June Margaret Baudinet v Ellen Tavioni and Meremaraea Velma Tinirau Macquarie (Cook Islands)

Section 44 of the Judicature Act 1980-81 is a general slip rule. It applies to orders made on investigation of title and is not displaced by the specific amendment regime in section 390A of the Cook Islands Act 1915. The rule corrects the record of a decision already made; it does not revise that decision.

Earlier proceedings do not create an abuse-of-process bar where the title was never adjudicated by a competent court. A slip in a century-old order must be clearly established. Even if proved, discretionary correction may be refused where it would create an unintended windfall and reopen an ancient title claim.

The appellant claimed Tuarea Nui Section 40, a parcel awarded to Makea Nui Takau by a 1903 Land Titles Court order. The contemporaneous minute contained, but later crossed out, words apparently limiting her interest to a life interest without power of devise. The formal order omitted those words.

Proceedings brought by the appellant’s family in 1937 and 1950 had failed. Hingston J later directed correction of the record under section 44, but rejected an allegation of fraud. The Court of Appeal allowed the respondents’ appeal, holding that section 390A of the Cook Islands Act 1915 governed and that the claim was barred by abuse of process. The Privy Council considered the statutory power, the effect of the earlier proceedings, whether a slip occurred, and whether correction should be ordered.

1. Disposition. The majority dismissed the appeal and upheld the Court of Appeal’s decision, although on different grounds. The Board invited submissions on costs within 28 days.

2. Slip-rule jurisdiction. Section 44 of the Judicature Act 1980-81 embodies the longstanding power to amend a minute, judgment or other record so that it reflects the court’s true intention or the actual course of proceedings. It corrects the record of an existing decision and cannot be used to revise the decision itself. The power applies to orders made on investigation of title.

   The Court of Appeal was wrong to treat section 390A of the Cook Islands Act 1915 as an exclusive code. Section 389 of that Act had provided a general slip rule applying to all orders, including title-investigation orders, and had coexisted with section 390A. Nothing in the legislative history showed an intention to remove the general power, which was continued by section 44.

3. Res judicata and abuse of process. The principle in Henderson v Henderson (1843) 3 Hare 100 is an aspect of abuse of process. It requires a broad, merits-based assessment and does not make every matter that could have been raised earlier necessarily abusive, as explained in Johnson v Gore Wood & Co [2000] UKHL 65. The earlier proceedings did not engage the principle. In 1937 the court correctly held that it lacked jurisdiction to rehear or vary the 1903 order, and its subsequent observations were not an adjudication. In 1950 the court dismissed an application to reopen the case and never adjudicated the title on its merits.

4. Whether a slip occurred. Correction more than a century later required clear justification. The Board was not satisfied on the balance of probabilities that the crossed-out words had been omitted from the formal order by mistake. The absence of judicial initials was not significant because the practice in and around the relevant minute book was not to initial alterations. The surrounding entries and Chief Judge Gudgeon’s known practice made deliberate deletion at least as plausible as accidental omission.

5. Discretion. The Board added that, even if a slip had been proved, it would have been disinclined to exercise section 44 after so long a period where correction would produce an unintended windfall and reopen an ancient title investigation for a claimant whom the original restriction was never intended to benefit. This was an alternative observation, unnecessary to the majority’s decision.

6. Separate opinion. Lady Hale, with Lord Walker agreeing, accepted the majority’s conclusions on the statutory power and abuse of process but would have allowed the appeal. She considered the minute book more likely than the formal order to reflect the court’s intention, and regarded correction as justified in the context of Cook Islands customary land. She emphasised the importance of tikanga and section 422 of the Cook Islands Act 1915, which required customary title to be determined according to ancient custom and usage.

1. Privy Council. On appeal from the Court of Appeal of the Cook Islands, the Board dismissed the appeal by majority and upheld the Court of Appeal’s decision on different grounds: [2012] UKPC 35.
2. Court of Appeal of the Cook Islands. On 10 July 2009 it granted the respondents special leave to appeal and allowed their appeal. It held that section 44 of the Judicature Act 1980-81 was subject to section 390A of the Cook Islands Act 1915, that the claim was barred under Henderson v Henderson, and that a slip was not clearly established.
3. High Court of the Cook Islands. On 8 April 2008 Hingston J directed correction of the 1903 record under section 44, but rejected the alternative fraud claim under section 391 of the Cook Islands Act 1915.