Fitchett v Board of Trustees of Nelson College
[2017] NZHC 888
•4 May 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2017-442-21 [2017] NZHC 888
BETWEEN JOHN MALCOLM FITCHETT
Applicant
AND
THE BOARD OF TRUSTEES OF NELSON COLLEGE
Respondent
Hearing: 4 May 2017 Counsel:
T Bamford for Applicant
P David QC and M Austin for RespondentJudgment:
4 May 2017
JUDGMENT OF WILLIAMS J
[1] The applicant, John Fitchett, is a Nelson resident and “semi retired” solicitor. He has come into conflict in recent times with the Board of Trustees of Nelson College. His brother formerly worked at the college but was dismissed. The brother brought a personal grievance against the college. It was resolved prior to hearing, on the basis, I understand that the college accepted the dismissal was procedurally and substantively unfair. The brother subsequently filed a complaint with the Board of Trustees against the school principal making allegations of bullying and fraudulent conduct. The Board of Trustees, I understand, is still dealing with that complaint.
[2] It is in the context of that background that the applicant wishes to attend Board meetings. He says there are other reasons too: the dismissal of two basketball coaches, and a general view that the Board is consistently failing to comply with its statutory obligations, not just in relation to the dismissals in question, but on a wider
front and especially in relation to financial management.
FITCHETT v THE BOARD OF TRUSTEES OF NELSON COLLEGE [2017] NZHC 888 [4 May 2017]
[3] Whether there is any substance in these concerns is not a matter for me today, but I am bound to say that the allegations are serious and therefore will require a level of proof consistent with their seriousness.
A rough summary of the evidence
[4] Mr Fitchett attended a number of Board meetings (and was the only member of the public to do so) from May 2016 until March 2017. It seems that the original intention was for the issue of the applicant’s brother’s complaint to the Board to be dealt with at its Board meeting on 13 April.
[5] At the 2 March meeting, the Board resolved to ban audio recordings of the meeting by members of the public. This was in response to what the Board thought was the applicant’s actions in recording proceedings. The applicant says he made no such recordings anyway but did take handwritten notes at that March meeting. After the resolution was passed, the applicant placed a dictaphone on the table in front of him though he says the dictaphone was not operative. This, the applicant said, was a protest at the resolution. He did the same thing at a second Board meeting on 9
March.
[6] The 2 March minutes provide what happened at that meeting from the perspective of the official Board record:
A 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. A 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 to postpone the meeting and the meeting ended at that point. The decision was then made that the meeting was postponed until an indeterminant date, with an assurance to Mr Fitchett, that he would be informed of that future date.
[7] Following a similar incident on 9 March the Board chairman then stated:
It should be noted for the minutes that the member of the public refuses to respond and the Board now assumes that he is recording and in breach of the Board’s resolution and therefore in breach of s 50 of LGOIMA1987.
[8] Solicitors for the college then sent the applicant a letter on 15 March 2017 indicating that the chairman had taken the view that the applicant’s behaviour “was likely to prejudice or continue to prejudice the orderly conduct of the meeting if [the applicant] remained.”
[9] The Board, the letter continued, passed a unanimous resolution proposing service of a trespass notice on the applicant pursuant to s 4 of the Trespass Act. Submissions were requested.
[10] The applicant 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 LGOIMA, but no response was provided.
[11] The original trespass notice purported to apply to the whole school grounds but this was withdrawn and reissued with reference only to the school buildings. The first notice was served on the applicant on Thursday 23 March. The second was served on 30 March. It purported to preclude entry into school buildings for a period of two years from the date of service.
[12] Meanwhile on 23 March 2017, the applicant signalled to the college that he intended to issue proceedings challenging the trespass notice and indicated that he was prepared to undertake to the Court in the context of those proceedings the following:
1I 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.
3I would not make any body movement which would reasonably be construed as affecting the orderly conduct of the meeting.
4I 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.
5To 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.
[13] A further letter from the applicant of 30 March 2016 reiterated the information being sought with respect to reasonable cause under s 50 of LGOIMA. The letter also referred to an approach that a local lawyer had made to the applicant suggesting that an independent inquiry be held with respect to the applicant’s brother’s complaint and offering to sound out the Board with that possibility. The applicant indicated some interest in the proposal but said that he had not heard back from the colleague who approached him.
[14] By letter dated 31 March 2017, the college’s solicitors indicated that the
Board would consider the matters raised in the correspondence at its next meeting. [15] I do not know what happened beyond this point.
[16] In his affidavit, the Board of Trustees Chairman, Mr Christian, said that it was Mr Fitchett’s conduct at the Board meetings on 2 and 9 March that caused the Board to instruct their solicitors to issue a trespass notice against him. Mr Christian referred to the minutes that summarise the applicant’s conduct at the meetings, and he referred also to letters subsequently written by the applicant to retired Board members on 6 March 2017.
[17] It is necessary to refer to these letters further. The letters were written to three former Board members. They focused on the applicant’s (and his brother’s) view that a resolution appointing a subcommittee to inquire into a disciplinary issue regarding two volunteer basketball coaches had been fabricated by Mr O’Shea, the principal. The letters suggested that each of the recipients’ reply to the questions would be “a test of your ethics and moral standards”. The questions asked about the recipients’ recollection of whether the written resolution accurately recorded that which was agreed at the meeting. The applicant 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.
[18] The letter ended in this way:
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.
[19] Mr Rainey, one of the retired Board members prepared a statutory declaration on 16 March 2017 in relation to the letter I have outlined. 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 Steven Fitchett’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 [college principal] Gary [O’Shea]. I wish he was more sensitive to the impact of his actions on Gary, Dennis [ ] and Nelson College.
[20] Mr Christian referred also to a complaint lodged by the Board secretary (of
34 years), Ms Gargiulo about the applicant. The complaint dated 8 March 2017 provided:
I wish to lay a complaint to the Board of Trustees, as my employer in my capacity of Board secretary, 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.
[21] The complaint attached approximately 60 pages of material in support of this allegation.
[22] Mr Christian 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.
[23] Mr Christian suggested that the applicant’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.
[24] Mr Christian recorded that Nelson College has been awarded a high ERO audit and that the college’s finances are independently audited with the auditor being more than happy with the performance and financial management of the school. Mr Christian considered:
Mr Fitchett’s general claims that the school is mismanaged are not borne out by these thorough independent reviews undertaken by teams of skilled professionals.
[25] Mr Christian seems to have no faith in the applicant’s ability to comply with
his proposed undertakings. Rather he says:
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 wellbeing 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 with lose its Board of Trustees if it continues.
[26] In response to the applicant’s allegation that the resolution of 3 March 2016 in relation to the composition of a disciplinary subcommittee was false, the Board secretary, Ms 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.
[27] Meanwhile, Mr David Rolleston, a Board member and chartered accountant, provided some reflection of his perspective of the applicant’s behaviour during Board meetings. He said:
I had the impression that Mr Fitchett was deliberately baiting the Board and trying to bring about disruption of its work.
[28] 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.
[29] Mr Rolleston indicated that he did not agree with the applicant’s evidence that he (the applicant) 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.
[30] Meanwhile Deleece Hall who has a human resources background and is a
Board member 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.
I have particular concerns about the effect this is having on the headmaster. The Board as his employer is responsible for his safety and wellbeing. It is clear that Mr Fitchett and his brother’s actions have caused him heightened levels of stress. The physical signs of this are obvious and I am aware that his health has been seriously compromised as a result.
The headmaster is naturally a peaceful, strong and conciliatory person who carries himself with dignity. It distresses me to see him suffer as a result of the Fitchetts’ vindictive actions.
[31] In response to Ms Gargiulo’s evidence about the 3 March 2016 resolution, the
applicant in his reply affidavit noted as follows:
It has taken [the applicant’s brother] Steve’s barrister (Mr Acland) from July to December 2016 and me from then until yesterday (19 April 2017) to obtain this written confirmation that the resolution passed on 3 March 2016 was not correctly recorded in the minutes subsequently approved. Such “amended” resolution would have gone to the heart of Steve’s ERA proceedings for it would have shown that the disciplinary subcommittee was not validly appointed by the Board.
I consider that the fact that the Board secretary now acknowledges that Board minutes (as subsequently erroneously ratified by the Board) are inaccurate, corroborates my concern (already expressed) as to the accuracy of Board minutes, and is a substantial reason why I wish to attend Board meetings in person.
[32] Further, the applicant noted in response to Ms Hall’s affidavit:
From the knowledge I have gained over the past 13 months I believe that the only reason why Steve was dismissed was that he “stood up” to the headmaster when the headmaster proposed to discipline (in a manner that did not accord with the principles of natural justice) two Basketball Coaches who had been asked to by Steve to be basketball coaches. The headmaster then actively sought other evidence and had no apparent concern at destroying Steve’s educational career and “standing” within the Community.
Arguability
[33] It is common ground that it is not open to the Board of Trustees to issue a trespass notice in breach of s 47 of LGOIMA which provides:
Except as otherwise provided by this part of this Act, every meeting of a local authority shall be open to the public.
[34] The Board can by the terms of s 48, go to 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”. The applicant 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.
[35] 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.
[36] As the Court of Appeal noted in Bright v Police:1
… unless and until the presumption in s 47 of LGOIMA is displaced, the
Trespass Act can have no application.
[37] As the Court noted:2
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 LGOIMA 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.
[38] The principle established in Bright is as follows:3
The Trespass Act cannot be invoked until the statutory right to be present at a meeting under s 47 of LGOIMA has been displaced. Where s 50 of LGOIMA 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
1 Bright v Police [2009] NZCA 187 at [32].
2 At [33].
3 At [47]-[48].
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.
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.
[39] In my view, there is a reasonable argument that the issue of a two-step two- year exclusion is unreasonable in light of the competing interests of the LGOIMA and the Trespass Act. The applicant’s fake recording of the two meetings on 2 and 9
March was provocative and disorderly. And frankly, extraordinarily immature for a man of the applicant’s standing, age and profession.
[40] The Board of Trustees says the applicant’s March actions cannot be divorced from his harassing letter campaigns against trustees, the principal and others and the matter should be seen more holistically than just through the lens of his promise to be quiet from now on.
[41] The Board says that it is for the chairman under s 50 to be satisfied, on reasonable grounds, that the behaviour of any member of the public at a meeting is likely to prejudice orderly conduct of the meeting. If so satisfied, such person can be excluded, forcefully if necessary. The test is subjective. It must follow, Mr David QC argued, that the Board is entitled to invoke the Trespass Act when the chair is so satisfied. Any judicial review attack on the trespass notice would, he argued, necessarily be weak because it would be a challenge to the subjective view formed by the chair.
[42] This issue needs to be approached in two parts in my view. First, as I have said, I am satisfied that the fake recording was disorderly. The second stage is to determine a response to the disorderly conduct. The discretionary ‘may’ is used in s 50(1) and that, as Bright makes clear, involves a proportionality assessment. I do not, at this stage, think the fact that Bright was a criminal appeal makes any
difference. The same balancing assessment is inherent in interpreting the statutory discretion for judicial review purposes.
[43] Mr Bamford submits that, even if disorderliness is established, the two year exclusion under s 4 of the Trespass Act was a sledgehammer to crack a small nut. Whether that was a proportionate response, must in some part be a question of the interpretation of the statute, and therefore of the relationship between ss 47 and 50 to LGOIMA and s 4 of the Trespass Act. Just what is proportionate will depend on the value one places on the right of public participation. This is not simply a question of fact. Rather, it is in part a question of law.
[44] In my view, that is arguable enough to be reasonably capable of success. I do not suggest that it would succeed following full argument. Or even that it is more likely to succeed than not. I simply conclude there is a reasonable chance of success. That is enough.
Necessity
[45] Section 15 of the Judicial Review Procedural Act 2016 recodifies the
“reasonable necessary to preserve the position of the applicant” test.
[46] The Board of Trustees says the applicant’s only real concern relates to his brother’s dismissal and subsequent complaint and all of that will be discussed in committee anyway, so he will be legitimately excluded. That means, the Board suggests, he only wants to attend other deliberations of the Board to be some kind of silent and implicitly harassing presence.
[47] On the other side, the applicant argues that his proposed undertaking to be
‘inert’ to use Mr Bamford’s word, can be relied upon and is a complete answer to any allegation of ongoing disorderly conduct.
[48] The respondent suggests that the Court should be reluctant to grant interim mandatory relief. I agree, though that principle really applies where the mandatory relief is dispositive of the substantive claim. Here, it is a matter of semantics as to whether the appropriate relief is to prevent the Board of Trustees from action on the
trespass notice, or to positively require the Board of Trustees to make the applicant welcome.
[49] In the end, I conclude that, even if the legal argument has merit, the applicant cannot demonstrate reasonable necessity.
[50] A half day fixture will be available on 22 June 2017, meaning that the applicant will miss two Board meetings. He has already said on more than one occasion that if he is not allowed to attend, someone else will on his behalf. Nothing is lost as a result except face in the meantime. And I venture to suggest that face is what is keeping these parties from resolving their differences in a more civil and courteous manner.
[51] The application for interim relief is dismissed. I make the following timetable directions by consent:
(a) applicant’s amended statement of claim to be filed by 11 May 2017;
(b) respondent’s statement of defence and any further affidavit evidence
to be filed by 18 May 2017;
(c) evidence in reply by 22 May 2017;
(d) applicant’s submissions by 5 June 2017;
(e) respondent’s submissions by 12 June 2017.
[52] The matter is set down for a half day fixture on 22 June 2017.
[53] I will reserve costs to be dealt with at the conclusion of the substantive fixture. I take that step because it was possible for this matter to be dealt with substantively today but the respondent elected to delay this saying more time was required for a considered response. In those circumstances, I consider it best for costs to be dealt with after the substantive fixture in June.
Williams J
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