the Trust after its formation.  The Court said there could be no basis for the in-laws of Mrs Inia to share in her lands without her consent.  Therefore, the order varying the terms of the Trust by naming the tipuna as Moehuarahi Te Ruri was accordingly annulled.  
[6]	The Court recorded notice did not appear to have been given of the hearing before Judge Hingston to the other children of the deceased who are directly affected by the will.  It noted, correctly, that that did not appear to be a matter of dispute.  It was clear that the terms of the application were for the benefit of Mr Inia and his uri alone.  Exercise of the Court’s powers in those circumstances was unjust, because the five disinherited children were entitled to notice of the 1995 hearing and the opportunity to take advice and be heard.  The Court noted that it took a different view on the evidence from the Māori Land Court as to whether Mrs Julian had unreasonably delayed in pursuing her application under s 45 of the Act to cancel the succession and vesting orders.  It did not agree with the Judge’s conclusion that Mrs Julian had effectively waived her right to pursue that claim because of tardiness or other failures.  Accordingly, the Court said:
Therefore, we direct that the original s 45 application be referred back to the Deputy Chief Judge for a rehearing on four grounds.  First, the issue of the lack of notice of the 1995 succession hearing before Judge Hingston.  Second, on the basis that we disagree with Judge Fox’s conclusion that, even if there had been notice, a claim under the Family Protection Act 1955 would have been unsuccessful.  Third, that on the balance of probabilities, Mrs Julian’s assertion that she first became aware of the will and its implications in 2005 was sustainable and explained the delay, in part, between 1995 and 2007.  Fourth, that it is arguable that Judge Hingston may have been mistaken as to what he understood was the basis for the creation of the whānau trust in 1995, given his exchange with Harris Martin at the hearing, which could also fall within the ambit of s 44 of the Act. 
The successful appellant in the Appellate Court appeals to the Court of Appeal
[7]	Despite the fact that the appellant trustees succeeded before the Appellate Court they appeal further to this Court.  They do so because while they like the findings noted above at [5], they do not like the further findings noted at [6].  They appeal on two grounds:  
1. 	The Court erred in overturning a finding of fact of the Deputy Chief Judge regarding the impact of lack of notice, in circumstances where it has failed [to] observe the principles of natural justice: 
a. 	determining the appeal on grounds that were not raised by any party; and 
b. 	providing inadequate opportunity to be heard on issues raised without notification; 
2. 	The Court erred in challenging the basis of the refusal of the Deputy Chief Judge to exercise her jurisdiction pursuant to section 45 of the Act, failing to have regard for the lack of jurisdiction to challenge such refusal pursuant to section 44(5) of the Act. 
Submissions
[8]	For the trustees, Mr Pou argued that the Appellate Court had failed to distinguish properly between those parts of the Judge’s decision which were evaluative, and those which were discretionary in nature.   The remedial finding was purely discretionary in nature, and the findings on notice did not give rise to a general appeal.  It was also based on findings of reliability and credibility in relation to Mrs Julian, and the Appellate Court did not place sufficient weight on the Judge’s advantage in making her assessment of that witness.  Secondly, r 8.21(2) of the Māori Land Court Rules 2011 provides that an appellant may not, except with the leave of the Appellate Court, rely on a ground of appeal not set out in the notice of appeal.  Mr Pou argued that the same applied to a respondent, and there was no notification here that Mrs Julian sought to overturn the decision of the Judge on the basis of notice.  Thirdly, the Judge had found that failure to notify would have had no ultimate bearing on the matter.  It therefore fell within the provision in s 44(5) of the Act which provides that no appeal lies to the Appellate Court from the Judge declining to exercise jurisdiction under s 44.  
[9]	For Mrs Julian, Mr Kahukiwa supported the decision of the Appellate Court.  He submitted that the Act’s provisions for appeal permit more than a merely conventional re-hearing, referring to s 55(2) and (3) permitting additional evidence.  Section 44 provides a special jurisdiction to remedy mistakes or omissions, with a broad remedial power to correct.  An appeal from this power under s 49(1) should exemplify that function, not diminish it.  It was uncontroversial here that no notice had been given of the hearing in 1995.  Mr Kahukiwa suggested, further, that [45] and [46] in the first instance judgment indicated that the remedial order varying the vesting order was responsive not only to bias but also to the uncontroversial notice error.  
Analysis
[10]	We accept the argument made by Mr Pou (largely accepted also by Mr Kahukiwa) that the powers vested in the Chief Judge under s 44(1) of the Act fall in two parts.  The first is an evaluative decision as to whether the order made was “erroneous in fact or in law because of any mistake or omission on the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar”.  The second is a power, which is likely in most cases to involve discretion, to “cancel or amend the order … or make such other order … as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission”.  We note that in making that decision, and exercising that power, the preamble to the Act and ss 2 and 17 are of particular significance.  Section 2(2) provides, inter alia, that “it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Māori land as taonga tuku iho by Māori owners, their whanau, their hapu, and their descendants”.  Section 17(2)(e) and (f) emphasise the need for the Māori Land Court to ensure fairness in dealings with land in multiple ownership, and to promote practical solutions in land disputes.
[11]	Secondly, we are satisfied that in determining that the vesting order should be amended, the Judge had in mind both the notice and bias errors that occurred in February 1995.  Her use of the plural “errors of law” in both [45] and [46] of her judgment — quoted at [3] above — makes that entirely clear.  That cannot relate simply to the singular bias finding.  While it is true that the Judge did not consider that the notice error alone would have justified exercise of the second-stage remedial power in s 44(1), it appears that the two errors in combination did.  In particular, the finding about the interests of Mrs Julian’s children and mokopuna in the land suggest that both errors prompted the remedial determination.  Even if Mrs Julian would not have maintained a challenge to Mr Inia’s succession, the Judge clearly did not think that disentitled her “innocent” children and mokopuna.  We therefore accept Mr Kahukiwa’s submission to that effect.  In any case, as a matter of logic, there could be no justification for distinguishing remedially as between the two errors.  Both went to fundamental process; if bias required a remedy, so too must lack of notice.  
[12]	Thirdly, we do not accept Mr Pou’s argument that the Judge’s determination regarding the notice error fell within s 44(5) of the Act, precluding appeal to the Appellate Court.  While the Judge said, “I decline to exercise my jurisdiction under s 45 of the Act to cancel the succession order”, that observation was remedial in nature.  It did not fall within the limited scope of s 44(5).  We consider that provision applies only where the Chief Judge has not entered at all upon the exercise of examining whether there was a mistake or omission or whether to exercise his or her discretion.  That is not so in this case, for either error.
[13]	Fourthly, it is clear the Judge erred in her evaluation of the evidence in relation to apparent bias.  Judge Hingston’s former professional relationship was with the estate of Mrs Te Ruri’s late husband only, and there was no arguable apparent bias in his sitting in 1995 on an issue concerning Mrs Te Ruri’s will.  The Judge also erred in varying the vesting order to provide the tipuna of the Trust be Mrs Te Ruri, thereby bringing Mrs Julian, her children and mokopuna into the Trust as beneficiaries.  As the Appellate Court found, by this stage things had moved on.  In reliance on the 1995 orders, Mr Inia’s wife had brought her own separate land interests into the Trust.  The new beneficiaries had no whakapapa connection with those additional land interests.  This consequence had not been appreciated by the Judge.  In terms of the authorities controlling the scope of appeals from exercises of discretion, the enlargement of the Trust in those circumstances was “plainly wrong”.  
[14]	Fifthly, although Mrs Julian had not filed a formal cross-appeal in response to the trustees’ appeal against the Judge’s orders, we do not think that fatal.  The evaluative finding as to apparent bias by Judge Hingston in 1995 was based on errors of fact and law.  The variation of the Trust was done without appreciation of the enlarged capital of the Trust.  These errors went to the heart of the evaluation, and then remedial orders, made by the Judge.  If the remedial order was at all responsive to the notice error, which it was, that error and its consequence had to be reassessed.  It did not follow that the only available outcome of the appeal would be reversal of the remedial order varying the Trust and nothing more.  The interests of justice, which underpins the statutory role of the Appellate Court, required that it then examine the remaining affected aspects of the judgment on appeal to the extent consistent with both relevance and natural justice.  
[15]	Sixthly, in terms of relevance, it was incontestable that Mrs Julian and the other disinherited siblings had not been given notice of the 1995 hearing, and the Judge correctly found that was an error of law.  That conclusion too was uncontested.  The notice error in part resulted in the remedial order to vary the Trust.  That order rectified the error.  But if the remedial order had to be set aside then, as we have observed, the issue of remedy for the notice error was required to be revisited unless precluded by reason of natural justice.
[16]	Seventhly, in terms of natural justice, the issue of the notice error and remedy was clearly raised ahead of the Appellate Court hearing in written submissions filed for Mrs Julian.   It occupied three-and-a-half pages of the 18-page submissions.  It was advanced as a back-up to her argument that the trust variation (which rectified the error) should not be revoked on appeal.  The point being taken was the obvious one that if the variation was reversed, the Court needed to revisit the Judge’s other findings (including on remedy).  Despite the absence of a cross-appeal, for which pt 8 of the Māori Land Court Rules makes no provision in any case, the trustees cannot claim they were not put on notice of this argument.  No additional evidence was received; the Appellate Court proceeded by examination of the record below.  It heard from both counsel on the issue of the notice error.  It is obvious from the record that the Appellate Judges were very concerned about the conclusion below that the failure to notify might be immaterial.  No objection was taken by counsel for the trustees beyond a formal one that the point had not been pleaded.  The advantages of the Judge seeing the witnesses was referred to, and it was contended that the Judge was right in her conclusions as to the effect of the error and that those findings should not be disturbed on appeal.  No adjournment was sought.  Nor the opportunity to file further submissions.  No prejudice is identified, and we are satisfied there was no breach of natural justice by the Appellate Court in re-examining the implications of setting aside the bias finding and variation order (as the trustees sought) in the context of the remaining uncontested error as to notice.
[17]	Eighthly, in these circumstances, we consider the approach taken by the Appellate Court cannot be impeached.  Revisiting the findings below on the notice error (and what if any remedy should be given) was required as soon as the trustees prevailed in setting aside the variation order.  That order in part responded to the notice error and reflected the fact that the Judge found Mrs Julian had innocent children and mokopuna who had a whakapapa relationship with the land which some at least wished to enjoy.  By unravelling the remedial order, the rest of the decision unravelled with it.
[18]	Finally, given its mixed findings in favour of both sides, it was also entirely proper for the Appellate Court to remit Mrs Julian’s s 45 application for rehearing by the Māori Land Court in light of the findings at [5] and [6] above.    
[19]	For these reasons we consider the decision below cannot be impeached on procedural grounds, and that the appeal must be dismissed.
Result
[20]	The appeal is dismissed.
[21]	The respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.

Solicitors: 
Tu Pono Legal Ltd, Rotorua for Appellants
Corban Revell, Auckland for Respondent