Wadsworth v Auckland Council - [2013] NZHC 413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8284 [2013] NZHC 413

IN THE MATTER OF the Local Government Act 2002

AND

IN THE MATTER OF an Appeal from the decision of the
Auckland Court in Proceeding CIV-2011-
004-002492

BETWEEN R WADSWORTH AND P M BRIGHT Appellants

ANDAUCKLAND COUNCIL Respondent

ANDATTORNEY-GENERAL Intervening Party

Hearing: 25 September 2012

Appearances: R M Mansfield for Appellant (Wadsworth) Appellant (Bright) in Person
A R Burns and H H Ifwersen for Respondent
A M Powell and L M Inverarity for Intervening Party

Judgment: 6 March 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 6 March 2013 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………..

Solicitors: Crown Law, PO Box 2858, Wellington 6140
Fax: (04) 473-3482 – A Powell / L Inverarity
Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – A Burns / H Ifwersen

Counsel: R Mansfield, PO Box 2674, Auckland 1140
Fax: (09) 368-4473 – Email: ron@22lorne.co.nz

Copy To: P Bright, 86A School Road, Kingsland, Auckland 1021

WADSWORTH V AUCKLAND COUNCIL HC AK CIV-2011-404-8284 [6 March 2013]

[1] On 21 December 2011, Judge Wilson QC granted the Auckland Council (the Council) a permanent injunction under s 162 of the Local Government Act 2002 (the LGA) that had the effect of bringing to a halt the Occupy Auckland protest at Aotea Square.1 The terms of the injunction restrained the protesters from breaching a series of specific clauses in Auckland Council Bylaw No 20 Public Places 2008 (the Bylaw).2

[2] Judge Wilson also ordered that:

The Respondents shall within 48 hours of service of this order: (a) Cease residing from time to time in Aotea Square; and
(b) Remove all tents, marquees, sofas and other seating, kitchen and washing facilities, all other structures, posters and signage, and all other materials and things that they have erected and installed relating to the protest event. In the event that the Respondents cease residing from time to time at Aotea Square, but do not remove the materials and things associated with the protest event, then the Applicant's agents are free to do so.

[3] The Judge recognised that granting the injunction would limit certain of the protesters’ rights under the New Zealand Bill of Rights Act 1990 (NZBORA).3 But he concluded that, on an application of the so-called Oakes test, such limitations could be demonstrably justified in a free and democratic society.4

[4] Immediately following the District Court’s decision, some protesters left Aotea Square voluntarily. The Council exercised its powers under s 164 of the LGA to clear the campsites completely on 23 and 26 January 2012. Some protesters were arrested during that process.

[5] This judgment relates to an appeal from Judge Wilson’s decision. The appeal is brought in a representative capacity by Mr Wadsworth and by Ms Bright in her
own right. Both Mr Wadsworth and Ms Bright were amongst the protesters.

1 Auckland Council v The Occupiers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 413
Decision Date: 6 March 2013

CaseChat Overview and Summary

Wadsworth and Bright appeal the decision of Judge Wilson, who granted Auckland Council a permanent injunction to end the Occupy Auckland protest at Aotea Square. The appeal concerns the validity of Bylaw 20, which restricts activities in public places, and whether the Council's enforcement of the Bylaw was consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The court considered whether Bylaw 20 could be interpreted to be consistent with NZBORA rights, and whether the restrictions were demonstrably justified in a free and democratic society. The court concluded that while the clauses in Bylaw 20 prima facie interfered with NZBORA rights, they could be justified under the Oakes test. However, the terms of the injunction granted went further than necessary and could not be justified under NZBORA. The appeal was allowed to the extent that the injunction's terms were not justified and counsel were to file memoranda on the terms of any consequential orders required.

Orders