IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A

Transcription

1 82 Taitokerau MB 139 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A UNDER Sections 18(1)(a), 18(1)(c), 19(1)(a) and 24, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Roadway Order Instrument BETWEEN AND AND AND PUTATAUA BAY HOLDINGS LIMITED Applicant MANUKA PERE First Respondent FAR NORTH DISTRICT COUNCIL Second Respondent PROPRIETORS OF MATAURI X INCORPORATION Third Respondent Counsel: Wayne Wesley Peters for the Applicant Judgment: 04 July 2014 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 82 Taitokerau MB 140 Introduction [1] On 26 June 2014 Putataua Bay Holdings Limited ( PBH ) filed two applications with the Court. [2] First, an application under ss 18(1)(a), 18(1)(c) and 24 of Te Ture Whenua Maori Act 1993 ( the Act ) to determine the rights in relation to a roadway order dated 1 February 2008 (Māori Land Court order instrument ). The respondents to that application are Manuka Pere, the Far North District Council and the Proprietors of Matauri X Incorporation. [3] Second, an application under s 19(1)(a) of the Act for an injunction preventing Mr Pere from blocking access across the said roadway and ordering the removal of any dwelling or object from the roadway. The respondents to the second application are Mr Pere, the Far North District Council and the Proprietors of Matauri X Incorporation. [4] The applications have yet to be served on the respondents. [5] On 3 July 2014 I convened a brief teleconference with Mr Peters for PBH in order to understand the urgency of the applications. Mr Peters explained that the applications are urgent in that PBH and its contractors are being prevented by Mr Pere from having access over the roadway to a construction site. Mr Peters asks that the Court grant the first part of the injunction on the papers on an interim basis, that is, preventing Mr Pere from blocking access over the roadway. Providing that the interim injunction is granted, Mr Peters considers that the substantive applications need not be set down for an urgent hearing and can be adjourned to a teleconference and for service to be undertaken. [6] Accordingly, in this decision I address the granting of an interim injunction only on the basis of the papers filed. Background [7] On 1 February 2008 the Māori Land Court granted a roadway order laying out a roadway and varying an existing roadway. The roadway order relates to the whole of Lot

3 82 Taitokerau MB DP (in effect, the new roadway) and the areas marked B and C on ML15522 (in effect, the remaining part of the existing roadway order first granted in 1984). [8] PBH is apparently the owner of Lots 1 and 3 DP I say apparently as the relevant certificates of title have not been produced in evidence. In any event, Lot 1 DP is expressly identified in the Fourth Schedule of the 2008 roadway order as being one of the various titles having the benefit of the roadway order. However, Lot 3 DP is not mentioned in that roadway order and I assume it does not have the benefit of the roadway order. [9] The evidence filed in support of the application for an urgent injunction takes the form of an affidavit from Dover Samuels. Mr Samuels is authorised by PBH to swear the affidavit though his connection to the company is unclear. [10] Mr Samuels explains some of the protest to developments at Matauri Bay. The 2008 roadway order was to enable a subdivision at Matauri Bay to proceed. He refers to the roadway order as relating to Lot 189 DP , though it is unclear whether he appreciates that it also relates to areas marked B and C on ML This distinction may prove to be important in terms of the jurisdiction of this Court to grant an injunction under the Act. I will return to this point later. [11] Mr Samuels outlines the previous injunctions granted in relation to what he says is the roadway. On 18 March 2008 this Court granted an injunction prohibiting Mr Pere and his wife, Michelle Pere, from undertaking any further development, construction or earth moving work on the land known as Matauri X, and requiring them to remove a Portacom from the land. I note that Lot 189 DP appears to be a subdivision of Matauri X. [12] In a decision of 18 February 2010 the High Court refused to enforce the 2008 injunction requiring Mr and Mrs Pere to remove the Portacom. On 21 June 2010 this Court granted a further injunction requiring Steven Samuels trading as or representing Ngāti Kura Māori Incorporation to remove the said Portacom. The Court also made an order under s 18(1)(a) of the Act authorising Matauri X Incorporation to remove the said Portacom.

4 82 Taitokerau MB 142 [13] The Portacom has not been removed and remains on the land, and is apparently the home of Mr and Mrs Pere. Mr Pere claims ownership of the roadway land on the basis of tikanga Māori and, according to Mr Samuels, does not acknowledge orders of the Court. [14] Mr Samuels says that many of the owners of land with the benefit of the 2008 roadway order feel intimidated and threatened by Mr Pere. Nevertheless, there is no direct evidence from those land owners. Importantly, while Mr Pere has apparently told those land owners that they have no authority to use the roadway, there is no evidence that they have been prevented from having access over the roadway. [15] Mr Samuels goes on to explain that on 8 May 2014 Mr Pere stopped PBH s building contractors from going over the roadway to a building site on land owned by PBH. Mr Samuels does not explain which of the said lots the contractors were trying to have access to, that is, whether it was Lot 1 or Lot 3 DP As I will soon explain, that evidence is important. [16] In any event, PBH s contractors were prevented from having access over the roadway and did not wish to cause a confrontation. The Police attended and spoke to Mr Pere, who apparently explained that he would continue his actions. [17] As recently as last week PBH s contractors were stopped from using the roadway. Somehow the contractors managed to gain access to PBH s land, though Mr Samuels does not explain how. [18] Mr Samuels also recounts an incident on 8 May 2014 when Mr Pere was abusive to Mr Samuels daughter. At a hui of kaumātua and kuia of Ngāti Kura of Matauri Bay held on 11 May 2014 Mr Samuels explained to those present that it was necessary to apply to the Court for an injunction. The law [19] The application for an injunction is brought under s 19(1)(a) of the Act, which gives the Court jurisdiction to grant an injunction:

5 82 Taitokerau MB 143 (a) Against any person in respect of any actual or threatened trespass or other injury to any Māori freehold land, Māori reservation, or wāhi tapu; [20] The law regarding the granting of interim injunctions is well settled. I can do no better than set out Judge Harvey s succinct summary of the principles to be applied from his decision in Taueki v Horowhenua Sailing Club Limited: 1 [25] The two key questions for the grant of an injunction are is a serious question to be tried and are damages an appropriate remedy? Whether the balance of convenience favours the plaintiff must also be determined. Before an assessment can be made the plaintiff must satisfy the Court that the claim is neither frivolous nor vexatious and that there is a serious question to be tried, with a further consideration being the overall justice of the case. The general approach to determining whether there is a serious question to be tried was that set out in Henry Roach (Petroleum) Pty Ltd: In order to determine whether there is a serious issue to be tried it is necessary to consider what is the applicable law and whether there are arguable differences concerning it, what the facts are said to be on the opposing sides, and where the issues lie, and whether there is a tenable combination of resolutions of the issues of law and fact on which the plaintiffs could succeed. [26] New Zealand courts have also adopted this reasoning, emphasising that an assessment of whether or not a serious question to be tried in fact existed could not be brushed over lightly. In Roseneath Holdings Ltd v Grieve, the Court of Appeal summarised the essential purpose of an interim injunction: The object of an interim injunction is to protect the plaintiff from harm occasioned by any breach of rights, that is the subject of current litigation, for which the plaintiff might not be adequately compensated by an award of damages by the Court, if successful at the trial. Against that object it is necessary to weigh the consequences to defendants of preventing them from acting in ways which the trial may determine are in accordance with their rights. The well established two stage approach to addressing applications for interim injunctions involves first, ascertaining whether there is a serious question to be tried and secondly, considering the balance of convenience if the relief sought is granted. [21] I also record that the Court should take a particularly cautionary approach where an application for an interim injunction is being addressed on an exparte basis, without any notice to the respondents, and based on the papers only. In this instance, Mr Peters has not filed any submissions in support of the interim injunction and relies on the papers. Furthermore, as Justice Wylie s decision of 18 February 2010 in relation to this Court s 1 Taueki v Horowhenua Sailing Club Limited (2013) 304 Aotea MB 288 (304 AOT 288).

6 82 Taitokerau MB injunction against Mr Pere demonstrates, this Court must be studious in ensuring that all the relevant information is before the Court before granting an injunction. In that instance Justice Wylie refused to enforce the injunction requiring Mr Pere and his wife to remove the Portacom because there was evidence before the High Court that Mr and Mrs Pere did not in fact own the Portacom. That was enough to defeat the enforcement of the injunction. Discussion [22] I have carefully considered the documents filed on behalf of PBH and conclude that it would not be safe to grant an interim injunction on an exparte basis at this juncture. I have two primary concerns. [23] First, there is a question over whether this Court has the necessary jurisdiction to grant an injunction in relation to this part of the roadway. That is because the Court s jurisdiction under s 19(1)(a) only relates to Maori freehold land. As I read the 2008 roadway order, it may well relate to both Maori freehold land and General land. I simply do not know whether areas marked B and C on ML include General land. If the area that Mr Pere is blocking is General land, then my present view is that this Court does not have jurisdiction to grant an injunction even though the Court created the roadway order. That simply appears to be the consequence of the narrow scope of s 19(1)(a) of the Act. [24] Second, I have misgivings about the evidence filed. There is no affidavit filed by a director of PBH. Mr Samuels has filed affidavit evidence as a concerned member of the community and neighbour of PBH. But critically, there is no direct evidence as to whether PBH s construction work is being undertaken on Lot 1 or Lot 3 DP If it is being carried out on Lot 3 DP , then it may be that PBH does not have a right to use the roadway. I note in this regard that it appears to be only PBH s contractors that have been prevented from having access over the roadway. [25] It may well be that Mr Peters and PBH can clarify these two matters by way of further evidence or submissions in person. But, as I say, I am left in doubt as to whether it would be appropriate to grant an injunction on the papers. Accordingly, the application for an interim injunction is declined at this juncture.

7 82 Taitokerau MB 145 Directions [26] Notwithstanding that the application for an interim injunction has been declined at this juncture, Mr Peters is free to seek a further urgent hearing of the Court if he is in a position to clarify those two matters. [27] I note that I am unavailable next week due to Waitangi Tribunal commitments, and am also unavailable for much of the following week. If Mr Peters files a further memorandum seeking a hearing within the next fortnight then the Registrar will need to bring the application to the attention of the Chief Judge of the Māori Land Court so that the matter can be allocated to another Judge. [28] In the meantime, Mr Peters is to arrange for service of the applications and related documents on each of the respondents. Once affidavits of service have been filed, the application is to be referred to me or another Judge for further directions to either convene an urgent hearing or a teleconference. Dated at Whangarei this 4 th day of July D J Ambler JUDGE