Examining interim restraining orders
In Commissioner of Police v McLean [2024] NZHC 1813, the High Court examined the term “interim restraining order” and considered an application to strike out the Commissioner of Police’s restraining order application over the McLeans’ Taieri Road property.
On 13 April 2021, the Commissioner applied for a without notice restraining order over assets owed by the McLeans, on the basis that there were reasonable grounds to believe they had unlawfully benefited from significant criminal activity - being the cultivation and sale of cannabis, tax evasion, dishonestly using documents and money laundering.
The Commissioner made an on-notice restraining order application in respect of an expanded suite of property. The on-notice application was then repeatedly adjourned over a 17-month period to accommodate discovery and resolution discussions and to enable instructions to be sought by the parties.
In October 2022, the McLeans and the Commissioner filed a joint memorandum to vary the without notice restraining order releasing all property from the restraining order except the Taieri Road property. Doogue J granted the order, stating that “the interim restraining order made by Mander J on 13 April 2021 continues to apply to the following property, until further order of the Court”.
The McLeans challenged the jurisdiction to extend a without notice restraining order in circumstances where, they alleged, an on-notice restraining order application had effectively been heard and determined. If the on notice restraining order had been determined, the Commissioner would have been required to apply for an extension to the order and to have done so within 12 months. The McLeans argued that the consequence of not doing so was that the extant restraining order was ultra vires as if an order restraining order had been made it had statutorily expired.
The McLeans also argued that, even if there was a legal basis for extending the without notice restraining order, the Commissioner failed to prosecute his application for a restraining order over the Taieri Road property with all due diligence.
The Court made the following observations:
1. Only a without notice restraining order can properly be described as an interim order.
2. An on-notice restraining order is made either after hearing an argument between the parties or by agreement, and ensues for a set period of time. It does not endure pending the making of another restraining order.
3. The restraining order was clearly not intended to be final and would continue until further order of the Court.
Regarding the application for a strike out: Dunningham J had regard to the judgment of the High Court in Solicitor-General v Cleven HC Auckland 5-1M/2000, 15 March 2001, in which the words “with all due diligence” was interpreted as requiring “with the vigour appropriate to the circumstances.” If the Court finds that the application has not been pursued with due diligence, the Court still has discretion as to whether or not to strike out the proceedings. The ultimate question is what outcome best serves the interests of justice.
Article written by Millie Quinn and Emma Ferrier