Home | Databases | WorldLII | Search | Feedback Maori Land Court of New Zealand

Campbell - Estate of Mary Maria Magrath [2009] NZMLC 44 (29 September 2009)

Maori Land Court of New Zealand

Campbell - Estate of Mary Maria Magrath [2009] NZMLC 44 (29 September 2009)

Last Updated: 24 November 2009

IN THE MAORI LAND COURT

OF NEW ZEALAND AOTEA DISTRICT

2009 CHIEF JUDGE'S MB 349

A20030005247

_{CJ 2004/01}

UNDER Section 45, Te Ture Whenua Maori Act

1993

IN THE MATTER OF Mary Maria Magrath

MICHAEL SAMUEL CAMPBELL Applicant

Hearing: 18 June 2004 at 140 Aotea MB 268 (Heard at Wellington)

Judgment: 29 September 2009

_{DECISION OF CHIEF JUDGE W W ISAAC}

Introduction

[1] An application was filed by Michael Samuel Campbell (the applicant) to the

Chief Judge pursuant to section 45 of the Te Ture Whenua Māori Act 1993 to amend

an order made on 5 June 1980 at 3 CJ Takitimu MB 366 in respect to the succession

of Mary Maria Magrath in land interests in Ngarara West C18 Sec 2.

[2] I granted this application on 29 February 2008 at which time I made an order pursuant to section 44(1) of Te Ture Whenua Māori Act 1993 cancelling the orders complained of and making new orders vesting the interests of Mary Maria Magrath

in her four children namely Mabel Hooker, Clara Hooker, Isobel Hooker, and Robert

Hooker with substitution of issue.

[3] I further directed that counsel file submissions relating to compensation and costs which were sought by the applicant.

MICHAEL SAMUEL CAMPBELL MLC A20030005247 29 September 2009

Compensation Claim

[4] The applicant is claiming compensation on the basis that the Māori Trustee had paid out $9447.20 to the wrong persons which according to Consumer Price Index calculations is now worth $38,492.28.

[5] Counsel for the applicant submitted that:

(a) section 44 enables the Court to make an order compensating the applicant and successors to Mary Magrath because the Court can make any order in the interests of justice to remedy the relevant mistake or omission; and

(b) it was impracticable to establish the whereabouts and identity of the recipients who had received the wrongful payment, any recovery action may in any case be out of time; and

(c) any claim would need to be based on restitution to which

it is a defence that the recipient has changed his or her position in reliance; and

(d) true compensation required any payment ordered by the Court to be paid the sum in today’s value, and that there is analagous authority for a court to compensate a party for a wrongful act of another at a date later than the wrongful act in contract.

[6] There does not appear to be any existing precedent in applications to the Chief Judge pursuant to section 45 of Te Ture Whenua Mäori Act 1993 where the Chief Judge has made an order compensating an applicant or successors in the manner proposed by the applicant. The issue is therefore one of statutory interpretation. Section 44 provides that the Chief Judge may:

“If satisfied that an order made by the Court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160 of this

Act, 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, cancel or amend the order or certificate

of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission.”

[7] The applicant argues that this provision confers a broad discretion on the Chief Judge that would enable the Chief Judge to make an order compensating the applicant.

[8] However, even where the legislation appears to give a very broad discretion, the courts must exercise that discretion judicially and not capriciously.[1] Wide discretionary powers are conferred on trust, that is to say, to be validly used only in the right and proper way which Parliament when conferring the power is presumed to have intended.[2]

[9] A necessary corollary of making an order for compensation is that liability must fall on another person or party. That is someone has to pay. Therefore, considerations of the overall justice of making an order for compensation must also take into account the justice of the liability falling on that person or party. The problem here is that counsel for the applicant did not clarify against whom compensation was sought. This poses a difficulty in that the Chief Judge can hardly make an order of compensation until it considers from whom compensation is sought. Although counsel made no submission on this issue it is necessary to consider against whom the order could possibly be made.

[10] The following possibilities, in terms of persons who might be ordered to pay compensation, in my view exist:

(i) the parties who gave evidence to the Court that led to the wrongful decision

_{(ii) the Judge who made the order that was found to be in factual error}

(iii) the Māori Trustee (a government department) who made the wrongful payment in reliance on the Court’s decision or the Crown under the principle of vicarious liability

(iv) the recipients of the wrongful payment

(v) the Court/ Crown under the principle of vicarious liability for the Judges’

actions

(vi) the Crown as some sort of general guarantor in cases of injustice

_{(a) The parties that gave the evidence}

The Court record suggests that that Ms Formosa who deposed that

Mary Magrath died without issue did so in good faith. While it is conceivable that a duty of care might rest on professional witnesses, a witness in these circumstances has a duty only to give evidence that he or she believes to be true. There was no wrong done by or cause of action against the person who gave the original incorrect evidence, who in any event gave that evidence in 1976.

_{(b) The Judges who made the erroneous orders}

There were two sets of erroneous orders, the first in 1976 and subsequently in 1980.

The Judges in this case did not act carelessly or wrongly, but merely made a determination on the basis of the evidence presented to the Court. However, for comprehensiveness, judicial immunity would apply in relation to any direct suit against a Judge in circumstances where carelessness could be shown.[3] The public policy reason behind the judicial immunity rule is to ensure in the public interest that the administration can be carried on without

fear of the consequences Nakhla v McCarthy [1978] 1 NZLR 291 (CA).

Judicial immunity is a fundamental principle of justice. It is clear that when Parliament enacted section 44 it could not have contemplated that a remedy under this section could include an order of compensation against a Judge.

(c) The Māori Trustee or the Crown under the principle of vicarious

_{liability for the Māori Trustee’s actions}

The Māori Trustee, at the time of the relevant payment, had the status of a Government Department (section 2 Crown Proceedings Act 1950, definition of “government department”) and also held funds in respect of timber royalties as trustees for the beneficial owners. It paid these in 1980 on the basis of the Chief Judge’s 1980 decision as to correct descendants of Mary Maria Magrath.

It appears that the payment was made under section 32 of the Māori Affairs Act 1953 which provided that the court, on application of any person interested or of its own motion, could order that any money held by the Māori Trustee in trust for any persons, be paid to the persons beneficially entitled or to any other persons to whom the Court directed. CJ 1980/7 records that “I shall upon a section 32 application (No.14 for Hawera sitting of June 1980 made an order disposing of the $9,447.20 in question”. The Māori Trustee acted on the basis of this Court order.

The Mäori Trustee in this case was acting on an order of the Court

in an administrative capacity. In Kohatu o Te Haua No 9 Block TK Appellate MB 5 53-57 Appeal 1996/11 it said:

“While that may be so, the registration of the order was not a mistake or error on the part of the Court below. The Court was functus officio having made the order and the error was an administration one not a judicial one. While we appreciate that there is a reference to the Registrar in s44 (1)/93 this relates to the Registrar acting in quasi-judicial role under s160 of the Act. Wrongful administrative action is not amenable to correction pursuant to s44 (1)/93.”

Thus it seems clear that the Mäori Trustee could not be liable for effectively discharging its responsibilities in relation to a judicial process.

There is an additional matter relevant to the question of whether Parliament would have intended section 44 to allow an award of compensation against the Māori Trustee. Section 452(15)/53 and its equivalent section 48/93 explicitly authorise a trustee to go ahead and make a distribution despite a pending Chief Judge application to correct a past error. The only exception is where there is an injunction. It would seem inconsistent with this to find that section 44 enables a remedy against the Mäori Trustee where there is no pending application and the Mäori Trustee has made a wrongful distribution on the basis of Court orders.

For all of the above reasons, there are no legal grounds that give rise to any liability for damages to compensation for loss on the part of the Māori Trustee.

_{(d) The recipients of the wrongful payment}

In theory, it could be possible for the applicant to make an equitable proprietary claim is made to trace the beneficial property wrongfully paid out or make a claim under restitution on the basis of unjust enrichment.

However, the recipients relied in good faith upon the order of the Court and the actions of the Māori Trustee in receiving the payment, so any claim in equity based on knowing receipt is likely

to fail. As submitted by counsel for the applicant that leaves only a claim in restitution based on unjust enrichment. It is a defence to such a claim to demonstrate that a person has changed his or her position in the honest belief to the entitlement, so this claim is also likely to fail.

It is accepted that the beneficial property in the form of money paid more than 28 years ago is no longer identifiable or will have been dissipated by the recipients. Therefore any claim for restitution is only a theoretical possibility and is not practicable in terms of providing an effective remedy.

_{(e) The Court/Crown under the principle of vicarious liability}

Section 3 of the Crown Proceedings Act 1950 makes it clear that a claim can be brought against the Crown in relation to a wide range of causes of action. This includes breaches of trust, wrongs or injuries for which the Crown is liable in tort, and causes of action independent of contract, trust or tort for which an action would lie for damages or to recover property if the Crown were a private person of full age and capacity.

As with any other legal person, the Crown can be found liable in tort for the actions of its servants and agents. This obligation is imposed by section 6(1) of the Crown Proceedings Act 1950. The first barrier, however, is that judges do not come within the definition of servants or agents in the Crown Proceedings Act 1950.

In addition, section 6(5) of the Crown Proceedings Act (quoted above in the discussion of any potential liability on the Māori Trustee) makes it clear the Crown is not liable in tort for the

actions of persons discharging or purporting to discharge judicial duties or responsibilities connected with the judicial process.

On this basis, the Court or Crown cannot be vicariously liable in tort for the mistake of the Court in its judicial capacity i.e. the mistake of the Judges. There is no other basis for liability.

_{(f) The Crown as some sort of general guarantor in cases of injustice}

The one argument that remains to be disposed of is that compensation should be payable by the Crown as some sort of general guarantor. It could be argued that:

(i) Parliament intended that the Court under section 44 has power

to ensure that the injustice is remedied

(ii) compensation is a common means of remedying an injustice where loss has been suffered, and that therefore

(iii) Parliament must have intended that the Court could order such

a remedy

(iv) If there is no obvious person against whom an order of compensation can be made, then the Crown should step in as a general guarantor to prevent an injustice.

There is arguably some precedent for the Crown to act as general guarantor in cases in which a citizen has a recognised legal right for which there is no other effective remedy in the context of constitutional and human rights law. That is, public law rights.

For example in Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case] which considered a breach of the right under the New Zealand Bill of Rights Act 1990 to be secure from unreasonable search and seizure. Baigent arguably laid the way for

the public law compensation by the Crown for a breach of the New Zealand Bill of Rights Act 1990, thereby avoiding the usual immunities that would apply in relation to a tortious claim based on actions carried out in connection with a judicial process.

However, Baigent’s case may be distinguished from the present case in it applied only to public law rights, not private property rights, or entitlements. The Court is therefore concerned about fundamental rights. In Baigent’s case it reasoned that Parliament cannot have intended those rights to go without a remedy, and that the Crown is an appropriate party to be held to account for a breach of those fundamental rights because of their public law nature.

The arguments for compensation in this case, on the other hand, arise out of an interest in property. It would be unprecedented to find Crown liability, without an independent legal cause of action,

in relation to a private rather than a public right without a clear statutory basis for doing so. In this case there has been partial redress in that the applicant and descendants of Mary Magrath have been restored as successors to her interests in land.

This redress is arguably incomplete in that it does not restore them

to the position that they would have been in had correct orders been made. However, that does not entitle the Court to assume that Parliament intended the Crown could be used as a deep pocket to address that wrong.

Whilst this argument has been presented here it should be emphasised again that it was not articulated by the applicant.

It would also be expected that if a compensation remedy against the Crown as a general guarantor was available under section 44 then that would be expressly stated. In contrast to Te Ture Whenua Mäori Act 1993, there is provision for example in section

172 of the Land Transfer Act, any person who sustains loss or damage through a mistake in the performance of any duty, function, or power imposed or conferred under the Land Transfer Act by the Registrar-General or an employee of Land Information New Zealand may bring an action against the Crown for compensation.

[11] In conclusion therefore, my view is that section 44 does not enable the Court

to make an award of compensation against the Crown simply on the basis that this would remedy an injustice. An award of compensation against any party, including the Crown, must be based on liability under general principles of law or because of express statutory provision. The only exception appears to be in respect of a breach

of the Bill of Rights Act 1990 where Courts have been prepared to find Crown liability in order to ensure there is a remedy for breach of fundamental rights. As the applicant was not explicit in the submissions presented as to whom compensation is sought from, and there is no clear basis for liability against anyone, including the Crown, the applicant’s argument for compensation must fail.

Application for costs

[12] The applicant also sought compensation for costs in respect of his legal expenses and costs incurred by Campbell Investigations.

[13] The applicant filed an affidavit on 16 April 2008 in which he provided evidence of his legal costs in the sum of $5,577.79 and indicated that he expected to receive a further invoice of $2,900 for filing an affidavit and submissions on the issue of compensation and costs.

[14] The applicant deposed that he was an experienced investigator who had been licensed until 31 March of that year and had undertaken work in his capacity as employer in the company Campbell Investigations Limited in which his wife and he were shareholders and he was the sole director. His evidence was that the total cost

_{of investigation to bring this matter to court, including time, mileage, and other}

expenses had been $48,283.37. $46,320.00 of this amount was his time, charged at

$60.00 per hour. He also gave evidence of the reasonableness of his charge out rate, and of his experience in the investigative field. In respect of legal expenses counsel submitted that, taking into account the further work that had been done, the applicant should receive compensation for legal expenses in the sum of $8,477.79.

[15] I am unable to award party to party costs in this case as this application was not opposed. The only basis on which applicant’s costs can be paid is out of the Special Aid Fund under section 98(3)(a). This allows the Court to make orders for the payment from the Fund of the reasonable legal costs or the reasonable out of pocket expenses or both of any person or class of person heard or represented in any proceedings before the Court. In considering whether it is appropriate that costs are awarded in favour of the applicant from the Special Aid Fund I follow the usual rule that costs follow the event.

[16] The applicant has been partially successful in establishing a mistake of the Court and I consider it appropriate to make an award of his initial legal costs in the amount of $5,577.79 from the Special Aid Fund. That order does not include the estimated further $2,900 legal costs anticipated by Mr Campbell which I attribute largely to establishing his unsuccessful claim for compensation.

[17] This leaves the question of the applicant’s investigation costs. It is possible

for reasonable out of pocket expenses or disbursements to be paid from the Special

Fund under section 98. However:

1. In terms of reasonableness it seems doubtful that the applicant would have incurred a liability $48,283.37 to correct an error of the Court, had he been personally liable for this cost. Certainly, in respect of the compensation argument, it would not have been worth incurring this sort of liability to pursue a remedy of compensation in the amount of $9447.20 paid out by the Mäori Trustee.
   
2. Mr Campbell is effectively claiming for his own time. It is an established rule in New Zealand that a lay litigant appearing in person

is normally not entitled to an award of costs for his or her own time, although there may be exceptional cases justifying such an award: Re Collier (A Bankrupt) [1996] 2 NZLR 438

[18] I note that a Court may, however, be prepared to take a liberal approach to the classification and assessment of “reasonable disbursements” of a litigant in person: Jagwar Holdings Ltd v Julian (1992) PRNZ 496.

[19] For the reasons set out above it is not appropriate for Mr Campbell to be awarded investigation costs but I accept that his claims in respect of mileage, general expenses, and toll calls (totalling $1,963.37) are reasonable out of pocket expenses.

[20] Taking into account that Mr Campbell was successful in obtaining an order from the Court to correct a former error of the Court, and that he went to extraordinary lengths to do so, it appears just that Mr Campbell should be compensated for these expenses.

[21] I therefore make an order under section 98(3)(a) for payment from the

Special Aid Fund of:

a) Mr Campbell’s legal costs in the sum of $5,577.79; and

b) Mr Campbell’s reasonable out of pocket expenses of $1,963.37.

_{Dated in Wellington this 29}th _{day of September 2009}

W W Isaac

_{CHIEF JUDGE}

[1] R v Paterson [1992] 1 NZLR 45, at 47 (HC) per Penlington J. In this case, the court was considering the power to prohibit the publication of a witness's name and considered, as part of acting judicially and not capriciously, that it needed to have regard to the fundamental rule that our system of administering criminal justice is that it is done in public.

[2] Wade and Forsyth, Administrative Law, (9th Ed Oxford University Press 2004) 354

[3] Even before section 12A of the 1993 Act, which gives Judges the immunities of High Court Judges, the common law position was that Judges of inferior courts had at the very least judicial immunity when acting within jurisdiction.