Illegal signs case: Council returns to court

Auckland City Council this morning went back to court in the case of illegal signs being displayed at 10 Warnock Street, Grey Lynn.

The council filed a memorandum of counsel to Auckland District Court Judge Roderick Joyce, QC.

The memorandum was also served on Ekenasio Finau, the respondent whom the court has earlier ordered to remove the signs, which are in breach of a bylaw in a heritage residential zone.

The council is asking the court to stay its 18 December 2002 order to commit Finau to jail if he failed to remove the signs by 17 January 2003.

The application to stay that order will be determined in open court on 20 February 2003.

In its memorandum, the council says Finau has muted the nature and number of the offending signs and it will again explore further alternative enforcement procedures. The memorandum says reasons for its present position include:

The signs being displayed at the property are muted in comparison to those previously displayed and are of a less controversial nature.

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 him as a ‘martyr’ of free speech, rather than as an individual who has displayed ongoing contempt for court orders. This is an unintended and inappropriate outcome for the exercise of the committal process.

Council representatives at a senior level have come to question the utility of the execution of a committal warrant and, given the present nature of the signage, it will appear a disproportionate and unnecessary remedy. The council’s Director of Customer Services, Mr Paul Sonderer, said today the council wanted the signs removed to protect neighbourhood values and intended to take further action to achieve that.

While these legal steps were in train the council would not be commenting further.

* Please note attached memorandum

In The District Court Held At Auckland

NP3350/01
UNDER Local Government Act 1974, Section 79(2) District Courts Act 1947 and Rules 628(2) and 570 District Court Rules

BETWEEN AUCKLAND CITY COUNCIL
Applicant

AND EKENASIO FINAU
Respondent

MEMORANDUM OF COUNSEL

MEMORANDUM OF COUNSEL

MAY IT PLEASE YOUR HONOUR:

This Memorandum is filed in support of an application pursuant to Rule 570 of the District Court Rules to stay the order of committal made against the respondent by this Court on 18 December 2002. The basis for this application is set out below. For completeness, the affidavit of Austin Laurenson detailing the continued presence of signage at the respondent’s property as at 19 January 2003 is filed together with this Memorandum. It is noted that in terms of the Court’s earlier order Mr Finau remains in breach.

There are three overlapping reasons for the Applicant’s present position:

3.1 The signs presently on display at the property whilst still constituting visual pollution are muted in comparison to those signs previously displayed. In particular the number of signs has reduced and the signs of a political nature have been in a large part obscured by banners of support for Team New Zealand. The signs are now of a less controversial nature. (Compare affidavit annexures of Frith dated 8 October 2002 and Laurenson dated 30 January 2003).

3.2 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 individual who has displayed ongoing contempt for court orders. This is an unintended and inappropriate outcome for the exercise of the committal process.

3.3 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 & unnecessary remedy.

Because of the above reasons, the applicant now wishes to have stayed the execution of the committal order. The applicant will again explore further alternative enforcement procedures, albeit that attempts at resolution have failed in the past. Given the muting in the nature of the signage there is some expectation that other measures may meet with success. The Applicant appreciates that this application to stay the order of committal against Mr Finau will preclude the Applicant from seeking a committal warrant from the Court in future in respect of the present matter. The decision to stay rests with the Court. Whether or not the Court stays the order of committal, the Council will make a public statement to the effect that it determined not to proceed with the committal process and that it applied for a stay of the order under Rule 570 of the District Court Rules for the reasons set out at paragraph 3 above.

Should it be required, Counsel for the applicant is available to appear in Court at a convenient time in order to address the Court in respect of any matter which arises from this Memorandum. A copy of the Application, the Affidavit and this Memorandum will be served upon Mr Finau either personally or by leaving the same at his Warnock Street address. Given that a stay is sought, Counsel respectfully submits that it is not necessary to effect service before the Court proceeds to determine the application.

DATED at Auckland this 30th day of January 2003.

...................……………................ B H Dickey Counsel for the Applicant

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