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Auckland City Council v Ekenasio (Ike) Finau N.P. No. 3350/01 :RESERVED JUDGMENT OF JUDGE RODERICK JOYCE Q.C. [Application for stay of warrant of committal] 28 February 2003

IN THE DISTRICT COURT                                                                       N.P. No. 3350/01

AT AUCKLAND

UNDER THE Local Government Act 1974

BETWEEN         AUCKLAND CITY    COUNCIL

Plaintiff

AND                         EKENASIO FINAU

of 10 Warnock Street, Grey Lynn

Defendant

Date of Hearing: 20 February 2003

Date of Judgment: 28 February 2003

Counsel: B.H. Dickey for plaintiff

Defendant in person

______________________________________________________________________________________________

RESERVED JUDGMENT OF JUDGE RODERICK JOYCE Q.C.

[Application for stay of warrant of committal]

_________________________________________________________________________________________________________________

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INTRODUCTION

[1] Against the background of the chronology set out in the Court’s judgment of 1 February, and the subsequent events described in its further judgment of 18 December 2002, the Council comes back to the Court asking for a stay of the order for committal made on the latter date.

[2] The application that gave rise to the granting of the committal order had been heard on 12 and 13 December 2002 on each of which occasions Mr Finau had chosen not to attend.

[3] The order was to include the statement that Mr Finau had breached the Court’s 1 February 2002 order by displaying and continuing to display on his property at 10 Warnock Street, Grey Lynn, Auckland City, signs not permitted under Part 27 of the Auckland Consolidated Bylaw 1998.

[4] Mr Finau was to be committed to the prison at Auckland for a term of 21 days but (in order that he might have one final opportunity to purge his contempt by taking the offending signage down and desisting from any repetition) no warrant for his arrest was to be issued before 17 January 2003.

[5] The Council was instructed forthwith to serve a sealed copy of the order, together with a copy of the Court’s judgment, on Mr Finau and costs were awarded. It appears that the Council did what was required in that respect.

PRESENT APPLICATION

[6] The present application for a stay of that order of committal was made upon the grounds that the Council did not wish to pursue the execution of the order of committal. The formal application made reference to a memorandum of counsel and affidavit evidence.

[7] The jurisdictional basis for the application was identified as R570 of the District Court Rules. This Rule requires that any person seeking the stay of an order for committal may make application accordingly. It is obvious that this Rule is principally designed to provide a means by which the subject of the order may seek

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relief If that is not plain enough from R570 itself, it becomes distinctly obvious when R571 is read with it. However, I am perfectly satisfied that application may also be made by the party which sought the order in the first place. After all, the opening reference is to any person desiring to make an application for stay.

[8] Were the relief sought by the Council in the present case to be granted, the appropriate course would be to order that the committal warrant be permanently stayed. The Council itself implicitly accepted that should be so. Its application documents noted that, if relief were given, that should preclude it from obtaining Mr Finau’s committal in respect of the present proceeding at any time in the future.

DISCUSSION

[9] An application of this kind is plainly an extraordinary one. The Court has not found any case quite like it in the common law world, and Mr Dickey did not suggest there had been any. That state of affairs should not surprise. An order for committal is a last resort remedy granted by the Court to secure the enforcement of its own order when all else has failed. It is a step in what is a contempt proceeding.

[10] In the supporting memorandum, three points were sought to be made. The first was that the signs at present on display at the property were muted in comparison to those previously displayed. They were now of a less controversial nature.

[11] It was difficult to see the point of this point. As Mr Dickey agreed when I discussed the issue with him, what was disclosed as having happened since 18 December last simply followed the pattern of what had transpired between the making of the original order in February last year and the application, much later, for the committal order. This had been just another rehearsal.

[12] What had most recently so occurred was eminently predictable. There was no room for attribution to hindsight’s wisdom. And, fundamentally, the signs now remaining or the signs now replacing earlier ones plainly offended the bylaw and thus the original order.

[13] The second Point was that Mr Finau in public statements of his own and through those of his supporters appears to be using the prospect of his committal as an opportunity to cast himself as a “martyr ” of free speech, rather than as an

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individual who has displayed ongoing contempt for Court orders. This was suggested to be an unintended and inappropriate outcome for the exercise of the committal process.

[14] This second proposition quite overlooked that Mr Finau might cast himself (or be cast by others) in any of several roles, but that could not alter the reality of a seemingly ongoing contempt of the Court’s order.

[15] The third point was said to be that Council representatives at a senior level have come to question the utility of the execution of a committal warrant, in that it will not solve the underlying problem with Mr Finau and his supporting pressure group, and given the present nature of the signage will appear a disproportionate and unnecessary remedy.

[16] This proposition also gave me difficulty. It has never been any part of the Court’s task to solve the underlying problem, whatever that might be. Equally fundamentally, how a remedy that only takes effect if the object of the order chooses not to do what is entirely within his power to do ‑ namely, to remove the signs could be disproportionate or unnecessary quite escapes me. The Council had applied for a committal order. Once that was shown to be warranted, what other outcome could it expect?

[17] Beyond that I was told that the Council would again explore further alternative enforcement procedures. Counsel was coy about those.

[18] Following my invitation to do so, Mr Dickey summed his argument up. In doing so he couched it in these terms:

the process which has been embarked upon is now being used by the respondent or those persons supporting the respondent, not necessarily the respondent himself for inappropriate purposes which cast the respondent as the martyr for free speech, and by implication cast the Council and the Court in this matter as the oppressor of the right of free speech which the Council perceived to be quite wrong but (is) not something that Council can do something about in terms of public perception beyond implore some accurate reporting of the matter.

As will shortly be seen, the words not necessarily the respondent himself showed some useful insight.

[19] I have already dealt with the free speech issue. Indeed it was dealt with way back in February 2002.

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[20] Whether taken individually or collectively, none of the reasons put forward by the Council in justification of a stay appear to me to have any sound foundation in principle. And principles are fundamentals when the Court is asked to deal with issues relating to the enforcement of its own orders.

[21] Having listened to all that Mr Dickey was able to put forward, I was left with the impression that the Council had come back to Court for help with what it perceived necessary for “damage control That may not have been intended ‑ I certainly hope it was not ‑ but it is certainly one way in which its approach might be viewed.

[22] It should not require to be said that the Courts stand entirely independent of Government, be it local or national. That goes to the very foundations upon which New Zealand society is secured. The Courts will not ‑ cannot ‑be inveigled into fulfilling the role of any person or institution’s ally.

[23] So had there been no more to it than that, I would have been very much disinclined to consider the application further for, as I have already noted, there has been a continuing defiance of an extant order.

[24] The proper disposition of this stay application only became clear in the course of the remainder of the hearing.

[25] Mr Finau, having stayed away from the December hearings, was present on this occasion. Events then occurring were distinctly enlightening. A man in the gallery sought to take a seat at counsels’/litigant’s benches. He proclaimed himself there to speak for Mr Finau. His manner and conduct made it obvious that he was utterly unsuited to any such role.

[26] I required that Mr Finau speak on his own account. I could see no good reason why he could not speak for himself, and every good reason why he should. After all it was his liberty that was at stake. He then read out some hand‑written submissions, a task he substantially accomplished with courtesy and dignity. That what he read out comprised a series of propositions that were nothing to the point did not detract from his endeavour.

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[27] After speaking for a while he showed signs of distress. That I could well‑‑understand ‑after all his was a precarious position. I offered briefly to adjourn the Court. He accepted that offer.

[28] On resumption he had a new written submission to read and he did that. These, like ‑clearly ‑ the first set, were the handiwork of another. There were other distinct signs but, of itself, Mr Finau’s obvious unfamiliarity with the content of the material he read out made plain that none of any of it was really his handiwork. The suspicions I had already begun to harbour that Mr Finau was but a pawn in a game being played out by others, using him for their own ends, now translated into a self evident reality.

[29] After he had read everything out I drew his and Mr Dickey’s attention to a case that, though not relating directly to an application to stay committal warrant, was one that 1 thought might have some bearing. I gave the parties until 5.00 p.m. last Monday to have a look at, and comment upon, that case.

[30] I have not heard further from Mr Dickey, but a further submission that Mr Finau has signed but which is obviously not authored by him ‑ instead is the handiwork of yet another ‑is to hand. A persisting mark of this case has been the endeavours of others, not parties to it, to put their oar into the process.

[31] The case to which I had drawn attention was Enfield London Borough Council v Mahoney [1983] 1 WLR 749. Mr Mahoney had been committed to prison for contempt of an order that he deliver up to the Council a lead cross, said to be of great historic interest and intrinsic value, that had been found in an excavation on a Council estate. He had been committed to prison for two years. He had taken no steps to obtain his own release when the Official Solicitor applied for that.

[32] The application was originally declined and became the subject of an appeal. The appeal was allowed. so Mr Mahoney gained his release.

[33] On appeal, the view was taken that by then Mr Mahoney had been sufficiently punished and that the prison term had ceased to have any coercive effect. Mr Mahoney was determined never to move to obtain his own release, and took satisfaction from the publicity he was receiving.

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[34] I  have found that case helpful in the present circumstances. Obviously enough the facts were rather different, but both it and the present proceeding share different threads of a common cord. In the Mahoney case the coercive effect of the sentence was spent because of the sheer intransigence of Mr Mahoney and his self satisfaction in the accompanying publicity. In the present case, the coercive effect turns out to be misdirected.

[35] Mr Finau has been ‑ and would so long as this proceeding remained on foot continue, I am sure, to be ‑ used as the instrument of others in pursuit of their own agendas. In short, the persons truly responsible for his defiance of the Court’s order are not before the Court.

[36] Just as it would have been wrong in principle, and pointless in fact, to have left Mr Mahoney languishing in the English gaol, so also would it be wrong in principle, and pointless in fact, to leave the committal order in this proceeding alive. For that would be to punish a mere pawn.

RESULT

[37] I thus order the permanent stay of the committal order. That stay also precludes any endeavour to recover the costs that were awarded the Council when the order was made in December.

…….. Signed on 28 February 2003 at 2.05pm

(Roderick Joyce

District Court Judge

Solicitors:          Solicitors: Meredith Connell P 0 Box 2213, Auckland, for plaintiff

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April 6, 2011 - Posted by | Human rights, Internationally significant information

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