Lowrie v Kairangi
[2019] NZHC 359
•6 March 2019
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 by a number of employees converging on that area of the library in circumstances causing him distress, and that he was eventually asked to leave the library. He was served with the trespass notice later the same day.
[6] Mr Lowrie’s statement of claim pleads that he met with representatives of the Council on 2 June 2017, but they declined to withdraw the trespass notice. Although
the statement of claim pleads criticisms that the Council declined to provide Mr Lowrie with any CCTV footage of the 9 May incident and refused to advise the location of CCTV cameras in the Walter Nash Centre, there is no pleaded criticism of how that meeting was conducted.
The evidence
[7] Somewhat unusually for a judicial review application, the parties agreed to adduce evidence orally, and exchanged briefs prior to the hearing. Mr Lowrie gave evidence and was cross-examined about the history of his dealings with Council employees at various venues over a number of years. He did not call any other evidence.
[8] The Council called nine employees who had either participated in or observed the exchanges leading to the issue of the trespass notice, or had other interactions with Mr Lowrie relevant to the Council’s approach to those dealings. There are numerous material respects in which the parties’ recollections of relevant events differ.
The May 2017 incident
[9] In April 2017, a group of children had visited Mr Lowrie at his home, after which his mobile phone was missing. Several weeks later, on 9 May 2017, Mr Lowrie was at the Walter Nash Centre when C, a boy who was then aged about nine and had been a part of that group, separated from a group of boys of his own age and went to sit with him. Mr Lowrie was sitting in an armchair and C sat on the arm of the same chair. Mr Lowrie is hard of hearing and admits that in the course of his dialogue with C he may have leant close to enable him to hear what he was being told by C, apparently about the circumstances in which Mr Lowrie’s phone had been taken by another boy.
[10] Mr Terry Stallworth, a recreation co-ordinator at the centre, observed the interaction and gained the impression that C had sat on the arm of Mr Lowrie’s chair at the latter’s request. Mr Stallworth recognised C as a boy who had participated in programmes run at the centre. In Mr Stallworth’s opinion, the interaction between
Mr Lowrie and C was uncomfortably close. He did observe Mr Lowrie leaning in towards C, although he did not observe any physical touching between them.
[11] Mr Stallworth had previously worked for the Police in Wainuiomata in an early intervention programme for young people who were starting to come to the attention of the Police. He also has a young grandson. An aspect of Mr Lowrie’s dealings with Council staff is his concern that at least some of them have a perception that he may be a paedophile and they therefore perceive a need to be more vigilant than they would otherwise be when he interacts with children. Mr Lowrie vigorously rejects any suggestion that he might have any sexual interest in young people.
[12] Mr Fraser, counsel for Mr Lowrie, cross-examined Mr Stallworth at some length about why he considered Mr Lowrie’s close proximity to C to be inappropriate or what about it caused him to be uncomfortable. Mr Stallworth denied that his reaction when he observed the relatively close contact between Mr Lowrie and C in the armchair was influenced by a concern that Mr Lowrie may have paedophiliac tendencies. I accept his evidence that he had two concerns. First, that sitting on the arms of the chairs in the facility was against the centre’s rules for their use. Secondly, that it would be inappropriate for those responsible for young people at the centre to allow what Mr Stallworth perceived to be inappropriately close contact between a young boy and an unrelated older man.
[13] Mr Stallworth completed a report very soon after the incident on 9 May, which began with the comment:
Peter Lowr[ie] has cause[d] problems in the Library in the past and we were instructed to keep a close eye on him, when he is in the library and especially when he is around children.
[14] In cross-examination, he was reluctant to elaborate on why such close contact caused him concern, but I find his concern was that permitting such close contact between a young boy seated on the arm of an older man’s chair might lead to physical touching, which in itself would be perceived as impermissible. It was a concern at the situation he observed; not a concern that reflected any existing perception of Mr Lowrie’s character and he would have reacted similarly if the older man had been someone other than Mr Lowrie.
[15] Mr Lowrie’s evidence was that Mr Stallworth bodily picked C up off the arm of the chair and placed him, standing up, next to it. Mr Lowrie took exception to such physical interference in what he treated as an innocuous conversation. He also recalled Mr Stallworth saying to the boy that he should not be talking to Mr Lowrie.
[16] Mr Stallworth denied touching C. He recalls telling C it was against the rules to sit on the arm of the chair and that if he wanted to continue talking with Mr Lowrie he should stand next to the chair. Mr Stallworth’s evidence was that the boy acknowledged that he could not sit on the arm of the chair and complied with the instruction to stand up.
[17] As Mr Stallworth was leaving, Mr Lowrie challenged him, saying “Who do you think you are?” or words to that effect, and became confrontational. Mr Stallworth’s recollection is that he told Mr Lowrie that they could discuss the matter outside, to prevent disturbing other people using the library.
[18] On Mr Stallworth’s version of events, when they got to the front foyer Mr Lowrie asserted his right to talk to C, to which Mr Stallworth responded that he could talk to him, but just not with C on the arm of the chair. Mr Lowrie called Mr Stallworth a bully and then a “big black bully”, which Mr Stallworth found particularly offensive. Mr Stallworth’s evidence is that he could smell alcohol on Mr Lowrie’s breath and suggested to him that he had been drinking and needed to go home and sleep it off. Mr Lowrie acknowledged in evidence that he may well have had a glass of wine but denied that he had been drinking to an extent that affected his conduct.
[19] Messrs Lowrie and Stallworth were then joined by another Council employee, Ms Araiti. She did not give evidence but her contributions to the dialogue were observed by Mr Stallworth, who recalled her saying to Mr Lowrie that his behaviour was inappropriate and that his voice was too loud. Mr Lowrie’s response was to the effect that they were in a public space and he called Ms Araiti both a bully and a
feminist. Mr Stallworth observed him making these comments whilst standing close to Ms Araiti, then adding that all the female staff members were “feminists”.1
[20] Mr Lowrie did not deny the essence of such statements to Ms Arati, but denied that they occurred in a confrontational manner, saying he was assertive rather than aggressive. He explained that his impaired hearing required him to stand closer than usual to someone with whom he was conversing, and he did consider that the staff were being unreasonable in constraining his rights to use the premises and converse with C as he had been.
[21] Mr Stallworth’s evidence was that Mr Lowrie again called him a big black bully and poked his finger into Mr Stallworth’s chest. Mr Stallworth responded to the effect that Mr Lowrie could talk to him but could not touch him, and advised that Council personnel were going to call the Police.
[22] Mr Lowrie acknowledged calling Mr Stallworth a “big bully”, but denies calling him a “big black bully”, which he accepts would be racist. He also denies poking Mr Stallworth in the chest, instead saying that he tapped him on his arm. Mr Lowrie is a slightly built 59 year old. Mr Stallworth is a relatively well built 49 year old who puts his own height at six feet four inches. He is an African-American who has lived in New Zealand for some 22 years.
[23] Another recreation co-ordinator working at the Walter Nash Centre on that day, Devon Craig, gave evidence of being called on his radio telephone to go to the hub area of the centre where he saw Mr Lowrie pushing Mr Stallworth. In a statement written shortly after the incident, he described the push as being “on the shoulder”, but when cross-examined during his oral evidence he demonstrated the contact as occurring in the upper chest area. Mr Craig’s recollection is that Mr Stallworth had asked Mr Lowrie to keep his hands off him and Mr Craig stayed in the area to help control the situation. He recalled Mr Lowrie sitting down on a couch and telling Mr Craig to “get fucked”. Mr Craig considered that Mr Lowrie was causing a scene and that he was very loud. He suspected that Mr Lowrie might have been intoxicated.
1 References to Mr Lowrie’s use of the word “feminists” in the bundle suggest that he uses it to mean women who are “anti-men”.
Mr Craig’s evidence was that Mr Lowrie left the premises of his own accord before the Police arrived.
[24] Mr Craig was challenged in cross-examination on some aspects of these recollections, but did not alter his evidence and I found him a credible witness.
[25] Mr Michael Mercer, a divisional manager of the Council responsible for community hubs, happened to be at the Walter Nash Centre on 9 May 2017. During a meeting in another part of the premises, he overheard shouting at about 3.00 pm in the foyer. He went out to find that Mr Lowrie was yelling abuse at the staff. From Mr Mercer’s recollection, the Police were called because Mr Lowrie was refusing to leave the premises, but Mr Lowrie then left prior to the Police arriving. He identified the four staff who dealt with Mr Lowrie during this interaction as Messrs Stallworth and Craig, and two others who did not give evidence.
[26] Mr Stallworth’s evidence that Mr Lowrie poked him in the chest is corroborated by Mr Craig. On a review of all the evidence, I accept Mr Stallworth’s evidence that he was subjected to racial slurs by Mr Lowrie and that Mr Lowrie did poke him in the chest during the exchanges.
[27] I also accept the evidence of Mr Stallworth and other Council employees who witnessed the exchanges that Mr Lowrie was making agitated claims to his right to be in the space, including attempts to encourage other members of the public who were present to support him in challenging the Council employees.
The June 2017 meeting
[28] Mr Fraser made two criticisms of the Council attendees’ performance at the meeting. First, that they were merely going through the motions and did not engage with the substance of Mr Lowrie’s concerns. Secondly, Mr Lowrie’s previously mentioned concern that his treatment by Council employees was influenced by their perceived risk of him being a paedophile. Mr Lowrie is emphatic that such concerns are unwarranted and finds it extremely humiliating that Council staff have such a perception of him. His anger and the humiliation he felt when he suggested this was the unacknowledged reason for the treatment of him on 9 May 2017 was compounded
when the Council representatives at the subsequent meeting avoided engaging with him about it.
[29] Before the 2 June 2017 meeting, the Council complied with Mr Lowrie’s request to provide him with copies of any reports that had been made of the 9 May incident. These included Mr Stallworth’s report made the same day, a relevant extract of which is quoted at [13] above. That quoted passage fuelled Mr Lowrie’s perception that Council staff unjustifiably saw him as a risk to young children. Mr Fraser sought to draw a distinction between the concern implicit from the report, and Council representatives ignoring that as a consideration during their meeting with Mr Lowrie. Mr Fraser criticised them for explaining Mr Stallworth’s intervention during Mr Lowrie’s conversation with C as occurring because C was sitting on the arm of the chair, contrary to the rules of the Walter Nash Centre.
[30] The meeting on 2 June 2017 was attended by Mr Bradley Cato, in-house counsel for the Council, and Mr Mercer in his capacity as the manager of the Walter Nash Centre. At Mr Lowrie’s request, the discussion was recorded and has subsequently been transcribed. The transcript shows that Mr Lowrie did the vast majority of the talking, with short and essentially neutral comments from the Council representatives. The transcript suggests that, in a number of instances, they were cut off mid-sentence by Mr Lowrie’s more animated contributions.
[31] Messrs Mercer and Cato both gave evidence. I am not satisfied from their evidence, or from a consideration of the whole of the transcript of the meeting that lasted approximately an hour, that they engaged in less than a genuine way with Mr Lowrie. Their attempts to put the Council perspective on matters he raised were mostly pre-empted by his lengthy interruptions.
Other interactions between Mr Lowrie and the Council
[32] The agreed bundle of documents included two incident reports of interactions between Mr Lowrie and staff members at the Walter Nash Centre shortly before 9 May 2017. Mr Fraser did not require the makers of those notes to be called for cross- examination, but the cautious approach is to give them somewhat less weight because matters of detail were not tested in cross-examination. The notes record that on
24 April 2017 Mr Lowrie raised a concern that the community centre should keep a record of all things that happen in the community, with particular reference to his own stolen mobile phone. Mr Lowrie did not like being told that theft of such an item from his own property was not an issue for the Walter Nash Centre. He became agitated and proceeded to get louder and louder. He threatened a member of staff that she should “watch herself”, to an extent that the Police were called to ensure the safety of staff and other persons present.
[33] Then the following day, being Anzac Day, the Walter Nash Centre was closed to the public, except for specific bookings for use of particular facilities such as sports courts there. The staff member who dealt with Mr Lowrie on that day reported that he entered the centre, disregarding a sign stating that the centre was closed to the public. He ignored requests to leave until a final warning was provided, with the threat that if he did not leave the staff would call the authorities and have him removed. The report described him as being boisterous, obnoxious and not of sound mind, and that he smelt of alcohol.
[34] These incidents were approximately a fortnight before the confrontation between other staff and Mr Lowrie on 9 May 2017. Although the evidence of the staff who interacted with Mr Lowrie on 9 May does not make specific reference to the two earlier incidents, they do provide a context in which the staff could reasonably be aware that he was a person that other staff had found difficult to deal with.
[35] In addition to these incidents, there is a longer history of difficult dealings between Mr Lowrie and Council staff, including his having been trespassed from the Taita Library in January 2009, and further trespass notices in relation to various other Council buildings in March and then April 2014, and May 2016.
[36] I also heard evidence of the challenging and confrontational manner of Mr Lowrie’s dealings with staff at other Council facilities in April 2018. Those experiences can have no relevance to the reasonableness of the Council’s decision to issue the trespass notice in May 2017. However, they do add to the evidence of a pattern of conduct on Mr Lowrie’s part that is consistent with the evidence of the Council witnesses to the May 2017 incident.
[37] In his evidence-in-chief, Mr Lowrie stated that there is no Police record and that he had checked with the Police that no complaint had ever been made. When challenged in cross-examination, he clarified that this was intended only to mean that he had no convictions for any paedophile-type offending, or complaints in respect of such conduct. He readily accepted that he had a substantial number of convictions, including for obstructing and defeating the course of justice, offensive behaviour and insulting language, common assault and male assaults female. Mr Lowrie clarified that the convictions were all a long time ago and that many of them occurred when he was taking Prozac on prescription. He claimed he had not been convicted of anything in over 15 years.
[38] Of course a history of criminal convictions has no impact on Mr Lowrie’s entitlement to assert the numerous rights under NZBORA that he has raised in this judicial review. The extent to which he was required in cross-examination to qualify his evidence-in-chief suggests that he may be careless with the truth when providing formal evidence to the Court. The nature and apparent range of convictions, although by no means current, do provide some justification for Mr Dewar’s submission that the various Council employees’ evidence about Mr Lowrie’s aggressive and offensive dealings with them should be preferred to Mr Lowrie’s own claims to have been measured and inoffensive in his choice of language. The evidence revealed a history of conduct, which did not cease after the trespass notice had been served, that is reasonably likely to cause concern to Council staff dealing with him.
[39] Mr Dewar also put to Mr Lowrie the circumstance of an April 2014 difference of opinion over his entitlement to wear a t-shirt with a slogan in large letters on the back saying “God Loves Fags But …”, with a reference to the biblical source for that proposition. The front of the t-shirt has the slogan “God Hates Fag Sin”, again accompanied by a biblical source relied on for that proposition.
[40] Reactions to Mr Lowrie wearing that t-shirt and his interaction with library staff led to one of the trespass notices issued against him. In cross-examination, Mr Lowrie resisted Mr Dewar’s proposition that the wording was offensive and derogatory of homosexuals by its use of the word “fag”. Mr Lowrie claimed, on the basis of knowing homosexual men who jokingly called one another “fags”, that he
was equally entitled to use that word without being criticised for making derogatory or offensive remarks.
[41] I am satisfied that a man of Mr Lowrie’s intelligence does appreciate that such words can be highly offensive when used by an outsider. In abstract, Mr Lowrie accepted that his rights, such as to freedom of expression, were not absolute, but were subject to reasonable limitations to accommodate the interests of others. However, the manner in which Mr Lowrie asserted his right to display such words in an environment such as a public library, on the basis that they should not cause offence, suggested an unbalanced primacy being given to his own rights, without regard to any minimum extent to which he could reasonably be expected to consider the feelings of others.
The legal grounds for challenge
[42] The courts have previously considered the approach to be adopted in assessing the conduct of persons who might cause concern when issuing warnings under the Trespass Act 1980. It is significant that in the present context the Court’s task in judicial review is to consider the lawfulness of the challenged conduct. It is not an appeal in which the Court substitutes its own view on the merits.
[43] In Bright v Police, the Court of Appeal heard a second appeal from a District Court conviction for trespass after Ms Bright had failed to comply with a warning to leave a public meeting of the Auckland City Council.2 Ms Bright had argued that the provisions of the Trespass Act did not apply where the public had a right of attendance at a local authority meeting.
[44] The Court held that a person presiding at a meeting conducted under the Local Government Official Information and Meetings Act 1987 has the power to require a member of the public to leave a meeting if the presiding member believes, on reasonable grounds, that the person’s behaviour would prejudice the orderly conduct of the meeting. After that point had been reached, the provisions of the Trespass Act could be invoked. The Court observed:
2 Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132.
[48] … 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 Act are limited only to the extent reasonably necessary. …
[45] In Police v Beggs, a Full Court of the High Court determined an appeal by way of case stated from dismissal of informations laid against a large number of students charged with trespassing on Parliament grounds.3 The Court confirmed that the Speaker, as occupier of Parliament grounds, is required to exercise the powers under the Trespass Act in a manner that is consistent with the rights conferred by NZBORA. The Full Court observed:4
… The power or right to warn can be given a meaning consistent with the s 16 right of assembly by application of the standard of reasonableness. Because such an act limits the rights and freedoms contained in the Bill of Rights, such limitation must be reasonable in terms of s 5. The exercise of this statutory power can be resorted to only when reasonably necessary. …
… those rights [such as freedom of expression] are not absolute. If a protest assembly is unlawful or individuals behave in a disorderly manner, or breach or threaten to breach the peace, or unreasonably infringe the rights of others, or create a civil nuisance, then the Speaker could not be said to be acting unreasonably in requiring their departure.
[46] The Full Court rejected the proposition that the power to issue a trespass warning could only be invoked when those at Parliament grounds were acting in a manner that was unlawful, disorderly or unduly interfered with the exercise of the rights and freedoms of other persons. The Court found that the situations in which it would be reasonable to issue a warning depend on the circumstances of the particular case and could not be defined by any pre-determined formula.5
[47] In Rongonui v Police, Ronald Young J determined an appeal against conviction for breach of the Trespass Act where the District Court had proceeded in error by denying the defendant the right to challenge whether the giving of a trespass notice to him had been reasonable.6 In that case, the defendant interacted with a security officer at the reception desk of Bowen House, a building within the parliamentary complex. The defendant became agitated, mumbling and shouting to an extent that the security
3 Police v Beggs [1999] 3 NZLR 615 (HC).
4 At 627.
5 At 631–632.
6 Rongonui v Police [2011] NZAR 128.
officer felt threatened, although there was no evidence that the defendant had in fact threatened him. The sense of threat appears to have arisen because of the close proximity between the defendant and the security officer. On that occasion, the defendant spent time with a parliamentary party representative, and then returned to the premises the next day. There was nothing untoward about his behaviour on the second occasion, but he was issued a trespass notice because of his behaviour the day before. The defendant was subsequently convicted of trespass after returning to the parliamentary premises on several occasions after being served with the trespass notice.
[48]In reviewing the facts, which were not in contention, Ronald Young J found:7
… The only conduct which could be seen as aggressive was that he stood too close to the security officer when he spoke to him. No violence in fact ensued nor any attempt at violence. Mr Rongonui was clearly a nuisance that day, perhaps more than that, but if so, little more than that. He did not threaten anyone nor in any direct sense abuse anyone. When he was actually given the trespass notice on 5 August his conduct was unobjectionable.
[49] The appeal was allowed on the ground the circumstances that provoked the issue of the trespass notice fell well short of establishing a reasonable basis for issuing it.
[50] In the present case, Mr Fraser argued that the decision to issue the trespass notice to Mr Lowrie breached his rights under NZBORA. This argument requires that priority be given to respecting Mr Lowrie’s rights over other considerations that might reasonably be taken into account by the occupier of the Council’s premises. As to the level of misconduct that should be required before a trespass notice would be justified, Mr Fraser invited an analogy with the test required to make out an offence under s 4 of the Summary Proceedings Act 1957 for offensive or disorderly behaviour. In particular, Mr Fraser cited the observation of Elias CJ in the Supreme Court’s decision in Brooker v Police:8
… A tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.
7 At [22].
8 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [12].
[51] Appellate decisions on the requirements for behaviour to be considered disorderly or offensive focus on the need for the conduct to be disruptive of public order. Depending on the circumstances, that contemplates a higher standard in the criminal context than may be appropriate in assessing the reasonableness of an occupier’s decision to issue a trespass notice. The former requires the conduct to have reached the point at which its offensive or disorderly nature risks the maintenance of public order. In contrast, the latter involves a weighing exercise as to the extent that an individual’s rights under NZBORA ought to be limited in the interests of maintaining an appropriate level of order within the requisite space.
[52] I maintain that distinction notwithstanding Ronald Young J’s analysis in Rongonui v Police, where he characterised the defendant’s actions as “loud and unwelcome”, but “hardly unlawful or disorderly”.9 I am satisfied that the Judge in that case was not suggesting any requirement that an occupier had to perceive conduct to be of a standard that would justify prosecution for disorderly behaviour before it would be reasonable to issue a trespass notice.
[53] As a discrete head of challenge to the Council’s decision, Mr Fraser also claimed substantive unfairness. Such a ground of review was recognised, conceptually at least, by the Court of Appeal in the 1990s.10 The concept has not flourished as a discrete ground for review, and generally the current approach is reflected in the observation of the High Court in Air New Zealand Ltd v Wellington International Airport Ltd:11
… The courts’ increasing willingness to apply a variable standard or “intensity” of review, removes the reason for substantive unfairness as a stand- alone ground, subsuming it into unreasonableness. The distinction between substantive unfairness and Wednesbury unreasonableness that Cooke P discerned in Thames Valley no longer exists. There is now a spectrum of review intensity under the head of unreasonableness. …
[54] Mr Fraser relied on more recent recognition of substantive unfairness which he attributed to the judgment of Hammond J in Lab Tests Auckland Ltd v Auckland
9 Rongonui v Police, above n 6, at [25].
10 Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641 (CA) at 652, citing Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 149.
11 Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZAR 138 (HC) at [33].
District Health Board.12 Mr Fraser provided a partial quote, suggesting the courts did recognise the doctrine, from an edited version of the following:13
[392] Another possible doctrine is that of substantive unfairness, to be deployed in situations where a result is arrived at which is within the powers of the particular authority but which is so grossly unfair that it ought to be impugned. That is what I effectively held in NZFP Pulp & Paper Ltd v Thames Valley Electric Power Board. Although that approach was not favoured by this Court on appeal (see Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd), in Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd this Court held that:
The concept of substantive fairness ... also requires further consideration. The law in this country applicable to situations of that kind will no doubt be developed on a case by case basis.
[55] On an analysis of the whole of the Court of Appeal’s judgments in Lab Tests, I am not satisfied that it either relies on, or recognises obiter the prospect of, substantive unfairness.
[56] Mr Fraser also relied on a decision of the English Court of Appeal in Talpada v Secretary of State for the Home Department.14 In obiter observations about the concept of fairness in public law, Lord Justice Singh observed that the doctrine of substantive unfairness is an important tool enabling the Court to correct an abuse of power.15 The comment was in a context recognising that public law is not normally concerned with the substance of public decisions, but principally with correction of errors of law and ensuring compliance with fair procedures. The judgment acknowledged that it would be rare for the Court to substitute its own view for what the substantive decision should actually be. The acknowledgement of a doctrine of substantive unfairness was qualified with the observation:16
… that doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair. …
12 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776.
13 Citations omitted.
14 Talpada v Secretary of State for the Home Department [2018] EWCA Civ 841.
15 In raising the grounds of substantive unfairness, it was argued for Mr Lowrie that there had been an abuse of power in the Council’s actions in trespassing him.
16 At [65].
[57] I do not treat the authorities relied on by Mr Fraser as justifying a discrete basis for challenging the Council’s decision to issue the trespass notice in dispute here on the ground of any substantive unfairness. The more conventional approach to assessing the reasonableness of the decision to exercise the power under the Trespass Act is the point at which this judicial review challenge should start. In the circumstances of this case, I am doubtful whether different grounds for review could add to Mr Lowrie’s challenge if the decision is found to be a reasonable one on the approach contemplated in Bright and Beggs.
Was the decision to issue the trespass notice reasonable?
[58] The findings I have made on the evidence of the interactions between Mr Lowrie and Messrs Stallworth and Craig, and Ms Araiti, do not reflect well on Mr Lowrie. During the incident, he shouted in an area where that is inappropriate, he uttered racial abuse and made physical contact with Mr Stallworth when told not to, he swore at Mr Craig and was offensively rude to Ms Araiti. His conduct was sufficient to cause concern that he was disrupting the use of the space by other visitors.
[59] In addition, Mr Lowrie smelt of alcohol, and had a history of aggressively asserting his rights to disregard instructions from the staff at the centre in a confrontational manner.
[60] Did those circumstances warrant curtailing his freedoms as recognised in NZBORA to the extent of issuing a trespass notice?
[61] The first of these rights that Mr Lowrie claims was constrained by the trespass notice is his freedom of movement, as affirmed by s 18 of NZBORA. He claims that the trespass notice unjustifiably infringed upon his right as a resident of Taita to attend his local community centre. The period of that constraint is two years unless reviewed by the Council, and will expire in May 2019.
[62] In claiming a breach of this right, Mr Fraser relied on two cases. The first one concerned the Police preventing an individual from travelling down State Highway
One, suspecting he “might then do something untoward”.17 The second case was a decision of the Samoan Supreme Court dealing with an entire family that had been banned from a village after a number of incidents involving the plaintiff’s son.18 These cases, however, are of limited relevance given the facts before me.
[63] Mr Lowrie claims to be a frequent user of library and computer facilities. The Walter Nash Centre is some 260 metres from his home. There is an alternative facility at the Naenae Library, which is some 2.8 kilometres from his home, apparently involving a car journey taking some five minutes. It may be that exclusion from the Walter Nash Centre deprives Mr Lowrie of opportunities to interact with individuals who he might encounter there, but who he would not have contact with at the Naenae Library. In other respects, he made no complaint that the extent of library and other facilities available to him at the Naenae Library are materially inferior to those at the Walter Nash Centre.
[64] In confining the extent of this trespass notice to the Walter Nash Centre, I consider that the Council’s conduct in constraining Mr Lowrie’s freedom of movement was no more than is reasonably justified.
[65] Mr Lowrie placed considerable reliance on the Council’s alleged breach of his right to freedom from discrimination, as affirmed in s 19 of the NZBORA. That provision imports the prohibited grounds of discrimination from s 21(1) of the Human Rights Act 1993, which include disability as a prohibited ground of discrimination.19
[66] Mr Fraser submitted that discrimination had occurred on account of Mr Lowrie’s disabilities, being first a level of deafness requiring hearing aids and, secondly, impaired lung function which has been diagnosed as chronic obstructive pulmonary disease. Mr Fraser argued that the hearing disability provides a justification for Mr Lowrie leaning close into C during their conversation in the armchair as observed by Mr Stallworth at the Walter Nash Centre. It also provides an
17 Kerr v Attorney-General [1996] DCR 951 at 5.
18 Leituala v Mauga [2004] WSSC 9.
19 Human Rights Act 1993, s 21(1)(h). Section 21(1) also prohibits discrimination on the grounds of religious belief (s 21(1)(c)) and political opinion (s 21(1)(j)).
explanation for his standing closer to Council members during his interactions with them than would be accepted as normal for individuals with normal hearing levels.
[67] Mr Lowrie’s restricted breathing capacity was cited by Mr Fraser as a disability requiring different consideration by staff members who dealt with him. Arguably, when “confronted” as he was, he had less capacity to cope with the stress involved, and Council staff ought to have invited him to go to a quiet space where they could sit down and Mr Lowrie would be able to maintain his equilibrium and breathing.
[68] On the factual findings I have made about the interaction on 9 May 2017, I am not persuaded that Mr Lowrie was discriminated against on account of his disabilities. The evidence was that he uses hearing aids which assist his hearing, at least to an extent that enables conversations to occur on a more or less usual basis. Mr Stallworth was not required to adjust his concerns at the physical proximity between Mr Lowrie and C on the armchair at the Walter Nash Centre, on account of Mr Lowrie being hearing-impaired. Mr Stallworth’s intervention was to stop the conversation occurring whilst C was perched on the arm of the chair. His request did not preclude on-going dialogue between Mr Lowrie and C in another location that would allow Mr Lowrie to hear adequately.
[69] Mr Fraser’s criticism of lack of sensitivity by Council staff to Mr Lowrie during their interactions relies on Mr Lowrie’s version of the events, in which he attributes a confrontational attitude to Mr Stallworth in physically lifting C off the arm of the chair and then telling C that he was not to speak further with Mr Lowrie. I have found that matters did not develop in that way, and rather that it was Mr Lowrie who became confrontational and aggressive, which would have caused any shortness of breath that exacerbated the anxiety he appears to have felt.
[70] The circumstances of the interaction do not constitute any form of discrimination on account of Mr Lowrie’s disabilities, and certainly not to an extent beyond that reasonably required for the Council employees to deal with a difficult inter-personal confrontation.
[71] Mr Lowrie’s claim that the issue of the trespass notice breached his right to freedom of expression is misconceived. On the occasion in question, the Council staff involved were not influenced at all about expressions of view by Mr Lowrie on political, social or religious matters. Rather, it was the nature, content and aggressive delivery of what amounted to abuse that contributed to the decision to issue a trespass notice. The right to freedom of expression is not maintained to justify the use of obscenities in dealing with others, or the use of racial slurs such as were directed at Mr Stallworth.
[72] The complaint of breach of a right to freedom of peaceful assembly, as affirmed by s 16 of NZBORA, is similarly misconceived. Here, there was no meaningful constraint on Mr Lowrie’s right to interact with whomever he chose to; it was just the circumstances in which that was occurring in a space under the control of the Council employees.
[73] I am satisfied that the decision to issue the trespass notice in these circumstances was a reasonable one. Arguably, the staff had an option to tolerate his abusive and disruptive behaviour and do no more than insist he leave the premises. However, that could reasonably be seen, in the circumstances of the on-going relationship between Mr Lowrie and members of the staff, to be inadequate. It would require an approach in which the staff would be required to tolerate such unacceptable behaviour periodically on an on-going basis, when to do so might disrupt the provision of appropriate facilities for other users of the centre. Conceptually at least, it would also raise the prospect of a threat to the safety of the staff.
[74] In addition to his allegations of breach of the NZBORA rights that I have reviewed, Mr Lowrie pleads discrete grounds that the decision to issue the trespass notice was made without positive regard to each of those rights as a relevant consideration to be assessed before the decision was made.
[75] In circumstances such as the present, it is artificial to assess whether a decision potentially affecting rights affirmed by NZBORA was made by a process that included a prior analysis of whether any such rights would be infringed and, if so, whether the constraint would be to an extent that was more than reasonable.
[76] Instead, such decisions have to withstand scrutiny, if challenged, on the basis of the consequences of the outcomes. If the Council staff arrived at a decision which, on subsequent analysis, is found only to have constrained Mr Lowrie’s rights under NZBORA to an extent that is reasonable, then the absence of specific acknowledgement and assessment of that constraint on his rights would not render a decision that is otherwise acceptable on judicial review to be one that was unacceptable.
[77] Accordingly, having reviewed the substance of the criticisms of breach of Mr Lowrie’s NZBORA rights, the additional cause of action alleging failure to have regard to the existence and nature of each of those rights before the decision was made adds nothing.
[78] It follows from my analysis of the reasonableness of the decision to issue the trespass notice that, if substantive unfairness was a discrete ground of challenge, then it could not be made out in this case.
Summary
[79] This application for judicial review has turned materially on my factual findings on matters where there were significant differences between Mr Lowrie’s assertion of the nature of his interactions on 9 May 2017, and the version of those interactions from the perspective of Council staff. Having rejected a number of the important aspects of Mr Lowrie’s factual criticisms, I am satisfied that none of his grounds for judicial review can be made out. Mr Lowrie’s perception of how he was treated is dominated by his subjective concern that the Council staff were wary of him in case he engaged in paedophiliac conduct. That perception is understandably humiliating for him and most likely contributed to his having a low flash point in his reactions to the staff. However, there is no scope for a finding that the staff did act in that way and they cannot be blamed for his perceptions in that regard.
Costs
[80] I was advised that Mr Lowrie is legally aided. Notwithstanding that, Mr Dewar asked that I defer any consideration of costs until my substantive judgment
was available. In those circumstances, I give the Council a period of 15 working days from delivery of this judgment to file a memorandum in relation to costs. If costs are pursued, then there will be a period of up to 15 working days after service of the memorandum on behalf of the Council for Mr Fraser to reply.
Dobson J
Solicitors/Counsel:
S J Fraser, Wellington for plaintiff
Thomas Dewar Sziranyi Letts, Lower Hutt for defendant
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