THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF AUCKLAND v BOYNTON [2018] NZHC 2636

THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF AUCKLAND v BOYNTON [2018] NZHC 2636 [9October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1937[2018] NZHC 2636BETWEEN THE ROMAN CATHOLIC BISHOP OFTHE DIOCESE OF AUCKLANDPlaintiffAND RETI BOYNTONFirst DefendantTHE UNAUTHORISED OCCUPANTS OFTHE PROPERTIES AT 120 COLLEGEROAD AND 103 COLLEGE ROAD,NORTHCOTESecond DefendantsHearing: 9 October 2018Appearances: B J Upton and S L Hawksworth for the plaintiffR Boynton in personL Peters in personJudgment: 9 October 2018JUDGMENT OF JAGOSE JThis judgment was delivered by me on 9 October 2019 at 4:45 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors / Parties:Mr B J Upton and Ms S L Hawksworth, Simpson Grierson, AucklandMr R BoyntonCopy to:Mr L Peters[1] The Roman Catholic Bishop of the Diocese of Auckland owns two propertiesin Auckland's Northcote, formerly used by Hato Petera College for its school andboarding facilities.[2] The defendants protest the Diocese's retention of the land despite recentclosure of those facilities, which they say is contrary to the purposes for which theDiocese was granted the land. In demonstration of their protest, they have occupiedparts of the land, while asserting rights to exclude others from it.[3] Under his substantive claim for a declaration as to his rights in relation to theland, and for supplementary orders, the Bishop applies now for an interlocutoryinjunction requiring the defendants immediately to provide vacant possession of theland, and to remove any personal property they may have with them (or failing that,entitling the Bishop to remove such property). By 'interlocutory injunction' is meantan order to manage circumstances until the Court decides the Bishop's substantiveclaim. The Bishop has filed the mandatory undertaking as to damages, by which heundertakes to comply with any order for payment of damages to compensate thedefendants for any loss suffered through the injunction.[4] The first defendant, Reti Boynton, describes himself as spokesperson for theoccupants (the second defendants), who he explained were the Peters and Turoafamilies, whose predecessors possessed the land before it was acquired by the Crownand granted to the Diocese. Mr Boynton sought an adjournment to obtain legalrepresentation, on the same grounds as were refused by Lang J on 3 October 2018.Having failed on that application, Mr Boynton requires leave on grounds of specialcircumstances to bring a similar application.1 No special circumstances wereidentified, and I refused leave.[5] Lawrence Peters, one of the second defendants, disputed Mr Boynton'sentitlement to represent at least his family, and sought an adjournment to clarify theoccupants' representation before me. As the Bishop's application is for interlocutory1 HCR 7.52.orders, not affecting the defendants' substantive rights, I refused to adjourn thehearing.[6] The defendants have not filed any notice of opposition or submissions inaccordance with timetable directions. Mr Boynton belatedly filed a document onletterhead titled "Hapu Tangata Whenua", and styled an "Affidavit to Cease andDesist", over seals of the hapu's purported "Kaitiaki", "U.N. Field Marshal", and"U.N. Federal Marshal". The document seeks to justify the defendants' occupation ofthe land on various inchoate grounds, including intellectual property, jurisdiction,Christian scripture, United States law, the New Zealand Bill of Rights, minority andindigenous rights, and various international conventions. Notably, the documentrejects this Court's jurisdiction over the defendants, and asserts their entitlement totake "the matter into [their] own hands lawfully".[7] However, in oral submissions, Mr Boynton acknowledged the defendants'occupation of part of the land. He acknowledged also his receipt of a trespass noticeaddressed to him, requiring him to stay off the land, with which he contended to havecomplied. He explained the defendants had claims to the land, which he proposedshould be addressed to the Māori Land Court, together with the Bishop's application.[8] Despite the procedural irregularities, I proceed to determine the application onits merits.2Background[9] The Bishop, in his official capacity, is the registered proprietor of the land at103 and 120 College Road in Auckland's Northcote, described in certificates of titleNA26B/813 and NA79C/253.[10] The land was part of a grant in 1850 by Governor Hobson to Bishop Pompallier(the present Bishop's predecessor, at least so far as the Diocese of Auckland is part ofWestern Oceania, Bishop Pompallier's 'parish'). The Governor, who had purchasedthe land from Ngāti Paoa and related tribes, granted the land subject to a Deed of Grant2 Mihinui v Attorney-General [2017] NZHC 654 at [13].dated 19 August 1850. The Deed states the land was to be " for the education ofchildren of our subjects of both races and of children of other poor and destitutepersons being inhabitants of the islands in the Pacific Ocean ". Ngāti Paoa contendsfor an earlier agreement with the Crown "to set the land aside as a reserve for thepurpose of providing education specifically to Maori".[11] The affidavit evidence in support of the Bishop's application exhibits a letteron Ngāti Paoa letterhead dated 10 August 2018 to the Bishop, advising of its claims tothe land, including under a Treaty of Waitangi claim on which Ngāti Paoa is currentlyin negotiations with the Crown. Gary Thompson, Chair of Ngāti Paoa Iwi Trust, hascommented publicly the defendants represent only two families in, and not the entiretyof, that iwi.[12] However, regardless of those claims, the defendants' protest relates more to therecent closure of the school and boarding facilities on the land, which had provided aresidential education service catering to Catholic Māori families. The Ministry ofEducation cancelled the boarding facility's license in September 2016, on the basis ofconcerns about the safety of the facilities and other staffing and governance issues.The college continued to operate as a day school only for a little while longer, but itsroll continued to decline as families chose to send their children elsewhere. On 31August 2018, the Ministry cancelled the agreement which allowed the college tooperate as a state integrated school. The Diocese's counsel, Ben Upton, told me theDiocese intends still to use the properties for educational purposes, and is currentlyconsidering its options.[13] The defendants took up occupation of the properties around mid-August 2018,and have remained since. They primarily reside in the hostel property, but occasionallyhave ventured onto the college property as well. As mentioned, the Bishop served atrespass notice on Mr Boynton on 7 September 2018, with which Mr Boynton says hehas complied. Although Mr Upton suggested the evidence was otherwise, that mayhave been due to a confusion of dates, Mr Boyton saying he was served with thetrespass notice on 20 August 2018, and Mr Upton pointing to evidence of his presenceon 7 September 2018. If the trespass notice was not served until the latter date, thereis nothing undermining Mr Boyton's assurance he has complied with it.Legal principles[14] Interlocutory injunction applications are determined on the basis of whetherthe plaintiff has a serious question for trial, and whether the balance of convenienceand overall interests of justice favour granting the injunction.3 On the latterconsideration(s), the question is whether refusing the injunction would be harder on aplaintiff who was successful at trial, than would granting it be on an ultimatelysuccessful defendant.4 This assessment is undertaken by reference to the adequacy ofdamages, preservation of the status quo, the uncompensable disadvantages to eitherparty, and the relative strengths of their cases.5[15] The Bishop accepts his application is seeking a mandatory injunction(requiring the defendants to do things), rather than a prohibitory injunction (requiringthe defendants not to do things). Such relief is granted more rarely. As Thomas Jwrites, citing McGechan's commentary, a mandatory injunction ought to be grantedon an interlocutory application:6 only in special circumstances, and then only in clear cases either where theCourt thinks that the matter ought to be decided immediately or where theinjunction is directed at a simple and summary act, which could be easilyremedied or where the defendant has attempted to steal a march on theplaintiff. Moreover, before granting a mandatory interlocutory injunction theCourt has to feel a high degree of assurance that at the trial it would appearthat the injunction had rightly been granted, that being a different and higherstandard than is required for a prohibitory injunction: Locabail InternationalFinance Ltd v Agroexport [1986] 1 All ER 901 (CA).Discussion—a serious question for trial?[16] I make no determination on any substantive claim the Bishop is in breach ofthe 1850 Deed of Grant, nor on the iwi's more general Treaty of Waitangi claim withrespect to Governor Hobson's original purchase of the land. There may well be force3 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Klissers Farmhouse Bakeries Ltd[1985] 2 NZLR 129 (CA).4 Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV-2007-485-1756,30 July 2008 at [4] citing Kane v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.5 Wellington International Airport Ltd v Air New Zealand, above n 4, at [6]-[14].6 Precast NZ Ltd v Anystep Ltd [2016] NZHC 377 at [44] citing Andrew Beck and other McGechanon Procedure (online ed, Brookers) at [HR7.53.23].in these arguments, and their determination may have implications for the ownershipand use of the properties.[17] But that is not the issue presently before me. I am faced with a clear questionof property rights. The Bishop is the registered proprietor of the land, and without theBishop's permission for their occupancy, the defendants have no legal right to occupythe properties. (Conversely, given Mr Boynton's request for referral to the Māori LandCourt, that Court lacks jurisdiction to entertain the Bishop's claim.) It follows there isclearly a serious question to be tried.—balance of convenience/overall justice?[18] I have a high degree of assurance, at trial of the Bishop's substantive claim, itwill appear an interlocutory injunction was rightly granted.[19] Blair Shanley, the Diocese's chief financial officer, deposes to various factorsweighing in favour of interlocutory relief. So too does Linda McQuade, the Diocese'svicar for education. It is enough to note:(a) there are safety concerns with the buildings on the properties, which areneither fit nor licensed for residence, and for which the Bishop asproprietor may be liable;(b) the defendants appear to have damaged the buildings through theiroccupation (including by removing boards, breaking windows, cuttingphone lines, and forcing entry into previously locked buildings);(c) several complaints have been made the defendants intimidated peoplewho entered or walked near the land, and have erected signs assertingtheir rights to exclude people from the land; and(d) such conduct would affect other third parties with rights to use the landfor various primarily school-age sports training and events.[20] Were the Bishop to be held out of possession pending his success at trial (whileremaining liable for the land and its facilities), damages would plainly afford aninadequate remedy, even if such damages could sensibly be quantified. Conversely,damages would be an entirely adequate remedy to compensate the defendants forbeing ejected from their present occupation of the land, if they were successful inestablishing the Bishop could not exercise proprietary rights over it.[21] Maintenance of the status quo – the last settled position between the parties –also favours granting the application. The uncompensable disadvantages to the Bishopare legion, while compensation from the Crown is precisely what is sought by NgātiPaoa (of which the defendants are a part, whether or not presently acting under itsaegis). The occupation's impact on third parties with entitlements to use the land is asignificant factor. And the strength of the Bishop's substantive case seemsoverwhelming, while the defendants' case is precisely to take matters into their ownhands. In that last respect, their case seeks to "steal a march" on the Bishop, byrejecting the legitimacy of his landholding before that issue is determinedsubstantively. Most significantly, the orders sought by the Bishop will not affect thedefendants from pursuing any claims they may have.[22] The overall justice of the case lies strongly in favour of granting the Bishop'sapplication.Terms of interlocutory relief[23] Interlocutory relief (meaning, until the Court can determine the substantiveclaim) is typically granted "until further order of the Court". Mr Upton proposes thedefendants' immediate provision of vacant possession of the land to the Bishop, andremoval of any property they brought onto the land within two days of my judgment.[24] In oral submission, anticipating the defendants' non-compliance, Mr Uptonfurther proposed orders enabling the police, by force if necessary, to enforce any ordersfor vacant possession and removal of property. In answer to my query about myjurisdiction to direct the police to enforce orders obtained between parties to civilproceedings, Mr Upton noted police powers to enforce the Trespass Act 1980, and mybroad powers to enforce interlocutory orders under HCR 7.48. Mr Upton emphasisedsuch additional orders were desirable to avoid the Bishop needing to attend the Courtagain to address the defendants' continued unlawfulness.[25] I see no foundation in either the Trespass Act 1980 or the High Court Rules forthe sort of enforcement claimed by Mr Upton.[26] The former enables a constable to arrest a trespasser without warrant if certainstatutory precursors are met, but only then subject to the exercise of the constable'sdiscretion.7 I am not minded to risk overriding the precursors or discretion by anyinterlocutory order I may make here. The court's power under HCR 7.48 to "make anyorder that the Judge thinks just" in enforcement of an interlocutory order is expresslyexercisable only "[i]f a party fails to comply with an interlocutory order". I do notread this rule as permitting anticipatory exercises of its powers, and its expressprovision tends against reading such into the more generic HCR 7.44 (to "grant anyinterlocutory relief the Judge thinks just").[27] But committing a trespass is criminal conduct, as may be disobedience of Courtorders. Either or both may be punished by fines or imprisonment. I am satisfied theBishop's interests are sufficiently addressed by his ability to seek an arrest order underHCR 17.84 on a party's non-compliance with any order I may make.Result[28] The Bishop's application is granted.[29] Pending further order of this Court, I order the defendants:(a) immediately to provide vacant possession of the land described incertificates of title NA26B/813 and NA79C/253; and(b) within 48 hours of this judgment, to remove any property they broughtonto the land.[30] Pending further order of this Court, if any property not belonging to the Bishopremains on the land after 48 hours of this judgment, I declare the Bishop by his agentsmay remove the property to another place at which it is to be made available to itsowner on proof of ownership.7 Trespass Act 1980, s 9(2).[31] Finally, I direct any documents in the proceeding required to be served on thedefendants may be served on Mr Boynton in his capacity as first defendant and(notwithstanding Mr Peters' complaint) as representative of the second defendants forthe purpose of receiving those documents on their behalf, unless the second defendantsotherwise accept such service.Next steps[32] To ensure expeditious resolution of this dispute, and to avoid the Court havingto supervise its interim orders over any extended period, I refer the substantiveproceeding to a Duty Judge List next week for timetabling orders leading to urgenthearing. First case management conference memoranda are due in advance of that call.Costs[33] In my preliminary view, as the successful party, the Bishop is entitled to 2Bcosts.[34] If that is not accepted by either party, and costs cannot otherwise be agreedbetween them, costs are reserved for determination on short memoranda of no morethan five pages to be filed and served by:(a) the Bishop no later than ten working days after the date of thisjudgment;(b) the defendants no later than five working days after service of theBishop's memorandum; and(c) the Bishop strictly in reply no later than five working days after serviceof the defendants' memorandum.—Jagose J