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

Transcription

1 108 Taitokerau MB 66 IN THE MĀORI L COURT OF NEW ZEAL TAITOKERAU DISTRICT A A UNDER IN THE MATTER OF BETWEEN Sections 19(1)(b), 237 and 238, Te Ture Whenua Māori Act 1993 Parengarenga 3G Ahu Whenua Trust AHJUN BUSBY AHOY, WHITI AWRAU, JOHM MALCOLM ELLIS, RIA EDWINA SLADE, KELVIN SUBRITZKY, RAYMOND SUBRITZKY SHERIE NOBLE- TREMBATH, BENEFICIARIES TRUSTEES OF THE PARENGARENGA 3G AHU WHENUA TRUST Plaintiffs STEPHEN JAMES HENARE OR STEPHEN JAMES HENRY OR STEVEN JAMES HENARE OR STEVEN JAMES HENRY, OF DARGARVILLE, FORMER TRUSTEE First Defendant MARGARET JANENE DIXON, OF SEDDON, MARLBOROUGH, FORMER TRUSTEE Second Defendant PATRICK DIXON, OF SEDDON, MARLBOROUGH, FORMER TRUSTEE Third Defendant STEPHEN JAMES HENARE, TEPHANIE JACQUELINE TUA-TUA HENRY, RICKY ALLEN HENRY SYLVESTER RAMON LUKE HENRY AS TRUSTEES OF THE STEVEN HENRY WHĀNAU TRUST Fourth Defendants STEPHANIE JACQUELINE TUA-TUA HENRY OF AUCKL, FORMER TRUSTEE Fifth Defendant DARRYN HENRY OF AUCKL, FORMER TRUSTEE Sixth Defendant

2 108 Taitokerau MB 67 ALLAN PALMER OF KAITAIA, FORMER TRUSTEE Seventh Defendant IRIHAPITI TE HUA MARTIN OF AHIPARA, FORMER TRUSTEE Eighth Defendant THE LEGACY BEAR COMPANY LIMITED OF 8F RAILSIDE PLACE, FRANKTON, HAMILTON 3242 Ninth Defendant Judgment: 07 August 2015 INTERLOCUTORY RULING OF JUDGE D J AMBLER

3 108 Taitokerau MB 68 Introduction [1] By way of an application dated 19 June 2015, Stephen Henare, the First Defendant and First Named Fourth Defendant, has applied to the Court for a change of venue for the hearing of the Plaintiffs proceeding. The basis of the application is the allegation that death threats have been made against Mr Henare and his counsel, Simon Reeves. The application is supported by Mr Henare s affidavit of 28 July The application is opposed by the Plaintiffs, who are represented by Peter Andrews. Stephanie Henry, the Second Named Fourth Defendant and Fifth Defendant, who is represented by Greg Presland, supports the application for change of venue but did not file any documents in support. The other parties (there are nine defendants in total) have not taken a position in relation to the application. The proceeding [2] The proceeding commenced as an application to enforce obligations of the Parengarenga 3G Ahu Whenua Trust ( the trust ). The claims against Mr Henare and is co-defendants are set out in a subsequent Statement of Claim dated 17 March In essence, the Plaintiffs claim that Mr Henare, who was a trustee of the trust, together with others, received directly or indirectly unauthorised payments from the trust of in excess of $1, [3] The proceedings commenced in In 2014 I issued certain decisions arising out of the allegations against Mr Henare and his co-trustees. On 4 August 2014, I issued a decision removing Mr Henare together with Margaret Dixon (Second Defendant), Stephanie Henry and Darryn Henry (Sixth Defendant) as trustees of the trust, as well as other orders including a mandatory injunction concerning documentation relating to the funds of the trust. On 12 September 2014, I issued a Mareva injunction freezing various bank accounts into which funds of the trust are alleged to have been paid. Further, on 15 December 2014, I appointed responsible trustees and advisory trustees to the trust following an annual general meeting held on 6 December [4] Mr Reeves first participated in the proceeding by filing a memorandum dated 16 October In Mr Reeves memorandum he raised various concerns regarding the Court procedures in relation to my decision of 12 September He also advised of his

4 108 Taitokerau MB 69 instructions that Mr Henare had received death threats as a result of a New Zealand Herald article concerning my decision of 12 September This is set out at paragraph 6 of his memorandum of 16 October 2014: 6. As a direct result of the article the Respondent today reports that he has received death threats from people in New Zealand as well as from people abroad who will return to this country to ensure that they also have the opportunity to deal to the Respondent and his daughter who is also mentioned in the article. [5] Mr Reeves subsequently participated in a teleconference on 17 October During that teleconference I outlined for Mr Reeves the options he had under Te Ture Whenua Māori Act 1993 ( the Act ) if he had concerns about the previous procedures, namely, an application for a rehearing pursuant to s 43 of the Act. At a subsequent teleconference on 26 November 2014, Mr Reeves advised that he would not be pursuing an application for a rehearing. [6] The topic of the alleged death threats was also raised by Mr Reeves in a teleconference on 29 October Mr Reeves mentioned that the threats had also been made to Mr Henare in respect of Mr Reeves. Mr Reeves told me that the threats had been reported to the Police. [7] A further teleconference took place on 26 November We discussed arrangements for a hearing on 15 December 2014 at Kaitaia. Mr Reeves expressed concern regarding security arrangements given the alleged death threats against his client and himself. He suggested a hearing in Whangarei or Auckland might provide better security. Mr Henare did not intend attending the AGM of the trust on 6 December 2014 because of security concerns. I expressed confidence that appropriate security arrangements could be made in relation to the Kaitaia Court sitting and issued directions to the Registrar to make adequate arrangements for the hearing on 15 December I understand suitable arrangements were made in accordance with standard protocols within the Ministry of Justice, however neither Mr Reeves nor Mr Henare attended the hearing. One or two other defendants may have attended the hearing. [8] Following the hearing on 15 December 2014, there have been further teleconferences on 17 February, 9 March, 21 April, 15 June and 4 August At the

5 108 Taitokerau MB 70 teleconference on 21 April 2015 Mr Reeves raised again his concern at the prospect of hearing in Kaitaia due to the alleged death threats, and now stated his preference that the hearing be held in Auckland. We left that issue on the basis that it would be addressed in due course when we were closer to a hearing. At the teleconference on 15 June 2015 Mr Reeves raised the question of venue once again. I set out the record in the teleconference of that discussion: Mr Reeves said he was not in a position to progress legal aid as he could not certify the application for legal aid until the question of the venue of the hearing is resolved. This is the first occasion on which Mr Reeves has suggested that he could not take any further steps in progressing legal aid or the filing of pleadings until the venue issue is resolved. As I noted at the last teleconference on 21 April 2015, I expected the venue issue to be addressed when we were closer to a hearing. However, given Mr Reeves stance, I have directed him to file his application for transfer of the hearing venue within seven days. Counsel are to respond within seven days thereafter. [9] As a result, I directed Mr Reeves to file his application concerning the venue within seven days. Mr Reeves filed the application on 19 June 2015 but without any supporting affidavit. On 22 June 2015 I directed Mr Reeves to file an affidavit from Mr Henare outlining the nature of the threats that he relies on to seek a change of venue. That affidavit was to be filed by 29 June It was not in fact filed until 28 July The First Defendant s grounds for change of venue [10] In his application of 19 June 2015 Mr Reeves seeks orders that the proceeding not be heard until the following orders have first been made: (i) (ii) (iii) that the venue of the hearing of the Application by the Court be changed to Tamaki Makaurau at a time and date to be decided upon by the Court as it should see fit; that because he has already declined to agree to a transfer such decision not be made by Judge Ambler, DCJ of the Court as the Judge who made the order of the venue of Kaitaia but by some other Judge of the Court; that a Judge of the Court other than Judge Ambler, DCJ direct the Court to sit in Tamaki Makaurau for the hearing of the above applications or any of them and for the hearing of the Statement of Claim filed by the plaintiffs; [11] Given that the application has been dealt with on the papers without argument, and given some of the unusual points made in Mr Reeves application, I set out his grounds in support of the application in full:

6 108 Taitokerau MB 71 UPON THE GROUNDS that: a. The Court has already stated and/or noted that there were death threats directed against the First Defendant were he to have attended a previous place of hearing viz. at the Court at Kaitaia; b. The reasons given for that inclusion of those threats were provided by Judge Ambler in its decision to issue a Mareva order as being an interlocutory measure were provided by Judge Ambler in a judgement which was published in The New Zealand Herald sometime soon after an apparent full text of it had been handed down; c. The First Defendant informed his Counsel that the threat was intended to apply to that Counsel as well as to himself; d. Despite that composite threat being made known to the Court at the time the Court then and subsequently has declined to seek any retraction or reinterpretation of the statement as to such death threats or to agree to request by Counsel that the matters of this application be heard elsewhere than in Kaitaia; e. As lately as 21 st April 2015 and 15 th June 2015 the venue was confirmed as Kaitaia; f. As a result of the decision to continue with Kaitaia as the place where these proceedings will be conducted Counsel will not be attending to represent the First Defendant as such or as one of the Fourth Defendants or on behalf of the Ninth Defendant the venue decision having had a chilling effect on Counsel s ability properly to conduct the First Defendant s defence with the ability which would be expected of him by the Court and the STEPHEN JAMES HENARE as the First Defendant and as a fourth Defendant would be entitled to expect of him and the level of efficacy which the Court would otherwise be able to expect and hope to receive; g. Consequently the First Defendant in his personal capacity or as one of the Fourth Defendants or on behalf of the Ninth Defendant shall be unrepresented before the Court as reconvened; h. With the proceedings now at the stage where they resemble more an in banco hearing without the need for evidence viva voce and therefore or otherwise for them to be in Kaitaia has lessened. i. Indeed the evidence for both sides could well be adduced by timetabled statements previously filed and served. j. For the due operation of the Court and the ability of Counsel to do well by the Court and his client Counsel believes that the continued existence of such threats makes it difficult for Counsel to present the First Defendant s defence as well as ought to be; k. As officers of the Court no Counsel ought to be placed in such a position as might endanger their lives and prevent the conduct of the parties litigation and no Court should be expecting such a burden to be placed on its officers at any time before, during or after the disposition of any proceedings.

7 108 Taitokerau MB 72 THEREFORE in his various capacities the First Defendant seeks the transfer of the proceedings forthwith to Tamaki Makaurau and the appointment of a replacement Judge of this Court to hear the above applications. [12] In his affidavit in support, Mr Henare states that at certain times during these proceedings and before in regards to them he had received death threats from persons upset by his actions and administration of his whānau trust and as a trustee of the Parengarenga 3G Ahu Whenua Trust. He goes on to say that with respect to Mr Reeves, he has been told by the same persons that he can also expect to be subject to the same fate should he also attend the hearing by Kaitaia in Taitokerau whenever it might occur (sic). Because Mr Reeves refuses to attend a hearing at Kaitaia, Mr Henare will be unrepresented. Mr Henare goes on to explain that Mr Reeves is entitled to represent him without any such threats and that he laid a complaint with the New Zealand Police at Manukau in January He is awaiting the outcome of the investigation. Mr Henare says he is not able to guarantee his safety or that of Mr Reeves, and he therefore asks that the proceeding be transferred to a venue in Auckland. The position of the Plaintiffs [13] The Plaintiffs oppose the application for change of venue and for the proceeding to be dealt with by a Judge other than myself. Mr Andrew characterises the application as a further attempt by Mr Henare to delay the proceeding, which he has been doing since August 2014, and notes that the issue of legal aid has still not been resolved. The first occasion on which the issue of security was raised as an impediment to legal aid was at the judicial conference on 15 June [14] In terms of the alleged predetermination of the change of venue issue by me, Mr Andrew notes that at no stage have I made a decision, and refers to a minute of 21 April 2015 when I noted that it would be addressed when we are closer to a hearing. Mr Andrew notes that in my minute of 26 November 2014, I did decide that the hearing of 15 December 2014 would proceed at Kaitaia and that relevant security arrangements would be put in place. Neither Mr Henare nor Mr Reeves attended that hearing. However, that direction did not relate to the venue of the substantive hearing. [15] Mr Andrew says that there is no valid reason for the change of venue. The Plaintiffs had no first-hand knowledge of the alleged death threats at the stage of Mr

8 108 Taitokerau MB 73 Andrew filing his submissions (23 June 2015), and Mr Henare had not produced any evidence of the alleged threats having been made. Mr Reeves has not received any threats personally, rather they have been communicated to him by his client. [16] Mr Andrew says that if there are security concerns, modern day courts are well accustomed to dealing with those issues. The Kaitaia Court is no exception. [17] Mr Andrew points out that the Plaintiffs and most of the beneficiaries of the trust reside in Te Hiku o Te Ika, the Far North. That is where the land is based. The proceeding relates to the lack of accountability by former trustees of the trust, and those defendants should appear in the Court most convenient to the vast majority of beneficiaries of the trust. [18] Mr Andrew accepts that most of the evidence will be produced by written statements and/or affidavits. However, there will also need to be viva voce evidence and cross-examination. The proceedings do not resemble those of an in banco hearing. [19] In response to Mr Henare s affidavit, Mr Andrew notes that the affidavit is pro forma with no real particulars of the threats, whether made over the phone or in person, and the particular dates that the threats were made. He further repeated his earlier point that if there are genuine security concerns, they can be accommodated with the necessary security arrangements at Kaitaia. Discussion Predetermination and recusal [20] Mr Reeves has in effect asked me to recuse myself from deciding the question of the venue because the 15 December 2014 hearing proceeded at Kaitaia. But that was a separate matter, and I made it plain to Mr Reeves during teleconferences earlier this year that he could address the question of venue as we approached the substantive hearing. There is no basis to claim that I have predetermined the issue or that I am somehow otherwise disqualified from addressing the issue.

9 108 Taitokerau MB 74 [21] As for the request that I recuse myself from the substantive hearing, a proper basis has not been alleged or made out. Mr Reeves application is without any foundation. Change of venue [22] I agree with Mr Andrew that Mr Henare s affidavit evidence of the alleged death threats is deficient in terms of details. [23] Mr Henare does not identify who made the threats, what was the nature of the threats, how they were communicated to Mr Henare, on what dates and so forth. He does not explain whether the persons who made the threats have participated in the proceeding or are connected to the Plaintiffs or are even connected to the trust and the land. [24] Mr Henare does not provide any more detail of the complaint to the Police other than to say it was made to the Manukau Police in January Normally one would expect some form of acknowledgment of the complaint from the Police or a statement to the Police. Furthermore, I note that in the teleconference minute of 29 October 2014, Mr Reeves said that the threats had been reported to the Police at that stage, which is much earlier than the January 2015 period Mr Henare refers to in his affidavit. [25] In short, Mr Henare s evidence is not of the standard that might be expected to support a claim of death threats against himself and his solicitor. [26] I also agree with Mr Andrew that even if there have been death threats and there are security issues, that does not mean there needs to be a change of venue. [27] The New Zealand courts deal with security issues on a daily basis and I am not aware of any protocol whereby the fact of a threat should give rise to a change of venue. The Māori Land Court sits at the District Court premises in Kaitaia, which is literally next door to the Police Station. It regularly has at least one security officer in attendance. I understand that the District Court has various measures available to it to deal with any security issues at the Kaitaia Court. I am therefore not convinced that a change of venue is necessary.

10 108 Taitokerau MB 75 [28] I also note that this proceeding raises serious allegations that Mr Henare and some of his co-trustees, and possibly other associated persons, have taken in excess of $1,000, that belongs to the trust. The land itself is based near Te Kao, which is a little over an hour north of Kaitaia. The Plaintiffs and beneficiaries of the trust are, in my view, entitled to have this case heard at the Court most closest to the land, where they may be able to attend and hear the proceeding in relation to their trust. Outcome [29] I therefore decline Mr Reeves application. The proceeding will be heard at Kaitaia. I direct the Registrar to make the necessary security arrangements in relation to the Court venue. Those arrangements should include ensuring that parties going to and from the Court building are secure, and that the Kaitaia Police are alerted to the alleged threats and security issues. D J Ambler JUDGE