Phillips v Muriwai Golf Club DC Waitakere CIV-2012-090-000444 [2013] NZDC 1285 (12 July 2013)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT WAITAKERE

_{CIV-2012-090-000444}

BETWEEN	IAN MICHAEL PHILLIPS Plaintiff
AND	MURIWAI GOLF CLUB Defendant

Hearing:	15 November 2012
Appearances:	J L Thomas for the Plaintiff I M Hutcheson for the Defendant
Judgment:	12 July 2013

RESERVED DECISION OF JUDGE P A CUNNINGHAM

_{ON APPLICATION BY DEFENDANT TO STRIKE OUT CLAIM}

Introduction

[1] Mr Phillips joined the Muriwai Golf Club in 1980. He and wife moved to live at Muriwai in a house overlooking the Golf Course in 1987. They have raised their family at Muriwai. Golf has been an important part of Mr Phillips’ life and that of his two young sons. Mrs Phillips did until about 2006 work part-time for the caterer at the Muriwai Golf Club.

[2] On 6 April 2005 Mr Phillips’ membership of the Muriwai Golf Club was terminated. Events leading up to that termination and subsequent events have led to this proceeding which was filed on 3 April 2012. Prior to the filing or service of any Court documents on behalf of the defendant, a strike out application was filed.

[3] An amended notice of claim was filed on 1 October 2012. Rather than focusing on events leading to the termination of Mr Phillips membership, the

_{amended claim focuses on events since then. It is that claim that the strike out}

PHILLIPS v MURIWAI GOLF CLUB DC CIV-2012-090-000444 [12 July 2013]

application describes as disclosing no reasonable cause of action and that the proceeding is frivolous and vexatious.

[4] Attached to the amended notice of claim is a conventional amended statement of claim in terms of the pleadings which were commonplace prior to the District Court Rules 2009. The first cause of action is based on an alleged breach of lease which is a Deed of Lease entered into by the legal owner of the land (the Auckland Regional Authority) and the Muriwai Golf Club as lessee. This first cause of action pleads that by virtue of s 4 of the Contracts (Privity) Act 1982 Mr Phillips is a person who is entitled to enforce the benefit of the lease as if he were a party to the deed.

[5] The second cause of action is based on the tort of misfeasance in public office. It alleges that the defendant Muriwai Golf Club by its solicitor and General Manager has acted in bad faith and/or with an intention to injure the plaintiff and/or in the knowledge that the conduct was unlawful or reckless as it was likely to cause harm to the plaintiff. It further alleges that the defendant has interfered with the constitutional rights of the plaintiff in terms of the New Zealand Bill of Rights Act by interfering with the fundamental rights of the plaintiff in that he has been subjected to disproportionately severe treatment or punishment (s 9), has had his rights to freedom of expression breached (s 15) and his right to freedom of movement breached (s 18).

[6] In the first cause of action a declaration is sought that the defendant is in breach of the Deed of Lease and the new lease. Special damages for humiliation suffering loss of self-esteem are sought as well as exemplary damages in the sum of

$10,000.00.

[7] In relation to the second cause of action the relief sought is the same as in the first cause of action except that there is no relief sought in terms of a declaration.

The Muriwai Golf Club

[8] On 12 February 1974 Muriwai Beach was declared a reserve to be administered as a public domain by the Muriwai Domain Board. Subsequently the

rights, duties and powers of the Muriwai Domain Board were vested in the Auckland

Regional Authority on 9 June 1989.

[9] On 12 December 1972 the defendant entered into a Deed of Lease for a portion of the reserve land to establish the Muriwai Golf Club. Due to land erosion the parties entered into a variation of the lease and a new lease both dated

18 December 1996. The lease sets out various obligations expected of the Club as lessees, including an obligation that the Course be open to the public for playing golf on all days except for 40 days when the Club had exclusive use and possession of the land.

[10] The first cause of action is based around the plaintiff’s claim that following his membership of the Golf Club being terminated, that he has not been allowed to play on the Golf Course as a fee paying member of the public as the lease provides.

[11] In the second cause of action the plaintiff alleges that in discharging its duties in relation to the public, the defendant is acting in the discharge or performance of a public function, power or duty. That being the case the defendant is required to perform its public functions powers and duties conferred on it in terms of s 3 of the New Zealand Bill of Rights Act 1990. Alleged breaches of the New Zealand Bill of Rights Act as referred to earlier it is said have been breached in relation to the plaintiff. This alleged “wrong” forms the basis for the tort of misfeasance in a public office.

Circumstances that led to the termination of Mr Phillips’ membership

[12] On 16 February 2005 Mr Phillips wrote a letter to the Board of Management of the Muriwai Golf Club. In it he made complaints which were levelled against the General Manager Mr Ray Barnett. In short form those complaints were as follows:

(i) Mr Phillips had been advised that he could no longer play the back nine holes of the Course in the mornings before the full field reached the 10th tee.

(ii) Mr Phillips complained that he had been playing the back nine for the past 25 years or so and his efforts to discuss the instruction no longer to do so with the General Manager had been unsuccessful. One of the reasons he said he was unable to do this was that on two occasions the General Manager was under the influence of alcohol.

(iii) He complained that the General Manager had been drinking alcohol while on duty. Further that when carrying out his duties as bar manager he had served a member of the Club with excessive amounts of alcohol.

(iv) That person was apprehended by the police on leaving the Club and found to have excess blood alcohol level.

(v) That the Club was advised about the foregoing event as a result of which members of the Club still present, including the General Manager, left the Golf Club via back road to avoid the breath testing set up by the police. Mr Phillips described this as perverting the course of justice.

(vi) That the General Manager had regularly breached the playing conditions at the Muriwai Golf Club.

[13] Mr Phillips made the following requests to the Board of Management.

(i) That the Board of Management confirms that is it possible for members of the Muriwai Golf Club to be able to play on the back nine in the mornings before the field reaches the 10th tee.

(ii) That the Board of Management prohibits the General Manager from consuming alcohol while conducting business at the Muriwai Golf Club.

(iii) That the General Manager be relieved of any duties involving bar management.

(iv) In order to maintain a fair and equitable playing field for Club members, that the Board of Management prohibit the general manger from playing in Club competitions.

[14] In a letter dated 19 February 2005 the President of the Muriwai Golf Club replied to Mr Phillips. He advised that the Board had resolved to convene a meeting of the Board on 26 February 2005 when Mr Phillips’ letter would be considered. Mr Phillips was asked to attend that meeting and to provide evidence to substantiate the allegations made in his letter. The final paragraph of the letter said:

You should be aware that one possible outcome of the meeting may be the suspension or cancellation of your membership with the Club. The meeting was certainly being regarded very seriously by the Board and you should equally treat it very seriously and be well prepared to back up the allegations in your letter in detail and to justify your comments and your conduct. If the time mentioned above does not suit you, would you please ring me personally and I will try and arrange an alternative time when the Board will see you. Unless we hear from you to the contrary we will assume that you are going to attend at the time noted.

[15] The General Manager Mr Barnett responded in detail to the Board in terms of the allegations made by Mr Phillips.

[16] In a letter dated 23 March 2005 Mr Phillips wrote the following letter to the

Board:

Please find this letter as a complete retraction of my complaints and request to the Board dated 16/2/05 and 12/3/05. I wish to apologise unreservedly to anyone implicated in my complaints.

[17] A meeting was held at the Golf Club on 9 March 2005. Mr Phillips had previously been advised about this meeting which was scheduled to occur at 6pm. In fact the meeting had been held at 2pm at which meeting his membership had been suspended. A letter dated 9 March 2005 from the Chairman of the Board advised Mr Phillips that his membership had been suspended.

[18] In a letter dated 24 March 2005 Mr Phillips received a letter from the Honorary Solicitor acting for the Muriwai Golf Club sought Mr Phillips’ resignation. Mr Phillips appears not to have responded to that letter and on 6 April 2005 he received a letter telling him that he had been expelled as a member of the Club.

[19] Over the next couple of months there was correspondence between Mr Hutcheson acting for Mr Phillips and Mr Schnaner as Honorary Solicitor for the Club which canvassed the possibility of an arbitration. How that turned out is not relevant to the current statement of claim.

[20] Mr Phillips was still able to play golf on the Course as a green-fee paying member of the public. However on 31 August 2005 Mr Schnaner wrote again to Mr Phillips alleging that he had done the following on recent visits to the Golf Club:

(a) Accessed the kitchen area which is off limits to members and visitors. (b) Had walked around the Clubrooms speaking to a significant number

of Club members.

(c) Entered Club tournaments.

(d) He was playing at the Club quite frequently as a green-fee paying member.

(e) That he had discussed with one Board member of the unfairness of his expulsion to the Club.

[21] The letter stated that Mr Phillips’ visit to the Club were causing upset to Club member staff and to Board members. The letter then said the following:

The Club wishes to be reasonable in its dealings with you and we have been asked to write to you, setting out the following guidelines:

The Club will accept you as a green-fee paying member, provided you play no more than one round per calendar month; and

The Club will accept you entering and exiting the Clubrooms to pickup or drop off your wife on the odd occasion when this is necessary; provided you do not enter the kitchen at the clubhouse. The Club does not want you using the Clubhouse in any other regard, other than to drop off or pick your wife; and

You are to refrain from entering Club competitions.

We indicate that, if you do not follow and voluntarily accept these restrictions, the Club will:

A. Ban you from playing on the Course altogether; and

B. Issue a trespass notice, to prevent you from entering the Club’s

property, including its clubhouse.

[22] Since that time the defendant alleges that Mr Phillips has played at Muriwai twice in November 2005. It appears that Mr Phillips was living out of Auckland for a period of time in 2006 but in the second half of that year he played two rounds of golf at Muriwai. In 2007 the Club record showed that Mr Phillips played golf only once at Muriwai. In 2008 the record showed he played twice in March and four times in September 2008. Mr Phillips had not played at all from 2009 – 2012. In an affidavit sworn by the General Manager Mr Barnett, he sets out four occasions in

2012 when Mr Phillips has played at the Club either as a green-fee paying member

(23 March and 18 April 2012) or playing without paying fees (2 June 2012 and

7 July 2012).

[23] Mr Barnett deposes that despite the injunction by the Club to play only once per calendar month, that on occasions when Mr Phillips has played more than once in a month, he has not been stopped from playing.

[24] Mr Phillips sees the situations differently. He feels that he has been unfairly and improperly restricted in his use and enjoyment of the Muriwai Golf Club as a green-fee paying member because of the once per month restriction. He also says he has been marginalised and ridiculed, including that he no longer enjoys the involvement he once did in the Muriwai community. He also says that his sense of self esteem and sense of self have been compromised, including his ability to enjoy life at Muriwai. He says that what happened in terms of this incident has affected not only him but his wife and sons. He refers to a diagnosis of a chronic adrenal fatigue which he believes is associated with the ongoing depression grief and stress as part of the ongoing conflict with the Muriwai Golf Club.

Basis for strike out application – defendant’s position

[25] The defendant submits that it has acted in accordance with clause 12 of the lease, the relevant part of which provides:

...the golf link shall be open to the public for playing golf on all days save that the Club shall have the exclusive use and possession of the Golf Course on not more than 40 days in the year for the purpose of holding tournaments or competitions...

[26] This creates an obligation to ensure the Course is open to the public when it is not being exclusively used by the Club within the 40 day sole use provision. Thus Mr Phillips is able to play as a member of the public.

[27] The defendant also contends that there are constraints on the ability of the public to play on the Course provided for in other provisions of the lease. For example clause 14 provides that members of the public must be of “...good repute and conduct” and also must pay the required fee.

[28] Clause 15 of the lease provides that in order to play, members of the public must have their name recorded, pay the prescribed fee and be allotted a tee time.

[29] Clause 19 of the lease provides that members of the public must behave themselves in an orderly and seemly manner refraining from hindering or obstructing play.

[30] Clause 16 of the lease sets out circumstances in which the caretaker of the

Course may refuse or allow any person to play and that includes: (a) A person who is disorderly or disreputable.

...

(d) A person who behaves in an indecent or disorderly manner or annoys or is offensive to any other person using the Golf Course.

(e) Who acts contrary to any generally recognised rules of conduct for persons using Golf Links.

[31] Clause 20 entitles the defendant to make rules for the management and control of the Club and for the conduct of persons using the same as players or onlookers.

[32] Clause 19 of the lease provides that a person who enters onto the property as a spectator is not a trespasser provided that they behave in an orderly and seemly manner. The defendant contends that this entitles the Muriwai Golf Club to trespass a person who is not behaving in an orderly and seemly manner.

[33] The defendant contends that the letter of 21 October 2005 restricting Mr Phillips’ activities is within the provisions of the lease and further that not abiding by these restrictions entitled the defendant to stipulate that it would ban Mr Phillips and issue a trespass notice if he did not comply.

[34] The defendant also contends that Mr Phillips is not a person upon whom there is a guaranteed right to play pursuant to clause 12 of the lease. This submission was based on whether or not Mr Phillips was able to employ the Contracts (Privity) Act to pursue the cause of action on the alleged breach of lease.

The plaintiff ’s position

[35] For Mr Phillips, Mr Hutcheson submitted that whether or not Mr Phillips had conduct himself in a manner that led the Club to make the decision to restrict his play access to the facilities is a matter of fact that can only be determined at trial.

[36] Further that the Golf Club assertion that at no time had Mr Phillips been denied play when he complied with the requirements for a green-fee paying member requires evidence that can only occur within a trial. Reference was made to a number of cases where there were clearly problems with pleadings and other aspects of a claim which noted that the jurisdiction to terminate a cause of action is only exercised where the cause of action is so clearly untenable that it cannot succeed for example (Takaro Property Ltd (in Receivership) v Rowling [1978] 2 NZLR 314 per Elias J (as she then was).

[37] The plaintiff contends that there is arguable case that Mr Phillips can rely on the Contracts (Privity) Act for example New Zealand Guardian Trust Company Limited v Peat Marwick (1991) 5 NZCLS 67, 129 Justice Gallen, Mitchell v Barnett High Court at Auckland CP 156/86 14 September 1988 per Justice Robertson and Rattrays Wholesale v Meredyth-Young and A’Court Limited [1997] 2 NZLR 363.

Assessment

[38] In my view it is arguable that Mr Phillips does have standing to advance the cause of action based on breach of lease and the Contracts (Privity) Act. The intention of clause 12 of the lease is clear, namely that the public must be allowed access to the Course except for the 40 days in which the Muriwai Golf Club is entitled to exclusive use. Mr Phillips is not just any member of the public. He is someone who has played on the Muriwai Golf Course since 1980. He has been expressly given permission to play on the Golf Course as a member of the public by the Board of the defendant. In those circumstances, including that he has been expelled from the Club of which he was a long-time member, it is at least arguable that he is entitled to invoke the benefit of the Contracts (Privity) Act to have the right to argue that clause 12 of the lease is enforceable by him against the defendant.

Misfeasance in public office – the defendant’s position

[39] The defendant relied on the Court of Appeal decision in Pranfield Holdings Ltd v Minister of Fisheries [2008] NZCA 216 which set out six ingredients at the tort of misfeasance in public office:

(a) The act complained of must be done by the public officer.

(b) The act must be done in the exercise of the public officer’s public

functions.

(c) The public officer must have acted with knowledge of the illegality of his act or her act, or with a state of mind of reckless indifference to the illegality of the Act.

(d) The plaintiff must have standing.

(e) The conduct of the public officer must cause the plaintiff’s loss.

(f) The public official must have had knowledge that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member, or have been reckless about the consequences of his or her conduct in the sense of not caring whether the consequences happened or not.

[40] The defendant submitted that the Muriwai Golf Club is not a public officer. The Club is part of a large area which is declared a reserve for recreational purposes which is administered by a public body. Those rights were ultimately vested in the Auckland Regional Authority on 9 June 1989. That is the body that is charged with administering managing and controlling the reserve. That administering body has leased the area of the Muriwai Golf Club to the defendant. Therefore the Golf Course is a lessee of the land and not the public officer responsible for the discharge or performance of a public function.

[41] Turning to the New Zealand Bill of Rights Act, the defendant says this does not apply because the performance of a public function power or duty must be imposed on the person by or pursuant to law. As there is no public function vested in the Golf Club then no act is done in performance of a public function.

[42] The defendant submits that its restrictions of Mr Phillips’ activities are

justified as set out in the letter of 31 October 2005.

[43] A further submission is made that even if the Court found that the defendant was a public officer it did not act with the knowledge of the illegality or state of mind of reckless indifference to that illegality. This relies on the factual matrix behind the decision set out in the letter of 31 October 2005. In this regard Ms Thomas drew to my attention that even on Mr Phillips’ own evidence he had disregarded the restriction to pay once a month by playing twice in March 2008 and four times in September 2008.

[44] The defendant also submitted that no loss had been sustained by the plaintiff presumably as he is able to play on the Course as a member of the public.

[45] Ms Thomas also submitted that this is not a case in which exemplary damages could be claimed because the evidence does not meet the threshold required for such an award.

The plaintiff ’s position

[46] The plaintiff submitted that the cause of action of misfeasance in a public office is a developing area of the law. In reliance reference was made to the decision of Clayton v Currie [2012] NZHC 2777 at paragraph 60 where Justice Priestley said:

I have no difficulty with the submission that a Crown Solicitor, who holds a warrant, together with members of his or her staff who conducted the Crown’s business hold a public office for the purposes of the tort. Certainly, for strike out purposes, it is arguable.

[47] Mr Hutcheson argued that the Muriwai Golf Club is carrying out a public function on behalf of the lessor the Auckland Regional Council. Thus the defendant was in a similar position as a member of staff of the Crown Solicitor.

[48] In terms of the New Zealand Bill of Rights Act, that was the basis for the claim of misfeasance in public office rather than a cause of action in itself. Reliance was made on the Law of Torts in New Zealand 4th Edition at page 812 where the authors say:

Seemingly any breach of the Bill of Rights Act is potentially actionable as misfeasance in a public office, whether or not it might be covered by another tort. Misfeasance operates as an umbrella tort which in principle applies all wrongful action by a public officer.

[49] There is force in the defendant’s submission that as lessee of the land the Muriwai Golf Club is not responsible for the discharge or performance of a public function power or duty. That power remains with the lessor who in discharging its function has ensured the right of public access to the Golf Club except on 40 days per year when the Golf Club has exclusive use of the land.

[50] The correspondence establishes that the Board of the Golf Club acted on the advice of its honorary solicitor who wrote the letter of 31 October 2005. For that reason, I am of the view that the plaintiff will struggle to establish that the public officer acted with knowledge of the illegality or the state of mind of reckless indifference to the illegality of the act. Having said that this will require evidence in order to determine the issue.

[51] Mr Phillips has had since 31 October 2005 to persuade the Board of the defendant that its restrictions of his activities in relation to the Golf Course are unreasonable and/or unlawful. Delay will likely be held against him in terms of any loss he has suffered. I agree that the threshold for exemplary damages is unlikely to be reached. It is a high threshold that is rarely attained.

[52] For the forgoing reasons I have doubt about whether there is a valid cause of action based on the tort of misfeasance in public office. However given the statement by Priestley J in The New Zealand Guardian Trust case I am not prepared to strike it out at this stage, particularly given my finding in relation to the first cause of action.

Result

[53] The application to strike out the proceeding is dismissed.

[54] The defendant has 20 working days to serve its notice of response.

Costs

[55] I will consider an application for costs. However I suggest that the parties give consideration to costs being reserved until the outcome of the case. While the application to strike out claim as not been successful, there is merit in the defendant’s arguments in respect of the second cause of action in particular. In those circumstances the parties may consider that costs should be determined at a later time.

[56] I sincerely apologise to both the parties and to counsel for the time it has taken to deliver this decision.

P A Cunningham

District Court Judge