Maori Trustee v Smith
[2019] NZHC 1022
•16 April 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 1022
IN THE MATTER OF An application granting leave for arrest order to issue BETWEEN
MĀORI TRUSTEE
Entitled party
AND
BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH
Liable parties
Hearing: 16 April 2019 Appearances:
G Shaw for the Māori Trustee
F Cleary for NZ Police (seeking leave to intervene) No appearance for liable parties
Judgment:
16 April 2019
ORAL JUDGMENT OF GRICE J
(Re application by New Zealand Police to intervene; terms of the arrest orders)
Contents
Introduction [1]
Background [5]
Execution of orders [13]
Deferral of the issue of the orders [20]The timing of execution of the arrest order for the liable parties to be brought
before the court [23]
Leave to the New Zealand Police to make submissions as to execution process [37]
Form of orders [44]
Conclusion [52]
Costs [56]
MĀORI TRUSTEE v SMITH & ORS [2019] NZHC 1022 [16 April 2019]
Introduction1
[1] On 14 February 2019 I determined the Māori Trustee had made out the grounds for the issue of the arrest orders against each of the liable parties,2 except Cole Smith who had not been served with the applications for issue of the arrest orders.3
[2] The application by the Māori Trustee for the issue of the arrest orders was made following an injunction made in the Māori Land Court granting the Māori Trustee possession of land which had been occupied by the Smiths by virtue of a lease which had expired. The Smiths refused to leave the homestead and made threats against the Māori Trustee and others that they would be trespassed if they attempted to enter the property. In various ways, the Smiths made it clear they would not leave the property. I found the grounds for issue of the arrest orders had been made out but declined to issue the arrest orders immediately.
[3] Mr Tupara appeared on behalf of Ruby Smith at that hearing and he urged on me consideration of the circumstances of the Smiths and their belief in their entitlement to continue to reside in the homestead on the property which is the subject of the dispute. This claim is by virtue of Bruce Smith and his whānau claiming mana whenua over the homestead. I found these matters had been dealt with by the Māori Land Court when it issued the injunction and in related proceedings. They were not reasons that took away the right of the Māori Trustee to seek an issue of the arrest orders. Nevertheless, I took into account Mr Tupara’s suggestion that matters might be resolved with the assistance of an appropriate facilitator. I therefore allowed some time before the arrest orders could be issued.
[4]The determinations I then made were as follows:4
1 This decision was delivered orally on 16 April 2019 and, as indicated, when delivered the written form will be appropriately edited and footnoted before distribution.
2 When I refer to liable party throughout these proceedings I refer to the liable parties apart from Cole Smith.
3 Māori Trustee v Smith [2019] NZHC 322. Kreslea Smith contacted the court seeking to appear on 28 March 2019 when the matter was called. She did not appear despite teleconference arrangements having been made by the Registrar as set out in the Minute of Grice J in Māori Trustee v Smith CIV-2018-416-3, 28 March 2019.
4 Māori Trustee v Smith, above n 3, at [49].
(a)Arrest orders may not be issued before 25 March 2019 on which date or following each of the liable parties may be arrested and kept in safe custody for the purpose of bringing them before the High Court in Wellington on 27 March 2019 at 10 am.
(b)Leave was granted for the arrest orders to issue on 25 March 2019 against each of the liable persons.
(c)I noted the Māori Trustee had sought an adjournment in relation to Cole Smith and I noted that it was not appropriate to adjourn that sine die and adjourned it to 27 March 2019.
(d)Mr Shaw indicated he would have preferred a more flexible form of arrest order. In my view, at that stage, the High Court Rules required a date and place to be specified for the arrested person to be brought before the court and that date was 27 March 2019 at the Wellington High Court.5
(e)Mr Shaw indicated that if circumstances changed he may ask the court to review the position and leave to further apply in that respect was granted.
(f)Finally, Mr Tūpara was to receive three days’ notice of any further application made by the Māori Trustee.
Background
[5] The claim at issue in the Māori Land Court was an application to occupy made by Mr Bruce Smith in relation to land known as the Waipaoa 5A2 block. The land is in front of a block of general land owned by the estate of Francis Guthrie which is also a major shareholder in the Waipaoa 5A2 block. The access to the Guthrie land is through the Waipaoa 5A2 block. Rautawhiri Station is the name given to two pieces of land which were farmed together. The road access to the station was over the
5 Arrangements may be made for that appearance by AVL from Gisborne.
Ngapakira Bridge, this is a public bridge but is presently controlled by Mr Bruce Smith.
[6] Waipaoa 5A2 is administered by the Māori Trustee on behalf of over 500 beneficial owners. Bruce Smith has a small shareholding in the trust in his own name. He is also a beneficiary in the estate of Francis Guthrie Smith, which as I have noted is a major shareholder in Waipaoa 5A2.
[7] Until about 2014, Bruce Smith leased Waipaoa 5A2 through a Guthrie estate owned company, Digga-Bygum Limited, of which he was a director. He is no longer a director.
[8] On 18 October 2016 the Māori Land Court determined that the lease of Waipaoa 5A2 had come to an end and the Māori Trustee was entitled to vacant possession of the land.6 The court granted the Māori Trustee an order for recovery of the land.
[9] That ultimately led to an injunction issued by the Māori Land Court on 16 November 2017 prohibiting Bruce Smith and his whanāu from entering or occupying any part of Waipaoa 5A2.7 The injunction orders were served as directed, by email on the Smith whanāu on 27 November 2017.
[10] The steps taken by the Māori Trustee since that time to regain possession are set out in my judgment of 14 February 2019.8
[11] After the injunction was served, Bruce Smith and his family issued trespass notices on the Māori Trustee purporting to trespass the Māori Trustee from the land under the Trespass Act 1980. The notices warn the Māori Trustee and its staff to stay off the relevant property.
[12] It was in that context that the Māori Trustee initially applied to the court for leave to issue the arrest orders to enforce the injunction on a without notice basis.
6 Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122).
7 Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).
8 Māori Trustee v Smith, above n 3.
However, I directed the matter should proceed on notice and the parties were all served.
Execution of orders
[13] The arrest orders have not yet been issued. Before they were due to issue an application was made by the police to be heard as to the timing of the issue of the orders and as to the terms of the orders. The police have concerns to which I have referred about Bruce Smith’s behaviour.
[14] The action and behaviour of Bruce Smith, Kreslea and Jarna Smith led a police officer to say he was concerned about their apparent transfixion on possession “without practicality and common sense”. He expressed concern that any contact with them turned into confrontation.
[15] It is because of the concerns about the reaction of the Smiths to the execution of the arrest orders that the New Zealand Police seek to be heard as interested parties in this matter.9
[16] Ms Cleary indicated that the concerns have already been set out to some extent in the evidence and outlined in my earlier judgment and confirmed in Senior Sergeant Sutherland’s recent affidavit.10
[17] In a further affidavit filed in support of the application by the New Zealand Police to intervene, Senior Sergeant Sutherland reiterates those concerns. He indicates that the Smiths remain in residence at the property based on observations of activity around the property rather than direct inquiry.
[18]Ms Cleary sought to be heard on behalf of the police to:
(a)Seek the deferral of the issue of the arrest warrant for a further four weeks.
9 Ms Cleary advises me all the liable parties except for Cole Smith have been served with the application by the NZ police and supporting affidavit by email. An affidavit of service is to be filed.
10 Māori Trustee v Smith, above n 3.
(b)Adding specific terms as to the form of the orders and in particular detailing the extent of the powers allowed to be exercised in the execution of the arrest orders.
(c)Seeking to be heard in relation to matters involving the police in execution of the arrest orders.
[19] Mr Shaw for the Māori Trustee does not oppose a deferral of the issue of the arrest orders. He also consents to the specific terms proposed by Ms Cleary as to the form of the orders and the powers allowed to be used in the execution of the arrest orders. A number of issues therefore arise from the deferral of the issue of the arrest orders; the form of the orders and powers to be exercised; the timing of execution and the timing for liable parties to be brought before the court.
Deferral of the issue of the orders
[20] Ms Cleary indicated that the police had been acting at the request of the sheriff to serve various documents in the course of the proceedings involving the Smith whānau. The police are familiar with Bruce Smith and his family. They are of view that the most appropriate manner of achieving a satisfactory outcome of the dispute over the possession of the land would be to defer the issue of the arrest orders to enable further steps to be taken to facilitate a peaceful resolution to this matter. That would require a further four weeks.
[21] Ms Cleary indicated she did not seek any status in the proceedings for the police other than to ensure the court was fully informed as to the circumstances surrounding execution from time to time and further powers in the arrest warrants.
[22] Mr Shaw for the Māori Trustee, as I have said, consented to these further provisions. He indicated that having heard Ms Cleary the Māori Trustee was of the view that the deferral of the issue of the arrest orders was the most appropriate course.
The timing of execution of the arrest order for the liable parties to be brought before the court
[23] Mr Shaw urged on me that the arrest orders should not specify a date on which the liable parties should be brought before the court, but rather the time for them to be brought before the court should be by reference to the time of arrest.
[24] Mr Shaw pointed to the decision in Official Assignee v Mathieson where Dunningham J issued arrest orders at the request of the Official Assignee.11 The orders in that case did not specify a date for the person arrested to be brought before the court. The Official Assignee had sought arrest orders against a bankrupt and her co-trustee for failure to comply with a court order to give vacant possession of a property so it could be sold and so the Official Assignee could distribute the proceeds to creditors. The arrest orders were issued in that case based on contempt by the respondents due to their failure to deliver vacant possession. As the orders did not expressly authorise the sheriff to use force to enter the property or to allow for damage in the course of carrying out the court’s orders, the application before the court sought orders incorporating express powers to do that.12
[25] Her Honour considered she had power to grant the orders on the terms sought under r 17.84 of the High Court Rules 2016.13 In making that observation she cited Horawhenua 11 (Lake) Part Reservation Trust v Taueki.14 In that decision Clark J delayed the issue of arrest orders specifying in those orders a nominated date to be brought before the court. Dunningham J in Mathieson instead specified a time to be brought before the court by reference to the date of execution of the warrant. In neither case is there any detailed discussion on the requirements for specifying the date.
[26]While Dunningham J does not refer to the provisions of r 17.83, she refers to r
17.84.15 This provides for the power to issue the arrest orders and reads as follows:
11 Official Assignee v Mathieson [2018] NZHC 843, [2018] NZAR 623.
12 At [8].
13 At [13].
14 Horowhenua 11 (Lake) Part Reservation Trust v Taueki [2017] NZHC 4, [2017] NZAR 221.
15 High Court Rules 2016.
17.84 Power to issue arrest order
(1)In this subpart, an original court order means, whether or not the order is in a judgment, a court order to do or abstain from doing something that is not paying a sum of money.
(2)If a party has been served with an original court order but does not comply, a Judge may issue an order arresting the non-complying party on the application of a party entitled to the benefit of that order.
[27] The Judge accepted she had power to make the orders and issued them incorporating the specific provisions sought by the Official Assignee.
[28]Rule 17.83 provides:
17.83 Effect of arrest order
(1)An arrest order authorises and requires an enforcing officer to arrest any person named in the order and to bring that person before the court at the time and place specified in the order, and until then, to keep the person in safe custody.
(2)An arrest order may be in form E 9.16
[29] Mr Shaw submitted that the provisions in that rule do not mean that it is necessary to specify a date for the person arrested to be brought before the court, but it was open to me to specify a time by reference to the date the warrant is executed. He suggested this might be say a working day after the arrest is made and that the appearance would then be made by either in person at the Gisborne High Court or by way of AVL.
[30] The main concern here is that the persons arrested are not detained longer than is necessary before being brought before a judge.
[31] Ms Cleary helpfully made submissions in relation to the requirements for bringing an arrested person before the court in the criminal jurisdiction. She noted s 316(5) of the Crimes Act 1961 provides:
(5)Every person who is arrested on a charge of any offence shall be brought before a court as soon as possible to be dealt with according to law.
16 Form E no longer appears in the High Court Rules. The use of the form was a discretionary form in any event.
[32]The commentary in Adams on Criminal Law on that provision notes:17
The subsection imposes on the police an obligation to bring the arrested person before the court as soon as possible (which means as soon as “reasonably possible”: R v Alexander [1989] 3 NZLR 395, (1989) 4 CRNZ 317 (CA). A similar obligation is imposed by s 23(3) of the New Zealand Bill of Rights Act 1990 … Police may not subordinate their duty to bring the arrested person before the court due to “operational reasons”: R v Te Kira [1993] 3 NZLR 257, (1993) 9 CRNZ 649, 1 HRNZ 230 (CA); R v Iles HC Auckland T012095,
10 April 2002.
[33] Therefore, it is important to make sure that the arrested persons are brought before a court as soon as possible.
[34] I accept Mr Shaw’s submission and I conclude that r 17.83 requires a time to be specified but that may be done with reference to an event which in this case will be the execution of the warrants.
[35] The time to be brought before the court must be as soon as reasonably possible generally in criminal law. Under the present civil rules there must be a specified date and by analogy with the criminal law, that date should also be as soon as possible. I agree with the submission that one working day is an appropriate length of time.
[36] Counsel have advised that they have consulted with the Registrar who confirms that the liable parties could be brought before the High Court at Gisborne, if necessary presided over by a judge based in Wellington or another court by AVL, within one working day. However, that will be problematic if the liable parties are arrested on a day before a holiday including a weekend day. So, in order to ensure that there is not undue delay in bringing the liable parties who are arrested before the court, I propose making it a condition that the warrant should not be executed on any day preceding a court holiday including a weekend day. With that safeguard I am satisfied that the order can be made with reference to the specific court which is the High Court at Gisborne (with arrangements to be made for AVL link to appear before me or another judge based in another High Court if necessary).
17 Simon France (ed) Adams on Criminal Law — Offences and Defences (online looseleaf ed, Thomson Reuters) at [CA316.02].
Leave to the New Zealand Police to make submissions as to execution process
[37] Ms Cleary referred to the role of the police as assisting the bailiff and the sheriff in their duties under the Senior Courts Act 2016:
36 Powers of Sheriffs
A Sheriff has –
(a)The power to enforce an order of the High Court;
(b)The power to serve a process of the High Court;
(c)The power to arrest a person in accordance with an order of the High Court;
(d)Any other powers conferred by this Act, any other enactment, or the High Court Rules.
…
39 Persons arrested by Sheriffs may be committed to prison at once
A Sheriff, Sheriff’s officer, bailiff, or any other person employed to assist the Sheriff who arrests any person under or by virtue of any writ or process that authorises the committal of the arrested person may, without delay, take steps to have the arrested person taken to a prison and committed there.
[38] Ms Cleary went on to say that in the absence of any explicit direction from the Court it was anticipated that in accordance with the above sections, the sheriff would employ the police to execute the orders.
[39] Ms Cleary said it was due to that employment that the police had been drawn into the proceedings and for that reason sought to intervene as an interested party.
[40] Ms Cleary set out the process by which the police could be granted leave to intervene either in terms of the High Court Rules or in the court’s inherent jurisdiction.18 She said the court has the power to exercise its discretion in the following situations:
(a)Where the court is satisfied that the intervention is likely to improve the quality of information before the court on issues wider than those that the parties may wish to address; and
18 High Court Rules 2016, rr 1.7, 4.56 and 7.43A.
(b)Where the party seeking leave has an interest in the outcome of the case that will be directly or indirectly affected.
[41] Where the court is satisfied that either of these conditions are met, the court may allow the appearance or intervention of the interested party. Ms Cleary submitted that the sole purpose of the present application was so that the police could be heard in respect of the timing and content of the arrest orders in this matter and relevant evidence could be put before the court as to the operational risks and resourcing considerations involved.
[42] Ms Cleary did not pursue the application to be given status beyond being heard on those issues by this court.
[43] In my view it is appropriate that the police be heard in relation to any operational matters concerning the execution and conditions and powers included in the arrest orders. I accept the High Court has jurisdiction to grant leave in these circumstances, however I do not consider that it is appropriate in this case to grant leave for the police to join the proceedings as interested parties. Rather, as I have indicated that they may be heard on any matters of relevance and if they wish to be heard further they may file a memorandum.
Form of orders
[44]In Mathieson Dunningham J said:19
[43] The arrest orders are to issue in the form of the draft orders accompanying the applications, but with additional terms requiring each respondent to be brought before this Court at Timaru, within one working day of the date of their arrest, where the consequences of their contempt may be determined. Their appearance can be organised to be conducted via AVL before me or another High Court Judge in Christchurch.
[44] In the circumstances, I am also satisfied that the Sheriff at Timaru or the Sheriff’s duly authorised agent, along with any serving police officer, should be authorised to:
(a)enter the property at 282 Timaru-Pareora Road, Timaru, (the property), to give effect to the attached orders of the Court;
(b)if necessary, use force to enter the property or any part of it, whether by breaking open doors or otherwise; and
19 Official Assignee v Mathieson, above n 11.
(c)carry out these orders and the attached orders with the use of such reasonable force as it may be reasonably necessary to use in such circumstances as may arise.
I make those orders accordingly.
[45]She concluded by granting leave in the following terms:
[48] Leave is reserved to the parties to revert to the Court should any further, or amended, orders or directions be required to give effect to the orders made on 13 December 2017, or to these orders.
[46] I now turn to the orders in this case. I note first that the objective of the rules, which Mr Shaw pointed out (in relation to another submission) is to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application.
[47] The liable parties have made it clear that they do not intend to move from the property at present. This is clear from their behaviour. I set out an excerpt of my judgment:20
[41] First, the terms of the original order are clear. I have set that out above. Secondly, the parties received the original order by way of service as directed by the Māori Land Court on 28 November 2017. They have been served with this application except for Cole Smith to whom I will refer later. Finally, the Smiths have not complied with the order of the Māori Land Court in a manner showing wilful and inexcusable disregard of the order. I summarise the points put forward by counsel for the Māori Trustee in his submissions:
(a)There was independent confirmation from the neighbour on 11 December 2017 that the padlock gate across the Ngapakira Bridge impeding access to Waipaoa 5A2 had not been removed. The stock unlawfully brought back on to Waipaoa 5A2 had not been removed and that the liable parties were still accessing the property.
(b)There was failure to give up vacant possession following the dismissal of the Māori Appellate Court appeal in February 2018.
(c)There was failure to give up vacant possession after being served with trespass notices by the Māori Trustee in June 2018.
(d)There was the re-entering and taking possession and control of Waipaoa 5A2 after the New Zealand Police had served the possession order and trespass orders on 26 July 2018. After Bruce Smith was served with the orders he immediately went to Waipaoa 5A2. This was based on:
(i)A call from Kreslea Smith from the property at 9.48 pm that day.
20 Māori Trustee v Smith, above n 3.
(ii)Confirmation from a neighbour that Jarna Smith and Kreslea Smith remained on the property the morning after.
(iii)Facebook footage posted by Cole Smith on the ‘fight for the whenua’ webpage showing him, his parents and sisters on Waipaoa 5A2 holding and discussing the possession orders and trespass orders they had received.
(e)There were failed attempts to persuade the Smith whanāu to vacate Waipaoa 5A2 using friends, advocates and others to mediate peaceful compliance with court orders.
(f)Jarna and Kreslea Smith were both observed on the land over the weekend of 23 October 2018 and reports were that they had abused and denied access to a person who had stopped on the property.
(g)On 16 January 2019 some Māori Trustee staff, New Zealand Police personnel, Māori Land Court judiciary and staff received by email from Kreslea Smith a document purporting to be a trespass notice warning them not to enter on Waipaoa 5A2 and other properties.
(h)Bruce Smith was on Waipaoa 5A2 on 24 January, the day before he was personally served with the application and is suspected to have returned after he discharged himself from the [hospital] on 29 January 2019.
(i)The New Zealand Police believe that Jarna and Kreslea Smith are spending a fair amount of time on the property with their parents at the homestead on Waipaoa 5A2 on Ngapakira farm and not straying too far from that farm.
[42] In summary, in the 14 months that have passed since the liable parties were served with the injunction order they have shown wilful and inexcusable disregard for that order and for the Māori Land Court order of 18 October 2016 granting the Māori Trustee recovery of possession of the land as well as the possession order.
[48] The evidence of Senior Sergeant Sutherland filed recently confirms that nothing has changed. Therefore, I consider it is appropriate to defer the matter to attempt to resolve matters in a peaceful manner.
[49] However, if that fails the Māori Trustee is entitled to pursue its remedies by way of enforcement orders. It is in keeping with the objectives in r 1.2 that the enforcement of the arrest orders be carried out in an orderly way with the liable parties being brought before the court in a timely manner with the right to be brought before a Judge as soon as possible.21 At the same time the effective execution of the orders of the court must be allowed by providing for the specific matters as sought to be
21 High Court Rules.
included in the warrant and clearly defining the ambit of the powers available to be exercised on execution of the arrest orders.
[50] Counsel have proposed by way of a draft the form of the arrest orders. I adopt those proposals and make the following arrest orders:
(a)The arrest orders may not be issued before 14 May 2019 on which date or following each of the liable parties (excluding Cole Smith) may be arrested and kept in safe custody for the purposes of bringing them before the High Court at Gisborne. This appearance may be undertaken by way of AVL link to a Judge in a remote court. That appearance must be one working day following execution of the arrest warrant. Such warrant cannot be executed on a day before a holiday (including a weekend).
(b)The police executing the warrant on behalf of the sheriff are entitled to exercise the following powers:
(i)to arrest all or anyone of the liable persons (excluding Cole Smith);
(ii)to enter the property at Waipaoa 5A2 Block, Wairoa to give effect the arrest orders of the court;
(iii)if necessary to use force to enter the property or any part of it whether by breaking open doors, windows or otherwise; and
(iv)to carry out these orders with the use of such force as may be reasonably necessary to use in the circumstances.
(c)To keep the arrested persons in safe custody until such time as they are brought before the court.
(d)To bring the liable parties before the High Court at Gisborne in the manner and within the time indicated above.22
[51] I reiterate the powers contained in the arrest orders may only to be used for the purposes of execution of the arrest orders issued in these proceedings.
Conclusion
[52] Leave is granted for the arrest orders to issue on the terms set out above against: each Bruce Smith, Ruby Smith, Jarna Smith and Kreslea Smith.
[53] Leave is granted to the applicant and the police to further apply in respect of matters arising in connection with the arrest warrants and their execution.
[54] Service of this judgment is to be made on the liable persons by email at the addresses previously used for service.
[55]Mr Tupara is also to be served with a copy of this judgment.
Costs
[56]Costs are not sought. There is no award of costs.
Grice J
22 Within one working day of being arrested. If there is no High Court sitting in the Gisborne Registry, then the appearance may be by AVL with the High Court at Wellington or such other place as is available.
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