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Cooper v Starr [2019] NUHC 4; Application 11618 (13 June 2019)

DECISION OF COXHEAD CJ

Copies to:
P Chambers, P O Box 41351, Auckland 1346 [email protected]
R Toailoa, [email protected]

Introduction

[1] There are currently five applications before the Court involving the present parties. They are applications 11618, 11638, 11640, 11838 and 11837. Mr Chambers represents Ms Starr and Messers Hunter and Hunter on behalf of the Sipou Family (“the applicants”). Mr Toailoa represents Messers Cooper, Tongahai, Rex and Rex (“the respondents”)
[2] On 21 January 2019, I issued a direction in response to a memorandum of Mr Chambers dated 11 January 2019. In that direction, I adjourned applications 11618, 11638 and 11640 to be heard in March 2019.
[3] Unfortunately, prior to the March 2019 sittings of the Niue High Court, applications 11618, 11638, 11640, as well as applications 11838 and 11837, were not advertised in the gazette and were not set down for hearing. At the request of Mr Hunter, applications 11837 and 11838 were called before the Court at the March sitting. Both applications were adjourned with a decision to follow regarding when and where those matters would be heard.
[4] This decision addresses the following matters:

• (a) The matters raised in Mr Chambers’ memoranda of 9 March, 19 March and 3 June 2019;
• (b) The matters raised by Mr Toailoa in his memorandum of 28 February 2019;
• (c) The request to have applications heard in New Zealand;
• (d) The request to have matters adjourned to March 2020; and
• (e) The 3 June 2019 request for directions.

Hearing venue

[5] In Mr Chambers’ memorandum of 11 January 2019, he requested that applications 11618, 11638 and 11640 be heard in New Zealand. I directed the Registrar to contact the other parties involved in these applications for them to file memoranda regarding their views on the issue.
[6] On 28 February 2019, Mr Toailoa filed a memorandum opposing the matters being heard in New Zealand. The respondents believe that the hearings ought to be conducted in Niue, given the lands and relevant records are all located in Niue, along with the majority of the respondents.
[7] On 19 March 2019, Mr Chambers filed a memorandum in reply to that of Mr Toailoa. Mr Chambers repeated and expanded on his reasons as to why the matters should be heard in New Zealand.
[8] In considering this request, I note that the Niue Court of Appeal has previously heard appeals in New Zealand, with the consent of all parties. On the rare occasion, the Niue High Court has also heard matters in New Zealand, again with the consent of all parties. However, those are situations where no further evidence is to be heard and a decision is either given on the papers or based on the submissions of counsel and the Court record.
[9] The present situation is different, as having the matters heard in New Zealand is opposed. The Court files, historical data and relevant materials are all with the Court Registry Office in Niue. Further, a number of the witnesses live in Niue. The applications were filed in the Niue High Court, they relate to Niue lands, and concern the people of Niue. For these reasons, all applications (11618, 11638, 11640, 11838 and 11837) will be heard in Niue.

Hearing date

[10] Mr Toailoa has now requested that all matters be adjourned for hearing in March 2020, on the basis that Tagaloa Halo Cooper will not be travelling to Niue until that time, and that such adjournment will allow the parties to ensure the matters are ready to proceed without further delays.
[11] Mr Chambers opposes applications 11618, 11638 and 11640 being adjourned to March 2020 and asks that those applications be heard as soon as possible. In terms of application 11837, by memorandum dated 3 June 2019, Mr Chambers seeks default judgment.
[12] I consider it important that these matters are progressed and heard sooner rather than later. However, it is also important that all evidence is ready to be heard to avoid further delays. As I read the applications, the matters relating to applications 11618, 11638 and 11640 are different to matters relevant to applications 11838 and 11837. It does not appear that all five applications need to be heard together.
[13] I therefore direct that applications 11838 and 11837 are to be heard in Niue in November 2019, while applications 11618, 11638 and 11640 are adjourned to be heard in Niue in March 2020.
[14] In relation to applications 11838 and 11837, I note that at the hearing on 11 March 2019, these applications were adjourned and the respondents given two months in which to respond to the applications. The respondents have not complied with that direction and Mr Chambers now requests the Court enter judgment by default, granting an order for eviction and unpaid rent. This is something for the Court to consider in November 2019 when these matters will be heard.

Costs

[15] All parties have sought costs against each other. The respondents submitted that they were prepared for the hearings in March 2019 and therefore seek costs from the applicants in such sum as the Court deems just. In reply, Mr Chambers submitted that the applicant should be awarded costs due to the delays and failure of other parties to properly file documents and comply with directions.
[16] The Court has not received any invoices or indications of costs that have been incurred by the parties. Further, given the delays in these proceedings and that both parties appear to have had adjournments at one time or another there will be no order as to costs.

Request for directions

[17] Mr Chambers sought directions in his memorandum dated 3 June 2019. As noted, this followed his earlier memoranda filed on 9 March 2019 and 19 March 2019, seeking directions regarding the hearing venue and for default judgment orders for eviction and unpaid rent.
[18] Mr Chambers referred to further evidence uncovered and now also seeks urgent directions from the Court regarding the following matters:

• (a) An interim injunction by the Court’s own motion by way of writ of mandamus preventing any and all construction development or other dealings of the land by the Niue Government; or
• (b) An order granting leave to the applicants to file an application for interim injunction by way of writ of mandamus against Niue Government;
• (c) An order granting leave to the Sipou family to join Hubert Mana Kalauni to the applications those being directly affected by the actions he has taken and at least requiring him to give evidence and explain his conduct;
• (d) An order granting joinder with regards to the above applications into one proceeding, there being sufficient evidence that all land and subject of those applications may revert back to Sipou ownership because of the evidence unearthed by the applicants;
• (e) An order or orders granting a change of venue for the above proceedings to Wellington at the earliest available date.

[19] Mr Chambers has provided some evidence in relation to the applications before the Court in which he states the evidence “is alarming, as to its illegality, wilful and disdainful treatment of the prescribed statutory processes and the sheer brazenness of such conduct, by Mr Kalauni, regardless of who he acted for when taking such steps.”

Directions

[20] I have reviewed the material provided by the applicants and, without hearing from other parties, it appears that there are some serious issues which need to be addressed. However, matters are not so conclusive that the Court could move to make orders without hearing from other parties. Therefore, the Court will not issue an interim injunction of its own motion. The applicant is granted leave to file an appropriate application.
[21] Given the allegations that have been raised, it is appropriate that Mr Kalauni, and the respondents, be given the opportunity to respond to, not only the matters raised in Mr Chambers’ memorandum, but also matters that will be raised in any application the applicant may file following the grant of leave.
[22] Prior to making any orders to join Mr Hubert Kalauni to the above applications, I want to hear the views of the other parties and Mr Kalauni as to whether I should grant such orders.

Copy of this decision is to be sent to all parties.

Pronounced in Rotorua, Aotearoa/New Zealand on this 13^th day of June 2019.

COXHEAD CJ