Maori Trustee v Smith - [2019] NZHC 1022

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maori Trustee v Smith

Details

AGLC: Maori Trustee v Smith [2019] NZHC 1022
Case: [2019] NZHC 1022
Decision Date: 16 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Grice J delivered a judgment on 16 April 2019 concerning the enforcement of an injunction that had been issued by the Māori Land Court. The Māori Trustee, on behalf of over 500 beneficial owners, sought to enforce an injunction that had been granted to them in relation to the Waipaoa 5A2 block of land. The liable parties, Bruce Smith and his whānau, had refused to vacate the land despite the injunction and had made threats against the Māori Trustee and others. Grice J had previously declined to issue the arrest orders immediately but allowed some time for potential resolution of the dispute. The liable parties had not complied with the injunction and the Māori Trustee sought to enforce it by applying for the issue of arrest orders. The New Zealand Police sought to intervene in the proceedings to provide input on the execution of the arrest orders due to concerns about the liable parties' behaviour.

The court considered the arguments presented by both the Māori Trustee and the New Zealand Police. The court decided to defer the issue of the arrest orders for a further four weeks to allow for further attempts at a peaceful resolution. The court also agreed to include specific terms in the arrest orders to detail the powers allowed to be exercised in the execution of the arrest orders. The court ruled 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. The court concluded that the arrest orders could be executed with reference to the specific court which is the High Court at Gisborne, with arrangements to be made for AVL link to appear before the court if necessary. The court granted leave for the New Zealand Police to make submissions as to the execution process. The final orders included specific terms for the arrest orders and the powers available to be exercised on execution of the arrest orders.

Orders