Maori Trustee v Smith
[2019] NZHC 1701
•18 July 2019
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2018-416-3
[2019] NZHC 1701
BETWEEN MĀORI TRUSTEE
Entitled party
AND
BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH
Liable parties
Hearing: 18 July 2019 Appearances:
F Cleary and C Stuart for New Zealand Police G Shaw for Māori Trustee
L Lafferty for Ruby Smith, Jarna Smith and Kreslea Smith H Tunstall for Bruce Smith
Judgment:
18 July 2019
JUDGMENT OF GRICE J
[1] This is a hearing following the arrest of Bruce Smith, Ruby Smith, Jarna Smith and Kreslea Smith under the terms of an arrest order issued through this Court.1
[2] The background is that in October 2016, the Māori Land Court determined that the Māori Trustee was entitled to vacant possession of Waipaoa 5A2 as the lease then held by Digga-Bygum Ltd was at an end.2 On 16 November 2017 the Māori Land Court issued an injunction prohibiting Bruce Smith and his whanāu from entering or occupying any part of Waipaoa 5A2.3 The injunction orders were duly served on 27 November 2017.
1 This decision was delivered orally on 18 July 2019 and has been appropriately edited and footnoted before distribution.
2 Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122).
3 Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).
MĀORI TRUSTEE v BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH [2019] NZHC 1701 [18 July 2019]
[3] Appeals were filed against the Māori Land Court decision ending the lease and issuing the injunction, but those appeals were dismissed as Mr Smith did not progress them.4 This Court cannot reconsider the substance or the merits of the original injunction or lease decisions today, except insofar as they affect the issue of the arrest orders or indicate they should not proceed.
[4] The injunction was transmitted to this Court by the Deputy Chief Māori Land Court Judge on 2 March 2018. It was deemed therefore to have been issued by this court for the purposes of enforcement.5 A possession order for the land was issued on 12 April 2018.
[5] Ruby, Jarna, Kreslea and Bruce Smith now appear following execution of the arrest orders issued for non-compliance.
[6] It has been nearly three years from the date the Māori Land Court determined the Trustee was entitled to vacant possession. It has been nearly two years since the injunction was issued. You have all refused to follow the decisions or obey the orders of the Māori Land Court throughout that period. In addition, the matter has come before this Court on a number of occasions.
[7] On 14 February 2019 the application for arrest orders came before me. I gave you until the 25 March 2019 to comply with the injunction or the arrest orders sought by the Māori Trustee would be issued.6 A second reprieve was given when the issue was further stayed until 14 May 2019.7 On 15 May 2019 you applied for a permanent stay of those arrest orders, which was refused. I did, however, stay the matter until 27 May to enable you to resolve matters or make arrangements to go.8 I then heard your application for an interim injunction on 27 May 2019 and gave you another stay until 4 June 2019 to enable you more time to gain legal advice and comply with the injunction.9 You are aware of the avenues available to you in the Māori Land Court.
Smith v Māori Trustee – Waipaoa 5A2 [2018] Māori Appellate Court MB 45 (2018 APPEAL 45);
Smith v Māori Trustee – Waipoa 5A2 [2017] Māori Appellate Court MB 143 (2017 APPEAL 143).
5 Te Ture Whenua Maori Act 1993, s 85(1).
6 Māori Trustee v Smith [2019] NZHC 322.
7 Māori Trustee v Smith [2019] NZHC 1022.
8 Māori Trustee v Smith [2019] NZHC 1122.
9 Māori Trustee v Smith [2019] NZHC 1220.
You have not taken that route. You have not complied with the injunction and now you have been arrested.
[8] I am advised by Ms Tunstall, who is appearing as the duty solicitor for Mr Bruce Smith, she understands that arrangements have been made for the Smith whanāu’s possessions and other property from the Waipaoa 5A2 block and the homestead to be secured and provided to the Smiths. Mr Shaw has also indicated to me that he, on behalf of the Māori Trustee, will ensure those arrangements are undertaken. Ms Tunstall advises me that Mr Smith will comply on the basis of those arrangements and vacate the homestead until further action.
[9] Ms Kreslea Smith addressed me (in person) and advised me that she has filed further documents on behalf of the Smith whanāu in the court. She wanted to bring those before a Court and so seeks a further reprieve from the arrest order. Mr Shaw for the Māori Trustee opposes that.
[10]The issue is what happens now?
[11] The Māori Trustee has had a chance to secure the property in terms of the decisions of the Māori and Court. I do not consider in the circumstances set out above that a further stay should be granted.
[12] I propose releasing you at large with the clear understanding that you will not return to the property in the interim and if you do so you will face the consequences.
[13] You have been warned on numerous occasions. If you do breach the injunction the Māori Trustee may well apply to the Court for further arrest orders. In that case contempt of court proceedings could follow. If contempt action follows you will be liable to a period of imprisonment of up to three months. That would be seriously considered.10 I strongly advise you to get legal advice in this matter. This is your last warning and you need to take it seriously.
10 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [66]–[68].
Name suppression
[14] Mr Lafferty made an application for suppression of the Smiths’ names. Ms Tunstall indicated Bruce Smith would also seek such suppression. Suppression orders in relation to the parties’ names are refused. This is primarily on the basis that the matter is already at large in the media and all the parties have been named. No useful purpose would be served by the granting of the orders sought.
Grice J
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