UKPC 35
Privy Council Appeal No 0078 of 2010
June Margaret Baudinet (Appellant) v Ellen Tavioni and Meremaraea Velma Tinirau Macquarie (Respondent)
From the Court of Appeal of the Cook Islands
JUDGMENT DELIVERED BY
giving the majority judgment
22 OCTOBER 2012
Heard on 18-19 April 2012
(New Zealand and Cook Islands Bar)
(Instructed by Ross Holmes Lawyers L.P)
(New Zealand and Cook Islands Bar)
(Instructed by Browne Harvey & Associates P.C)
"Makea applicant. Makea: I claim this land as my own land. No objections. Land awarded to Makea Takau. Land restricted from sale or lease except by permission of court. A life interest only no power of devise."
The word "Court" is written above the word "Makea", which has been crossed out with two short straight lines. The parties are agreed that the deletion was by a quill pen, that the word "court" appears to be in the same handwriting as the rest of the writing, and it corrects a typographical error. But the words "A life interest only no power of devise" have also been crossed out, with a single wavy line. The parties agree that those words too were written in a quill pen in what appears to be the same handwriting as the rest of the Minute Book entry for that day, but they do not agree upon when they were written or how they came to be crossed out. The factual question which arises is whether the Order drawn up and signed by Chief Judge Gudgeon on 10 August 1903 was correct in omitting the handwritten words.
"The minutes of the Court at first restricted the interest of Makea Takau to 'a life interest only no power of devise'. This restriction appears to have been deleted later by means of ink pencil, but such alteration has not been initialled by the Judge of the Court."
Thereafter, however, orders were made on the basis that there was no such restriction. Thus, there was a series of succession orders vesting the interest in the land in favour of her successors as Makea Arikis, in each case expressing this to be by virtue of his or her office as Ariki. The first was on 7 March 1912 vesting the interest of Makea Takau in Rangi Makea as from 1 May 1911, the second on 20 October 1926 vesting the interest of Rangi Makea in Makea Nui Tinirau Ariki as from 27 July 1922, the third on 26 July 1944 vesting the interest of Makea Nui Tinirau Ariki in Makea Nui Takau Ariki as from 26 January 1939, and the fourth on 14 March 1966 vesting the interest of Makea Nui Takau Ariki in Makeanui Teremoana Ariki as from 15 September 1947. The first respondent represents the current Makea Kopu Ariki and the second respondent is the daughter of Makeanui Teremoana Ariki.
The present proceedings
"it is of no moment whether the title as it stands is faulty. The claim is to oust the Makea completely and to have themselves substituted as owners.
They have made an unconvincing attempt to show ownership …
It is not open to the applicants to raise any question as to the obvious faults in the title as no amendment could in any case introduce them into the title. It does appear all the same that there is the important question still to be settled whether this is Makea title land or Makea family land."
Hingston J in the present case also took the view that any attack on the Makea Takau's legitimacy as heiress of the Makea title was irrelevant, saying:
"I am of the view that this part of the applicant's case does not advance their claim. I say this because Makea was the recognized Makea at the time and …. had held this office for some forty years."
"Cook Islands litigation over family land impacts upon all those family members who have a present or future interest in that land. As a person whose interests were adversely affected by Hingston J's decision, Ms Tavioni was directly involved in the original hearing, whether or not named or formally represented . . . " .
The "slip rule"
"Amendments - A Judge may at any time amend any minute or judgment of the Court or other record of the Court in order to give effect to the true intent of the Court in respect thereof or truly to record the course of any proceeding."
As the Court of Appeal pointed out, this "is essentially a 'slip rule' which permits the Court to correct a failure accurately to record a Judge's intention at the time that he or she promulgates a decision. In no sense is it a revision of the actual decision. It is merely a clerical correction to ensure that the decision already made is properly recorded" . As the Court also pointed out, the courts have always had power to rectify inconsistencies between the decision they intended and the recorded text. Section 44 is "merely a recent embodiment of that long-standing power" .
"(1) Where through any mistake, error, or omission whether of fact or of law however arising, and whether of the party applying to amend or not, the Land Court or the Land Appellate Court by its order has in effect done or left undone something which it did not actually intend to do or leave undone, or something which it would not but for that mistake, error, or omission have done or left undone, or where the Land Court or the Land Appellate Court has decided any point of law erroneously, the Chief Judge may, upon the application in writing of any person alleging that he is affected by the mistake, error, omission, or erroneous decision in point of law, make such order in the matter for the purpose of remedying the same or the effect of the same respectively as the nature of the case may require; and for any such purpose may, if he deems it necessary or expedient, amend, vary, or cancel any order made by the Land Court or the Land Appellate Court, or revoke any decision or intended decision of either of those Courts.
(10) This section shall not apply to any order made upon investigation of title or partition save with regard to the relative interests defined thereunder, but the provisions of this subsection shall not prevent the making of any necessary consequential amendments with regard to partition orders."
"(1) The Land Court or any Judge thereof may at any time make or authorise to be made in any order, warrant, record, or other document made, issued, or kept by the Court all such amendments as are considered necessary to give effect to the intended decision or determination of the Court or to record the actual course and nature of any proceedings in the Court.
(2) Any such amendment shall take effect as at the date of the order, warrant, record, or other document so amended; but no such amendment shall take away or affect any right or title acquired in good faith and for value before the making of the amendment.
(3) This section shall extend and apply to all such orders, warrants, records, and other documents as aforesaid whether made before or after the commencement of this Act."
Res judicata/abuse of process
"In trying this question, I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (emphasis supplied)
"It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
Was there a slip and, if so, should it now be rectified?
"that it might be inexpedient to grant what we know as freehold title to any landowner applicants because it was custom that the senior member of the family (Mataiapo = first born of the first born) was the natural guardian and trustee of the family lands and so great was the respect of the people for this old custom that it was well nigh impossible to make those most deeply interested (the people) come forward and claim inclusion in a list of names …"
"It may, indeed, be said that a life interest was the highest title ever recognised by the Maori of Polynesia. An Ariki might divide among his children the land he had actually held or cultivated by his servants or slaves, but he had no power to devise the tribal lands in the occupation of others, nor could he appoint his successor. It was the privilege of the elders of the tribe to appoint the Ariki and that man would continue the distribution of the tribal lands in accordance with Native custom."
In his Report for the year ended 31 March 1906, he reported that:
"In every instance in which an Ariki has been the claimant I have deemed it advisable that a life interest should be awarded, that having been the old tenure. An Ariki was nothing more than a trustee for the tribe or family, and the so-called Ariki lands really belonged to the younger branch of the Ariki family."
"realised that the titled claimants to land were either not the right ones, or not the only ones, ... he frequently awarded the claimant a life interest only, with the intention that the investigation of title to the land would be deferred until after that person's death."
Paradoxically, in the immediately preceding paragraph 232, the appellant also asserted that Chief Judge Gudgeon had no power under the relevant Act and Regulations to grant the life interest which she now asserts should have been included in the formal Order. The Chief Judge is further reported as expressing in 1904 his opinion that:
"Where the rights of independent Mataiapos and their families are clear and undisputed the fee-simple may be awarded to them but in all other cases it seems to me that no more than a life interest should be awarded, for in no other way can the interest of the small people and the Government be effectively guarded."
This again confirms that there were cases where the title appeared clearly to belong to chiefs and where Chief Judge Gudgeon awarded it to them outright.
"to be remembered that the title was investigated by Judge Gudgeon who had a very complete knowledge of the lands in Rarotonga, and the ownership thereof, and there is no possibility of his having named an Ariki as the sole owner of the land if there had been any question in his mind that there were any other persons who had a right to be included in the title.
It is well known that he was very careful where the claims of Arikis were concerned to see that no injustice was being done to other possible claimants who might have freehold or occupation rights."
"77. Every amendment shall be signed or initialled by the Judge or presiding Judge at the time of making the same, and shall specify the date on which the same was made.
78. No amendment whereby the interest of any person may be prejudicially affected shall be made without due notice, nor until opportunity to show cause against such amendment has been given."
These Rules relate to the "amendments necessary to remedy or correct defects or errors in any proceeding or document, or to give effect to or record the intended decision in any proceeding" contemplated by paragraph 25 of the Order in Council of 7 July 1902. Viewed in their respective contexts, there is at least a question whether either paragraph 25 or Rules 77 and 78 should be understood as referring to the Minute Book. But, assuming that they should be, the fact is that none of the handwritten record entries is initialled, and none of the deletions and alterations either. Whatever the Rules may have required (and neither Rule 83 requiring proceedings and evidence to be recorded in a minute book nor any other Rule appears to require minute book entries to be signed or initialled), the practice (certainly on and in relation to 3 June 1903 – see paragraph 31 above) was not to sign or initial alterations made in the Minute Book. The absence of signature or initialing cannot therefore be a test of their validity or their accuracy. Hingston J's acceptance of the probability of a slip was based, either entirely or almost exclusively, on the fact as he put it that "such alteration has not been initialled by the Judge of the Court" (his underlining). The Board cannot in the circumstances attach any significance to this point, which loomed so large in his mind as well as in the argument before the Board.
LADY HALE (WITH WHOM LORD WALKER AGREES):
What did the court intend?
"NOTE: The minutes of the Court at first restricted the interest of Makea Takau to 'A life interest only no power of devise'. This restriction appears to have been deleted later by means of Ink pencil, but such alteration has not been initialled by the Judge of the Court."
We do not know when or by whom this note was made, but that person had clearly looked at the original Minute Book and is recording the view that the deletion was made later and by an Ink pencil rather than the quill pen used in the original.
"I am not clear that the fee simple of the lands should be given to anyone for such a title is unknown to the Maoris. The land belongs to the tribe, which at the present time is the Govt, but I am afraid of the men who may follow me and of the Mission who would put everything into the hands of the Arikis who would support them and their system. It will be good for the place when the present lot of Arikis die out. Three out of the five have no children and no near relatives, and it would be far better that the Ariki lands should be divided up among the Ariki family. As for the present Makea she is not a Makea at all, she is a mere Mission fake . . . "
Fake or not, she was elected Ariki, but his general policy was clear.
What should be the consequences?
"to upset the Ariki elected in Rarotonga would have made his work much more difficult. He also believed that those living Ariki were probably the last that would hold office and it appears to this Court he pacified the Ariki – in the instant case, Makea Takau by recognising them and allowing their continued use of the land though they may not have been eligible to take title to it. Makea Takau was given a life interest with no power to devise. At this point in time one may accept that Judge Gudgeon intended, upon the demise of Makea Takau, to then determine those persons entitled to 'ownership'".