As the occupation by protesters of Parliament grounds and surrounding streets in Wellington entered its third week, the High Court at Auckland released a decision providing insight into how legal proceedings could be used as a tool to restrain protester action - where that action tips into trespassing.

Injunction against ‘protesters unknown’, Waiheke Island style: The decision^[1]

Kennedy Point Boatharbour Limited (KPBL) obtained a resource consent to construct and operate a marina in the coastal marine area on Waiheke Island. A beach occupation opposing construction of the marina began in March 2021, with a series of other protests at or near the marina site occurring since then.

In response, KPBL filed proceedings in the Auckland High Court alleging trespass by the protesters, seeking a quia timet injunction without notice (an injunction to prevent a threatened trespass that is yet to be committed without the protesters needing to be notified of the proceedings for the injunction to be granted).

The proceedings named thirty protesters by name, two by first name only, and also sought to restrain “persons unknown” in connection with the protest action from taking further action against construction of the marina at specified times.

The High Court first granted the injunction on 4 November 2021, the day after proceedings were filed. The decision released on 23 February 2022 concerned an application to vary or set aside the injunction, with the Court refusing to set it aside, but modifying the conditions of it.

Discussion

While the KPBL decision concerns trespassing people from coastal marine areas, the principles are likely transferrable to a case of trespassing someone (or a large number of people) from private property.

The decision clarifies the ability of our courts to make orders to the world at large (or “persons unknown”), even where individual trespassers may not be known by name. In this case, it did not impede the ability of the courts to make orders that unidentified trespassers must leave or refrain from returning to property.

It is also relevant that the injunction was made without notice. The reasoning in the KPBL decision for making the initial injunction without notice was that it would be impracticable and unnecessarily prolong matters by requiring the defendants to be notified of the proceedings.

Filing similar proceedings in respect of anti-mandate protests are an option available to public or private entities in the areas experiencing disruption due to the presence of protesters on or near their property. 

Whether such proceedings will be filed, would succeed, and whether any injunction would be able to be successfully enforced, is another matter.