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Court of Appeal of New Zealand |
Last Updated: 14 December 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
29 November 2017 |
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Court: |
Kós P, Harrison and Brown JJ |
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Counsel: |
P W David QC and M J Austin for Appellant
L S B Acland and E J Riddell for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
[1] Following Mr Fitchett’s conduct at previous meetings, the Board of Trustees of Nelson College (the Board) served Mr Fitchett with a trespass notice under s 4 of the Trespass Act 1980 warning Mr Fitchett to stay off the Nelson College buildings for a period of two years.
[2] On Mr Fitchett’s application for judicial review, Thomas J in the High Court ruled that the Board had no power under s 4 to issue the trespass notice and made orders quashing the Board’s decision and setting aside the notice.[1]
[3] This appeal concerns the reconciliation of pt 7 of the Local Government Official Information and Meetings Act 1987 (the LGOIM Act) and s 4 of the Trespass Act. The Board frames the specific issue on appeal in this way:
Does a school Board of Trustees have power to issue a warning under s 4 of the Trespass Act 1980 to a person who has disrupted a meeting and been required to leave a under s 50 of the Local Government Official Information and Meetings Act 1987 and the Trespass Act 1980, but has refused to do so?
Statutory context
Local Government Official Information and Meetings Act 1987
[4] The Board is a school board of trustees established under pt 9 of the Education Act 1989 and, as such, is a “local authority” for the purposes of pt 7 of the LGOIM Act.[2] Part 7 contains the provisions governing the conduct of local authority meetings.[3]
[5] The effect of s 47 is that, except as otherwise provided by pt 7, every meeting of a local authority shall be open to the public. The power to exclude the public at large is contained in s 48, which is concerned primarily with confidential matters. A power to exclude individual members of the public so as to maintain order at meetings is provided in s 50:
50 Maintenance of order
(1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting.
(2) If any member of the public who is required, pursuant to subsection (1), to leave a meeting of a local authority—
(a) refuses or fails to leave the meeting; or
(b) having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,—
any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.
[6] As this Court recognised in Bright v Police, the LGOIM Act does not contain any offence provisions and therefore does not constitute a code.[4] However, the predominant nature of pt 7 is emphasised in s 54:
54 This Part to prevail over other enactments
Any provisions in any enactment in relation to attendance by the public at any meeting of any local authority or at any meeting of any committee or subcommittee of any local authority, or in relation to inspection of the minutes of any such meeting, shall be read subject to the provisions of this Part.
Trespass Act 1980
[7] The Trespass Act is much more general in operation, and establishes criminal sanctions for the act of trespass. Bright was concerned with a prosecution under s 3, which provides:
- Trespass after warning to leave
(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
...
[8] However, in the present case the Board issued a notice warning Mr Fitchett to stay off Nelson College grounds pursuant to s 4. That section provides:
4 Trespass after warning to stay off
(1) Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.
(2) Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.
(3) Where any person is convicted of an offence against this Act committed on or in respect of any place, the court may warn that person to stay off that place.
(4) Subject to subsection (5), every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.
...
[9] In contrast with s 54 of the LGOIM Act, s 13 of the Trespass Act provides that it is subject to other enactments. It states:
13 Savings
Nothing in this Act shall derogate from anything that any person is authorised to do by or under any other enactment or by law, or restrict the provisions of any of the following enactments and instruments:
(a) section 42 of the Mining Act 1971:
(b) section 23 of the Civil Aviation Act 1964:
(c) any enactment or instrument conferring a right of entry on any land.
[10] With reference to s 13(c) this Court in Bright v Police observed:[5]
Section 13(c) of the Trespass Act would prevent the operation of that Act while the person had a right of attendance in accordance with s 47 of the LGOIM Act. However, as soon as the presumption in favour of attendance is displaced (as it would be, for example, if s 50 is validly invoked), then there is no longer any right of attendance or entry and s 13(c) of the Trespass Act cannot apply. What this does mean, however, is that, unless and until the presumption in s 47 of the LGOIM Act is displaced, the Trespass Act can have no application.
Factual narrative
[11] The facts relevant to the appeal can be shortly stated.
[12] Spurred by his concerns about the performance of the Board arising from issues that had arisen when his brother was a school employee, Mr Fitchett began attending the Board’s meetings in May 2016. He was the only member of the public to do so. In the belief that Mr Fitchett was recording its proceedings, at a meeting on 2 March 2017 the Board resolved to ban audio recordings of meetings by members of the public.
[13] The minutes of the 2 March meeting contain the following record of the events which followed:
Member of the public, Mr J Fitchett then placed a recording device on the table in front of him facing the Board members and was asked by the Chairman several times if the recording device was turned off or was on. Member of the public Mr Fitchett declined to answer this question. The Board Chair then adjourned the meeting at 4.05 pm from the Boardroom and the Board proceeded to the Headmaster’s Office, with Mr Fitchett following.
The Board Chairman repeated the question regarding the recording device. Mr Fitchett was unresponsive. The Board Chairman then made the decision to postpone the meeting and the meeting ended at that point. The decision was then made that the meeting was postponed until an indeterminate date with an assurance to Mr Fitchett that he would be informed of that future date.
[14] At a meeting reconvened one week later, the events occurred which are the focus of this appeal. The minutes of the meeting on 9 March 2017 relevantly state:
At 4.05 pm, the Chairman asked Member of the public, Mr J Fitchett, whether he was recording the meeting which would be in breach of a fair and lawful resolution of the Board that recording of meetings by the public are not to occur. Mr Fitchett was unresponsive. The Chairman then stated that it should be noted for the minutes that the member of the public, Mr J Fitchett refused to respond and the Board now assumed that he was recording and in breach of the Board of Trustees resolution and therefore in breach of s 50 of the Local Government Official Information and Meetings Act 1987. He also said that Mr Fitchett’s behaviour was likely to prejudice or continue to prejudice the orderly conduct of the meeting if he was permitted to remain. He therefore asked Mr Fitchett to leave the meeting. Mr Fitchett was unresponsive. Mr Fitchett then produced a recording device and placed it on the table in front of him.
The Chairman stated that, for the minutes, the member of the public refused to leave the meeting and that as Board Chair, he had the right to have Mr Fitchett forcibly removed from the meeting, but, at this time, he chose not to exercise that right. He informed Mr Fitchett that this was a flagrant breach of a lawful Board resolution, that he was committing an offence and that he would be receiving a written consequence/response through the Board’s lawyers.
[15] Mr Fitchett’s behaviour at the March 2017 meetings was irritating, immature and plainly designed to cause a nuisance to the Board.[6] On 15 March 2017 the solicitors for the Board sent Mr Fitchett a letter indicating the chairman had taken the view Mr Fitchett’s behaviour “was likely to prejudice or continue to prejudice the orderly conduct of the meeting if [Mr Fitchett] remained”. The letter said the Board had passed a unanimous resolution proposing service of a trespass notice on Mr Fitchett pursuant to s 4 of the Trespass Act.
[16] On 30 March 2017 a trespass notice was served on Mr Fitchett in the following terms:[7]
Trespass Notice
Warning under the Trespass Act 1980 Sections 4(1) or 4(2) and Section 4(4)
TO: JOHN MALCOLM FITCHETT
...In accordance with the above Act and Section you are hereby warned to stay off the place known as:
Nelson College buildings
67 Waimea Road, Nelson
...
It is an offence punishable by a fine not exceeding $1,000.00 or imprisonment not exceeding 3 months to enter the above address within 2 years from the date you receive this warning.
The occupier of the above address is:
NELSON COLLEGE BOARD OF TRUSTEES
The High Court judgment
[17] In the High Court, Thomas J identified the issue as being whether a local authority could issue a trespass notice pursuant to s 4 of the Trespass Act in respect of a person who has previously been required to leave a meeting pursuant to s 50 of the LGOIM Act.
[18] The Judge’s conclusion on that issue is captured in the following two paragraphs:[8]
[61] It is important to bear the purpose of the [LGOIM] Act in mind when analysing the effect of s 50. Section 50 cannot be read in any other way than as applying to a specific meeting. The right to be present under s 47 is withdrawn for the purposes only of the meeting where the disruptive behaviour has occurred.
...
[63] My reading of s 47, and its prevalence over s 4 of the Trespass Act, is reinforced by both s 54 of the [LGOIM] Act and s 13 of the Trespass Act. The result is that, while s 3 of the Trespass Act can be invoked if a person fails to leave a particular meeting when behaving in a disruptive way, a notice pursuant to s 4, the effect of which is to prohibit attendance at future meetings, cannot be issued. This conclusion is supported by a proper reading of Bright. I acknowledge the result will cause practical difficulties for the Board and other local authorities in a similar position. Those difficulties do not disturb a proper interpretation of the relevant statutory framework.
The parties’ cases
The appellant
[19] Mr David QC for the Board criticised the High Court’s decision as translating the direction under s 47 of the LGOIM Act that meetings are open to the public into an everrenewing right of attendance by a person who has behaved in a disorderly manner at previous meetings, has been asked to leave or has been removed and whom the local authority considers will disrupt future meetings. It was his submission that pt 7 of the LGOIM Act is silent on the issue whether a local authority has the power to take steps to safeguard future meetings. He submitted that a sensible and practical interpretation which allowed a local authority to take steps under ss 3 or 4 of the Trespass Act to prevent disruption in the future would not undermine the overall purpose of the LGOIM Act.
[20] It was his contention that neither s 13 of the Trespass Act nor s 54 of the LGOIM Act could properly be interpreted as supporting a conclusion that ss 47 to 50 of the LGOIM Act exclude the power of a local authority to exercise powers under the Trespass Act to protect future meetings from misconduct. In particular, s 13 was said not to apply for the reason that s 47 of the LGOIM Act does not authorise a person to do something or confer right of entry on any land.
Mr Fitchett
[21] Mr Acland for Mr Fitchett responded that the two statutes are designed to be read together so that, pursuant to s 13(c) of the Trespass Act and s 54 of the LGOIM Act, the right of attendance in s 47 prevails over the operation of the Trespass Act. He supported the High Court’s conclusion that the power in s 50 of the LGOIM Act limits s 47 only for the duration of the meeting that a person is required to leave. The contrary interpretation that upon s 50 being triggered a notice to stay off under s 4 was able to be issued and a person’s right to attend future meetings thereby extinguished, represented a significant departure from the purpose and scheme of the LGOIM Act. Such a limitation on the right of attendance in s 47 was not demonstrably justifiable and hence the Board’s interpretation was inconsistent with the New Zealand Bill of Rights Act 1990.
Discussion
[22] In the absence of an express or implied[9] licence, a person who enters on the land of another is a trespasser.[10] Once it is communicated to a licensee that his or her licence is revoked, that person will be a trespasser after the expiration of a period reasonable in the circumstances to leave the property. A trespasser who fails to leave another’s property after being warned to do so commits an offence under s 3 of the Trespass Act.
[23] Section 47 of the LGOIM Act confers a qualified licence to enter land for the purpose of attending meetings of a local authority. That licence is qualified by the exclusion and removal provisions in ss 48 and 50. When a person’s entitlement to attend a meeting is revoked under s 50, the person will be a trespasser if that person refuses or fails to leave the meeting within a reasonable time or, having left the meeting, attempts to re-enter without the permission of the person presiding.
[24] Hence, at the meeting of the Board on 9 March 2017, after the chairman lawfully invoked s 50 of the LGOIM Act and asked Mr Fitchett to leave the meeting, Mr Fitchett became a trespasser when he remained at the meeting. The chairman of the meeting had the right to have Mr Fitchett removed, both because s 50 makes provision for that and because Mr Fitchett was now a trespasser. Had the chairman then issued the further warning to leave contemplated by s 3 of the Trespass Act, Mr Fitchett would have committed an offence under that provision by refusing to leave. A further warning was required because Mr Fitchett only became a trespasser after failing to respond timeously to the s 50 requirement to leave. The s 50 requirement to leave cannot therefore also serve as the s 3 warning. However, it is not apparent from the minutes that such a warning was issued. Instead, the Board chose to issue the notice under s 4 three weeks later.[11]
[25] Plainly, the purpose of the s 4 notice was to ensure that Mr Fitchett did not attend the meetings of the Board for a two-year period. The narrow issue in this case is whether s 4 of the Trespass Act is to be construed as empowering the Board to issue a notice to that effect, to a person who has previously been a trespasser, given the content of pt 7 of the LGOIM Act and the terms of s 13 of the Trespass Act.
[26] We consider that a s 4 notice cannot have the effect of preventing a member of the public from attending a local authority meeting. A member of the public may only be excluded from such a meeting under the powers conferred in ss 48 and 50. There are three reasons for our conclusion.
[27] First, while, as Bright recognised, pt 7 is not a code in that it does not contain any offence provision, the circumstances in which the s 47 entitlement to attend may be withdrawn are exclusively prescribed in ss 48 and 50. This is clear from the express statement in s 47 itself: “[e]xcept as otherwise provided by this Part, every meeting of a local authority shall be open to the public”.
[28] Secondly, the effect of the saving in s 13(c) of the Trespass Act is that the entitlement under s 47 to attend a local authority meeting is not restricted or otherwise affected by the provisions of the Trespass Act.[12] Section 50 of the LGOIM Act gives an ability to exclude a member of the public on a meetingbymeeting basis only. The s 47 right to attend is renewed at each meeting, unless or until displaced by s 50. The Trespass Act, in and of itself, is not able to displace that right.
[29] Thirdly, the Trespass Act is a statute of general effect which applies to all trespasses on land whereas pt 7 of the LGOIM Act is confined to meetings of local authorities. The interpretation should be preferred whereby the special provision prevails over the general. The different foci of the two pieces of legislation is reflected in the fact that the notice which the Board served would not achieve its purpose in the event that a meeting of the Board was held in some place other than the Nelson College buildings.
[30] Consequently, while it would be open to the Board to serve a s 4 notice on Mr Fitchett were he to trespass on Nelson College grounds in any other manner, the steps which the Board may take in relation to disorderly conduct at its meetings are confined to invoking the s 50 procedure followed by either removal in accordance with s 50(2) or the issue of a s 3 warning and prosecution of an offence under that provision. Section 4 does not confer on the Board the power to issue a notice which has the purpose or effect of extinguishing Mr Fitchett’s entitlement under s 47 to attend future meetings of the Board.
Result
[31] The appeal is dismissed.
[32] Mr Fitchett sought increased costs in the event that the appeal was dismissed. However, we do not consider there are any circumstances why costs should not follow the event in the usual way or which would justify increased costs. Accordingly, the appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Hamish Fletcher
Lawyers, Nelson for Appellant
Bamford Law, Nelson for Respondent
[1] Fitchett v Board of Trustees of Nelson College [2017] NZHC 1684.
[2] Local Government Official Information and Meetings Act 1987, s 2, definition of “local authority” and sch 2.
[3] Specifically, ss 45 to 54.
[4] Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132 at [40].
[5] At [32].
[6] See the description of Williams J in his decision declining Mr Fitchett interim relief: Fitchett v The Board of Trustees of Nelson College [2017] NZHC 888 at [39].
[7] An earlier notice in identical terms, save that it related to not only the school buildings but also the grounds, was issued on 23 March 2017 but withdrawn.
[8] Fitchett v Board of Trustees of Nelson College, above n 1.
[9] Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.
[10] For example the school children in Matheson v Northcote College Board of Governors [1975] 2 NZLR 106 (SC).
[11] At [16] above.
[12] Compare Police v Kanuta [1987] 1 NZLR 629 (HC) at 633.
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