Bidois v Leef

IN THE COURT OF APPEAL OF NEW ZEALAND

CA441/2013
[2015] NZCA 307

BETWEEN	COLIN BIDOIS, JENNY ROLLESTON, TAARI NICHOLAS, PATRICK NICHOLAS, CHRISTOPHER (KIRITOHA) TANGITU, RAWIRI KUKA AND SHADRACH ROLLESTON AS THE MANDATED REPRESENTATIVES OF THE HAPU OF PIRIRAKAU Appellants
AND	RAPATA (ROBERT) LEEF, STEPHANIE TERIA TAIAPA, NADINE HORINA PIRAKE, KAINE RAROA TAIAPA, DARREN WILLIAM LEEF, NEIL HIRAMA AND PANIA ANEISHA BROWN AS THE MANDATED REPRESENTATIVES OF THE HAPU OF NGATI TAKA Respondents

Court:

Miller, Cooper and Simon France JJ

Counsel:

FMR Cooke QC and M Sharp for Appellants
S P Bryers for Respondents

Judgment:

(On the papers)

15 July 2015 at 10.30 am

JUDGMENT OF THE COURT TO RECALL JUDGMENT

The application for recall of this judgment is dismissed.
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REASONS OF THE COURT

(Given by Simon France J)

The appellants seek recall of the judgment issued on 18 May 2015.[1] The focus of the application is para [53] of the judgment.
[1]Bidois v Leek [2015] NZCA 176.
In preparation for settlement of historical claims, the various iwi of Ngāti Ranginui agreed a process for settling internal disputes. This was called the Mana Whenua Agreement. It was contemplated the process would be used subsequent to settlement with the Crown. As it happens, all relevant disputes were apparently determined prior to settlement. As the judgment records, the Mana Whenua Agreement was not therefore included amongst the final settlement documentation.
Paragraph [53] of the judgment records that the Mana Whenua Agreement is no longer available. It is this observation the appellants seek to have recalled. They wish in subsequent litigation to argue the Agreement is still operative. A footnote which precedes the paragraph in issue notes that the judgment proceeds on the basis of the position as it presently stands. It was recognised that there may be further litigation about the processes that were followed, and the observation was made that the present judgment is not intended to indicate a view on the merits of any future litigation.
We agree with the respondent that the criteria for recall as set out in Horowhenua County v Nash (No 2) are not met.[2] No special reason exists requiring recall. The judgment is plain that it records the present situation, and the statement in para [53] was acceptance of a specific argument advanced to the Court by Mr Cooke QC on behalf of the respondent. Recall is not the appropriate vehicle for any challenge to the statement.
[2]Horowhenua County v Nash (No 2) [1968] NZLR 632, 633.
The application is declined.

Solicitors:

Holland Beckett, Tauranga for Appellants

Martelli McKegg, Auckland for Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Colin Bidois and others against Rapata Leef and others. The appellants sought recall of a judgment issued on 18 May 2015, which related to a process for settling internal disputes between various iwi of Ngāti Ranginui. The Mana Whenua Agreement, which was intended to be used after settlement with the Crown, was not included in the final settlement documentation as all relevant disputes had been resolved beforehand. The appellants sought to have recalled a statement in the judgment which stated that the Mana Whenua Agreement is no longer available. The appellants wished to argue in subsequent litigation that the Agreement was still operative.

The legal issue before the court was whether the criteria for recall, as set out in Horowhenua County v Nash (No 2), were met. The respondents argued that no special reason existed for recall and that the judgment was clear in stating that it recorded the present situation. The statement in the judgment was an acceptance of a specific argument advanced by the respondents' counsel. The court agreed with the respondents that the criteria for recall were not met, as recall was not the appropriate vehicle for any challenge to the statement.

The court's reasoning was based on the fact that the judgment was clear in stating that it recorded the present situation. The statement in the judgment was an acceptance of a specific argument advanced by the respondents' counsel, and recall was not the appropriate vehicle for any challenge to the statement. The court further noted that the judgment was not intended to indicate a view on the merits of any future litigation. Therefore, the application for recall was declined.

The final order of the court was that the application for recall of the judgment was dismissed. The court's decision was based on the fact that the criteria for recall were not met, and that recall was not the appropriate vehicle for any challenge to the statement in the judgment. The judgment stood as it was, and the Mana Whenua Agreement was no longer available for use in subsequent litigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established