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Cullen v Pa'u

Cullen v Pa'u

Case [2023] NZHC 3782 19 December 2023

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Standing

Administrative Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-473

[2023] NZHC 3782

UNDER Judicial Review Procedure Review Act 2016

IN THE MATTER OF

An application for review of a decision of the Board of trustees to authorise the issue and service of a notice under s 4 of the Trespass Act 1980

BETWEEN

RHYS MICHAEL CULLEN

Applicant

AND

PAUL JUNIOR PA’U

First Respondent

BOARD OF TRUSTEES OF MOUNT ALBERT GRAMMAR SCHOOL

Second Respondent

Hearing: 19 June 2023

Appearances:

The applicant in person

The first respondent in person
P Robertson and K Griffiths for the second respondent

Judgment:

19 December 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 19 December 2023 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CULLEN v PA’U [2023] NZHC 3782 [19 December 2023]

Introduction

[1] The applicant, Mr Cullen, provided tutoring and other services to a group of students at Mt Albert Grammar School (the School). In the course of doing so, he visited the School’s buildings and grounds.

[2] The second respondent, the Board of Trustees of the School (the Board), considered that Mr Cullen was entering the School’s building and grounds without permission and without complying with the School’s policies. The Board decided to prepare a trespass notice under the Trespass Act 1980 and serve it on Mr Cullen. The first respondent, Mr Pa’u, communicated the Board’s decision to Mr Cullen. Mr Pa’u is an education and employment consultant who advises the Board.

[3] Mr Cullen applies to judicially review the decision of the Board to prepare and serve a trespass notice.

Background

[4] Mr Cullen was a medical practitioner. His registration was cancelled in 2006 by the Health Practitioners Disciplinary Tribunal. He has no teaching qualifications and has never taught at a New Zealand School. However, he says he has had an interest in Māori and Pacific education for more than forty years.

[5] From 2020, Mr Cullen provided tutoring and other youth development services to a group of ten Pasifika and Māori students at the School. Mr Cullen conducted this work alongside an organisation with which he is involved, the Pro-Pare Athlete Management Trust (PAMT).

[6] As part of the PAMT program, Mr Cullen picked students up after school or after school sports trainings, took them to a “Hub” in Onehunga where they could train or be tutored, and then took them home. Mr Cullen also transported students to Saturday sports games, some of which Mr Cullen would watch. He would then take them to the Hub and then to their homes after dinner. Mr Cullen would also transport students to swimming lessons run by PAMT at the Mt Albert Aquatic Centre (the Aquatic Centre) during school holidays. The Aquatic Centre is on the School site.

[7] Mr Cullen considers that his tutoring led to a marked improvement in the academic achievement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cullen v Pa'u

Details

AGLC: Cullen v Pa'u [2023] NZHC 3782
Case: [2023] NZHC 3782
Decision Date: 19 December 2023

CaseChat Overview and Summary

The applicant, Mr Cullen, sought judicial review of the Board of Trustees of Mt Albert Grammar School's decision to issue a trespass notice prohibiting him from entering the school premises. Mr Cullen provided tutoring and other services to a group of students at the school but was accused of entering the premises without permission and engaging in disruptive behaviour. The Board decided to issue a trespass notice, which Mr Cullen challenged on several grounds, including alleged breaches of his and his students' rights under the New Zealand Bill of Rights Act 1990 and the improper issuance of the notice by Mr Pa'u, an education and employment consultant. The court had to decide whether the Board's decision to issue the trespass notice was subject to judicial review, whether it was subject to the Bill of Rights Act, and if the decision was made inconsistently with Mr Cullen's rights. Additionally, the court needed to determine if the Board was entitled to issue a trespass notice in respect of all areas of the school, including the Aquatic Centre, and if Mr Cullen's claim against Mr Pa'u was an abuse of process.

The court concluded that the Board's decision to issue a trespass notice was subject to judicial review as it had a substantial public interest component due to the consequences for the students. The court found that the Bill of Rights Act applied to the Board's decision to the extent that it limited Mr Cullen's ability to accompany students to meetings. However, the court was not satisfied that the Board made its decision inconsistently with Mr Cullen's rights under the Bill of Rights Act. The court also found that the Board was entitled to issue a trespass notice in respect of all areas of the school, including the Aquatic Centre, and that Mr Cullen's claim against Mr Pa'u was an abuse of process as Mr Pa'u was merely conveying the Board's instructions.

In conclusion, the court dismissed Mr Cullen's claim for judicial review, finding that the Board's decision to issue a trespass notice was lawful. The court declined Mr Cullen's interlocutory application and dismissed his claim. The Board and Mr Pa'u were each entitled to costs on a 2B basis.

Orders