Māori Trustee v Smith

[2018] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2018-416-3

[2018] NZHC 2898

IN THE MATTER OF

An application granting leave for arrest order to issue

BETWEEN

MAORI TRUSTEE

Entitled party

AND

BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH KRESLEA SMITH

Liable parties

On the papers

Counsel:	G Shaw for the Maori Trustee
Judgment:	8 November 2018

(INTERIM) JUDGMENT OF GRICE J

(Without notice applications for arrest warrants)

[1]    On 16 November 2016, a matter was heard before the Maori Land Court which related to property described as Waipaoa 5A2 in Wairoa. On that day, the Judge made several orders. One of those orders was an injunction against the liable parties – although the reasons for this decision were not released until 17 November 2017.1 As will be apparent, the liable parties have not complied with the injunction. These events have resulted in the present without notice application for the enforcement of the injunction through the mechanism of an arrest order.

[2]    As this minute will make clear, I am of the view it is inappropriate for this matter to proceed on a without notice basis.

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

MAORI TRUSTEE v BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH KRESLEA SMITH [2018] NZHC 2898 [8 November 2018]

Background

[3]    Waipaoa 5A2 is administered by the Māori Trustee on behalf of over 500 beneficial owners. Bruce Smith, one of the liable parties, has a small shareholding in the trust in his own name. He is also a beneficiary in the estate of Francis Guthrie Smith, a major shareholder of Waipaoa 5A2 and an advisory trustee of Waipaoa 5A2 Trust.

[4]    Until 18 October 2016 Bruce Smith leased Waipaoa 5A2 through an estate owned company called Digga-Bygum Limited. 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.2 The court granted the Māori Trustee an order for recovery of the land.

[5]    Bruce Smith and his family members, who are named as the liable parties, refused to allow the Māori Trustee vacant possession of the land.

[6]    On the 16 November 2017 the Māori Land Court issued an injunction prohibiting Bruce Smith, his wife and adult children from entering or occupying any part of Waipaoa 5A2. The injunction further prevented them from obstructing, impeding or otherwise hindering the Māori Trustee from entering, occupying or leaving the land. The orders were served, as directed, by way of email on 28 November 2017.

[7]    However, the orders were not complied with. On 11 December 2017 the Māori Trustee received an email from a neighbouring farmer who confirmed that the liable parties had kept a gate across the Ngapakira Bridge impeding access to Waipaoa 5A2, Bruce Smith’s stock had not been removed and the liable parties were still accessing the property.

[8]    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 to s 85(1) of the Te Ture Whenua Māori Act 1993. This meant that the injunction was deemed

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

to have been issued by the High Court, and could be enforced in accordance with its practice.3 The High Court issued a possession order for the land dated 12 April 2018.

[9]    A copy of the possession order was served on the liable parties on 26 July 2018. On the same day, possession of Waipaoa 5A2 was secured. By mid-evening however, the evidence indicates, the liable parties were back on Waipaoa 5A2.

[10]   Officer Tony Bates of the New Zealand Police has had some dealings with Bruce Smith. He expresses concern as to Mr Smith’s state of mind, his attempts at acquiring military style rifles and his aggressive and belligerent behaviour. The other liable parties have taken active steps to support Bruce Smith. A video of Bruce Smith and his family has been placed on Facebook. The officer refers to the video as indicating that Bruce Smith and his family consider they have rights to the land and are determined not to leave.

[11]   Since the injunction was served Bruce Smith has issued “trespass notices” on the Māori Trustee purporting to trespass the Māori Trustee under the Trespass Act 1980. The notices warn the Māori Trustee and its staff to stay off the relevant property.

[12]   It is within this context that the Māori Trustee has applied to this Court for a without notice arrest order to enforce the injunction that has been flagrantly disregarded.

Arrest order

[13]   Arrest orders are a form of judgment enforcement available to the High Court.4 Leave is required from the Court before an arrest order may be issued.5 In an application of this nature, it is for the applicant to establish that:6

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

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

4      High Court Rules 2016, r 17.3.

5      Rule 17.9(1).

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

(b)the parties sought to be arrested had been served with that original court order; and

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

[14]   A further hurdle is, however, added into the mix here as the application is made without notice. This application is made without notice on the basis that:

(a)Bruce Smith and the 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 and his access to firearms if the application proceeds on notice.

(c)The police have expressed concerns that the actions and behaviour of Bruce Smith and Kreslea and Jarna Smith lead the police officer, Sergeant Rutene, to be concerned for their mental health. The sergeant said they seemed “transfixed on possession without practicality and common sense”. The police officer is concerned that any contact turns into a confrontation and he expresses real issues concerning the safety for those that interact with them.

[15]   Cole Smith is in Australia therefore I consider he is in a different category to Bruce Smith and the liable persons within the jurisdiction who continue to occupy the land.

[16]   The Māori Trustee urges that the warrants be issued for execution immediately. He points to evidence of non-compliance and confrontational behaviour by the liable parties. In addition, he noted that both Jarna and Kresla Smith have outstanding warrants for their arrest in relation to wilful trespass charges. Officer Rutene in his affidavit also says they were both observed on the land the subject of this application over the weekend of 23 October 2018 and reports indicate they abused and denied

access to a person who has stock on the property. Officer Rutene says he is concerned that interactions with the family in an attempt to resolve the land disputes turn into confrontations and he has concern for the safety of those who interact with them.

[17]   Counsel submits that the police have, since the filing of the application for arrest, been engaging with Bruce Smith through advocates for the Smith whanau. The purpose of this engagement, as far as the police are concerned, has been to create an opportunity for dialogue and cooperation to enable and persuade the Smith whanau to accept and peacefully comply with the court orders. I am advised that at a meeting held on 8 October 2018, the indication from Bruce Smith was that he continued to be entrenched in his views and will not comply with the possession order.

[18]   I am mindful of the significant implications of warrants for arrest on the liberty of the liable persons. I am not satisfied that the warrants to arrest should be dealt with on a without notice basis. The dispute clearly has a long history. There is no undue urgency or prejudice to Māori Trustee if the matter were to be on notice.

[19]   Accordingly, I direct the applications proceed on notice and supporting material be served on the liable persons together with a copy of this judgment. The Registry will advise a date for the matter to be placed in the list.

Grice J

Solicitors:

General Counsel, Māori Trustee, Wellington