Maxberry v National Rifle Association of New Zealand Incorporation
[2015] NZHC 3340
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2014-485-11244 [2015] NZHC 3340
BETWEEN MITCHELL REE MAXBERRY
Plaintiff
AND
NATIONAL RIFLE ASSOCIATION OF NEW ZEALAND INCORPORATED First Defendant
ATTORNEY-GENERAL Second Defendant
Hearing: 23 July 2015 Appearances:
G D S Taylor and M Anderson for the Plaintiff
R M Flinn and C X Feng for the First Defendant
K Stephen for the Second Defendant (abiding decision)Judgment:
18 December 2015
JUDGMENT OF MALLON J
Table of Contents
Introduction ....................................................................................................................................... [1] Factual background .......................................................................................................................... [6] Mr Maxberry .................................................................................................................................. [6] The NRANZ .................................................................................................................................... [7] The terms on which the NRANZ uses the Range........................................................................... [11] Shooting at the Range................................................................................................................... [14] Closure of the Range in 2000 ....................................................................................................... [21] The rule giving rise to the dispute ................................................................................................ [28] The dispute between Mr Maxberry and the NRANZ ..................................................................... [35] The disciplinary proceedings........................................................................................................ [47] Amendment of the RSO ................................................................................................................. [59] Health and safety complaint ......................................................................................................... [61]
Mr Maxberry’s appeal .................................................................................................................. [67] Revocation of decision.................................................................................................................. [74] Updating information ................................................................................................................... [76] First cause of action: procedural unfairness ................................................................................. [79] Second cause of action: the HSEA ................................................................................................. [94]
Result ................................................................................................................................................ [99]
MAXBERRY v NATIONAL RIFLE ASSOCIATION OF NEW ZEALAND INCORPORATED [2015] NZHC
3340 [18 December 2015]
Introduction
[1] The National Rifle Association of New Zealand (NRANZ) operates the Seddon Shooting Range (the Range) at Trentham Military Camp pursuant to a licence from the New Zealand Defence Force (the NZDF). Mr Maxberry was a member of a local rifle club and (through that membership) the NRANZ. A dispute arose between the NRANZ and Mr Maxberry over a difference of opinion about a safety rule which applied to target shooting at the Range.
[2] The safety rule set a measure of wind strength at which NRANZ shooting events were to be halted. The stated purpose of the rule was to protect markers (persons on the range who raise the targets during shooting competitions) from risk of injury during live firing. Mr Maxberry considered that the rule needed amendment to achieve its stated purpose. The NRANZ did not adopt his proposed amendment. Mr Maxberry believed that the NRANZ was impervious to his concerns, and the NRANZ took exception to the way Mr Maxberry was pursuing them. These tensions led to Mr Maxberry facing disciplinary action by the NRANZ, and the termination of his membership as a result.
[3] The proceeding is brought by way of a judicial review application. Mr Maxberry seeks declarations and other orders arising out of the NRANZ’s termination of his membership and its failure to adopt a rule intended to protect the safety of markers. There are two causes of action:
(a) procedural unfairness and irregularities in the disciplinary proceedings; and
(b)a breach of s 6 of the Health and Safety in Employment Act 1992 (HSEA), in that the NRANZ failed to ensure the safety of their employees pursuant to that Act.
[4] Since the proceeding was brought the NRANZ has:
(a) accepted that there were errors in its conduct of the disciplinary proceedings, and revoked its decision terminating Mr Maxberry’s membership; and
(b) amended the safety rule at issue.
[5] The NRANZ opposes the grant of relief on the first cause of action on the ground that the relief sought is moot or otherwise should not be granted in the exercise of the Court’s discretion. On the second cause of action, the NRANZ says that relief should not be granted because this proceeding is not the proper forum to determine whether the safety rule breached the HSEA.
Factual background
Mr Maxberry
[6] Mr Maxberry is American. He moved to New Zealand in 1998 and has since become a New Zealand citizen. He joined the Karori Rifle Club, which is affiliated with the NRANZ as a member club, soon after arriving in New Zealand. In 2010 he resigned from that club and became a member of the Upper Hutt Rifle Club. He has significant shooting and firearms experience. He has represented the United States and New Zealand in shooting competitions. He has been involved in administrative and technical committees and holds a variety of training and other qualifications. He sets great store by safety on the rifle range.
The NRANZ
[7] The NRANZ is an incorporated society under s 4 of the Incorporated Societies Act 1908. Its objects are listed in its Constitution as including co- ordinating and regulating “the activities of full bore rifle clubs and rifle associations throughout New Zealand whose members are affiliated with [the NRANZ]”, “encourag[ing] and promot[ing] competitive full bore target rifle shooting throughout New Zealand”, and “promot[ing] safety, responsibility and proficiency in the care and handling of firearms.”
[8] The NRANZ is comprised of member clubs “formed with objects consistent with those of the association”. Individuals who are financial members of member clubs are referred to in the Constitution as “individual financial members”. They are not themselves members of the NRANZ but are entitled to all its benefits “including (but not limited to) allocation of national grading, participation in shooting at all levels, and postal voting for election of counsel delegates.”
[9] Clause 4.4 of the Constitution states that individual financial membership
may be “withdrawn, suspended or terminated” in the following circumstances:
4.4.1 Such members fail to meet the conditions set by the Council, or
4.4.2 For conduct which, in the opinion of the Council, may bring the [NRANZ], its members, or the sport of target rifle shooting into disrepute, or which is prejudicial to the objects of the [NRANZ].
[10] Clause 4.5 states that individual financial membership may be withdrawn, suspended or terminated on a resolution carried by a two-thirds majority of votes recorded in a General Meeting, or at a meeting of a disciplinary committee called for that purpose. Clause 4.6 states that an individual financial member whose membership has been so affected may lodge with the Secretary written notice of an intention to appeal against such a decision.
The terms on which the NRANZ uses the Range
[11] The NRANZ has its headquarters at the Range. The Crown is the registered proprietor of the Range. The NRANZ’s use of the Range was pursuant to a series of memoranda of understanding. From 1 August 2011 its use is pursuant to a licence from the Crown acting through the Chief of the NZDF. The licence permits the NRANZ, its affiliates and members to use the Range for 30 years on the terms and conditions set out within it. Improvements to the Range are the responsibility of the NRANZ, and the NZDF have a right to use the improvements pursuant to the licence.
[12] The conditions on which live firing under the control of the NRANZ takes place on the Range have, since at least 1999, been set by the NZDF in the form of Range Standing Orders (RSOs). Successive editions of the RSOs have been issued
in 1999, 2008, 2010, 2011 and 2012. The RSOs are recognised under the lease. They are defined in cl 1.1 as being “the Orders issued from time to time by the Commanding Officer of Trentham Army Camp, following consultation with the [NRANZ], for the conduct of persons using the Range.”
[13] Clause 3.5 of the lease states that the NRANZ is “responsible for maintaining the Range so that it complies with … the relevant Range Standing Orders, at its cost.” Clause 5 requires the NRANZ to establish a disciplinary committee to deal with RSO breaches by affiliates or members. It is required to notify the NZDF of any breach and the outcome of any disciplinary hearing. Clause 6 requires the NRANZ to comply with the RSOs. Clause 10 states that the NRANZ must establish a health and safety plan which satisfies the requirements of the HSEA for operation of the Range in accordance with the RSOs. Clause 11 states that if the NRANZ breaches the terms of the licence, the NZDF has the right to revoke it.
Shooting at the Range
[14] The Range is situated in Trentham. There is a prison to its right and a golf club and the Somerville Rifle Range (used by archers and the NZDF for shooting activities) to its left. Beyond the bullet impact mound is the NZDF demolitions range and further on are hills. Behind the Range is the Trentham Military Camp and a residential area.
[15] Target shooting at the Range involves shooting from various distances at targets. When there is a cross wind on the Range, it affects the drift of a bullet. To hit the target, a shooter needs to estimate the wind speed, direction and effect on the bullet. He or she must then adjust the sight of the rifle so as to compensate for the bullet’s drift. A shooter makes his or her subjective assessment of the wind and then attempts to adjust their shot to account for the wind blowing at that particular speed and direction. Mr Maxberry notes that it is largely this skill that separates the top shooters from the rest.
[16] The targets are arranged in a line. The targets at the end of the line are referred to as the flank targets. The targets are raised above a buttress so that they are fully visible to the shooter when he or she is ready to shoot. Individuals, known
as markers, are employed to perform this task. They also mark the shots fired at the targets. They are paid for this service by the entity running the relevant event at the Range (that is, either the NRANZ or an affiliated club hosting the shoot).
[17] Markers are stationed within the target area to perform their tasks. The area in which they stand is known as the markers’ gallery. This is a concrete-lined area set below the level of the Range. Markers are under the supervision of a Butts Officer.
[18] The targets vary in size according to the distance at which the shooting takes place. At 800-1000 yards, they measure six feet high by eight feet wide. They are heavy. The markers use steel structures to lift the targets high into the air, to expose them for the shooters to fire at. In the period relevant to this proceeding, the targets were supported by two upright pieces of No 1 pine (65 mm x 94 mm in width and depth) when raised in the air.
[19] As with any sizeable expanse of rigid or semi-rigid material raised into the air, wind can catch the target and create a strain upon it. The strain is placed on the target frames and the supporting legs. The strain may lead to breakage. Factors that may contribute to breakage are the construction materials, the age and condition of the wood, the location of bullet holes, the wind force load (wind speed and direction) and the extent of gusting. Frames and supports may break, and targets can become detached and fly off into the markers’ gallery. This represents a potential hazard for the markers beneath them.
[20] One of the potential hazards on a rifle range is the risk that bullets will travel outside the designated “cone of fire”. The cone of fire is the area within which fired bullets are considered not to pose a risk to anyone outside the bounds of the designated Range Danger Area. The risk of bullets striking the Range outside the cone of fire does not pose a hazard to persons in the markers’ gallery. That is because they are confined to that area during live shooting.
Closure of the Range in 2000
[21] The NZDF uses the Range pursuant to a safety protocol (JSP-403). In 2000 the Range was closed to civilian and military personnel due to non-compliance with the newly adopted range standards in that protocol. The NRANZ took steps to facilitate the return of rifle events to the Range. Mr Maxberry was on a special technical committee of the NRANZ at this time.1
[22] In the context of securing a return to the Range, Mr Tony Loughnan, a chartered professional engineer, prepared a report dated 19 August 2001 entitled “Assessment of Cone of Fire for NRANZ shooting and range danger area for Seddon Range, Trentham.”
[23] Mr Loughnan’s report commenced by noting that the NRANZ, or its predecessors, have carried out firing on the Trentham ranges since the late 19th century without any recorded incident of endangering the public outside the Range Danger Area. As the Range did not comply with JSP-403, it was thought that NRANZ shooting events must provide a much tighter “cone of fire” than that assumed in the JSP-403. Data calculated from two events held at the Range was analysed in order to assess the cone of fire that could be expected for NRANZ shooting events at the Range.
[24] The report noted that the core distribution of the cone of fire is that resulting from the inherent spread of shots from a rifle and its ammunition, plus the unintentional deviation of competently fired shots due to unintentional error. Possible shooter errors include incorrect aiming, unintentionally holding or moving the rifle away from a perfect aim and incorrectly assessing the wind corrections required. The report went on to note other aberrations. These included “sight setting
errors”.2 One of the listed examples of such an error was “putting the wind on the
wrong way eg putting on 5 minutes left instead of 5 minutes right.” In the context of
discussing these errors Mr Loughnan said:
1 There is a difference in view about the role of this committee. It is not necessary for present purposes to consider the detail of that. Mr Maxberry was also appointed by the NRANZ from
2005 to 2011 to a NRANZ Technical Firearms Committee.
2 See [15] above.
The maximum credible error of this sort is to put the wind on the wrong way at 1000 yards in a very strong cross wind. Once the wind exceeds 20 minutes of angle at 1000 yards shooting is normally halted because of the difficulty in assessing it, the unpleasantness of being exposed to such a strong wind and the risk of damage to the targets and injury to the markers.3
It is almost inconceivable that someone would put 20 minutes left on a 20 minute right wind but it could happen and similar errors do occur. An allowance of 40 minutes (12mils in azimuth) should therefore be added to the core distribution to allow for this possibility at 1000 yards.
[25] Mr Loughnan set out a table of the (lesser) relevant settings at other distances
(that is, distances at 300 yards to 900 yards), for a wind that required a correction of
20 minutes at 1000 yards.
[26] The report set out a number of conclusions about where bullets would strike when shooting at the Range is carried out under NRANZ conditions. This included:
The maximum amount by which a shot can miss the centre of the flank target is 13.4m at an angle of 22.5mils. This equates to 14.2m at the stop butt. For this to occur the worst combination of the core distribution of the cone of fire must coincide at 1000 yards with the strongest wind conditions and the shooter putting the wind correction on the sight the opposite way. The odds against this occurrence are of the order of 1 in 1 billion. It is believed that the manlet should continue for 8m and the stop butt for 9m past the flank targets to ensure all shots are intercepted by one or the other.
[27] It is apparent that the NRANZ was able to secure a return to the Range although I do not have any detail about this.
The rule giving rise to the dispute
[28] As is discussed later, Mr Loughnan’s report was relied upon when drafting the RSOs.4 I do not have any detail about who was involved in settling the RSOs although the NZDF and the NRANZ were presumably involved.5 In the period
when the dispute arose, the relevant RSO was as follows:
3 Mr Maxberry relies on this statement to support his view that the “20 minutes of angle at 100 yards” referred to in rule 53(j) is a test directed at the prevention of injury to markers. It appears the NZDF and NRANZ, in developing rule 53(j), must have interpreted this in this way too. However, as I discuss later at [39], this is a misreading of this comment. Mr Loughnan’s comment is an assumption that when a greater adjustment to the sight is needed because of wind, it is unlikely that shooting would be taking place anyway. As Mr Loughnan later explained, he did not intend this to be a measure for determining when the wind was too strong for the safety of markers.
4 At [45].
5 As is now provided under the terms of the lease.
Limitations when Using the Range
53. Seddon Range allows for live firing events but for additional safety certain limitations must be applied. This is as follows:
…
j. Extreme Wind Limits. Because of the risk of injury during live firing to persons within the markers gallery, NRANZ shooting events are to be halted whenever the wind strength exceeds 20 minutes of angle at the 1000yd firing distance, regardless of the firing distance at the time.
[29] The “20 metres of angle” test refers to the setting of the sight on a rifle. To apply the measure in the rule, the person in charge of the shoot (the Chief Range Officer, or CRO) had to assess whether, to place a bullet in the bull of the target, he or she would need to aim at a point more than one target windward of the one being shot at. In practical terms, if a shooter aims at target 10 with 20 minutes of angle set, he or she aims at a point between targets 8 and 9, or between targets 11 and 12, depending on the direction of the wind. The test is concerned with cross-winds. With an up-wind or down-wind, sights do not need to be corrected at all. It is common ground that targets are most at risk in up-winds or down-winds rather than cross-winds.
[30] Mr Maxberry believed the rule was inadequate. The rule was aimed at “the risk of injury during live firing to persons within the markers’ gallery, yet it catered for only some wind directions that might affect safety. In particular, it did not cater for up-winds or down-winds (which presented a greater risk to markers).
[31] Mr Maxberry was also concerned that the test was subjective. As such, it did not provide a recognisable standard for the CRO responsible at a shooting event. There was no training method so that all CROs might reach the same conclusion about the wind conditions when shooting should be stopped. The measure did not refer to a specified wind speed nor the place from where the wind was to be measured. The subjective nature of the test is illustrated by an instance where Mr Maxberry saw a CRO, Mr Rob Morgan, asking a shooter, who had completed his shots, how many minutes of angle he was using. Mr Morgan was told “17”.
[32] Mr Maxberry believed that, in order to achieve its purpose, the test needed to be converted to a wind speed that was deemed dangerous. In the absence of a completely new rule, the CRO should convert the 20 minutes of angle to wind speed, and that could then be used as an objective measure regardless of wind direction. He calculated that the wind speed representing 20 minutes of angle was a little under 35 km/h. The wind speed at the Range was accessible from the Trentham weather station via any device with internet access. Mr Maxberry believed that CROs should apply the rule in this manner.
[33] Mr Maxberry had other concerns about the rule. It did not provide a mechanism for detecting when the upright legs had become too weakened by bullet strikes, and so at risk of collapsing, to be safe for use during shooting events. There was no requirement for records to be kept of maximum winds during events, breakages and damage.
[34] Sometime between 2005 and 2008 Mr Maxberry prepared a remit seeking to amend rule 53(j). His proposed amendment involved defining the rule in terms of wind speed. He recalls presenting it to the Karori Rife Club and that it was passed unanimously. He understood it would be forwarded to the NRANZ for consideration at its next annual general meeting. He does not know whether that occurred and, if it did, what the outcome of that was. The NRANZ has not been able to find any record of having received the remit.
The dispute between Mr Maxberry and the NRANZ
[35] On 16 January 2011 a shooting tournament between Australia and New Zealand (a “Mini-Palma match”)6 was cancelled due to strong winds breaking target legs. According to the published match report of that competition:7
Gale force winds were the feature of the day and caused the match to be limited to one range, 15 shots at 800yds. Considerable damage had occurred to target frames, legs, and one flagpole. The match was halted at the end of the first range, and the teams waited to see if the forecasted slackening in the winds eventuated, but it didn’t much and certainly didn’t in time.
6 The term used for an international competition involving two countries.
7 More specific evidence about what occurred that day is provided in the evidence filed on behalf of the NRANZ. The evidence explains when and the circumstances in which shooting was halted.
[36] Mr Maxberry was not present at that match, but subsequently saw the broken targets. He observed that one of them had sharp ends which posed a risk of wounding markers. He also obtained a record of the wind from the Trentham weather station which recorded the strongest wind gust at the time as being 59 km/h.8
[37] On 27 January 2011 Mr Loughnan wrote a letter to the Secretary of the
NRANZ (Mr Doyle) about this. It began as follows:
I was disappointed that the mini-Palma Match between Australia and NZ on
16 January had to be stopped because the wind was breaking the target legs thereby creating a hazard for the markers. This would not have been necessary if the legs of the targets were in accordance with the original design for the carriers.
The target carriers [that] were designed … for the NRANZ in 1984 … have never been supplied on grounds of cost. Sawn timber legs have been used and many have failed over time under high winds – all of which could have been avoided if the design had been complied with.
…
I wish to make a plea for some legs to be manufactured from LVL … to be
110 x 65 mm … These are cheaper and stronger than the original design … If it is not possible to equip the range fully at least it would be helpful to have enough for special matches so these do not need to be cancelled in high winds. In my opinion fully equipping the range with these legs can be justified on the grounds that they will enable NRANZ to obtain the full value of their very strong target carriers, eliminate a hazard for the markers and virtually eliminate the need to cancel shoots due to high winds.
[38] Mr Loughnan also went on to say that there appeared to be a misunderstanding of his cone of fire report.9 He noted that his report made an extreme allowance for a gross sight-setting error, based on the premise that when there is a wind of 20 minutes at 1000 yards, a shooter might accidentally put on 20 minutes the wrong way. It presumed that shooting would become untenable in cross winds of more than 20 minutes at 100 yards. It applied only when the wind was coming from outside the Range towards the flank target. At lesser distances the
same wind would require less than 20 minutes of angle. It was not a measure of wind speed but of correction. If it was intended to stop shooting when cross winds
became too strong, it was reasonable to use the sight adjustment of 20 minutes at any
8 The evidence from NRANZ says that this recording was at a time when shooting had halted.
9 At [26] to [26] above.
distance as the trigger point. However this would be done for fairness to the shooters, rather than because of safety issues. He said:
When similar or stronger winds are blowing up or down the range then there is no reason to stop – provided the target legs are upgraded to the original design strength as outlined above.
[39] Mr Loughnan’s letter therefore indicated that rule 53(j) was based on a misinterpretation of his cone of fire report. The “20 minutes of angle” test was not meant to determine when shooting should stop because of safety. In fact, it presumed that if winds were strong enough and in a direction (a cross wind) that required shooters to apply an allowance in order to hit the target, shooting would have ceased. It was not intended as a test for determining when shooting should stop because of the risk of injury to those in the markers’ gallery in extreme winds.
[40] In response to Mr Loughnan’s letter, it seems that the NRANZ sought information about the genesis of rule 53(j). I infer this from an email from the NZDF (Steve Lamb) to the NRANZ (Alan Whiteman) dated 11 February 2011. That email provided minutes of a meeting between the NZDF and the NRANZ in February 2001, which included the wording of what became rule 53(j). Mr Lamb noted that wind strength, not direction, was important for the safety of markers within the gallery.
[41] It seems that around the same time Mr Maxberry was again raising his concerns about the rule. He proposed a reworded remit (similar to the remit he had earlier put forward to the Karori Rifle Club) for the Upper Hutt Rifle Club’s consideration. On 25 June 2011 Mr Maxberry provided his proposed wording by email. Mr Maxberry’s proposed wording focused on an explicit identification of the maximum wind speed beyond which shooting activities on the Range should be stopped:
In order for those not inclined to research the details of the RSO I request that the EXTREME WIND LIMITS be re-worded in the Seddon Range Orders to,
EXTREME WIND LIMITS, Because of the risk of injury during living firing to persons within the markers gallery, NZNRA shooting events are to be halted whenever the average wind strength exceeds 22 miles per hour or
35 kilometres per hour over a ten minute period.
The phrase, “over a ten minute period”, is out si de of t he SRO’s prot ocol .
This remit can stand with [or] with out this phrase.
[42] Mr Maxberry understood the Upper Hutt Rifle Club passed the remit unanimously, and directed that it would be forwarded to the NRANZ for consideration at its next annual general meeting. There is no documentation to confirm that understanding although email correspondence included in the evidence for this proceeding does suggest that the remit had some support from others. However it is not known what in fact happened to the remit after it was put forward to the Upper Hutt Rifle Club. So far as Mr Maxberry was aware, it was forwarded to the NRANZ which did nothing with it. The NRANZ’s evidence, based on a diligent search of its files, is that it has no record of receiving the remit.
[43] It can be seen that Mr Maxberry’s proposed rewording of the rule was on the basis of his work in converting the existing measure of “20 minutes of angle” to a wind speed.10 It therefore seems that he was unaware of Mr Loughnan’s letter explaining that the “20 minutes of angle” test was not intended to determine when shooting events should stop because of the risk of injury to markers. Or, if he was aware of the letter, he nevertheless considered it appropriate to use that test and
convert it to wind speed so that there would at least be an objective test. His proposed objective test would apply regardless of whether the wind was a cross wind, up-wind or down-wind, in order to achieve the stated purpose of the rule, that being to prevent the risk of injury to markers in extreme winds.
[44] It appears that, following Mr Loughnan’s letter dated 27 January 2011, the
NRANZ provided Mr Loughnan with the RSO, including rule 53(j). On 10 August
2011 Mr Loughnan wrote to the NRANZ (Mr Doyle) about the RSOs, saying:
I had not previously seen these and was shocked to see they are badly in error because they completely misrepresent the NRANZ Cone of Fire which I developed in 2001 and later. As a result of the errors the RSO are unnecessarily restrictive …
[45] In relation to rule 53(j) in particular, Mr Loughnan said it was “illogical and incorrectly derived from the [cone of fire] development.” He noted two issues.
10 At [32] above.
First, it did not allow for the toleration of stronger cross winds at shorter distances. Secondly:
2.The inference in the clause that it is included to avoid risk of injury to the markers is quite incorrect. It was wrongly developed from the cone of fire. The risk to the markers is entirely a matter of the structural strength of the targets and the timber legs carrying them.
… The maximum allowable wind is that direct on the target face – not a cross wind – and should be calculated by a structural engineer depending on the legs actually being used. …
This clause should therefore be rewritten in terms of the allowable wind along the range and the type and size of the timber legs.
[46] It is unclear if Mr Maxberry was provided with a copy of this letter at the time. However, it can be seen that Mr Maxberry’s concerns about the rule were well founded. The rule did not adequately protect markers from the hazards of target frames and leg breakages. The test in the rule was a cross-wind test intended for an entirely different purpose. Mr Loughnan’s view of rewriting the rule in terms of the allowable wind along the Range was the approach that Mr Maxberry had been advocating, albeit that Mr Maxberry’s proposed rule was based off a wind speed equivalent of “20 degrees of angle at 1000 yards”, when that measure was never intended as one for the safety of the markers.
The disciplinary proceedings
[47] A series of events then took place which resulted in a complaint being made to the NRANZ. They are set out in a formal letter of complaint dated 3 October
2011 from Mr Crow (President of the NRANZ at the time) addressed to Mr Doyle
(the Secretary). The complaint involved four particulars as follows:
Complaint # 1
Saturday afternoon 24th Sep 2011, he allegedly assaulted the CRO Mr Bob Moffit at a WRA controlled shoot on Seddon Range. The alleged assault consisted of prodding the CRO in the chest a number of times followed by what I would describe as vehement and abusive language after he was ordered from the range by the CRO. I witnessed the abuse and I believe a prominent member Mr Mike Collings, a visitor from outside WRA, witnessed the alleged assault.
…
Complaint #2
On or about the same date he sent an email to another member in which he stated that “many of the WRA members have been misled as to the value of the new 30 year lease.”
…
Complaint #3
Sometime during the ensuing week, he wrote a letter to the Trentham Camp Range Warden accusing the Karori Club of, amongst other things, “have and continue to violate the range standing orders”…..“outright attempt to make a mockery of the safety concerns for usage of the range.”
…
Complaint #4
During a phone call from Camp (as a response to his letter) he further had discussions with Army on what he describes as “in the best interests of the WRA and NRA” but I would describe as interfering in NRANZ affairs in what is none of his business.
…
I repeat that in my opinion, Mr Maxberry by his alleged actions as described has brought the [NRANZ] into serious disrepute.
[48] The first complaint arose from Mr Maxberry’s concern that appropriate signage was not in place to warn the public when firing was in progress. As I understand it, complaints 3 and 4 also arose out of Mr Maxberry’s continued safety concerns.
[49] On 26 October 2011, Mr Dodson (the Vice-President of the NRANZ) wrote to Mr Maxberry. The letter advised Mr Maxberry of the following matters:
(a) The Secretary had received Mr Crow’s letter of 3 October 2011 (a
copy was provided).
(b)The NRANZ Council had appointed a disciplinary committee (the Committee) consisting of Mr Dodson (Vice-President), Mr Rob Morgan (Appointed CRO) and Mr John MacLaren (a “past Council
Member and long serving NRANZ member”).11
11 The letter explained that at the NRANZ Council meeting on 16 and 17 July 2011, the President, Vice-President and Chairman were elected to comprise the Disciplinary Committee. However, the President was precluded from serving on the Committee because he was the complainant,
(c) The Committee had considered the complaints and “concluded that a prima facie case has been established.” As a result, “a unanimous decision” was made to suspend Mr Maxberry’s membership of the NRANZ, pending an investigation, effective from the date Mr Maxberry received the letter. This was pursuant to cl 11.7 of the
NRANZ Constitution.12
(d)Mr Maxberry was to “cease all direct, or indirect, communication” with the Trentham Camp Range Warden, NZ Army or the NZDF except through the NRANZ office; and that he should not “hold [himself] out to be a spokesman for NRANZ on any matter on which it has providence”. This was pursuant to cl 4.4.2 of the NRANZ
Constitution.13
(e) A formal hearing of the Committee would be convened to hear the complaints and any submissions by Mr Maxberry.
[50] The disciplinary hearing proceeded on 21 November 2011. Mr Crow and Mr Maxberry were called separately to give their accounts to the Committee. It is apparent from the record of the meeting that Mr Maxberry endeavoured to raise his concerns about safety at the Range. The Committee informed him that the purpose of the hearing was to respond to the four complaints and that he needed to concentrate on those events. After Mr Maxberry left the hearing, the Committee telephoned Mr Collings, who was present during the altercation which was the subject of the first complaint. Mr Collings confirmed that Mr Maxberry had put his hand on Mr Moffitt’s chest reasonably firmly. Based on this evidence, the Committee decided to uphold the first complaint. The third complaint was upheld on the basis of correspondence sent by Mr Maxberry to the Trentham Camp Range Warden in contravention of a directive published by the NRANZ President. The
second and fourth complaints were not upheld.
and the Chairman’s position was vacant at the time.
12 That permits a disciplinary committee to impose an interim suspension pending a hearing.
13 That provides that individual financial membership may be withdrawn, suspended or terminated if the conduct of a member brings the NRANZ into disrepute or is prejudicial to its obj ects.
[51] The Committee reached the following conclusions:
(a) In respect of the first complaint, Mr Maxberry’s suspension would continue until 1 January 2012, with possible waiver if Mr Maxberry submitted a letter of apology acceptable to Mr Moffit.
(b)In respect of the third complaint, a censure was to be issued to Mr Maxberry. The censure was “to be considered as a warning of future actions should further unauthorised correspondence with [NZDF] personnel continue”.
[52] The Committee also agreed that it would write to the NRANZ Council to recommend undertaking “as soon as possible the necessary review of the Seddon Range Standing Orders.” The disciplinary decision was sent to Mr Maxberry by email on 1 December 2011. On 2 December 2011, Mr Maxberry wrote an apology to Mr Moffit and forwarded it by email to Mr Doyle. The apology was fulsome, expressing Mr Maxberry’s sincere and humble apology, deep regret, and an acknowledgement that he had been “completely out of order as [Mr Moffit was] the Range Officer in charge at the time” and Mr Maxberry “should have known better.”
[53] Mr Doyle informed Mr Maxberry that he had read the apology to Mr Moffit over the telephone and Mr Moffit would be happy to speak with him in the morning. It appears that Mr Maxberry understood that Mr Doyle had passed on the apology, whereas Mr Moffit was anticipating that Mr Maxberry would deliver the apology personally the next day. The apology was therefore not made at that time. A few days later, on 8 December 2011, Mr Maxberry presented Mr Moffit with a letter of apology. It was mounted on to the rear of a picture frame. On the front was an extract from the NRANZ Range Conducting Officers training course, which had guidelines for the placement of appropriate signs to warn the public to keep clear of the Range when firing was in process. Mr Moffit was not happy with this but did not wish to take the matter further.
[54] Following the November 2011 hearing, Mr Maxberry continued to correspond with the NZDF regarding his safety concerns. In the first quarter of 2012
he forwarded to the NZDF a “dossier” of events which he believed showed breaches of the RSOs. He says he did this because he believed the NRANZ intended to do nothing about his concerns. He considered he had a moral obligation in these circumstances to alert the NZDF. His dossier referred to the following matters:
(a) A Hutt Valley Deerstalkers Event on 7 July 2010 involving circumstances that Mr Maxberry believed to be violations of the RSOs.
(b) An event conducted by the Wellington Rifle Association on 2 October
2010 in which a .303 rifle was shot from 900 yards, contrary to the
RSOs which provided for a maximum distance of 600 yards.
(c) A “point blank” pig’s head event proposed by the Karori Rifle Club, which was contrary to the RSOs, which did not proceed once Mr Maxberry alerted the NRANZ.
(d) A proposal to allow non-complying firearms to be used.
(e) Excessive wind speed records (based on Mr Maxberry’s interpretation of rule 53(j)) at the 2011 Mini-Palma competition at which targets and flagpoles were damaged.
[55] On 19 May 2012 the President of the NRANZ sent an email to Mr Maxberry and 23 other recipients. The email advised Mr Maxberry:
[that if he was to] have any communication with [the NZDF], or anyone outside of our organisation, regarding the NRANZ and its activities an or procedures and rules, particularly regarding the Seddon Rifle Range, then I will conclude that you are acting prejudicial to the objects of the Association and will have seriously brought the sport of Fullbore Rifle Shooting into disrepute and I will seek at the upcoming NRANZ AGM, your individual membership termination under the NRANZ constitutional rules 4.4 and 4.5. I will take this action on a personal basis, as President, and divorced from any actions or further actions that may occur of or by the recent NRANZ Disciplinary Committee.
[56] On 21 November 2012, the Upper Hutt Leader published an article entitled
“Rifle Range Safety Breached”. The article directly quoted Mr Maxberry and
referenced his correspondence with the NZDF. On the same day Mr Crow called Mr Maxberry to inform him of the decision to terminate his membership effective immediately (the Council’s Decision). This decision was made by the Council over telephone and/or email correspondence.14
[57] On 22 November 2012 Mr Maxberry received a letter advising that this decision had been unanimously agreed upon, and that it had been “taken as a last resort to continued disregard for conditions set by the Council and conduct prejudicial to the objects of [the NRANZ].” Also on 22 November 2012 a general notice was posted to the NRANZ website stating:
Mr M Maxberry’s membership of the [NRANZ] has been terminated with his name being struck off the national register of members. The decision is unanimously agreed [to] by [the] NRANZ Council, and is effective immediately.
[58] On 12 December 2012 Mr Maxberry’s lawyer wrote to the NRANZ Secretary to inform him that Mr Maxberry intended to appeal the decision to terminate his membership.
Amendment of the RSO
[59] In the meantime work had been carried out on a new edition of the RSOs. The evidence before me as to what Mr Maxberry knew about this is not comprehensive. Mr Maxberry was aware of the Committee’s recommendation for a review of the RSO15 but it does not seem that the NRANZ provided any further information to Mr Maxberry about this. He did, however, receive an email from the NZDF dated 25 September 2012. This email noted an action point arising from a meeting on 5 September 2012 (it is not clear who attended that meeting) that any rewrite of the RSOs should ensure greater clarification regarding the wind speed, and
it should specify that the direction of the wind is irrelevant.
[60] The new edition of the RSOs was issued on 10 December 2012. In this edition, rule 53(j) was replaced with the following:
14 It was subsequently ratified in the minutes of the Council meeting on 5 January 2013.
15 Refer [40] above.
j. Extreme Wind Extreme Wind on Seddon range is a natural seasonal phenomenon. Down range frontal and rear winds pose a risk of injury to personnel within the butt’s or markers gallery in the event of target breakages. Excessive cross-range winds may become difficult for shooters to judge and could result in errors in sight setting allowance permitting fired projectiles to drift beyond the established and authorised Cone of Fire (CoF). All NRANZ shooting events are to cease in the following instances:
(1) Down-Range Wind Should the Chief Range Officer (CRO) and/or Butt’s Officer (BO) have concerns with imminent target breakages due to excessive frontal or rear wind, the CRO is to immediately call a cease-fire and order a postponement until excessive winds abate. Shooting is to recommence only when both the CRO and BO are satisfied the peak wind strength has reduced to a level where target breakages will not occur.
(2) Cross-Range Wind Excessive cross-range wind may generate unacceptable risk of fired rounds falling outside the horizontal plane (azimuth) of the established Cone of Fire (CoF). The excessive cross-range wind is to be judged on the basis of firing from the longest firing distance (1000 yd mound) of the range.
(a) In the event that shooters need to apply a sight setting allowance of more than 20 rifle minutes to obtain a hit on their allocated target, the CRO is to immediately assess the need to call a halt to shooting.
(b) Once shooting is halted and a predetermined postponement time implemented, shooting cannot recommence until directed by the CRO. Once the predetermined postponement has elapsed the CRO must determine that the cross-range wind strength has reduced and that firing can recommence or an extension to the postponement is ordered in the event the wind strength has not subsided.
(c) The CRO must be satisfied that excessive cross- range wind will not cause fired rounds to drift beyond the horizontal plane of the CoF and that a sight setting allowance of more than 20 rifle minutes would not be required to obtain a hit on a shooter’s allocated target, only then may shooting recommence.
Health and safety complaint
[61] Sometime in December 2012 Mr Maxberry lodged a health and safety complaint with the Ministry of Business, Innovation and Employment. The complaint concerned the safety of markers during times of high winds. As a result of
this complaint, Mr Young, a health and safety inspector from the Ministry, met with the NRANZ to obtain information about its procedures. He subsequently met with Mr Lamb (the NZDF Range Controller) and Mr Doyle (the NRANZ Secretary) on the Range and inspected the markers’ gallery and target set up. Mr Young also received a report from Mr Lamb on the NRANZ’s use of the Range.
[62] Following these investigations Mr Young prepared a report on the complaint. He provided a copy of his report to the NRANZ Council on 9 April 2013. The report referred to the following matters:
(a) The markers’ gallery is a concrete lined enclosure, designed to protect the markers from bullets/bullet fragments, and is constructed in compliance with NZDF standards.
(b)The operation of the markers’ gallery is controlled by a Butts Officer (and/or assistants) in direct contact, via hand-held radio, with the CRO, who controls the entire shooting activity.
(c) The RSOs make provision for extreme wind.16
(d)The RSOs make provision for Range inspections. These include a daily check carried out by the CRO when the Range is in use to ensure it is fit for use; a monthly check to ensure the Range is in good order and that any maintenance requirements are followed up until completed; an annual inspection to ensure the Range remains safety- compliant, with a certificate being issued; and a five yearly inspection, carried out by a competent inspector from another Army Camp or the New Zealand Police.
[63] The report referred to information provided by Mr Lamb about what occurred when strong down-range wind was experienced during the NRANZ National Championships on 9 to 12 January 2013. Mr Lamb visited the Range to check on
how the targets were holding up in the wind. He observed no movement from the
16 The report set out the new provisions: refer to [60] above.
firing mounds. He confirmed that communications were being maintained between the Butts Officer and the CRO over the wind strength. Further, the CRO confirmed that the rifle sight-setting allowance was well within the maximum 20 minutes of angle as stated in the RSO. In addition the CRO ordered a trial exposure of a single target raised in the display position. Shooting recommenced only when no issues were confirmed. Mr Lamb considered this showed the NRANZ’s intent to conduct live firing under safe conditions.
[64] The report also referred to the January 2010 Mini-Palma match. The NRANZ believed that a target leg weakened by bullet holes should have been replaced prior to the event. Due to high winds at the time, the three match event was reduced to one event. As a consequence of this incident, the target legs were strengthened and an inspection regime was implemented to ensure damage was identified promptly and target legs repaired when necessary.
[65] The Ministry considered that the NRANZ had identified the hazard, documented it, designated inspection periods, and taken reasonable action in response to the January 2010 incident. The Ministry noted that Mr Lamb, an expert in this field, regarded the NRANZ as having demonstrated commendable action over and above the RSOs, and that it was aware of and ready to adapt to varying conditions to maintain safe operations. The Ministry also noted that no incident had occurred since the 2010 incident.
[66] The report concluded as follows:
It is the Ministry’s conclusion that the [NRANZ] has not breached the [HSEA] in relation to the persons undertaking duties in the Markers Gallery. We are satisfied that all reasonable steps are being taken to ensure the safety of those present in this area when shooting activities occur.
Mr Maxberry’s appeal
[67] Mr Maxberry’s appeal against the Council’s Decision to terminate his membership was scheduled to be heard on 24 June 2013. Pursuant to rule 11 of the NRANZ constitution, a disciplinary committee (the Appeal Committee) was appointed comprising Mr Bevan Mehrtens (Malvern Rifle Club) as Chairman, Mr Alan Drake (Taranaki Rifle Club), and Mr Owen Whiteman (Masterton Rifle Club).
[68] At the hearing the Chairman explained that the Appeal Committee would make a decision based on the submissions and the evidence presented. Mr Maxberry and Mr Crow (the NRANZ President) each put forward their perspectives. They had the opportunity to respond to each other and did so. Mr Maxberry considered he was entitled to raise safety concerns with appropriate third parties. Submissions provided by his counsel accepted “there was a clear directive to all members of the NRANZ not to discuss sensitive matters with the [NZDF]”, but that this was an improper attempt to gag freedom of speech. Mr Maxberry’s actions were not to discredit the NRANZ but to make it better and safer. Mr Crow believed the NRANZ had matters in hand, they were aware of errors in the RSOs and were working with the NZDF to update them, it was important to maintain a single line of communication with the NZDF, and Mr Maxberry was raising baseless “safety breaches” for ulterior reasons.
[69] On 5 July 2013 the Appeal Committee issued its decision dismissing Mr Maxberry’s appeal. It set out its essential findings, with reasons to follow. Those findings were as follows:
(a) The decision to terminate Mr Maxberry’s membership was made in accordance with rules 3.11, 4.42, and 10.4 of the NRANZ constitution.
(b)Mr Maxberry ignored directives to cease communication with parties outside the NRANZ regarding perceived historic safety breaches at the Range.
(c) Mr Maxberry was aware that continued disregard of NRANZ Council directives and the censure could likely result in termination of his membership.
[70] The Appeal Committee also observed that, in respect of the perceived safety breaches, the NRANZ had satisfied the NZDF and the Ministry as to the safe use of the Range.
[71] The Appeal Committee’s detailed reasons were released on 6 September
2013. They can be summarised as follows:
(a) Natural justice was not breached. The Council’s Decision was made against the disciplinary process that preceded it. Mr Maxberry had been censured for his communications with the NZDF, he was warned that further communications would result in further discipline, and he continued to contact the NZDF despite the Council’s directive and the warning. Mr Maxberry did not deny having made these further communications.
(b)The Council had jurisdiction to make the termination decision. Under the rules of the Constitution the Council can impose and monitor compliance with conditions and form an opinion on the conduct of a member. Whereas a disciplinary committee hears formal complaints and appeals, the Council can of its own accord discipline members where a member has already been disciplined and warned by a disciplinary committee.
(c) The directive not to communicate with the NZDF did not inappropriately stifle Mr Maxberry’s right to free speech. There are many occasions in which a voluntary association of members may, for the good of the association, require members to refrain from certain forms of speech. In this case the NRANZ was negotiating with the NZDF the terms and conditions of the NRANZs use of the Range. Its relationship with the NRANZ had been difficult in the past and it was important to the NRANZ to remain on good terms with the NZDF. It was therefore essential that there be a single point of contact with the NZDF. The NRANZ’s directive was entirely reasonable. Mr Maxberry was free to express his safety concerns through the NRANZ’s processes. If Mr Maxberry felt it was more important to express his safety concerns directly to the NZDF than comply with his obligations as a member of the NRANZ, then he was entitled to do that and also to resign his membership.
(d)The Council had a valid basis for terminating Mr Maxberry’s membership. For completeness, the Appeal Committee also considered whether grounds for termination existed and concluded that they did. In light of the historic political difficulties with the NZDF, the NRANZ had concerns about its members communicating with the NZDF. A breakdown of the relationship would hamper the NRANZ’s ability to achieve its objectives as set out in its Constitution. It was implicit in membership of an association that parties act cooperatively to achieve its purposes. Mr Maxberry’s conduct was sufficiently serious to justify termination.
[72] The Appeal Committee concluded as follows:
58. For the reasons stated above the [Appeal Committee] finds that:
58.1the Council breached neither natural justice nor the terms of the NRANZ Constitution in terminating Mr Maxberry’s membership in the circumstances it did; and
58.2 the Council was justified in terminating Mr Maxberry’s
membership in light of both:
58.2.1Mr Maxberry’s breach of a condition set by the Council namely the directive to all members not to make contact with the [NZDF] regarding matters relating to the Seddon Rifle Range; and
58.2.2 Mr Maxberry’s conduct being both conduct which may bring the [NRANZ], its members or the sport of target rifle shooting into disrepute, and conduct which was prejudicial to the objects of the [NRANZ].
[73] On 19 September 2014 Mr Maxberry filed this proceeding.
Revocation of decision
[74] The Council subsequently determined that there were defects in the processes leading to the termination of Mr Maxberry’s membership. On 1 June 2015 the Council issued a written resolution in lieu of a meeting as follows.
….
The Council has been made aware of procedural irregularities with the original hearing of 21 November 2011. In particular, the disciplinary committee heard evidence via telephone in the absence of Mr Maxberry. The Council is also concerned that there may be an appearance of predetermination of Mr Maxberry’s termination by the Council President serving in November 2012.
In light of this procedural defect the Council now wishes to reverse its decision to terminate Mr Maxberry’s membership. In light of the time that has elapsed the Council does not wish to recommence the disciplinary process.
Wherefore it is hereby resolved that:
The Council’s decision of 21 November 2012 to terminate Mr Maxberry’s
membership is revoked effective immediately.
The Council will not recommence disciplinary action against Mr Maxberry in relation to the conduct giving rise to the termination decision.
[75] Mr Maxberry was advised of this by letter dated 8 June 2015. The letter also advised him that the decision would be published on the NRANZ website and disseminated to all NRANZ member clubs.
Updating information
[76] Subsequent to the hearing updating information was provided in respect of Mr Maxberry’s present membership status. In early August 2015 Mr Maxberry enquired about joining the Trentham Rifle Club (formed from a merger of the Onslow and Upper Hutt clubs). On 20 October 2015 the Trentham Rifle Club adopted an amendment to clause 5.4 of its rules, so that it now provides:
The executive committee shall have complete discretion in deciding whether or not to allow the applicant to become a member. The executive committee shall advise the applicant of its decision, and that decision shall be final.
[77] On 10 November 2015 Mr Maxberry submitted his completed application form. He was invited to address a meeting of the executive committee on 12
November 2015. He did so, expressing his passion for rifle shooting and his desire to be a member of the club so that he could continue that passion. On 20 November
2015 Mr Maxberry received a letter from the Trentham Rifle Club advising that
“[a]fter due consideration the committee has declined your application.”
[78] The updating information also informs the Court that at the time Mr Maxberry was expelled from the NRANZ he was a member of the Cheltenham Rifle Club.
First cause of action: procedural unfairness
[79] The NRANZ’s position is that events have moved on since Mr Maxberry filed his claim. It has accepted there were some procedural errors. It has since taken the pragmatic step of revoking its decision to terminate Mr Maxberry’s membership. It has also resolved not to recommence disciplinary action in relation to the matters that gave rise to that decision. A procedurally unfair decision would ordinarily be quashed and referred back for reconsideration. Mr Maxberry has therefore achieved more than he would likely achieve under this cause of action. In these circumstances there is no need for the Court to make a finding on the other grounds advanced under this cause of action. The matters are moot and the Court should exercise its discretion to decline relief.
[80] Mr Maxberry does not accept the matter is moot. He regards the decision to expel him from the NRANZ as effectively preventing him from rejoining a local club and, in turn, the NRANZ. He seeks an order quashing the Council Decision and the Appeal Decision from the beginning or, alternatively, declarations that those decisions were invalid from the beginning. He sees this as necessary to his ability to rejoin a local club. In an updating submission following his unsuccessful application to join the Trentham Rifle Club, he seeks a declaration that he remains a member of Cheltenham Rifle Club. Alternatively, he seeks a declaration that the Cheltenham Rifle Club is not to treat him as though he has ceased to be a member by reason of his purported expulsion from the NRANZ, or because he has not renewed his application since that purported expulsion.
[81] I consider it is appropriate to assess this cause of action, and whether relief should be granted in respect of it, notwithstanding the NRANZ’s revocation decision on 1 June 2015. As counsel for the NRANZ submits, the revocation decision and the resolution not to recommence disciplinary proceedings in respect of the matter were pragmatic steps. While the NRANZ acknowledges defects in its procedures, and that
it wished to reverse its decision as a result, there is no explicit acknowledgment that the procedural defects meant that the termination decision was invalid. Although the NRANZ reached the decision in a procedurally defective way, it decided there were grounds to terminate Mr Maxberry’s membership. This fact may continue to impact upon how Mr Maxberry’s future applications to join a local club are received and determined. If the decision was invalid and, as such, was one that ought not to have been made, it would be wrong and unfair for it to continue to have any such impact.
[82] The first ground is that the Council had no power to make the termination decision. I agree that it did not. The Council’s powers are set out in rule 10.4 as follows:
The Council shall have all the powers of the [NRANZ] detailed in Rule 3 of this constitution. The Council shall not have authority to exercise any power in Rule 3 of this constitution that expressly requires a resolution at a general meeting.
[83] Rule 3.11 provides the NRANZ with the power to “[w]ithdraw, suspend or terminate … individual financial membership”. Rule 3.11 does not say that this power expressly requires a resolution at a General Meeting. However rule 10.4 does not state that this reservation must be one that is stated in rule 3. The test under rule
10.4 is whether the power expressly requires a resolution at a general meeting.
[84] Section 4 of the Constitution deals specifically with membership. Rule 4.4 sets out the grounds on which membership may be withdrawn, suspended or terminated. There are two grounds. The first ground is failing to meet the conditions set by the Council. The second ground is for conduct which “in the opinion of the Council” may bring the NRANZ, its members, or the sport of target rifle shooting into disrepute, or which is prejudicial to the objects of the NRANZ. Rule 4.5 sets out how membership may be withdrawn, suspended or terminated, namely, “on resolution carried by a two-thirds majority of votes recorded in General Meeting, or at a meeting of the Disciplinary Committee called for the purpose.” Rule 4.6 provides a member with the right to appeal against such a decision.
[85] In my view this means that rule 3.11 is a power that is expressly required to be exercised by resolution at a General Meeting, albeit that it can also be exercised
by a disciplinary committee.17 This is reinforced by rule 4.6 which provides for an appeal from a decision of a General Meeting or a disciplinary committee. The rule does not provide for an appeal against a decision of the Council and there is no such provision elsewhere in the Constitution.
[86] In my view the Council has the power to set the conditions of membership, and to determine what conduct may bring the NRANZ, its members, or the sport of target rifle shooting into disrepute or be prejudicial to the objects of the NRANZ. But the jurisdiction to determine whether a breach of those conditions or standards should be met with membership withdrawal, suspension or termination, is vested, under the Constitution, in a disciplinary committee or a two-thirds majority vote at a
General Meeting.18 It follows that the Council did not have the power to terminate
Mr Maxberry’s membership.
[87] The second ground of review is that the Council Decision was taken in breach of natural justice. I agree that it was. The Committee’s decision was that the appropriate penalty for the unauthorised correspondence with the NZDF was a censure together with a warning. The warning was one of “future actions” if further unauthorised correspondence continued. Mr Maxberry therefore knew he was in jeopardy of further action. He also knew that the warning would be a relevant factor in deciding upon the appropriate response if he was to engage in further unauthorised correspondence with the NZDF.
[88] On 19 May 2012 Mr Maxberry was informed that, because of his further communications, the President would be seeking termination of his membership at the upcoming General Meeting. Had that occurred, he reasonably would have expected an opportunity to respond before the decision was made by vote at the meeting. In breach of that expectation, the Council decided via email and telephone that his membership was terminated effective immediately. As a matter of
procedural fairness Mr Maxberry was entitled to be heard on whether he had
17 Rule 11.6 provides a disciplinary committee with the power to impose other penalties (a fine, a censure, payment of costs, or any other penalty deemed appropriate).
18 I note that this was envisaged by the President in his email of 19 May 2012. A different view was then taken in October 2012.
engaged in further unauthorised correspondence and, if so, what action was to be taken in light of the warning he had been given.19
[89] The third ground of review is that the Appeal Decision was invalid because the Appeal Committee had no jurisdiction to hear an appeal from a decision of the Council. I agree that it did not. As set out above, no right of appeal is provided in respect of a decision of the Council to terminate membership.
[90] Counsel for the NRANZ said it was arguable that the hearing before the Appeal Decision cured the defects in the prior process, but this was not a point taken for the purposes of the present hearing. I therefore do not consider this point. However it is apparent the Appeal Committee endeavoured to provide a fair hearing and considered the matter carefully. I am not persuaded that Mr Maxberry’s other
grounds of review in respect of the Appeal Committee’s decision are made out20 or
that it is appropriate to consider them.21 However, regardless of the careful efforts of the Appeal Committee, the process miscued. The Appeal Committee was acting in an appellate role on an invalid first instance decision. Had it been a valid first instance decision, an appeal right would have followed.
[91] I turn to whether relief ought to be granted. In my view it should. Relief ordinarily follows where grounds of review are made out.22 I am not persuaded that there would be no point in granting relief. A decision to terminate Mr Maxberry’s
membership was made by a process that was unfair and invalid. Proper processes
19 The NRANZ accepts that the Council’s Decision was procedurally unfair because the President, who was the original complainant, was one of the Council members who made the decision. In light of that acknowledgement I need say no more about it.
20 I refer to the Appeal Committee’s careful approach to its task as I have set out above (at [67] to [72]). I also refer to the clear directive to cease communications with the NZDF set out in the letter of 26 October 2011 (at [49] above) and counsel’s concession as to the directive (at [68] above).
21 In particular I do not think it is appropriate to determine if the Appeal Committee erred in law by
holding that Mr Maxberry’s actions brought the NRANZ into disrepute. See Hopper v North
Shore Aero Club [2007] NZAR 354 (CA) and Adlam v Stratford Racing Club Inc [2007] NZAR
544 (HC). The Courts are cautious about intervening in the matters of private associations and Isee no sufficient reason to intervene when the decision reached was invalid in any event.
22 Air Nelson Limited v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [61]; GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67]; Survey Nelson Limited v Maritime New Zealand [2010] NZCA 629 at [52]; Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [117]; Canterbury Regional Council v Independent Fisheries Limited [2012] NZCA 601, [2013] 2 NZLR 57 at [155]; and Department of Internal Affairs v The Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [96].
ensure legitimate decision making. Mr Maxberry, having brought his action and succeeded upon it, is entitled to a Court order that recognises this. A Court order may have some utility in any further membership application Mr Maxberry may make.
[92] I turn to what relief should be granted. The Council’s Decision does not need to be quashed because it was revoked by a resolution dated 1 June 2015. Similarly, that revocation means that the Appeal Decision does not need to be quashed either. Declarations can be made and I consider it appropriate to make them. I am not, however, prepared to make declarations specifically in relation to the Cheltenham Rifle Club. They are not a party and I am not prepared to join them on the basis of the proposal by memorandum made at this late stage. The terms of the declarations are set out under the Result section of this judgment.
[93] The statement of claim sought orders directing the NRANZ to publish orders made in this proceeding in various ways. No authority was cited for this form of relief and counsel did not strongly pursue it as a necessary part of any relief. I am not prepared to make these directions. Such directions are unnecessary and inappropriate. A judgment is a public document. That is sufficient.
Second cause of action: the HSEA
[94] The statement of claim pleads that the NRANZ failed to take action in respect of the “dossier” matters23 and that this breached s 6 of the HSEA. The precise nature of the claim as pleaded was a little unclear. The NRANZ notes the courts are slow to intervene in the activities of voluntary and private associations.24 It submits that the rights and obligations of the NRANZ as an employer fall squarely within the private and criminal law under the HSEA, there being nothing in principle differentiating the NRANZ from an ordinary private employer.
[95] This cause of action was refined in the submissions for Mr Maxberry. That refinement focuses on the failure to take steps to protect the safety of the markers in
23 At [54] above.
24 See Hopper v North Shore Aero Club, above n 21; and Adlam v Stratford Racing Club Inc, above n 21.
breach of s 6 of the HSEA. It is said that the NRANZ’s obligations in this respect have a sufficiently public element because the markers employed are sometimes young persons, it is a sport that involves lethal weapons, and the RSOs apply to any invitees using the Range. It is said that judicial review has always included the failure to exercise a statutory power. Here the NRANZ had a duty to comply with the RSOs; and it failed to do so because it did not apply rule 53(j) for the safety of markers (there being no objective standard for when the wind was too strong for their safety, and no objective standard for when the targets were no longer safe for use).
[96] A good deal of evidence was filed on this cause of action. For the most part it is not necessary for me to consider the detail of the evidence. It is sufficient to note the following points:
(a) Nothing in the evidence before me indicates that the NRANZ was unconcerned about safety on the Range. Its safety record is a very good one. Shooting at the Range has taken place for over 100 years without serious incident. The differences between the NRANZ and Mr Maxberry arose about the nature of the appropriate measures for the safety of makers. The NRANZ and Mr Maxberry are, however, united in their concern for safety at the Range.
(b)At the time Mr Maxberry was raising the “dossier” matters, the NRANZ was dealing with the disciplinary complaint made against him. This was the first time it had ever been called upon to discipline any member. It was an unfortunate situation for all those involved. The NRANZ is run by volunteers from a variety of backgrounds who no doubt attempt to do their best for the good of their sport. In the circumstances that arose it seems that Mr Maxberry was left with the impression that his concerns were being ignored. That was also unfortunate. It appears in fact that a review was underway once the issue with rule 53(j) was understood.
(c) Rule 53(j) was, at the time of the dispute between the parties, inappropriately drafted for its stated purpose. It has since been revised. It has not been revised in the way that Mr Maxberry proposed but that does not mean it is inadequate for the safety of markers.
(d)In addition to rule 53(j) the NRANZ upgraded the target legs in 2012 to achieve increased strength. They were again replaced in 2013. Notwithstanding the evidence Mr Maxberry has presented, the NRANZ is satisfied from its testing that the legs are appropriate for the conditions in which shooting takes place.
(e) There are other relevant measures in place. These include the inspections provided for in the RSOs, the role of the Butts Officer, the role of the CRO, and the markers’ code of conduct. Additionally the NRANZ is exploring the possibility of a tool to calculate whether a target leg should be discarded as a result of the number and spacing of bullet strikes it sustains.
(f) There is evidence before the Court from an international expert on range safety that the NRANZ’s management of safety (and in particular wind) accords with international best practice and in several respects is world-leading.
[97] This is not an appropriate matter for the Court’s intervention. The test under s 6 of the HSEA is fact-intensive as the evidence before me illustrates. There is credible evidence presented on behalf of the NRANZ which supports its position that it has and does take safety seriously and that it has appropriate measures in place. It is disputed by the evidence Mr Maxberry has presented. A judicial review application is not well suited to investigating and determining the facts. Despite all the evidence that has been presented, it is incomplete. I do not know, for example, who was responsible for drafting rule 53(j) in its original form (the NZDF or the NRANZ, and if the former the involvement the NRANZ had in that), or the precise
steps taken by the NRANZ once it received Mr Loughnan’s letter of 27 January
2011. The evidence before me has not been the subject of cross examination.
[98] The HSEA is presently enforced by WorkSafe (and formerly by the Ministry of Business, Innovation and Employment). It is able to investigate compliance with the Act. It has a range of enforcement tools available to it. In this case an inspector investigated the complaint, was satisfied that the NRANZ had not breached the HSEA, and that all reasonable steps were being taken to ensure the safety of those present in the markers’ gallery when shooting activities occur. In effect this cause of action seeks to review that decision. There are difficulties with that. WorkSafe is
not a party. Moreover, a breach of s 6 is an offence.25 The declaration sought would
in effect be a declaration that an offence was committed. A Court exercises caution in issuing any declaration of this kind. It is not appropriate to do so in the fact- intensive matter that is before me here.26
Result
[99] Mr Maxberry succeeds on his first cause of action. His second cause of action is dismissed.
[100] I make the following declarations:
(a) The Council did not have jurisdiction to terminate Mr Maxberry as an individual financial member of the NRANZ when it purported to do so on 21 November 2012. That decision was also made in breach of natural justice.
(b) The Appeal Committee did not have jurisdiction to hear an appeal
from the Council’s decision and accordingly its decision was invalid.
(c) The decision to terminate Mr Maxberry’s individual financial
membership of the NRANZ was invalid because of the defective procedures by which it was reached. The NRANZ has recognised this
25 Heath and Safety in Employment Act 1992, s 49.
26 Ambrose v Attorney-General [2012] NZAR 23 (HC).
by revoking its decision. It has also resolved not to reinstitute disciplinary procedures against Mr Maxberry in respect of the matters at issue. In these circumstances, should Mr Maxberry apply to join a local rifle club, and in turn become an individual financial member of the NRANZ, the events that gave rise to the purported termination of individual financial membership of the NRANZ are an irrelevant consideration in deciding whether Mr Maxberry meets the criteria for membership.
[101] Costs are reserved. It may be that the parties can take a pragmatic approach and agree that costs should lie where they fall. However if costs are sought by either party and agreement cannot be reached, leave is reserved to file brief memoranda confined to the particular costs matters in dispute. Such memoranda should be filed by 29 January 2016.
Mallon J
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