Fitchett v Board of Trustees of Nelson College
[2017] NZHC 1684
•20 July 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2017-442-21 [2017] NZHC 1684
UNDER Judicial Review Procedure 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 Trespass Notice under Section 4 Trespass Act 1980
BETWEEN
JOHN MALCOLM FITCHETT Applicant
AND
BOARD OF TRUSTEES OF NELSON COLLEGE
Respondent
Hearing: 22 June 2017 Counsel:
L S B Acland for Applicant
P W David QC and M J Austin for RespondentJudgment:
20 July 2017
JUDGMENT OF THOMAS J
Introduction
[1] The applicant, John Fitchett, has concerns about the way in which the respondent, the Board of Trustees (the Board) of Nelson College (the College), complies with its statutory obligations. The concerns were aroused in April 2016 when his brother was dismissed as an employee of the College. Mr Fitchett’s brother brought a personal grievance against the College which was settled prior to hearing on the basis the College accepted the dismissal was procedurally and substantively unfair. Mr Fitchett’s concerns, however, remain. Mr Fitchett’s brother subsequently filed a complaint with the Board, making allegations about the conduct of the
Headmaster, Gary O’Shea. This issue is still being dealt with by the Board.
FITCHETT v BOARD OF TRUSTEES OF NELSON COLLEGE [2017] NZHC 1684 [20 July 2017]
[2] This context of Mr Fitchett’s involvement with the Board forms an important background to these proceedings. Mr Fitchett’s concerns broadened following the dismissal of two basketball coaches. He now considers the Board is failing to comply with its statutory obligations in a variety of ways. Mr Fitchett began attending Board meetings in May 2016, the only member of the public to do so. After his behaviour at two Board meetings in early March 2017, the Board warned Mr Fitchett to stay off College property. It did so first on 27 March by issuing a trespass notice pursuant to s 4 of the Trespass Act 1980, which was then withdrawn (the First Notice). On 30 March, the Board served Mr Fitchett with a second trespass notice (the Trespass Notice), for the purpose of preventing Mr Fitchett’s attendance at Board meetings. Mr Fitchett sought interim relief, which was refused
on 4 May 2017.1 In his judgment, Williams J concluded the legal argument had
some merit, but Mr Fitchett had not demonstrated reasonable necessity.2
[3] This judgment concerns Mr Fitchett’s substantive claim in judicial review. Mr Fitchett challenges the decision to issue the Trespass Notice (the Decision) on three grounds. First, he claims the Trespass Notice was ultra vires ss 47 and 50 of the Local Government Official Information and Meetings Act 1987 (the Meetings Act). Secondly, he claims the Board was acting for an improper purpose in both taking the Decision and issuing the Trespass Notice.
[4] Thirdly, Mr Fitchett alleges the Board failed to take into account relevant considerations. Mr Fitchett says these are: the purpose of the Meetings Act; the undertakings offered by Mr Fitchett; and the ability of the chair of any Board meeting to exclude a member of the public from a future meeting if his behaviour was prejudicial to the orderly conduct of a past meeting.
[5] Mr Fitchett seeks relief by way of an order quashing the Decision and setting aside the Trespass Notice.
[6] The Board defends the proceedings, saying the Decision and Trespass Notice were validly made and all relevant matters were properly taken into account.
1 Fitchett v Board of Trustees of Nelson College [2017] NZHC 888.
2 Judicial Review Procedure Act 2016, s 15.
Issues
[7] The issues to be determined can be stated as follows:
(a) Can a local authority (which, as defined in the Meetings Act,3 includes the Board) issue a trespass notice pursuant to s 4 of the Trespass Act in respect of a person who has previously been required to leave a meeting pursuant to s 50 of the Meetings Act?
(b)Is the Decision otherwise reviewable for improper purpose, for failing to take into account relevant considerations, or for unreasonableness?
Evidence
[8] The evidence in this case was by affidavit. Those affidavits show Mr Fitchett attended a number of Board meetings from May 2016 until March 2017.
[9] At the 2 March 2017 meeting, the Board resolved to ban audio recordings of the meeting by members of the public. This was in response to what the Board believed were Mr Fitchett’s actions in recording proceedings. Mr Fitchett says he made no such recordings, but did take handwritten notes at that meeting. After the resolution was passed, Mr Fitchett placed a dictaphone on the table in front of him. He says the dictaphone was not operative, and his actions were in protest at the resolution.
[10] The 2 March minutes record what happened at that meeting from the perspective of the official Board record:
Member of the public, Mr J Fitchett then placed a recording device on the table in front of him facing the Board members and was asked by the chairman several times if the recording device was turned off or was on. Member of the public Mr Fitchett declined to answer this question. The Board Chair then adjourned the meeting at 4.05pm from the Boardroom and the Board proceeded to the Headmaster’s Office, with Mr Fitchett following.
The Board Chairman repeated the question regarding the recording device. Mr Fitchett was unresponsive. The Board chairman then made the decision
3 Local Government Official Information and Meetings Act 1987, s 2 definition of “local authority”, and sch 2.
to postpone the meeting and the meeting ended at that point. The decision was then made that the meeting was postponed until an indeterminate date, with an assurance to Mr Fitchett that he would be informed of that future date.
[11] Following a similar incident at the 9 March 2017 meeting, the Board chairman then asked for the minutes to note that the member of the public refused to respond, the Board assumed he was recording in breach of the Board’s resolution and therefore in breach of s 50 of the Meetings Act.
[12] On 6 March 2017, Mr Fitchett wrote to three former Board members. His letters focused on Mr Fitchett’s (and his brother’s) view that a 3 March 2016 resolution appointing a subcommittee to inquire into a disciplinary issue regarding two volunteer basketball coaches had been fabricated by Mr O’Shea. The letters suggested that the reply of each recipient to the questions asked in those letters would be “a test of your ethics and moral standards”. The questions asked about the recipients’ recollection of whether the written resolution accurately recorded what was agreed at the meeting. Mr Fitchett added:
I will be noting the times/dates of any/or responses, and naturally reserve the right to give public notification of those responses (if appropriate), and the timing thereof: so that the college “families” [sic], and the wider city community, can all be made aware of the ethical standards of past BOT members.
[13] The letter ended:
I close by noting my belief that, although the headmaster continues to attempt to hide it:
“the truth will come out: the sole questions are: ‘when’ and ‘how’
will the truth affect people other than the headmaster”.
[14] Mr Rainey, one of the retired Board members to whom Mr Fitchett wrote, made a statutory declaration on 16 March 2017 in relation to the letter. He noted:
I am appalled at the approach from John Fitchett, and surprised that he would think that a threat would elicit a useful response from anyone. I understand that the issue [in relation to Mr Fitchett’s brother’s personal grievance] was settled; most sensible people would have chosen to let the matter drop, and it is sad to see the continuing anger and bitterness expressed in John’s letter. He clearly has a vendetta against [Headmaster] Gary [O’Shea]. I wish he was more sensitive to the impact of his actions on Gary, [Board Chairman] Dennis [Christian] and Nelson College.
[15] In response to Mr Fitchett’s allegation that the resolution of 3 March 2016 in relation to the composition of a disciplinary subcommittee was false, the Board secretary, Sandra Gargiulo, recorded as follows:
At the Board of Trustees meeting held on 3 March 2016, a resolution was passed stating who would constitute an approved Board of Trustees disciplinary committee, with Mr J Rainey volunteering to be Board member. On the morning of the Board of Trustees’ meeting held on 31 March 2016, the confidential minutes were typed and the shorthand notes on which they were based were destroyed (as has been my normal practice). The typed minutes were tabled at the Board of Trustees meeting held on 31 March. I had earlier been informed by the Chair of the Board and the headmaster that the composition of the committee had been changed due to Mr Rainey’s inability to attend, and that he had been replaced by the staff rep, Fiona McCabe, so I had reflected this change in the minutes of the 3 March meeting, to more accurately reflect the committee composition in the minutes. The minutes was subsequently unanimously passed by all Board members on 31 March.
[16] Mr Fitchett interpreted this as an acknowledgement the Board minutes ratified by the Board were inaccurate. To him, it validated his concern as to the accuracy of Board minutes and was a substantial reason for his wish to attend the meetings in person.
[17] In one of his affidavits the Board chairman, Dennis Christian, referred to a complaint lodged on 8 March 2017 by Ms Gargiulo about:
… the constant harassment, threatening and bullying behaviour of Mr John Fitchett. With my 32 years of Board of Trustees secretary experience, I have never been subjected to such personal harassment.
[18] The complaint attached approximately 60 pages of material in support of this allegation.
[19] Solicitors for the College then sent Mr Fitchett a letter on 15 March 2017 indicating the chairman had taken the view Mr Fitchett’s behaviour “was likely to prejudice or continue to prejudice the orderly conduct of the meeting if [Mr Fitchett] remained”. The letter said the Board had passed a unanimous resolution proposing service of a trespass notice on Mr Fitchett pursuant to s 4 of the Trespass Act. Submissions from Mr Fitchett were requested.
[20] Mr Fitchett then sought particulars of the reasonable grounds upon which it was considered that his presence was prejudicial to the orderly conduct of the meeting in accordance with s 50 of the Meetings Act. No response to that request was provided. A similar request was made on 30 March.
[21] The First Notice was dated 23 March 2017 and purported to apply to the whole College grounds, but was withdrawn. That same day, Mr Fitchett signalled to the College that he intended to issue proceedings challenging the First Notice, and was prepared to undertake to the Court in the context of those proceedings in the
following terms:
1 I would not make any audio or video recordings whilst the meeting was in progress: provided that the Chair confirmed in open meeting that the whole meeting was being taped by an audio recorder, and that such recording would be retained until the determination of these proceedings. 2
I would not speak any word whatsoever – even if addressed by a
BOT member.
3
I would not make any body movement which would reasonably be construed as affecting the orderly conduct of the meeting.
4
I would leave the meeting without demur (taking my chair with me) forthwith on the BOT passing a resolution to deal with Confidential Business with the Public Excluded.
5
To recognise the dignity and standing of the BOT, I would wear long trousers and a tie – rather than shorts and open shirt as has been my custom over the last two months.
[22]
The
second notice, the Trespass Notice, was served on 30 March.
It
purported to preclude entry into College buildings for a period of two years from the date of service. There was no suggestion the Trespass Notice was for any purpose other than preventing Mr Fitchett from attending Board meetings.
[23] The document entitled “Details of service of the trespass notice” stated the following under the heading of “more relevant details”:
At the BOT meeting on 9 March 2017 after the chair reiterated the BOT’s previous resolution that meetings were not to be recorded by members of the public, John Fitchett produced a recording device and failed to respond to a question from the chair whether the device was switched on. This caused an unnecessary disruption which prejudiced the orderly conduct of the meeting.
[24] Mr Christian said it was Mr Fitchett’s conduct at the Board meetings on 2 and
9 March which led to the Decision. Mr Christian referred to the minutes summarising Mr Fitchett’s conduct at the meetings, and the letters subsequently written by Mr Fitchett to retired Board members. He continued:
I believe from my experience of Mr Fitchett’s conduct at Board meetings, his correspondence with the Board and letters to former Board members and to the secretary that he has no interest in the work of the Board and the running of the school. Rather his interest is in a campaign against the headmaster and the Board in which he wishes to bring about the resignation of the headmaster.
[25] Mr Christian suggested Mr Fitchett’s behaviour and his:
… continuing criticism of [the Board’s] processes … has cost the Board significantly in terms of lost time, stress and legal costs. The Board would rather see that time, money and energy spent on the education of the boys at the school.
[26] Mr Christian recorded that the College had been awarded a commendable ERO audit. Furthermore, the College’s finances were independently audited and the auditor was more than happy with the performance and financial management of the College.
[27] Mr Christian had no faith in Mr Fitchett’s ability to comply with his proposed
undertakings. Rather he said:
If Mr Fitchett continues to attend Board meetings I believe that he will continue to behave as he has done in order to try to achieve the aims set out in his recent letters to former Board members and the Board Secretary. The work of the Board will continue to be disrupted and undermined. His conduct has had a significant effect on the well-being of Board members and the Board secretary. This indirectly effects [sic] the welfare of 1200 boys who we serve. People can only put up with this kind of conduct for so long and I’m afraid that a top performing school will lose its Board of Trustees if it continues.
[28] David Rolleston, a Board member and chartered accountant, provided some reflection of his perspective of Mr Fitchett’s behaviour during Board meetings, saying:
I had the impression that Mr Fitchett was deliberately baiting the Board and trying to bring about disruption of its work.
[29] He continued:
Generally in my time on the Board we have had to spend a lot of time at each meeting either dealing with Mr Fitchett in person, or responding to his correspondence or other raising of issues. The Board has to carefully consider and work through each issue raised by Mr Fitchett so as to be sure that it has dealt with the matters he has raised. Some meetings, the Board has to spend 20–30 minutes dealing with this before it is able to move on to its core business of governing the school.
The morale of the Board is not great as a result of Mr Fitchett’s conduct and demands. His actions are having a significant effect on the Board and its Chair.
[30] Mr Rolleston indicated that he did not agree with Mr Fitchett’s evidence that
Mr Fitchett always conducted himself in an orderly manner. Mr Rolleston deposed:
His conduct has become more and more disruptive over time. At the 2016 meetings which Mr Fitchett attended, I did not find his presence particularly disruptive but I did notice that his manner towards the Board was disrespectful and the effect his presence had on the Trustees who have been on the Board for longer than me. But in 2017, his behaviour changed a good deal and became confrontational. He has become very disruptive at Board meetings as I have described above, with the result that the Board has not been able to deal with its core business effectively and expediently.
[31] Meanwhile Deleece Hall, a Board member with a human resources background, had this to say:
Mr Fitchett claims not to understand how his simple presence at meetings could be disruptive. However, he has behaved disruptively at the meetings and his presence is disturbing. His conduct and correspondence make everyone aware that he is not there for matters concerning the school but for a quite specific agenda which is to bring the school and headmaster into disrepute. I find his presence disturbing based on my observations and reading his correspondence with the Board.
[32] The Headmaster, Mr O’Shea, was present at the Board meetings attended by Mr Fitchett. He believed Mr Fitchett’s campaign “seeks retribution against [him] personally”. He was concerned at the impact of Mr Fitchett’s behaviour on Board Members saying:
The Board’s decision to issue the Trespass Notice reflects the Board’s utter frustration. The Board wishes to be able to get on with the job of supporting the College staff and meeting the needs of the students.
[33] The Deputy Chair of the Board, Pamela Ewen, also provided an affidavit concerning the Decision. She discussed her knowledge of the Meetings Act and the powers of the Board to require a member of the public to leave. She referred to Mr Fitchett’s behaviour at the meetings of 2 and 9 March and the subsequent discussion of the Board as to how it could address the disruption caused by Mr Fitchett so the Board could in future carry out its business without disruption. She confirmed that, prior to the Decision, the Board considered the correspondence from Mr Fitchett, including his offered undertaking. Mr Rollston’s affidavit was of similar effect.
[34] Mr Fitchett’s son tried to attend a Board meeting on 13 April 2017, but found the door to the meeting room locked and he was told he was not permitted to attend. He said he was told “they” considered he was there as an extension of his father’s harassment of the College. He was later informed he was able to attend, but noted the Board did not delay the meeting’s start despite the Board’s lawyers saying the Board would wait for him.
[35] Mr Fitchett candidly acknowledges the principal reason he has been attending Board meetings and wishes to continue to do so relates to the dismissal of his brother. Interestingly, he describes the atmosphere at the first meeting he attended on 2 May 2016 as “relaxed and constructive”. His “increasing awareness of the magnitude of the Board’s failure to comply with its statutory obligations” arises from what he considers to be the Board having radically changed its procedures in relation to monthly meetings since the time of his attendance. Mr Fitchett believes the Board is under the control of the Headmaster. He is particularly concerned finance issues are dealt with by having the public excluded and says he has been unable to obtain “meaningful” financial accounts of the College because the accounts made available to the public have been substantially redacted. Certain matters, for example applications for trust funding grants, have been done via email.
[36] Mr Fitchett’s position is that he has a right, as a member of the public and someone who has always acted in an “orderly” manner at past Board meetings, to attend future Board meetings. In saying that, Mr Fitchett acknowledges that his actions and those of his brother over the past year have caused disquiet (as well as
congratulations he says) from those concerned to preserve the name and reputation of the College and members of the Fitchett family.
[37] In short, Mr Fitchett in his affidavit evidence denies he has been disruptive. In fact, he says, he said nothing on occasions when asked because “he did not wish to participate in some form of dialogue which could subsequently be relied on by the Board to suggest I was prejudicing the orderly conduct of the meeting”. He disputes allegations in evidence filed on behalf of the Board. He denies his conduct has been confrontational, saying he cannot understand how he is described as having a “bullying presence” if he is silent and effectively motionless.
[38] Mr Fitchett has however, in his amended statement of claim dated 11 May
2017, effectively accepted that his conduct on 2 and 9 March 2017 was disorderly.4
Can a local authority issue a trespass notice pursuant to s 4 of the Trespass Act in respect of a person who has previously been required to leave a meeting pursuant to s 50 of the Meetings Act?
[39] The Board is established under pt 9 of the Education Act 1989 and is a “local authority” as defined in sch 2 of the Meetings Act. Part 7 of the Meetings Act relating to local authority meetings is applicable to meetings of the Board. Section
47 and 50 are contained in pt 7.
[40] Section 47 of the Meetings Act provides:
Except as otherwise provided by this part of this Act, every meeting of a local authority shall be open to the public.
[41] The Board can, by the terms of s 48, go into committee and legitimately exclude the public for the transaction of business where it is necessary “to enable the local authority to deliberate in private”. Mr Fitchett does not challenge the Board’s ability to close its meetings in accordance with that provision, including the ability to do so in relation to the complaint made by his brother.
[42] The relevant proviso to s 47 is s 50 which provides:
(1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting.
(2) If any member of the public who is required, pursuant to subsection (1), to leave a meeting of a local authority—
(a) refuses or fails to leave the meeting; or
(b) having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,—
any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.
[43] At issue in this case is the relationship of the Meetings Act and the Trespass Act. The claim in illegality is premised on Mr Fitchett’s entitlement to attend meetings of the Board pursuant to s 47 of the Meetings Act and that he can be excluded only by the chairman of the Board in respect of a meeting which is in progress. The illegality claim is on the basis the chairman has not and cannot form a reasonable belief that Mr Fitchett’s behaviour at future meetings has prejudiced the orderly conduct of those meetings when they have yet to occur, and therefore Mr Fitchett’s statutory right of attendance has not been displaced.
[44] The Board’s response is that when the Meetings Act and the Trespass Act are considered together, the proper construction is that, where a person has behaved in a disorderly manner and refused to leave a meeting, the provisions of the Trespass Act will apply, whether s 3 or s 4.
[45] The only case law to have considered how the two pieces of legislation can be read together is Bright v New Zealand Police.5 Although that case concerned the relationship between the Meetings Act and the Trespass Act, it involved s 3 of the Trespass Act. Section 3 provides that every person commits an offence under the Trespass Act who omits to leave a place after being warned by the occupier to do so.
[46] The Bright decision therefore considered questions of law framed in the context of s 3. Ms Bright had displayed an offensive banner, refused to take it down and continued to interject and interrupt the mayor at a council meeting. She failed to leave the premises when asked to do so and left only when arrested by the police.
[47] The Court of Appeal explained:6
The overarching purpose of the Trespass Act is to keep people off private property to which they have no lawful right of access. By contrast, the purpose of the [Meetings] Act is to encourage citizens to attend venues where local government democracy is practised in order to participate in the actions and decisions of local authorities.
[48] The principle established in Bright is as follows:
[47] The Trespass Act cannot be invoked until the statutory right to be present at a meeting under s 47 of the [Meetings] Act has been displaced. Where s 50 of the [Meetings] Act applies, this means that the person presiding at the meeting must believe on reasonable grounds that the behaviour of any member of the public attending the meeting is likely to prejudice or to continue to prejudice the orderly conduct of the meeting if that person is permitted to remain at the meeting. The person presiding at the meeting must require the disruptive individual to leave the meeting. After that has occurred, the disruptive individual has no statutory right of attendance at the meeting. Before the criminal sanctions under the Trespass Act can apply, however, the requirements of s 3(1) of the Trespass Act must then be complied with. This means that the individual must (after the s 47 presumption is displaced) be warned by an occupier to leave the premises and refuse to do so.
[48] In addition, as the police accept, in cases concerning trespass in public places, the occupier must exercise the powers under the Trespass Act reasonably in the circumstances and, in particular, so that the rights and freedoms in the Bill of Rights are limited only to the extent reasonably necessary.
[49] The present case is, however, different from the facts of Bright. It does not involve the invocation of s 3 of the Trespass Act and the commission of an offence, but rather a notice served pursuant to s 4. Section 3 applies where a person has refused to leave a place after a warning has been given. A trespass notice under s 4 is forward-looking in its purpose and warns the person to stay off a place for a period of time from the date of receipt of the warning.
[50] The Trespass Notice was served under s 4, which relevantly provides:
4 Trespass after warning to stay off
(1) Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.
(2) Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.
(3) Where any person is convicted of an offence against this Act committed on or in respect of any place, the court may warn that person to stay off that place.
(4) Subject to subsection (5), every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.
…
[51] This case, therefore, concerns whether a local authority, having concluded a person has prejudiced the orderly conduct of a meeting in the past, can lawfully prevent that person from attending any meetings in the future by way of a s 4 trespass notice.
[52] Mr Acland, who appeared for Mr Fitchett, relied on the precise wording of the Meetings Act. He submitted any removal from a meeting pursuant to s 50 applies only to “that meeting”. In the circumstances of this case, that means the Board could only require Mr Fitchett to leave a meeting if his behaviour at that particular meeting was likely to prejudice or continue to prejudice the orderly conduct of that particular meeting.
[53] In the submission of Mr David QC, who appeared for the Board, that simply cannot be right. He said such an approach was not consistent with the general approach to the operation of the Trespass Act in Bright, nor did it make practical or common sense. In his submission, there was no proper basis to fetter the operation of the Trespass Act in this way. Rather, he said, the correct interpretation was that, when the right to be present under s 47 of the Meetings Act ended by the operation of s 50, the powers under either s 3 or s 4 of the Trespass Act were available.
[54] Section 13 of the Trespass Act provides that nothing in the Trespass Act shall derogate from anything any person is authorised to do by any other enactment or by law. Section 13(c) provides that nothing in the Trespass Act shall restrict the provisions of any enactment conferring a right of entry on land.
[55] The Court of Appeal in Bright dealt with this issue by saying s 13 would prevent the operation of the Trespass Act while the person had a right of attendance in accordance with s 47 of the Meetings Act. However, as soon as the presumption in favour of attendance had been displaced (for example if s 50 was validly invoked) then there was no longer any right of attendance or entry. The Court said:7
What this does mean, however, is that, unless and until the presumption in s 47 of the [Meetings] Act is displaced, the Trespass Act can have no application.
[56] The Court then addressed the “compatibility” of the Meetings Act and the Trespass Act. It confirmed the Trespass Act can be used in relation to both public and private property and applies even where there is a statutory right of access to the public, such as that contained in s 138(1) of the Criminal Justice Act 1985.8 The Court said it applies even where there is no specific statutory power of removal. The Court saw nothing inconsistent between the removal power in s 50 of the Meetings
Act and criminalising the conduct of refusing to leave once s 50 had been validly invoked.
[57] The Court of Appeal noted s 50 can only operate to require a disruptive person to leave a meeting, not the building. It also noted the Meetings Act does not contain any offence provisions and is therefore not a comprehensive piece of legislation. For these reasons, the Court concluded the Meetings Act was not a code.
[58] Both parties referred to the implications should their respective positions not succeed. In Mr David’s submission, it could not have been intended that a persistently disruptive member of the public could be dealt with only on a meeting
by meeting basis. The practical ramifications, including the necessity for security
7 At [32].
8 Now s 196, Criminal Procedure Act 2011.
officers to be present at any meeting, demonstrated the unworkable consequences should that interpretation be correct, he said.
[59] Mr Acland submitted that, on the Board’s approach, a local authority could issue a trespass notice when a person had disrupted a meeting on one occasion even if that person had attended subsequent meetings with no problems. To say the affected person could apply for judicial review if a trespass notice were issued in those circumstances does not accord with the intention of the Meetings Act, he said.
[60] The meaning of an enactment must be ascertained from its text and in light of its purpose. 9 The purposes of the Meetings Act are:10
(a) to increase progressively the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order—
(i) to enable more effective participation by the public in the actions and decisions of local authorities; and
(ii) to promote the accountability of local authority members and officials,—
and thereby to enhance respect for the law and to promote good local government in New Zealand:
(b) to provide for proper access by each person to official information relating to that person:
(c) to protect official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.
[61] It is important to bear the purpose of the Meetings Act in mind when analysing the effect of s 50. Section 50 cannot be read in any other way than as applying to a specific meeting. The right to be present under s 47 is withdrawn for
the purposes only of the meeting where the disruptive behaviour has occurred.
9 Interpretation Act 1999, s 5(1). The effect of s 5(1) of the Interpretation Act 1999 has been discussed in numerous cases, including Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]; Astrazeneca Ltd v Commerce Commission [2009] NZSC 92, [2010] 1 NZLR 297 at [29]; Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [119] and [219] (leave to appeal to the Supreme Court was declined in [2011] NZSC 12); Lean Meats Oamaru Limited v New Zealand Meat Workers and Related Trades Union Incorporated [2016] NZCA 495, [2017] 2 NZLR 234 at [11] and [14].
10 Section 4.
[62] Furthermore, unlike for example the Criminal Procedure Act,11 the Meetings Act is not expressly subordinated to other legislation. In fact, pt 7 of the Meetings Act, where the relevant provisions are found, is clearly intended to prevail over other legislation. Section 54 provides:
54 This Part to prevail over other enactments
Any provisions in any enactment in relation to attendance by the public at any meeting of any local authority or at any meeting of any committee or subcommittee of any local authority, or in relation to inspection of the minutes of any such meeting, shall be read subject to the provisions of this Part.
[63] My reading of s 47, and its prevalence over s 4 of the Trespass Act, is reinforced by both s 54 of the Meetings Act and s 13 of the Trespass Act. The result is that, while s 3 of the Trespass Act can be invoked if a person fails to leave a particular meeting when behaving in a disruptive way, a notice pursuant to s 4, the effect of which is to prohibit attendance at future meetings, cannot be issued. This conclusion is supported by a proper reading of Bright. I acknowledge the result will cause practical difficulties for the Board and other local authorities in a similar position. Those difficulties do not disturb a proper interpretation of the relevant statutory framework.
[64] For these reasons, Mr Fitchett must succeed. I will nevertheless briefly consider the other grounds for review argued before me.
Is the Decision otherwise reviewable for improper purpose, for failing to take into account relevant considerations, or for unreasonableness?
[65] Mr Fitchett’s alternative claim under the heading of ultra vires is that the two year period under the Trespass Notice was a disproportionate response. I agree with Mr David that proportionality is not a stand-alone ground for review, but is best understood when considering whether a decision is unreasonable in the Wednesbury context.12 I also agree with Mr David that an analysis of proportionality risks
becoming a review of the merits of a decision in a factual sense.
11 While s 196(1) of the Criminal Procedure Act provides that every hearing is open to the public, pursuant to s 196(3) that right is expressly subject to any other enactment.
12 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
[66] In any event, I am satisfied from the affidavit evidence that the Board properly considered its options and that, leaving aside the question of lawful authority to do so, the Decision cannot be considered unreasonable in the circumstances. I also agree (somewhat ironically given my conclusion under the Meetings Act) the Board chose what in many ways could be considered the least confrontational option because the effects of the Decision did not involve physical removal on a meeting by meeting basis and/or criminal trespass proceedings.
[67] I also agree that, when Mr Fitchett’s behaviour is considered in its context, it was provocative, disorderly, and to use the words of Williams J, “frankly extraordinarily immature for a man of Mr Fitchett’s standing, age and profession”.13
The evidence shows he deliberately disregarded the authority of the Board. His letters to former Board members and the Board secretary indicated he would continue his campaign against the Headmaster. In all the circumstances the Board’s decision not to rely on any undertaking from Mr Fitchett could not be considered unreasonable. I also note the undertaking was directed primarily at the application for interim relief and the qualifications in the undertaking meant problems for the Board were likely to continue.
[68] For the same reasons, I do not accept the Board acted for an improper motive. In my assessment of the affidavit evidence, the motives of the Board members were clear. They were trying to protect the conduct of future meetings from disruption to enable the Board, largely made up of volunteers, to focus on its statutory duty to manage the College.
[69] I do not accept the Board acted without taking into account the purpose of the Meetings Act, Mr Fitchett’s undertaking, or the availability of alternative options for management of the problem. The evidence shows the Board explored alternative options prior to issuing the Trespass Notice, made an assessment as to whether it could rely on Mr Fitchett’s undertaking, and was alive to the purpose of the Meetings
Act, irrespective of its incorrect assessment of its ability to issue the Trespass Notice.
13 Fitchett, above n 1, at [39].
Decision
[70] For the reasons given, the Decision is quashed and the Trespass Notice is set aside.
[71] Although Mr Fitchett has been successful on one of the grounds pleaded and is ultimately successful in gaining the relief sought, he has not been successful on all grounds. It may well be appropriate in all the circumstances for costs to lie where they fall. If the parties seek to be heard on costs, any application is to be filed and served within 28 days with any response 14 days thereafter. The decision will be made on the papers.
Thomas J
Solicitors:
Bamford Law, Nelson for Applicant
Hamish Fletcher Lawyers, Nelson for Respondent
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