K J GILLESPIE V M PERE AND ANOR HC AK CIV 2009-488-000533

K J GILLESPIE V M PERE AND ANOR HC AK CIV 2009-488-000533 18 February 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-488-000533BETWEEN KEVIN JAMES GILLESPIE Applicant AND MANUKA PERE First Respondent AND MICHELLE PERE Second Respondent Hearing: 17 February 2010 Appearances: D A Watson for the Applicant S Samuels (as a McKenzie friend) for the Respondents Judgment: 18 February 2010 at 4:30 pmJUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 18 February 2010 at 4:30pm pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: D A Watson, P O Box 3886, Shortland Street, Auckland 1140 Copy to: S Samuels, P O Box 677, Kerikeri[1] The applicant, Mr Gillespie, is the administrator of Matauri X Incorporation Limited ("the Incorporation"). He seeks an arrest order from this Court against the respondents – Mr and Mrs Pere – and an order for their committal pursuant to rr 17.83 to 17.85 of the High Court Rules. [2] The application is opposed by Mr and Mrs Pere. [3] When the matter was called before me, Mr and Mrs Pere appeared. They asked that they should be represented by a Mr S Samuels, who appeared as their "agent" or McKenzie friend. Ms Watson appearing for the Incorporation did not object to Mr Samuels speaking on Mr and Mrs Pere's behalf, and I permitted him to do so. I also spoke directly to Mr and Mrs Pere, and Mrs Pere took the opportunity to address me directly.Background[4] The land that is the subject of this application is at Matauri Bay in Northland. [5] Mr and Mrs Pere currently occupy a Portacom building that is sitting on the land. They occupy that building with their four children. [6] Mr Gillespie on behalf of the Incorporation asserts that the land is Maori freehold land owned by the Incorporation. He asserts that Mr and Mrs Pere did not obtain the approval of the Incorporation before placing the Portacom building on the land and that Mr and Mrs Pere are trespassers. [7] Mr Pere is a shareholder in the Incorporation. [8] Mr Gillespie, together with the committee which assists him, applied for an order in the Maori Land Court pursuant to s 19 of the Te Ture Whenua Maori Act 1993. It sought that Mr and Mrs Pere should be restrained from committing any further trespass or injury to the land.[9] That application was filed in February 2008, and the matter came before Judge D J Ambler in the Maori Land Court on 18 March 2008. Unfortunately, Mr and Mrs Pere did not attend the initial part of the hearing. The Court heard from Mr Gillespie, and then later from Mr and Mrs Pere. [10] Judge Ambler gave an oral decision. He recorded that Mr and Mrs Pere had undertaken some minor development work on the land, and brought onto the land the Portacom building in which they are living with their children. He noted that they had done so without obtaining the approval of the Incorporation, and that the Incorporation considered the Portacom building an illegal dwelling. After referring briefly to the law, and to submissions made by Mr Samuels on Mr and Mrs Pere's behalf, Judge Ambler recorded that an injunction should issue. He made an order in the following terms:It is hereby ordered pursuant to s 19(1)(a) of Te Ture Whenua Maori Act 1993 that Manuka Pere and Michelle Pere of Putataua, their agents, employees and workmen are prohibited from undertaking any further development, construction or earthmoving work or causing any other injury or harm to the land known as Matauri X, and that Manuka Pere and Michelle Pere remove the Portacom building from the land known as Matauri X by the 30 th day of April 2008.[11] The order has not been complied with, and the Portacom building remains on the land. [12] At the request of the Incorporation, Acting Chief Judge Isaac transmitted a copy of the order made by Judge Ambler to this Court, pursuant to s 85 of the Te Ture Whenua Maori Act 1993.Submissions[13] The applicant initially sought an order that the Portacom building be sequestered and removed from the land, or in the alternative, that Mr and Mrs Pere be committed. At the hearing, Ms Watson confined her submissions to a request for an arrest order and committal. She pointed out that there is material before me which suggests that the Portacom building is now owned by an entity known asNgati Kura Maori Incorporation and that it is rented to Mr and Mrs Pere. She accepted that in those circumstances, a sequestration order would not be appropriate. [14] Ms Watson's submissions can be summarised as follows: a) The land is Maori freehold land and the Incorporation is the registered proprietor of the land. b) Mr and Mrs Pere arranged for the Portacom building to be placed on the land without the consent and approval of the Incorporation. The Incorporation has a process for the granting of papakainga licences, but Mr and Mrs Pere have not sought or obtained a licence. c) Mr and Mrs Pere have been asked to remove the Portacom building, but have refused to do so. d) The Maori Land Court granted an injunction in favour of the Incorporation. e) No appeal was filed in relation to the Maori Land Court's decision. f) Mr and Mrs Pere have defied and continue to defy the order by refusing to remove the Portacom building. g) The proceedings have been transferred to this Court, and this Court can enforce the order pursuant to rr 17.83 to 17.85 of the High Court Rules. h) The terms of the Maori Land Court order were clear and unambiguous, Mr and Mrs Pere have been served, and they have not complied with the order in a manner which shows wilful and inexcusable disregard for the order. It is appropriate for the Court to make an arrest order, and for the same to lie in Court for a period to give Mr and Mrs Pere a final opportunity to comply with the order.[15] Mr Samuels' submissions can be summarised as follows: a) The land is Maori customary land subject to tikanga Maori. b) The injunction granted by the Maori Land Court was made under s 19(1)(a) of the Te Ture Whenua Maori Act, and that section relates only to Maori freehold land. c) Native title to the land has not been extinguished. d) The onus of proving extinguishment lies on the Incorporation, and it has failed to meet that onus. e) The title to the land is burdened by a right of use and occupation in favour of those entitled to reside on the land, including Mr and Mrs Pere. f) Mr and Mrs Pere do have a licence to occupy the land. That licence was issued by an entity known as Nga Tikanga Maori Incorporation o Ngati Kura and is dated 10 February 2005. g) Nga Tikanga Maori Incorporation o Ngati Kura, and its proprietors, are the legal, beneficial and equitable owners of the unextinguished native title in the land. [16] Mrs Pere made an impassioned appeal for the Court's indulgence and leniency. She stressed her and her husband's attachment to the land. She expressly endorsed and adopted the submissions made on her behalf by Mr Samuels. [17] Mr Pere declined the opportunity to address the Court.Analysis[18] Under s 19(1)(a) of the Te Ture Whenua Maori Act 1993, the Maori Land Court is given jurisdiction to issue an injunction order in respect of any trespass to Maori freehold land. Every injunction made by the Court that is not expressed to be of interim effect only is of final effect. [19] Here an injunction was made by Judge Ambler on 18 March 2008, ordering Mr and Mrs Pere to remove the Portacom building from the land by 30 April 2008. The order is not expressed to be of interim effect, and on its face is final in its terms. [20] Under s 85, the order was transmitted to this Court on 11 March 2009. The injunction is deemed to have been issued by this Court, and it may be enforced by this Court by writ of attachment or otherwise in accordance with the practice of this Court. [21] If a party who has been served with an original Court order does not comply with the same, a Judge may issue an order arresting the non-complying party on the application of the party entitled to the benefit of the order – r 17.84(2). [22] The authorities – see, for example, Soljan v Spencer [1984] 1 NZLR 618 (CA) – establish that an applicant for an arrest order must show that: a) the terms of the original Court order were clear and unambiguous; b) the parties sought to be arrested were served with the original Court order; and c) that party has not complied with the order, in a manner which shows wilful and inexcusable disregard of the order. Given that an arrest order affects the liberty of the subject, it is well-established that an applicant must prove beyond reasonable doubt that these three requirements foran arrest order have been met: see, for example, New Zealand Guardian Trust Co Ltd v Parker (1992) 6 PRNZ 30 (HC). [23] I have every sympathy for the Incorporation. Nevertheless, I have concluded that it would be inappropriate to issue an arrest order. [24] First, there is nothing in the affidavits of Mr Gillespie or of Mr Epiha confirming that Mr and Mrs Pere were served with a copy of the original order made by the Maori Land Court. It is clear that the present application and subsequent papers have been served on them, but the affidavits are silent as to service of the original order. [25] Ms Watson suggested that Mr and Mrs Pere were notified of the outcome of the hearing, because they were present on 18 March 2008, and because Mr Samuels asked that he should receive a copy of the Court's "minutes". Assuming this occurred, it does not suffice. Nor does it suffice that a copy of the order was annexed to Mr Gillespie's affidavit, which was served. Mr and Mrs Pere should have been served with the original Court order. There is an onus on the Incorporation to show that that has occurred if it is to obtain the orders it seeks. It has failed to do so. [26] That is enough to dispose of this application, but there is a further ground on which I would have declined the application. It may assist the parties if I outline that further ground. [27] The terms of the Maori Land Court's order are clear and unambiguous. However, I am not satisfied that Mr and Mrs Pere have wilfully and inexcusably disregarded the order. [28] Amongst other things, the order required Mr and Mrs Pere to remove the Portacom building from the Incorporation's land. Clearly the order has not been complied with, but it is not obvious that Mr and Mrs Pere could ever have complied with the order.[29] Mr and Mrs Pere have filed what purports to be an affidavit. While it is signed by them, it is not sworn and it is not in the correct form. There was no objection to me receiving it from Ms Watson and I am prepared to accept the same. That document records that the Portacom building is owned by Ngati Kura Maori Incorporation, and that it is rented to Mr and Mrs Pere. [30] There is no evidence before me suggesting that the Portacom building was transferred by Mr and Mrs Pere to Ngati Kura Maori Incorporation in order to avoid the injunction. Indeed there is no evidence as to when Ngati Kura Maori Incorporation acquired ownership of the Portacom building. Nor is there any evidence of the terms on which Mr and Mrs Pere rent the Portacom building. I do not know whether it is within their power as tenants to remove or require that the Portacom building be removed from the land. [31] The issue of ownership of the Portacom building was canvassed briefly before the Maori Land Court. Mr Gillespie advised Judge Ambler that the Portacom building was a rented or hired building. He also asserted that it was Mr and Mrs Pere's property – see transcript, p 64. Unfortunately Mr and Mrs Pere were not present when this evidence was given. Subsequently, when they appeared, Mr and Mrs Pere referred to the Portacom building as being their Portacom: see transcript, p 69. Judge Ambler did not address the issue in his oral decision. The order made by the Maori Land Court must have been made on the assumption that Mr and Mrs Pere could remove the Portacom building from the land. [32] In the circumstances, and even if the order had been served, I would have declined the application. I am not satisfied that Mr and Mrs Pere have failed to comply with the order in a manner which shows wilful and inexcusable disregard of the order, for the simple reason that I am not satisfied that they can comply or ever could have complied with it. [33] The application is declined. The Incorporation will have to go back to the Maori Land Court and seek orders against Ngati Kura Maori Incorporation as the owner of the Portacom building. It may also be open to the Incorporation to seekorders against Mr and Mrs Pere restraining them from trespassing on the land by living on, or permanently occupying it without a papakainga licence. [34] I do not propose to comment on the merits of the submissions made by Mr Samuels on behalf of Mr and Mrs Pere. The same submissions were made before Judge Ambler. He rejected the same and there was no appeal against his decision. If Mr and Mrs Pere considered that Judge Ambler was wrong in his conclusions, then their remedy was to appeal to the Maori Appellate Court. They did not do so. [35] While I have declined the application, it is clear that the present situation needs to be resolved. The Incorporation has a process for the granting of papakainga licences. I am sympathetic to the Incorporation's position. I can appreciate Mr and Mrs Pere's attachment to the land. I can see no reason why the process for the granting of a papakainga licence should not be followed. If a licence were to be granted, this should accommodate the position of both parties. I strongly recommend to both parties that they endeavour to resolve their differences, rather than bring this matter back before the Courts. [36] No award of costs is appropriate. Mr and Mrs Pere have succeeded in resisting the application, but they did not have legal representation. Wylie J