Grubmayr v Bloxham HC Auckland CIV 2007-404-2570
[2010] NZHC 181
•1 March 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2007-404-2570
BETWEEN KARL GRUBMAYR
First Plaintiff
ANDTRAVIS RAPANA Second Plaintiff
ANDS C BLOXHAM First Defendant
ANDM BOURKE Second Defendant
ANDAUCKLAND CITY COUNCIL Third Defendant
Hearing: 22 February 2010
Appearances: Travis Rapana in Person (with P V J Paalvast as Mckenzie friend)
S H Macky for Defendants
Judgment: 1 March 2010
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
1 March 2010 at 11.00 a.m., pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Heaney & Co., PO Box 105391, Auckland
Copy to:
T Rapana, 7 Camphora Place, Ranui, Waitakere 0612
GRUBMAYR AND ANOR V BLOXHAM AND ORS HC AK CIV-2007-404-2570 1 March 2010
[1] On three separate occasions, in October 2004, March 2005 and June 2008, agents of Auckland City Council (“the Council”) seized property from street vendors whom it considered were operating without the appropriate licence under the Council’s Consolidated Bylaw 1998. Since it was seized, the property has been detained by the Council, on the basis that it will be released if the Council’s costs of seizing and storing it are first met.
[2] The plaintiff, Mr Rapana, is one of those who claims his property was seized.
He commenced the present proceeding together with Mr Grubmayr, one of the other persons whose property was seized in the 2004 and 2005 incidents. The statement of claim alleged that the Council had acted unlawfully. It appears that the main author
of the claim must have been Mr Grubmayr. The statement of claim placed much emphasis on a decision of Harrison J delivered on 11 June 2004: Karl Grubmayr v Bloxham and Auckland City Council[1]in which it was held that the Council’s Consolidated Bylaw 1998, Part 23 was invalid insofar as it purported to authorise the detention of goods by the Council, pending payment of its expenses. On 25 May 2009, the claim in its then form came before Priestley J for hearing. However, for a number of reasons, including late provision of the plaintiffs’ briefs, and the perception that the two days set aside to deal with the matter might be insufficient, the fixture was vacated.
[1] HC Auckland CIV-2003-404-502, 11 June 2004
[3] The Judge made various directions and gave guidance to the plaintiffs as to what their briefs should contain. He directed further briefs to be provided by Friday
26 June 2009. He directed that that order was an “unless order” with the consequence that if it was not complied with he would order the plaintiffs’ claim to be struck out.
[4] Subsequently, Mr Rapana served a brief of evidence, but Mr Grubmayr did not. As contemplated by his order of 25 May, on 30 July 2009, Priestley J made a further order striking out Mr Grubmayr’s claim. Consequently, in the present hearing, Mr Rapana has advanced only his own issues in the context of a statement of claim ill-adapted for the purpose.
[5] In broad terms, his claim is based on the Treaty of Waitangi, which was not mentioned in the statement of claim. He asserts that the Treaty means that the Council cannot seize the items in question.
[6] I note also that insofar as Mr Rapana’s claim was based on events occurring
in June 2008 there was no relevant pleading in the statement of claim, which was filed on 9 May 2007 and not subsequently amended.
[7] Notwithstanding substantial inadequacies in the pleadings, Ms Macky, acting
for the three defendants has not pursued any objections on these points. There are, however, insuperable obstacles in the path of Mr Rapana’s claim.
The facts
[8] Mr Rapana has historically made a living by selling, as he said in evidence, “Maori Taonga, bone carvings, whale and beef bone, greenstone pendants, ear-rings and other taonga”. Typically, these are displayed on boards, which on the evidence have been placed on easel type structures in public places.
[9] Mr Rapana (originally, together with Mr Grubmayr) complains of the Council’s actions in seizing these boards on the basis that the necessary licence enabling them to be sold in public places had not been obtained.
[10] There are three separate cases of seizure which were mentioned in the evidence. Before referring to those specific occasions, however, I should record that the evidence from Mr Rapana was vague both as to the date when seizures occurred,
as to where the seizures occurred and as to the ownership of the goods in question. It
is by no means clear in respect of the 2004 and 2005 incidents that the property in question was his; more likely it was that of Mr Grubmayr. That is certainly the inference to be drawn from the fact that in the Council’s records, in respect of the
2004 incident, the dealings recorded were those between the Council’s employee
Mr Botha and Mr Grubmayr, and in the case of the 2005 incident Mr Grubmayr was
in possession of the goods. However, nothing really turns on this, and I will assume
in Mr Rapana’s favour that the goods belonged to his whanau and he is one who can validly assert a proprietary interest in them.
[11] Mr Botha has since left the Council’s employment, but he completed a report
on the 2004 incident which sheds some light on what occurred. I am satisfied that the report is able to be produced and relied on by the defendants under s 19(1)(a), (b) and (c) of the Evidence Act 2006. According to Mr Botha’s report, Mr Grubmayr was displaying jewellery on public land and trading from public land. Notices had been served on him requiring him not to do so. He continued and the property displayed was seized on 21 October 2004.
[12] There was evidence from Mr Bloxham, who is the first defendant, currently employed by the Council as a project manager at Auckland City Environments and,
at the relevant time, employed as a compliance officer. It was his evidence that the property had been displayed outside the Westpac Bank at 175 Queen Street. Other evidence on the Council file, produced by Mr Bloxham, included the record of a telephone conversation between Mr Botha and Mr Grubmayr. Mr Grubmayr had telephoned on 11 November 2004 requesting that his property be returned to him, and asserting that it had been stolen by the Council.
[13] In the evidence that he read to me, Mr Rapana simply said that both on
21 October 2004 and on 6 March 2005, the Council had seized “our private property from the doorways of private properties, 175 and 229 Queen Street”. His evidence, however was imprecise as to the position in which the goods were being traded. The Council would not be able to exercise powers it had under its bylaw if the goods in question were on private property. However, for Mr Rapana to succeed in his claim against the Council it would be necessary for him to satisfy the Court, on the balance
of probabilities, that the goods seized by the Council in the 2004 incident were displayed on private land. I am not satisfied on the evidence that the plaintiff has discharged this burden. I think it more likely that the goods were on the footpath which is owned and under the control of the Council.
[14] The second incident occurred on 6 March 2005. Mr Rapana conceded in cross-examination that he had not been present when the seizure occurred. Another
witness called by the defendants was Mr James Bryan Sutherland. It was his evidence that, on this occasion, Mr Grubmayr was trading on the footpath outside the Westpac Bank at 229 Queen Street. Mr Grubmayr had been issued with a warning the day before. On this occasion, three single panels of goods and one double-sided panel were seized, together with the goods displayed on them. Mr Rapana was not in a position to contest this evidence, and I accept it.
[15] The third occasion of seizure was on 28 June 2008. Mr Rapana accepted in evidence that photographs that had been produced by Mr Bloxham showed the display boards in the location where they were when seized. It is quite plain that they are located on the footpath, and there was no real suggestion from Mr Rapana to the contrary.
[16] In summary, I find that the goods seized by the Council were all seized in
Queen Street.
[17] It was Mr Bloxham’s evidence that the Council’s practice has been, and remains, to issue notices or give warnings to persons acting in breach of the bylaw,
to give them an opportunity to pack up their goods and leave. He referred to a written notice that had been given to Mr Grubmayr on 1 October 2004, which had been issued following an oral warning earlier that day. The written warning advised Mr Grubmayr that he was breaching the bylaw and that he must cease trading immediately and remove the goods. It warned him that if he did not do so, the goods would be removed to the Council’s offices at Grahame Street and only released on payment of the Council’s expenses and the costs of removal.
[18] Mr Sutherland gave evidence that, having issued Mr Grubmayr with a warning on the previous day, on 6 March 2006 he seized goods on display on the footpath outside the Westpac Bank at 229 Queen Street. Mr Grubmayr was served with another written notice advising him that the goods were being seized. I infer that the notice would have been in similar form to that to which Mr Bloxham referred in respect of the October 2004 incident. I note that Mr Rapana did not cross-examine Mr Sutherland on this evidence nor did he call any evidence to suggest that an appropriate notice had not been given.
[19] Another witness for the defendants was Mr Christopher Turnbull who has been employed by the Council since August 2005 as its Compliance Project Manager. It was his evidence that the seizure of goods from Mr Rapana in June
2008 was carried out pursuant to ss 164 to 168 of the Local Government Act 2002. I infer on the basis of Mr Bloxham’s evidence that once again a notice similar to that which was issued in October 2004 to Mr Grubmayr would have been issued on this occasion. Again, I record that Mr Rapana did not cross-examine Mr Sutherland on this point nor did he call any evidence suggesting that the Council had not complied with the required procedures in s 164 of the Act, to which I shall shortly refer.
The law
[20] The finding that the goods were seized in Queen Street is significant because under s 316 of the Local Government Act 1974, all roads are vested in fee simple in the Council of the district in which they are situated. A “footpath”, is defined in
s 315(1) of that Act as “so much of any road as is laid out or constructed …
primarily for pedestrians”.
[21] In Grubmayr v Bloxham & Auckland City Council, Harrison J held that the Council had power to define, licence and regulate the conduct of “itinerant traders”. The relevant power to do that, at the time, was in s 684(1)(40) of the Local Government Act. Harrison J held that that power must include the right to prohibit the activities of such persons absolutely, and he was also prepared to accept that the Council was entitled to remove any goods in the possession of a person acting in breach of a bylaw, a power which the Council’s Consolidated Bylaw of 1998 set out, under the apparent authority of s 692(1) of the Local Government Act 1974. In this latter respect, I should note that Harrison J said that he was prepared to accept that the power existed “for the purposes of argument”.
[22] In the case before him (which involved an earlier incident than any of those
to which this judgment relates) that meant that the only issue he had to decide was whether the Council was lawfully entitled to retain Mr Grubmayr’s goods which it had seized, until payment of its fees and charges. He thought that the Council was specifically authorised to recover its expenses but that that power was not
accompanied by a right to detain the goods pending payment. He considered that unequivocal statutory authority would be required for that, and there was none in the Local Government Act at the relevant date. The consequence was that Mr Grubmayr was entitled to judgment against the Council. He directed the Council to return the property to Mr Grubmayr within seven days.
[23] Although the Council relies on the same bylaw that was before Harrison J, its defence to the present proceeding rests on different statutory provisions. It can now point to the authority of the Local Government Act 2002, which s 164(1) of which provides as follows:
164 Seizure of property not on private land
(1)An enforcement officer may seize and impound property that is not on private land if —
(a) the property is materially involved in the commission of an offence; and
(b)it is reasonable in the circumstances to seize and impound the property; and
(c)before seizing and impounding the property, the enforcement officer —
(i) directed (orally or in writing) the person committing the offence to stop committing the offence; and
(ii) has advised (orally or in writing) the person committing the offence that, if he or she does not stop committing the offence, the enforcement officer has power to seize and impound the property; and
(iii) provided the person with a reasonable opportunity to stop committing the offence.
[24] Importantly, in view of the decision in Grubmayr v Bloxham & Auckland
City Council, s 167(1) and (2) of the Local Government Act 2002 provide:
167 Return of property seized and impounded
(1)The owner of property that has been seized and impounded under section 164 or section 165, or the person from whom the property was seized, may request the local authority concerned to return the property.
(2) The local authority must return the property if—
(a) the property is not likely to be involved in an offence for which it was seized; and
(b)the owner or person has paid, or tenders with the request payment of, the costs of the local authority in seizing, impounding, transporting, and storing the property.
[25] The Local Government Act 2002 came into force on 1 July 2003. Harrison J was concerned with events that occurred on 31 December 2002 prior to the Local Government Act 2002 coming into force. It is the relevant statute now however and not only is there explicit power to seize and impound property in s 164(1), but the Council may also retain the property unless the owner pays the costs of “seizing, impounding, transporting, and storing the property”.
[26] The pre-conditions to the exercise of these powers are those set out in
s 164(1). The first condition that must be satisfied before the Council may seize property under s 164(1) of the Local Government Act is whether the property is materially involved in the commission of an offence. Here the offence that the Council relied on was an offence against the Auckland City Consolidated Bylaw 1998. Under clause 23.2.1 of that bylaw, except where an exemption has been granted by an officer authorised to do so, it is an offence without a licence issued by the Council to use any portion of any public place or other land owned by, or under the control of, the Council for the purpose of placing any display stand, or for the purpose of operating, amongst other things, a street stall. It is clear on the evidence, and Mr Rapana admitted that he did not have licence from the Council at the relevant times.
[27] The second condition that must be satisfied is that it is reasonable in the circumstances to seize and impound the property. The third requires that an enforcement officer must have directed the person committing the offence to stop doing so, advised them orally or in writing that if he does not stop there is power to seize and impound the property and provided him with a reasonable opportunity to stop committing the offence. It is appropriate to consider all of these conditions together. In circumstances where the appropriate direction and warnings have been given, it seems clear that it will be reasonable to seize and impound the property if the person displaying the goods persists in his or her unlawful conduct.
[28] I have already referred to the evidence of what led up to the seizure on each occasion. I consider that in the circumstances here it was reasonable for the Council
to seize and impound the property. I also consider that there is sufficient evidence before the Court that the Council complied with its obligations under s 164(1) prior
to seizing the goods. I emphasise here that Mr Rapana did not submit that the pre- conditions to seizure set out in s 164 of the Act had not been met, nor did he lead any evidence to that effect. As the plaintiff he had the burden of establishing on the balance of probabilities that the Council had not acted lawfully and in my view he has not done so.
[29] His case was fought on higher ground, alleging in effect that the Council simply had no power to do what it did because neither the Local Government Act nor the Council’s bylaw were lawful because of the rights guaranteed to him by the Treaty of Waitangi.
[30] Mr Rapana placed the second article of the Treaty at the forefront of his submission. He maintained that by its terms the Queen of England confirmed and guaranteed to the Chiefs and Tribes of New Zealand, and to the respective families and individuals of those tribes, the full exclusive and undisturbed possession amongst other things of their “other properties”. The goods that the Council seized were to be regarded as his property of which he had guaranteed and undisturbed possession in terms of the Treaty. No statute could authorise the seizure of his property and no bylaw could prevent him doing what he wanted with it. It was unclear whether he went so far as to assert that Queen Street was not properly the subject of control under the Council’s bylaw because it was originally in Maori ownership but on occasions during his submission he appeared to suggest that that might be the case.
[31] These are views which Mr Rapana sincerely holds. It is a subject on which
he feels strongly, so strongly that he has written to The Queen about it. The Queen’s correspondence officer replied to his letter on 15 August 2008 indicating that Her Majesty had taken careful note of the views that he expressed but saying that it was not a matter on which she could intervene. Mr Rapana’s letter was forwarded by
Buckingham Palace to the Governor-General and Mr Rapana now complains that he has yet to receive a reply.
[32] It is clear that the duty of the Courts of New Zealand is to uphold and apply the statutes enacted as part of the laws of New Zealand. There have been numerous occasions, in varying contexts, when arguments based on the Treaty of Waitangi and claims that its terms can override statutes have been raised and rejected. One such case was R v Wikeepa[2]which involved an appeal against conviction for road traffic offences based on the Treaty of Waitangi. At pp 1-2 the Court of Appeal said:
[2] CA479/93, 14 June 1994
The applicant traversed a number of matters in the course of her submissions, but on analysis the sole question of law at issue was able to be clearly identified: it is whether the Treaty of Waitangi overrides and effectively invalidates the regulatory provisions of the road traffic legislation (including in particular the Transport Act 1962) and the statutory framework upon which the public roads system within the territory of New Zealand is founded.
It is now well established that the Treaty of Waitangi does not override the enactments of the New Zealand legislature.
[33] In the present case, the Council has exercised powers given to it by the Local Government Act 1974. The power to regulate trading in streets is a power which is given to regulate the carrying on of street trading in the interests of the community as
a whole. It is but one example of many powers, the exercise of which contributes to the daily life of the community by ensuring that people can go about their lawful business without hindrance but without undue obstruction of others.
[34] This is not a case where the plaintiff can point to a statutory provision acknowledging special rights that he might have as a person of the Maori race, such
as applied in Te Weehi v Regional Fisheries Officer[3]where s 88(2) of the Fisheries
[3] [1986] 1 NZLR 680
Act 1983 provided that nothing in the Act should affect any Maori fishing rights. Rather, the position here is that Mr Rapana’s activity of selling his carvings must
take place in accordance with the general law. It is a situation not unlike that
3
considered by Elias CJ in Attorney-General v Ngata Apa[4]where it was argued by the New Zealand Marine Farming Association that Maori claims to ownership of property in the foreshore and seabed were inconsistent with the controls of the coastal marine area under the Resource Management Act. At [76] she wrote:
The management of the coastal marine area under the Resource Management Act may substantially restrict the activities able to be undertaken by those with interests in Maori customary property. That is the case for all owners of foreshore and seabed lands and indeed for all owners of land above the high water mark.
[4] [2003] 3 NZLR 643
[35] I do not therefore consider that Mr Rapana can assert that the seizure of his goods was unlawful.
[36] For these reasons the plaintiff’s claim fails. The defendants are entitled to judgment. If the defendants wish to pursue costs against either Mr Grubmayr or Mr Rapana I will receive a memorandum to that effect within ten working days. If costs are sought, then Mr Grubmayr (in respect of the events which took place prior
to his claim being dismissed) and/or Mr Rapana may file a memorandum in reply
within a further ten working days.
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