Māori Trustee v Smith

[2019] NZHC 322

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 322

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:	14 February 2019
Appearances:	G Shaw for the Māori Trustee B Tūpara for Ruby Smith
Judgment:	14 February 2019

ORAL JUDGMENT OF GRICE J

[1]                  On 16 November 2016 the Māori Land Court made several orders. One of those orders was an injunction against the liable parties. The injunction was recorded in the reasons judgment issued on 17 November 2016 in the following terms: 1

[84]     …

5.Pursuant to s 19 of the Tu Ture Whenua Māori Act 1993 and until further order of the Court, there is an order granting a permanent injunction requiring Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith, and any of their agents, contractors or invitees to, within 7 days from the date of service of this order, remove themselves and their possessions, chattels and materials from or under the Waipaoa 5A2 block and including any livestock and prohibiting Bruce Smith, his wife Ruby

1      Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57) [Injunction decision].

MĀORI TRUSTEE v SMITH [2019] NZHC 322 [14 February 2019]

Smith and their children, Cole Smith, Jarna Smith and Kreslea Smith and any of their agents, contractors or invitees from:

a)Entering or occupying any part of Waipaoa 5A2, including the homestead and other buildings on Waipaoa 5A2;

b)Preventing, obstructing, impeding or otherwise hindering the Māori Trustee, his employees, agents, contractors, lessees and invitees from entering on, occupying or leaving Waipaoa 5A2 including passage over the Ngapakira bridge.

6.These orders are to take effect on and from seven days of the date of service of these orders on any of the following, Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith. Such service will be effected by way of email to the email addresses recorded in the application, with respect to the effected parties, with a further copy to be sent to the physical address of the persons affected, being 14 Seymour Road, Inner Kaiti, Gisborne 4010.

[2]The liable persons, the Smith whanāu, have not complied with the injunction.

[3]                  The Māori Trustee initially made an application to this Court on a without notice basis for leave to issue arrest warrants against the liable parties enforcing the terms of the injunction order; and following the refusal of that application made an on-notice application for leave to issue the arrest orders.2

Background

[4]                  The application before me today is for leave to issue those warrants of arrest following service of the applications. The Smith whanāu have been served with the applications including notice of the hearing date as follows:

(a)Bruce and Ruby Smith were personally served by the New Zealand Police on 25 January 2019.

(b)Jarna Smith and Kreslea Smith were served by email on 7 February 2019 pursuant to orders for substituted service in that regard and physical copies were left at the residential address at 14 Seymour Road, Gisborne which is the bailed address for them in connection with other matters.

2      This decision was delivered orally on 14 February 2019 and, as indicated, when delivered the written form has been appropriately edited and footnoted before distribution.

[5]                  Cole Smith resides in Australia and was last in New Zealand, according to evidence, during the period 23 December 2018 to 6 January 2019. He has not yet been served but apparently police officers have spoken to him in relation to the service of the application on his sisters and during that conversation the officer confirmed the date of this application.

[6]                  The Māori Land Court, in its reasons decision of 17 November 2017, sets out the background to this matter.3 It involves a claim to a right to occupy the Waipaoa 5A2 block by Mr Smith. 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. The road to the two pieces of land were farmed together and known as the Rautawhiri Station. The road access to the station is over the Ngapakira Bridge, this is a public bridge but is presently controlled by Mr Bruce Smith.

[7]                  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.

[8]                  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. On 18 October 2016 the Māori Land Court determined that the lease of Waipaoa 5A2 had come to an end and that the Māori Trustee was entitled to vacant possession of the land.4 The Court granted the Māori Trustee an order for recovery of the land.

[9]                  That ultimately led  to  the  Māori  Land  Court  issuing  the  injunction  of  16 November 2017 prohibiting Bruce Smith and his whanāu from entering or occupying any part of Waipaoa 5A2. The injunction orders were served as directed, by email on the Smith whanāu on 27 November 2017.

3      Injunction decision, above n 1.

4      Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122).

[10]              On 11 December 2017 the Māori Trustee received an email from a neighbouring farmer who confirmed that the liable parties had put a gate across the Ngapakira Bridge impeding access to Waipaoa 5A2. Mr Smith’s stock had not been removed from the property and the liable parties were apparently living at the property.

[11]              Following this non-compliance, the injunction order was transmitted to the High Court by the Chief Māori Land Court Judge on 2 March 2018 pursuant s 85(1) of the Tu Ture Whenua Māori Act 1993. This meant that the injunction was deemed to have been issued by the High Court and could be enforced in accordance with its practice.5  The High Court issued a possession order for the land dated 12 April 2018.

[12]              The possession order was served personally on all the Smiths although there is some uncertainty as to whether it was personally served on Jarna Smith.

[13]              Appeals were filed in the Māori Appellate Court in relation to both the Māori Land Court orders of October 2016 and the injunction orders of November 2017. Both those appeals were dismissed.6

[14]              On the day the possession orders were served possession of Waipaoa 5A2 was secured. By midevening, however, the evidence indicates the liable parties were back on Waipaoa 5A2.

[15]              Officer Tony Bates of the New Zealand Police has had some dealings with Bruce Smith. In his evidence he expressed concern as to Mr Smith’s state of mind and his aggressive and belligerent behaviour.

[16]              The Smith whanāu have taken active steps, he said, to support Bruce Smith. A video of Bruce Smith and his family appeared on Facebook. The officer refers to the video as indicating that Mr Smith considers he has rights to the land and is determined not to leave. This stance has been reinforced by the family’s behaviour to date.

5      Te Ture Whenua Māori Act 1993, s 85(2).

6      Smith v Māori Trustee – Waipoa 5A2 [2017] Māori Appellate Court MB 143 (2017 APPEAL 143); Smith v Māori Trustee – Waipoa 5A2 [2018] Māori Appellate Court MB 45 (2018 APPEAL 45). These appeals were dismissed due to non-prosecution and failure to lodge security as to costs.

[17]              Since the injunction was served, Bruce Smith and his family have 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.

[18]              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 which the Māori Trustee submitted had been flagrantly disregarded.

Arrest order

[19]              Arrest orders are a form of judgment enforcement available in the High Court.7 Leave is required from the Court before an arrest order may be issued.8 In an application of this nature it is for the applicant, the Māori Trustee, to establish that:9

(a)The terms of the original court order were clear and unambiguous.

(b)The parties sought to be arrested had been served with that original court order.

(c)Those parties had failed to comply with the order in a manner which shows wilful and inexcusable disregard of the order.

[20]As I noted in an earlier minute:

(a)Bruce Smith and the other liable parties have refused to leave the land over a period of time despite clear Court orders requiring them to do so.

(b)The police have concerns to which I have referred about Bruce Smith’s behaviour.

7      High Court Rules 2016, r 17.3.

8      Rule 17.9(1).

9      Rule 17.84; Horowhenua 11 (Lake) Part Reservation Trust v Taueki [2017] NZHC 4, [2017] NZAR 221 at [3] citing Soljan v Spencer [1984] 1 NZLR 618 (CA) with approval.

(c)The action and behaviour of Bruce Smith, Kreslea and Jarna Smith led a police officer, Sergeant Rutene, to say he is concerned about their apparent transfixion on possession “without practicality and common sense”. He expresses concern that contact turns into confrontation.

(d)In his affidavit the officer said that Jarna and Kreslea Smith were observed on the land, the subject of this application, over the weekend of 23 October 2018. Reports indicated that they abused and denied access to a person who had stock on the property.

[21]              Counsel for the Māori Trustee submitted that there had been some engagement with Bruce Smith and the whanāu through advocates. The purpose of this engagement as far as the police was concerned had been to create an opportunity for dialogue and cooperation to enable and persuade the Smith whanāu to accept and peacefully comply with the Court orders.

[22]              However, the outcome of a meeting held on 8  October  2018  was  that  Bruce Smith remained entrenched in his position that he would occupy the land and not comply with the possession order.

Resolution

[23]              Mr Tūpara appeared today for Ruby Smith. He opposed the application for leave to issue the arrest orders. He emphasised he acted only for Ruby Smith. He had recently been briefed but had the opportunity to hui with Mrs Smith on 8 February and 12 February. He filed submissions today.

[24]              He indicated that he considered there was room for bringing in a facilitator to assist the Smith’s, the Māori Trustee and the other interested parties to resolve this matter. He had in mind a person who was a senior and respected facilitator from a local iwi. Specifically, Mr Tūpara referred to a number of people that he might suggest for that role. He sought deferral of today’s application in order to do this.

[25]              Mr Tūpara also indicated that there were a number of substantive issues that he wished the Court to be aware of and set those out in his submissions. I now deal with those:

(a)The Smiths claim ownership of the homestead on the Waipaoa 5A2 land by way of an equitable interest. Mr Tūpara pointed out that the Smith whanāu had invested in the land, worked on the land and lived on the land. They had claims to mana whenua in relation to the homestead.

(b)Wai 1577 is a kaupapa claim inquiry dealing with housing issues. While this is not underway yet, it may well address issues such as are apparent in a case such as this where the Māori Trustee is argued to be depriving the Smiths of a home.

(c)He noted the inappropriate use of the police and force in removing the Smiths from their home.

(d)He noted that there had been impact on the Smith’s employment, their benefits and the fact that the community was aware of the issues. This was putting pressure on the Smith whanāu.

(e)He submitted that the Māori Trustee had been heavy handed in this matter when it was the Māori Trustee’s role to assist Māori to manage and look after their land.

[26]I will deal with each of the matters raised.

[27]              First, in relation to the argument that the Smiths may have an equitable claim to the home and an equitable right to occupy, counsel for the Māori Trustee, Mr Shaw, pointed out that the issue of rights to the homestead had been a matter before the Māori Land Court at the time it was dealing with the orders in this matter. The Guthrie estate is apparently pursuing an application in relation to the homestead although this has not progressed. Mr Bruce Smith has not made any application for equitable rights in the home to the Māori Land Court.

[28]              Mr Shaw pointed out the role of the Māori Trustee here. He said the land was in an ahu whenua trust. The Māori Land Court had undertaken a substantial inquiry as to how the land should be administered in the future when it made the orders.

[29]              I note that an ahu whenua trust has particular rights. The Māori Appellate Court set out the rights of an ahu whenua trust in Eriwata where it found:10

[5] When trustees are appointed to an Ahu Whenua Trust, they take legal ownership. The owners in their shares and the schedule of owners, have beneficial or equitable ownership but do not have legal ownership, and do not have the right to manage the land or to occupy the land. Trustees are empowered and indeed required to make decisions in relation to the land and they are often hard decisions. Their power and obligation to manage the land cannot be overridden by any owner or group of owners or even the Māori Land Court, so long as the trustees are acting within their terms of trust and the general law, and it reasonably appears that they are acting for the benefit of the beneficial owners as a whole. A meeting of owners cannot override the trustees. Decisions to be taken for the land are to be the decision of the trustees. They decide who can enter and who can reside here and how the land is managed.

[30]              Given that background, it is not appropriate for an exploration of the issues raised in Mrs Smith’s submissions that there may be an equitable interest in the homestead in this Court. The Māori Land Court has dealt with the matter comprehensively, there was an opportunity for appeal of both the orders and the injunction.

[31]              The suggestion of an equitable interest in the homestead is not a ground for refusing the present application for leave.

Other issues

[32]              In relation to the Waitangi Tribunal’s kaupapa investigation into housing, I note this is at an early stage. In any event, Mr Tūpara noted that it was not certain what may come of that. That is a relevant factor to be taken into account when considering the present application.

10     Eriwata v Trustees of Waitara SD Sections 6 & 91 Land Trust – Waitara SD Sections 6 & 91 Land Trust (2005) 15 Aotea Appellate MB 192 (15 WGAP 192).

[33]              In summing  up  the  present  situation  Judge  Doogan  in  his  decision  of  17 November said:11

[7] The central problem is that Bruce Smith and his immediate whanāu appear to believe that it is for them to make all key decisions concerning the estate and to control distribution of income and benefits. This view which appears to be sincerely held is none the less profoundly wrong. … In this decision unless specified otherwise reference to Bruce Smith are to be taken as inclusive of the interests of Bruce, [and] his immediate whanāu…

Amicus curiae

[34]              Mr Tūpara also submitted that this may be an appropriate case for the appointment of an amicus curae.

[35]              The Court will not usually appoint a lawyer to act in the interests of a party but rather the appointment of an amicus is to assist the Court where there is danger that an important and difficult point of law will require a determination without having been the focus of argument. That appointment is entirely in the Court’s discretion. An amicus or counsel to assist the Court is then appointed as an independent professional and does not act on instructions from a client.12

[36]              This is not an appropriate case for the appointment of an amicus. The position is clear and Mr Tūpara has ably put forward matters for the Court to take into account. In addition, what is really sought here is a facilitator who may not be a lawyer to assist the parties to bring this matter to a resolution outside the court and it is not appropriate for the Court to make an appointment of that nature.

Employment and police involvement

[37]              A further issue to which Mr Tūpara referred to is the effect of this dispute on the employment and other rights of the Smith whanāu.

[38]              This is not a ground for refusing leave for these applications, but rather indicate that it would be preferable if the Smiths came to the party and resolved this matter.

11     Injunction decision, above n 1.

12     Erwood v Homes [2017] NZHC 1278, [2017] NZAR 971 at [1]–[35].

[39]              Similarly, I do not consider the general concerns about the police involvement when serving the proceedings or the Māori Trustee’s apparent attitude take the matter any further. There is nothing to indicate that those officers or officials are acting outside the law. Indeed, the Māori Trustee has a responsibility to 500 other shareholders who have an interest in the land who expect that the land will be administered in terms specified by the trust and the Māori Land Court.

Conclusion

[40]I now turn to the grounds for leave to issue the arrest orders.

[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.

(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 property 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.

[43]              In view of those circumstances I am of the view that the Māori Trustee has proven to the required standard that the entitled persons,13 have not complied with the order of the Māori Land Court in a manner showing wilful and inexcusable disregard of the order.

[44]              In addition, Mr Tūpara did not indicate that Mrs Smith had formed any intention of leaving the land. This reinforces my view of the attitude that has been apparent to date.

Application for adjournment

[45]              Mr Tūpara renewed his application for adjournment this morning. I have considered that carefully. It is necessary when considering an application for adjournment to be fair to both parties, both the person seeking the adjournment and the person seeking to have the matter heard. In the circumstances I consider that the application for adjournment should be refused. That is on the basis that this matter has been extant for a considerable period. The injunction orders were served back in November 2017. Mrs Smith has been well aware of the orders. She was personally served with this application in January 2019.

[46]              However, having  refused  the  application  for  adjournment  nevertheless  Mr Tūpara’s appearance and submissions has affected the outcome.

[47]              I consider that the Māori Trustee has made out the grounds for the issue of the arrest orders. Nevertheless, as was noted in Horowhenua 11 Park Reservation Trust v Taueki, the usual course is to allow a delay before the arrest order may be issued.14

[48]              I am of the view that allowing some delay is the appropriate course in this case. Mr Shaw opposed this course on the basis that this matter had been extant for some time. Nevertheless, in view of Mr Tūpara’s submissions and the fact that Mrs Smith

13     Cole Smith is not included as he has not been served.

14     Horowhenua 11 (Lake) Part Reservation Trust v Taueki, above n 9.

has consulted him which shows a step toward trying to resolve this matter I am of the view that while the Māori Trustee has established the grounds the arrest orders should not immediately issue and it should lie in the court for a period.

Result

[49]              Arrest orders may not be issued before 25 March 2019 on which date or following each of the liable parties (excluding Cole Smith) 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.

[50]              Leave is granted for the arrest orders to issue on 25 March 2019 on those terms against: Bruce Smith, Ruby Smith, Jarna Smith and Kreslea Smith.

[51]              The Māori Trustee has sought an adjournment sine die of the application in relation to Cole Smith. I do not consider it is appropriate to leave an application for leave to issue an arrest warrant adjourned sine die. Therefore, I propose adjourning this matter insofar as it affects Cole Smith to 27 March 2019.

[52]              Mr Shaw indicated that he would have preferred a more flexible form of arrest orders. In my view r 17.83 of the High Court Rules requires a date and place to be specified for the arrested person to be brought before the Court. That date is 27 March 2019 at the Wellington High Court.15

[53]              Mr Shaw has indicated if circumstances change he may ask the Court to review the position. Leave to further apply in that respect is granted.

[54]              Mr Tūpara is to receive three days’ notice of any further application made by the Māori Trustee.

15     Arrangements may be made for that appearance by AVL from Gisborne.

Costs

[55]Costs are not sought and therefore there is no award of costs.

Grice J