IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 38 Taitokerau MB 219 (38 TTK 219) A Applicant

Transcription

1 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 38 Taitokerau MB 219 (38 TTK 219) A UNDER Section 18(1)(c) Te Ture Whenua Māori Act 1993 IN THE MATTER OF Waipoua 2B2B1B BETWEEN AND GARRY HOOKER Applicant DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION Respondent Hearing: 32 Taitokerau MB 271, 21 November 2011 (Heard at Auckland) Appearances: Mr R Ferguson for the Applicant Mr G Hulbert for the Department of Conservation Mrs Katerina Elliot in person for Alex Manos, Evan Nathan, Errol Hutchins and Leon Hutchins Judgment: 4 April 2012 RESERVED JUDGMENT OF JUDGE LR HARVEY Solicitors: Ferguson Law, PO Box 106, 866 Auckland rob@fergusonlaw.co.nz Department of Conservation, 8 Webb Place, Taradale, Napier ghulbert@doc.govt.nz Katerina Elliot, 15A Humphrey Kemp Avenue, Henderson, Auckland katerina.elliot@gmail.com HOOKER V DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION MLC 38 Taitokerau MB 219 [4 April 2012]

2 Introduction [1] By decision dated 30 October 2009 I held that the Department of Conservation were negligently contributing to the trespass of Waipoua 2B2B1B by failing to adequately warn visitors to desist from using a trampway that compelled access to this land at high tide without the owners consent. 1 [2] I also noted that the failure by the Respondent to properly consult with the owners when the trampway was established and to hold discussions regarding the owners concerns as to the ongoing use of the access had exacerbated the failure to deter visitors from using the trampway during high tide. In my observation those failures compounded existing tensions which led to a breakdown in the relationship between the Respondent and the owners. [3] The application was then adjourned to enable further submissions on potential remedies to be made. For reasons that need not be detailed here, the proceedings were unacceptably delayed following a change of case manager. A remedies hearing as originally envisaged following my earlier judgment was then held at Auckland on 21 November [4] In summary, the Applicant seeks: (a) (b) (c) general damages for interference with the Applicant s privacy and quiet enjoyment of the land; special damages in the form of mesne profits for the period of the unlawful use of the land; exemplary and/or aggravated damages to recognise the Respondent s continued inactivity and ineffectiveness... over the years 3. [5] The Applicant also seeks interest on any damages awarded from the date of the original hearing on 11 October The issues for determination are whether or not the Applicant has made out the case for damages, mense profits and interest as a appropriate remedies against the Respondent Whangarei MB 142 (12 WH 142) 32 Taitokerau MB 271 (32 TTK 271) Applicant s submissions on remedies, at [17] 38 Taitokerau MB 220

3 The Law [6] As counsel identified section 18(1) (c) and (d) of Te Ture Whenua Mäori Act 1993 are the relevant provisions: General jurisdiction of court (1) In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction: (a) to hear and determine any claim, whether at law or in equity, to the ownership or possession of maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest: (b) to determine the relative interests of the owners in common, whether at law or in equity, of any Mäori freehold land: (c) to hear and determine any claim to recover damages for trespass or any other injury to Mäori freehold land: (d) to hear and determine any proceeding founded on contract or on tort where the debt, demand, or damage relates to Mäori freehold land... (Emphasis added) [7] In Matchitt v Whangara B20 Incorporation this Court acknowledged that: 4 [T]respass is an unjustified direct interference with the land in the possession of another and is actionable per se without proof of actual damage. At para Todd Law of Torts in New Zealand (4 th ed) the authors emphasise that the purpose of the tort is not simply to compensate for actual harm but serves to mark out and vindicate the rights of citizens to be free from direct interference with their possession of land and to punish and deter for acts and interference. General damages, special damages or mense profits Applicant s case [8] Mr Fergusson submitted that the Court has the jurisdiction per s 18(1)(c) of the Act to award damages in relation to the trespass of the Applicant s land on the basis that despite there being no evidence of damage in the conventional sense there has been long standing and ongoing interference of the Applicant s land through people striking inland from the walkway. [9] Counsel argued that there remains a right of damages for the trespass and damages by way of mesne profits for the inconvenience, anxiety and distress caused to the Applicant and by extension to the other owners of the land. The Applicant is entitled to a reasonable Gisborne MB 249 (191 GIS 249) 38 Taitokerau MB 221

4 rate of remuneration for the full period of unlawful use, regardless of any actual loss suffered by the Applicant or actual benefit derived by the trespasser. [10] The claim for damages is subject to s7 of the Limitation Act 1950 and accordingly damages are sought at a rate of $50.00 per week from the 6 years prior to filing the claim or a total of $20,000. [11] Counsel stressed that the sum sought is a conservative one. The block is coastal land. Passage over it has essentially been taken by individuals or groups whenever they see fit and there are no effective warnings in place that the land is private. The culpability of the Respondent has been established. Damages is the reasonable price to pay for a permanent right of passage: Roberts v Rodney District Council [2001] 2 NZLR 402. [12] Mr Fergusson also argued that general damages should be awarded for the interference of the Applicant s right to privacy and quiet enjoyment as evidenced in Court. The proceedings can be seen as a last resort effort to obtain recognition and redress. Respondent s case [13] Mr Hulbert contended that nominal monetary damages should be awarded on the basis that the claim for mesne profits should be dismissed as this claim was withdrawn at the hearing held on 11 October 2007 and should not be reinstated. 5 [14] Moreover, he argued that rule 14(2)(b) of the Māori Land Court Rules 1994 requires applications by which payment of a sum of a money is required to be specifically pleaded. This was not done and nor were any details relating to damages addressed in evidence. The request for monetary damages should not, he submitted, be taken any further. [15] Counsel also contended that, if the Court were minded to award damages, which were opposed, they should be nominal only and not exceed three figures given the specific facts and circumstances of this case Counsel refers to 122 Whangarei MB 94, 95, 123 and 124 in support of this submission (122 WH 94, 95, ). 32 Taitokerau MB 277 (32 TTK 277) 38 Taitokerau MB 222

5 Discussion General damages [16] In is well settled that general damages will be available where a plaintiff s privacy and quiet enjoyment of land has been interfered with by the defendant and for any resultant anxiety and distress caused by such conduct: Ramsay v Cooke. 7 Nominal damages will be available as recognition and vindication of a plaintiff s possessory right: Mayfair Ltd v Pears. 8 [17] In TCN Channel Nine Pty Ltd v Anning an award of $25,000 in a case concerning an intrusion on to land to obtain a television interview. The New South Wales Court of Appeal in that case found: 9 The hurt to feelings, humiliation and affront to dignity experienced by the respondent was aggravated by the way in which the appellant acted in the course of its trespass. It confronted the respondent with cameras rolling and indicated clearly that it was filming for purpose of broadcast to the public at large. Furthermore, whether before or after the confrontation with the respondent, it widened the trespass from merely approaching him and felt able to film elsewhere on the property, both in front of the stacks of tyres and in the interview with the truck driver. This conduct justifies an award of aggravated damages which I assess in the amount of $25,000. [18] The New Zealand case cited as a precedent for the $25,000 figure, Body Corporate v North Shore City Council, involved a leaky building which had to be entirely reclad due to three separate failures in weather-tightness. Duffy J found that: the developer has breached the non-delegable duty of care the law imposes on developers to exercise reasonable skill and care to build a sound building and at the time Kilham Mews was constructed there were known methods of construction that would have resulted in the buildings being weather-tight... had the developer of [1984] 2 NZLR 680 at 687 [1987] 1 NZLR 459 (2002) 54 NSWLR 333 at [179] HC Auckland CIV , 22 December 2008 at [28]-[30] 38 Taitokerau MB 223

6 Kilham Mews exercised reasonable skill and care in the buildings construction, the weather-tight failures would have been avoided. 11 [19] Despite counsel s submissions to the contrary, the present case cannot be said to be in the same league as that cited, despite the trespass having taken place over a far longer time. Even so, in my assessment the claim for general damages is well founded, although I am not persuaded that the amount of damages sought under this heading is justified. This is a case where the owners rights to enjoy their land and to have their privacy respected have been interfered with through the action or lack of action of the Respondent. Damage to signs, gates, locks and fences has occurred along with instances of littering and other examples of interference and trespass that were evident even on the site inspection. Taking into account the evidence and the submissions of counsel, I award the Applicant the sum of $5,000. Special damages or mense profits [20] According to the learned authors of The Law of Torts in New Zealand where a defendant wrongfully makes use of the plaintiff s land the latter is usually entitled to damages being a reasonable rate of remuneration for the full period of unlawful use regardless of any actual loss suffered by the plaintiff or of any actual benefit derived by the defendant. 12 [21] The Applicant s claim for mesne profits is confusing, since, while mesne profits are available for any unlawful occupation of land, they are overwhelmingly found in lessorlessee disputes with reference works defining them as the name given to damages for trespass against a tenant who holds over after the lawful determination of the tenancy. 13 The repeated instances of trespass in this case do not appear to fit the modern use of the remedy, which seems to rely on an unlawful continuation of an initially allowed occupation. [22] Consequently, as there is no lease here, and there is no issue of one co-owner forcibly preventing the other(s) from enjoying the property (the only other example of mesne profits), it would be difficult to formulate a quantum based on precedent. In short, I do not Ibid, at [41] Todd et al (2009) Brookers Ltd, Wellington at G W Hinde and others Hinde, McMorland and Sim Land Law in New Zealand (Student ed, LexisNexis, Wellington, 2004) at [11.162] 38 Taitokerau MB 224

7 accept that the case for mense profits has been made out, notwithstanding Mr Hulbert s objections over pleading. Accordingly, this aspect of the application is dismissed. Aggravated damages, exemplary damages and interest Applicant s case [23] Counsel argued that the continued inactivity and ineffectiveness of the Respondent over the years in notifying the presence of private land is the type of conduct which may merit an award of aggravated and exemplary damages. [24] The Applicant also seeks interest on any special damages awarded against the Respondent. Respondent s case [25] In response to the claims of aggravated or exemplary damages, Mr Hulbert argued that there is nothing in the Court s decision to suggest the Respondent has been deliberate or arrogant in the sense referred to in Ramsay v Cooke [1984] 2 NZLR 680. A case for awarding other than nominal damages has not been made out by the Applicant. [26] Moreover, it was argued that as the Respondent s conduct has not been so outrageous as to warrant punishment there is no foundation for an award of exemplary damages ie a flagrant disregard or impropriety. Discussion Aggravated damages [27] The authors of The Laws of New Zealand state that aggravated damages are compensatory in that they compensate the victim of a wrong for mental distress, or injury to feelings, in circumstances where that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant s conduct after committing the wrong. 14 Put another way, aggravated damages are available to compensate for additional injury to feelings, dignity or reputation where a defendant has committed deliberate acts of trespass in arrogant disregard of the plaintiff s rights Supra, fn 12 at 448 Ibid 38 Taitokerau MB 225

8 [28] The case for seeking aggravated damages centres on the Respondent s inactivity or ineffectiveness. 16 While this might usually seem a rather mild reason to award aggravated damages, the Respondent has been aware of the issue for some years and failed to adequately address it, certainly to the satisfaction of the Applicant. Despite the Applicant s protests and representations to officials little was done to actively and consistently promote the fact that users of the trampway at high tide would invariably trespass over the land of the Applicant and the other owners. [29] As counsel for the Applicant claims, a failure of the duty to mitigate has to be raised and then proved by the Respondent. 17 The evidence on this point from the Respondent is hardly compelling. Mr Hooker wrote to officials, Ministers and even the Prime Minister with his concerns. It could not be said with any confidence that he sat back and did nothing. [30] In any event I am not convinced that the test for an award of aggravated damages has been satisfied. The claims for aggravated damages have not been made out and accordingly this aspect of the claim fails and is dismissed. Exemplary damages [31] Recently the Supreme Court in Couch v Attorney General(No 2) confirmed that the principal purpose of exemplary damages is to punish defendants for their improper and iniquitous behaviour: 18 [T]he primary purpose of exemplary damages is to punish a defendant for wrongful conduct. Deterrence of the offender is likely to be the effect of an award, as is vindication of the plaintiff who suffers harm and receives the damages. But these are both incidental consequences and should not divert the court from the punitive purpose of the remedy. [32] That Court then affirmed that the test for exemplary damages is whether the defendant acted outrageously and intentionally or with subjective recklessness: 19 [E]xemplary damages may be awarded if, but only if, the defendant deliberately and outrageously ran a consciously appreciated risk of causing personal injury to the plaintiff Supra, fn 3 Ibid, at [14] [2010] 3 NZLR 149 at [238] Ibid, at [150]-[151] 38 Taitokerau MB 226

9 Whether running such a risk should be regarded as outrageous will depend on the degree of risk that was appreciated and the seriousness of the personal injury that was foreseen as likely to ensue if the risk materialised. [33] As there is no evidence that the Respondent has actively sought to worsen the situation, and instead has engaged with the Applicant, to some extent, in attempting to resolve the issues, this does not appear to be a case where exemplary damages are appropriate. Moreover there is no evidence of outrageous and deliberate conduct of the part of the Respondent. In short I accept Mr Hulbert s submissions on this issue. The claim for exemplary damages is dismissed. [34] I can see no reason why interest should not be payable on the amount of damages awarded in this case being $5,000. Taking into account ss2 and 4 of Te Ture Whenua Maori Amendment Act 2011 and s62b of the District Courts Act 1947 I award interest at the rate of 5% from 15 September Decision [35] The Respondent must pay the Applicant $5,000 in general damages. [36] The Respondent must also pay the Applicant interest on this sum at 5% from 15 September [37] The Applicant s claims for aggravated damages, exemplary damages and special damages or mense profits are dismissed. [38] There will be no order as to costs. Pronounced at am in Christchurch on Wednesday this 4 th day of April 2012 L R Harvey JUDGE 38 Taitokerau MB 227