Williams v Williams no. 2 HC Whangarei CIV 2007-488-54

[2007] NZHC 2054

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 Applicant

M A Gardam for Respondent
G Otimi, McKenzie Friend for Respondent

Judgment:      27 August 2007

ORAL JUDGMENT OF PRIESTLEY J (NO 2)

Solicitors:

A Holgate, P O Box 1042, Whangarei
M A Gardam, P O Box 659, Whangarei

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

DAVID WILLIAMS V PAUL ADAM WILLIAMS HC WHA CIV 2007-488-54 27 August 2007

Contempt

[1]      Since directing the issue of the warrant of arrest earlier this morning Mr Paul Adam Williams has been taken into custody.   There is no additional information before me on the issue of his clear exposure to a penalty for his contempt.

[2]      Rule 609 of the High Court Rules permits this Court, when a person is brought before it upon a writ of arrest, to commit a person to prison on such terms as to the Court appears necessary.

[3]      Since his arrest Mr Williams has had the benefit of legal advice from Mr Gardam, the Whangarei Duty Solicitor, who has assisted at short notice.  The Court is obliged to him.

[4]      Mr Holgate makes it clear that the applicant would rather matters had not come to this situation.  The advice to his client, based on a reading of the Court of Appeal decision of Soljan v Spencer [1984] 1 NZLR 618, is to the effect that courts are reluctant to impose monetary penalties lest this be seen as a way of buying one’s self out of the consequences of breach of the Court order. Soljan v Spencer of course was a case involving two very wealthy men.  This is not the case here.

[5]      Mr Williams apologies to the Court and says he meant no disrespect.  I accept his apology.

[6]      The respondent is a married man.  He and his wife are living together.  They have four children aged between 15 and two.   They are currently in rented accommodation.  Mr Williams is employed as a farm hand earning just over $500 each week.  The family has an urgent need of accommodation.

[7]      Having reflected on the situation, however, Mr Williams has undertaken to this Court that he is prepared to move the house to another site.  In that regard he will need whanau assistance, both manual and financial, to truck the house away. There may well need to be some engineering alterations to the intervening road and

bridge across a creek.  The tragedy of this case is Mr Williams was not prepared to make this concession at an earlier stage.

[8]      Looking at the issue of contempt, as I have said before, and as was observed by Winkelmann J, the respondent was aware of the terms of the Maori Land Court order.  He chose, for whatever reason, to breach it.  I see as mitigating factors his perception, which is a cultural perception, of community ownership of land.  I also suspect  to  a degree  Mr  Williams’s  reluctance  to  remove  the  house  might  have stemmed in part from the fact that some kaumatua supported him in his choice of site.  Those mitigating features, however, do not avoid the contempt which has been committed here.

[9]      When I first considered the position last week and looked at other contempt cases, it seemed to me that imprisonment for a period of between 21 and 28 days might have been justified.   However, I intend to give considerable weight to Mr Williams’s undertaking to remove the house.   I am also mindful of the cultural overlay and the circumstances of his immediate family.  Removing the bread-winner from circulation, for even a short period, is not going to help anybody.

[10]     Accordingly,  what  I  intend  to  do,  having  found  Mr  Williams  to  be  in contempt of the relevant order, is to order his imprisonment in the Court building until 3 pm this afternoon.  After that period of imprisonment he is to be released and is free to go.  I will sign a warrant to that effect if need be.

Further Order

[11]     Based on Mr Williams’s undertaking I make an order pursuant to the powers I have under r 258(1) that the house is to be removed from the site no later than Friday 23 November 2007.  Mr Holgate is directed to have typed up and sealed an order to this effect.  The Registrar of the Court is directed to remit that order to the Maori Land Court.  The Maori Land Court has power to modify or discharge that order if it thinks fit at any stage.

[12]     It goes without saying, however, that if the house is not removed by 23

November Mr Williams will be in contempt again.  I trust that that situation will not arise.  As a matter of common-sense and whanau inter-relationship what must occur is a co-operative effort for the removal of the house to a site where Mr Williams, his wife, and children can get on with their lives.  That site clearly has to be a site which is a lawful site.   I rather suspect that may need some occupation order from the Maori Land Court, but that is not a matter for me.

Costs

[13]     Finally the issue of costs.   The family have no money.   They are not in a position to save.  They have no substantial assets.  I am mindful, however, that the steps taken by the applicant, Mr David Williams, have been very costly.  He ought not to have been put to that cost.  $6,500 would cover full indemnity costs.  If there had been earlier compliance, a good portion of those costs could have been avoided. In the circumstances I direct the respondent to pay the applicant costs in the sum of

$4,000, inclusive of disbursements.

………………………

Priestley J