Foster v Racing Industry Transition Agency (Formerly New Zealand Racing Board)

[2019] NZHC 2362

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-192

[2019] NZHC 2362

UNDER

section 3 of the Declaratory Judgments Act 1908

IN THE MATTER OF

an application for declaratory orders

BETWEEN

NEIL MARTIN FOSTER

Plaintiff

AND

RACING INDUSTRY TRANSITION AGENCY (FORMERLY NEW ZEALAND RACING BOARD)

First Defendant

KIT
Second Defendant

CHARLIE
Third Defendant

OLLY

Fourth Df

Hearing:

18 September 2019

Counsel:

N M Foster in person

R J Gordon and M L Pears for Defendants

Judgment:

19 September 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Foster used to enjoy going to the Trax Bar and socialising with his friends. Within the premises of Trax Bar, the first defendant operates a TAB branch (the Branch).

FOSTER v RACING INDUSTRY TRANSITION AGENCY (FORMERLY NEW ZEALAND RACING BOARD) [2019] NZHC 2362 [19 September 2019]

[2]    The Branch occupies a defined area of the Trax premises and it is operated and staffed by employees of the first defendant.

[3]    Mr Foster liked going to sit with his friends at a particular table located within the Branch. While there, Mr Foster would drink some beer and place some bets. The bets would be placed either with the assistance of the first defendant’s staff or through automated betting machines that were available there.

[4]    Although Mr Foster has never been trespassed from the Branch nor evicted from there, he says he no longer feels able to go there and socialise with his friends as he used to. The reason for Mr Foster feeling that way is because the first defendant has refused to accept bets from him placed at the Branch.

[5]    Mr Foster is able to place bets at the various other venues operated by the first defendant or its agents in Wellington and continues to do so but feels seriously aggrieved by the unwillingness of the first defendant to accept bets placed at the Branch.

[6]That sense of grievance has led Mr Foster to issue these proceedings.

The proceedings

[7]    In an amended statement of claim filed on 10 April 2019, Mr Foster issued proceedings under the Declaratory Judgments Act 1908. He alleged that his rights under s 42 of the Human Rights Act 1993 (which relates to a refusal to allow a person to use any place which members of the public are entitled to enter or use, or to refuse to use any facilities in such a place), s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA) (the right not to be deprived of life), s 14 NZBORA (freedom of expression), s 17 NZBORA (freedom of association), and s 18 NZBORA (freedom of movement).

[8]The remedies sought by Mr Foster were:

(a)that he be allowed “to be able to go into the TAB at the Trax Bar”; and

(b)to be treated as any other person does as per the Human Rights Act 1993 and the Bill of Rights Act 1990.

[9]    Notwithstanding that the proceedings was brought under the Declaratory Judgments Act, he sought “compensation to the amount of what the Judge considers reasonable for the Stress, Grief, Harassment, Embarrassment, and breach of (his) human rights, Bill of Rights and (his) civil liberty.”

[10]   This last form of relief cannot be considered further as it is clearly not something available under the Declaratory Judgments Act. In relation to the first form of relief sought, Mr Foster is permitted to go into the TAB at the Trax Bar. The only thing that he is not presently able to do is to place a bet there.

The defence

[11]   The first defendant admitted that it had refused to accept bets that Mr Foster had wished to place with it at the Branch. It said that it had done so in response to numerous incidents of aggressive, offensive and sexualised behaviour by Mr Foster towards, in particular, its female staff members. It specifically referred to the obligations that it had to its employees under the Health and Safety at Work Act 2015 to provide them with a safe working environment.

[12]The first defendant also referred to s 65 of the Racing Act 2003 which provides:

Bets may be refused

The Agency or any racing club may refuse to accept all or any part of a bet without giving any reason for doing so.

[13]   The first defendant placed before the Court extracts from an Incident Log Book maintained by its staff at the Branch. These included:

(a)an entry by a female staff member “A” relating to 10 February 2018 recording that Mr Foster came up behind her and started dancing then came beside her telling her that she smelt really good and making other comments about her and her personal life that upset her;

(b)an entry by the same staff member on 24 February 2018 saying that Mr Foster had bought her flowers which she attempted to give back to him but which he would not accept; and

(c)entries on 28 July 2018 by “A” and  a male staff member  “C” that  Mr Foster, when drunk, had mocked a disabled patron and then became angry when he was spoken to about this.

[14]   Also before the Court were transcripts of numerous recorded telephone conversations where Mr Foster had called the first defendant’s call centre making offensive allegations about male staff members at the Branch and lavishly praising female staff members.

[15]   The information placed before the Court  recorded  that  by  August  2018, Mr Foster’s behaviour had reached the point where staff members at the Branch, in particular female staff members, no longer felt safe having to deal with him. It was said that for that reason, on 11 August 2018, Mr Foster was advised that his bets would no longer be accepted at the Branch and the reasons for this were explained to him.

[16]   This particular course of action was followed, rather than issuing a notice under the Trespass Act or obtaining a civil restraining order under the Harassment Act 1993 so as to impact on Mr Foster in as limited a way as possible while at the same time achieving the objective of protecting the first defendant’s staff at the Branch.

[17]   Also before the Court were copies of various emails that Mr Foster had sent during the course of these proceedings. The emails were liberally peppered with obscenities and abuse directed towards the first defendant and its representatives. The language used reflects little credit on Mr Foster.

Mr Foster’s evidence

[18]   Mr Foster denied abusing any staff members at the Branch, male or female. He admitted giving flowers to employee “A” but said that was to thank her. He denied that he had ever been drunk while at the Branch and pointed to the fact that Trax Bar

staff had never refused to serve him on the grounds that he was drunk. He denied abusing the disabled person and said that, in fact, that person had abused him.

[19]   Mr Foster claimed that s 65 of the Racing Act had no relevance although he did not explain why he thought that. He submitted that the evidence in the affidavit of William Philip Barber filed by the first defendant had been fabricated and that the affidavit was inadmissible. He submitted that there had been a conspiracy between the second to fourth defendants to exclude him from the Branch.

[20]   In support of his claim that he had been discriminated against, Mr Foster submitted that he had sustained a mental injury and implied that it was as a result of this disability that the first defendant and its staff had conspired to discriminate against him.

[21]   There was no evidence placed before the Court confirming the nature of     Mr Foster’s disability and the first defendant’s staff denied any knowledge of such disability.

[22]   Mr Foster called Geoffrey Phillip John Fokerd who confirmed the contents of his written brief which included the statement that since knowing Mr Foster, he had never seen any situations in the TAB where he had problems with anyone.

[23]   Under cross-examination from Mr Gordon, Mr Fokerd acknowledged he had not been in the Branch on the dates of 10 and 24 February 2018, or 28 July 2018. These were the dates upon which the first defendant said that the events occurred which gave rise to their decision not to accept bets from Mr Foster at the Branch.

Analysis

[24]   The starting point is s 65 of the Racing Act. This authorises the first defendant to refuse to accept all, or any part of, a bet without giving any reason for doing so. Included amongst the purposes of the Racing Act is the objective of providing effective governance arrangements for the racing industry.

[25]   The first defendant is a statutory body established pursuant to s 7 of the Racing Act 2003. Amongst the statutory objectives listed for it in s 8 of the Act, are “to reform New Zealand racing in a manner that supports effective governance and improves industry sustainability.”

[26]   Parliament has clearly decided that the racing industry, and the gambling associated with it, needs to be tightly regulated. The potential significant social consequences of having an unregulated racing and gambling industry are obvious. It appears likely that the avoidance of some of those adverse social consequences is the reason why the first defendant was given the express power to refuse a bet.

[27]   These matters are relevant when considering Mr Foster’s claims of breaches of his rights under NZBORA. That is because rights conferred under NZBORA are not absolute but are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.1

[28]   There is no right under NZBORA, or any other statute, for a person to be able to place a bet wherever they choose. However, even if there were such a right, it would be subject to such limitations identified in s 5 NZBORA. Section 65 of the Racing Act is one such limitation.

[29]   It is also clear that none of the NZBORA rights relied on by Mr Foster are engaged on the facts of this case. The exercise by the first defendant of its statutory right not to accept some bets that Mr Foster wishes to place, cannot be said to amount to him being:

(a)deprived of life;

(b)his freedom of expression limited;

(c)his freedom of association limited;

(d)his freedom of movement limited;

1      NZBORA 1990, s 5.

as he claimed.

[30]   Although Mr Foster’s amended statement of claim did not refer to s 19 NZBORA which prohibits freedom from discrimination on any of the grounds set out in the Human Rights Act 1993,2 in his submissions to the Court, Mr Foster implied that the section was engaged. There is no evidential basis that would support such a claim. The action taken by the first defendant which Mr Foster complains about was taken in discharge of the first defendant’s legal obligation to provide a safe working environment for its staff and other visitors to that environment. The critical connection between a prohibited ground of discrimination and the actions that occurred is entirely missing.

[31]   In relation to Mr Foster’s claims that s 42 of the Human Rights Act 1993 has been breached and he has been refused use of facilities at the Branch available to other members of the public, Mr Foster has also overlooked the need for such action to be “by reason of any of the prohibited grounds of discrimination”. Once again, the fundamental prerequisite for liability under the Act is missing. Mr Foster was not denied the ability to place bets at the Branch because of any disability he might have, he was denied that opportunity because of his obnoxious behaviour.

Claims against the second to fourth defendants

[32]   The second to fourth defendants are all employees of the first defendant. They are bound to comply with such lawful and reasonable instructions as their employer gives them. I am satisfied that, in this case, to the extent that they refused to accept bets from Mr Foster at the Branch, they were merely carrying out lawful and reasonable instructions given to them by the first defendant.

[33]   The allegations in the amended of claim to the effect that the second to fourth defendants have committed the offence of conspiracy contrary to s 115 of the Crimes Act 1961 is wholly unfounded. It is also not the sort of matter that should have been included in an application under the Declaratory Judgments Act.

2      Which include discrimination on the grounds of physical disability or impairment, psychiatric illness and intellectual  or  psychological  disability  or  impairment:  Human  Rights Act  1993, s 21(1)(h).

Conclusion

[34]   None of Mr Foster’s rights have been breached by the actions of the first defendant in refusing to accept bets from him at the Branch. Although the first defendant was not required, pursuant to s 65 of the Racing Act, to provide Mr Foster with a reason for its decision, it did so. Those reasons fully justify the first defendant’s actions.

[35]   Mr Foster’s actions in engaging in behaviour in relation to female staff members at the Branch which was experienced by them as unwelcome and offensive and his actions in being abusive of male staff members and, on one occasion a fellow patron, are well below the standard of anything that could be described as socially acceptable.

[36]   If the ability to be able to sit at a table in the Branch with his friends, drink beer, and place bets, is something that Mr Foster values, then the best way to achieve that is not to issue proceedings that have no prospect of success but to demonstrate to the first defendant that he accepts that his prior behaviour was inappropriate, and to commit to behaving in accordance with reasonable social norms in the future.

Result

[37]The proceedings are dismissed.

[38]   The parties are invited to resolve the question of costs between themselves but, failing agreement, should the first defendant wish to pursue an application for costs, submissions of no longer than three pages in length shall be filed and served within 10 working days of the date of this decision, with Mr Foster having 10 working days to respond. That matter will then be resolved on the papers.

Churchman J

Solicitors:

MinterEllisonRuddWatts, Wellington for Defendants cc:           N M Foster