Lowrie v Kairangi - [2019] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-212

[2019] NZHC 359

IN THE MATTER OF a judicial review; Bill of Rights Damages

BETWEEN

PETER EDWIN WILLIAM LOWRIE

Plaintiff

AND

HUTT CITY TE AWA KAIRANGI

Defendant

Hearing: 18 and 19 February 2019

Counsel:

S J Fraser for plaintiff

D G Dewar and R J Bayer for defendant

Judgment:

6 March 2019

RESERVED JUDGMENT OF DOBSON J

Contents

The issue  [1]
The evidence  [7]
The May 2017 incident  [9]
The June 2017 meeting  [28]
Other interactions between Mr Lowrie and the Council  [32]
The legal grounds for challenge  [42]
Was the decision to issue the trespass notice reasonable?  [58]
Summary  [79]
Costs  [80]

The issue

[1] The plaintiff (Mr Lowrie) is a beneficiary resident in the Lower Hutt suburb of Taita. He has a fractious relationship with at least some of those managing local authority facilities, in particular public libraries and a community hub, and has previously been served with trespass notices excluding him from such facilities for

LOWRIE v HUTT CITY TE AWA KAIRANGI [2019] NZHC 359 [6 March 2019]

two year periods, Mr Lowrie has brought this application for judicial review to challenge the decision of the defendant (the Council) to serve him with a trespass notice in May 2017 (the trespass notice) that excluded him from the library and adjoining facilities in the Walter Nash Centre in Taita.

[2] Mr Lowrie has challenged the Council’s decision in six causes of action. He alleges that the decision to trespass him from the Walter Nash Centre failed to take into account relevant considerations, namely his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) to freedom of expression, movement and peaceful assembly, and freedom from discrimination. His statement of claim then pleads that the decision resulted in substantive unfairness to him, and that the decision breached each of those rights identified in the first cause of action. The decision is not challenged on the ground of administrative law unreasonableness.

[3] The Council accepts that it cannot arbitrarily or unreasonably exclude members of the public from its facilities. It defends its conduct on the facts, arguing that there was no disregard of NZBORA rights, and that Mr Lowrie’s conduct was such as to justify the Council trespassing him from the relevant facilities because of concerns for the well-being of staff and other users.

[4] Mr Lowrie pleaded that the trespass notice was issued to him following an incident at the Walter Nash Centre on 9 May 2017 when Mr Lowrie was having a discussion with a nine year old boy. Mr Lowrie pleaded that the boy wanted to tell him about the alleged theft of Mr Lowrie’s mobile phone by another child. Their discussion was disrupted by a Council employee physically removing the boy from Mr Lowrie’s chair and directing him to “not talk to that man”.

[5] Mr Lowrie pleaded that his protest at the interruption was met…

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 Lowrie v Kairangi

Details

AGLC: Lowrie v Kairangi [2019] NZHC 359
Case: [2019] NZHC 359
Decision Date: 6 March 2019

CaseChat Overview and Summary

Lowrie v Kairangi involved a judicial review of a trespass notice issued by Hutt City Te Awa Kairangi Council to Mr Lowrie, a resident of Taita. The trespass notice excluded Mr Lowrie from the Walter Nash Centre library and other facilities for a period of two years. Mr Lowrie alleged that the decision to issue the trespass notice violated his rights under the New Zealand Bill of Rights Act 1990 (NZBORA), including his rights to freedom of expression, movement, and peaceful assembly, and freedom from discrimination. The Council defended its decision, arguing that Mr Lowrie's conduct justified the trespass notice due to concerns for the well-being of staff and other users.

The court found that the Council's decision to issue the trespass notice was reasonable, considering Mr Lowrie's history of aggressive and confrontational behavior, including his use of racial slurs and physical contact with staff members. The court held that the Council's decision did not violate Mr Lowrie's rights under NZBORA, as the restrictions on his freedoms were reasonably justified to maintain an appropriate level of order within the facility. The court also rejected Mr Lowrie's claim of substantive unfairness, stating that the decision was reasonable and did not warrant intervention by the court. Consequently, the court dismissed all of Mr Lowrie's causes of action and declined to award costs against the Council.

Orders