Williams v Williams no. 1 HC Whangarei CIV 2007-488-54

[2007] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2007-488-54

BETWEEN  DAVID WILLIAMS Applicant

ANDPAUL ADAM WILLIAMS Respondent

Hearing:         27 August 2007

Appearances: A Holgate for the Applicant

P A Williams, Respondent in person
G Otimi, McKenzie Friend for Respondent

Judgment:      27 August 2007

ORAL JUDGMENT OF PRIESTLEY J (NO 1)

Counsel:

A Holgate, P O Box 1042, Whangarei

Copies to:
Paul Williams, Wainui Road, Kaeo

G Otimi, 12/1 Korimoko St, Mangere Bridge, Auckland

WILLIAMS V WILLIAMS HC WHA CIV 2007-488-54  27 August 2007

[1]      This is a delicate and unfortunate situation for any Court to find itself in. However, the principles involved are quite clear.   This Court has been assisted throughout by the restrained submissions of Mr Holgate and has also been immeasurably helped by the stance taken by the respondent’s McKenzie friend, Mr Otimi.

[2]      As is clear from the file this Court, throughout, has been aware of the cultural sensitivities involved.   Ample opportunity has been given to the parties and the wider whanau to resolve matters.

[3]      One of the practical difficulties of course is that the Matauri 2K block has specified  and  designated  shareholders.    Not  all  whanau  members  and  not  all kaumatua are shareholders.  Nonetheless, I have no difficulty in accepting that the block has significance as a taonga to members of the whanau other than its shareholders.

[4]      I am also conscious of the fact that the areas of governance and development of incorporated blocks of Maori land are difficult.   Fragmentation of shareholding over generations often makes it difficult to resolve matters in a sensible and orderly way.  To some extent the matter before me may be a symptom of those underlying difficulties.  However, my obligation in terms of my oath, as one of Her Majesty’s Judges, is to resolve, without fear or favour, issues brought before this Court.

[5]      There is no dispute over the background.   On 12 October 2006 the Maori

Land Court issued an injunction under s 19(1)(b) of the Te Ture Whenua Maori Act

1993.    That  injunction  prohibited  the  respondent,  his  agents,  employees,  and workmen from undertaking any development, construction, or earthmoving work on the Matauri 2K block.   That injunction was subsequently sealed in February.   In April an application was made to this Court to enforce the injunction.

[6]      This Court clearly has power to enforce injunctions of the Maori Land Court. That power is contained in s 85(2) of the Te Ture Whenua Maori Act 1993.

[7]      The overlap is not difficult to sort out.  The Maori Land Court injunction is an interlocutory order of that Court.  The power conferred by s 85(2) brings into play the High Court Rules.  Those rules include r 258 which gives the High Court power to enforce interlocutory orders if a party fails to comply.  Those enforcement powers extend to the power to issue a writ of arrest under r 608 and the power to commit to prison for disobedience under r 609.

[8]      The matter was initially called before Winkelmann J in April 2007.  On 27

April Her Honour indicated she  was satisfied beyond reasonable doubt that  the respondent had been served with the Maori Land Court order, that its terms were clear and unambiguous, and, notwithstanding that, the respondent had both commenced and continued construction of a building on the land, in breach of the order.

[9]      There is no attempt by the respondent, and wisely so, to contest that finding of Winkelmann J.  Indeed as I commented in my 8 June Minute ([4]) it is clear from photographs provided that there have been ongoing improvements to the building during the relevant period.

[10]     Winkelmann J ordered a Writ of Arrest to issue against the respondent.  That Writ, however, was to lie in Court until further order.  Although arguably I might have been justified in releasing the Writ of Arrest when the matter was first called before me on 5 June, I declined to do so.  It seemed to me that the shareholders and the wider whanau should be given a further opportunity to resolve matters by consensus.  I was informed there was to be a hui on 7 July 2007.   It thus seemed appropriate to adjourn the matter further until that hui had had the opportunity to resolve matters.

[11]     Since then, I have been informed by minute from the Maori Land Court that it is content for this Court to enforce its injunction as s 85 contemplates.  Mr Otimi informed me that there was perhaps an expectation that Judge Ambler of the Maori Land Court would attend the hui.   He did not do so.   In my view it would be remarkable if he were to attend the hui.  The hui as constituted was not part of the procedure and jurisdiction of the Maori Land Court.  Rather it was a sensible attempt

by shareholders and the whanau to endeavour to resolve matters.  Regrettably the hui did not resolve matters.  I have read some of the transcript.  It is clear that there was heated argument and that many of the participants in the hui were divided on the issue.

[12]     Mr Holgate today seeks four orders from me.  The first is to issue the Writ of Arrest which has lain in Court since 27 April.  The second is an order to commit the respondent to prison for contempt.  The third is an order under r 358(1) to order the removal of the house from the site.   Finally the plaintiff seeks indemnity costs which, in counsel’s submission, are justified because in terms of rr 48C(4)(a) and (b) the respondent has acted improperly and has ignored or disobeyed an order of this Court.  Counsel’s best estimate of costs is in the region of $6,500 which I can well believe is a reasonable sum expended by the plaintiff throughout this year.

[13]     Mr Otimi for his part informs me that kaumatua want the house to stay and that this was a decision made towards the conclusion of the July hui.  Mr Holgate’s instructions are that not all kaumatua are of that view but that in any event the kaumatua involved are not all shareholders.  Just expressing it that way demonstrates the cultural dilemma with which this Court is confronted.  Again the difficulty arises because it is not a total overlap between the traditional Maori structures and the shareholding of the block.

[14]     I have been assisted by one kaumatua who addressed me this morning.  Mr Otimi’s submission is respect for kaumatua was a matter which has influenced the respondent and that his reluctance to remove the house as ordered is because of the expression of support he has received from the kaumatua involved.

[15]     That is all very well.   I am not being at all disrespectful of the kaumatua, however, when I observe that there are wider policy issues in play here.  One of the advantages in living in a country, structured in the way Aotearoa-New Zealand, is structured, is there are generally accepted dispute resolution mechanisms.  We are all subject to the same law.  Parliament by and large enacts the law.  It is for the courts to resolve disputes between inhabitants of this country under the rule of law.  If we were to permit a system whereby parties who were not directly responsible to the

Crown, could by-pass decisions of Parliament or the courts, our social fabric would rapidly unwind.

[16]     That said the issue before me is simple.  The respondent is in breach of an order.  He has had ample opportunity to obey that order.  He has at various stages declined  to  do  so.    Regrettably the shareholders  have  not  been  able  to  resolve matters.   There is a disagreement between those to whom this land is dear.   The Maori Land Court is the proper body to resolve those disagreements.   The Maori Land Court wants this Court to enforce its order.   That order has been breached. Like Winkelmann J, I am satisfied beyond reasonable doubt that the order has been breached.  I therefore direct the Writ of Arrest is to be taken off the Court file and that the respondent is to be arrested and held for a short period of time in the cells.

[17]     Whilst the respondent is in the cells I direct that a Duty Solicitor is to go and see him.   That Duty Solicitor may be assisted by Mr Otimi.   I will resume this hearing at 12.30 with a view to deciding what penalty is to be imposed on the respondent for his clear contempt.

[18]     I reserve for further argument the issue of costs and whether I should make a mandatory order of the type sought by Mr Holgate.   My current view is I should make an order for the removal of the house but that order be referred back to the Maori Land Court for its consent and approval.

[19]     I have not heard from Mr Otimi on the issue of costs.  I rather suspect $6,500 would be beyond the respondent’s means but I would like some assistance on that.

...........................................… Priestley J