IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2010-412-000306

UNDER	the Judicature Amendment Act 1972

BETWEEN	BRUCE STUART-MENTEATH Plaintiff

AND	REGISTRAR OF PRIVATE INVESTIGATORS AND SECURITY GUARDS
First Defendant

AND	PROVISION SECURITY LIMITED Second Defendant

Hearing:	4 October 2010

Appearances: Plaintiff in person
No appearance for First Defendant (abiding decision) A Darroch for Second Defendant
D Baltakmens - Amicus

Judgment:	5 November 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]       In June 2007 the plaintiff, Mr Stuart-Menteath, made a complaint under the Private Investigators and Security Guards Act 1974 to the Registrar of Private Investigators and Security Guards.  The complaint was against the second defendant, Provision Security Limited.

[2]       Follow a contested hearing, the Registrar dismissed the complaint, having earlier refused to recuse himself.

STUART-MENTEATH V REGISTRAR OF PRIVATE INVESTIGATORS AND SECURITY GUARDS AND ANOR HC DUN CIV-2010-412-000306  5 November 2010

[3]	Mr Stuart-Menteath now seeks judicial review of the Registrar’s decisions. [4]	The proceeding raises the following issues:
i)	Should the Registrar have recused himself on the grounds of apparent bias?

ii)	Is  the  substantive  decision  dismissing  the  complaint  vitiated  by apparent bias?

iii)	Does the substantive decision contain reviewable errors of law?

Background

[5]       Mr Stuart-Menteath’s complaint against Provision Security arose out of a series of encounters that took place over a two-day period between him and some of the company’s employees on the slopes of Mt Augustus.   Provision Security had been engaged by Solid Energy Limited to provide security for the latter’s mining operations on Mt Augustus.  The operations were being disrupted by protestors.

[6]	Mr Stuart-Menteath was not one of the protestors.  He was in the area during the two days in question checking on spotted kiwi.

[7]       His   subsequent   complaint   alleged   several   breaches   of   the   Private

Investigators and Security Guards Act, namely:

i)        Provision Security had employed two persons as bushcraft advisors,  who  were doing security guard  work  without  the certificate of approval required under the Act.

ii)        Other persons who were employed by Provision Security as security guards  had  refused  to  produce  their  certificates  of approval for inspection when requested to do so, and failed to provide the name and address of the licensee by whom they were employed, contrary to the requirements of s 46.

iii)	Provision Security was guilty of misconduct in that:

a.   Its employees falsely implied they had authority to act on Department of Conservation land and to escort members of the public from that land.

b.   Its   employees   intruded   on   Mr   Stuart-Menteath’s privacy by keeping him under surveillance while he was going about his personal and legitimate business on public land.

[8]       Under the Act, a person who is not a member of the police can only file a complaint with the leave of the Registrar.  Because the merits of a complaint bear on whether leave should be granted, the Registrar decided to defer the leave application and hear it at the same time as the substantive complaint.

[9]       Then  followed  a  series  of  adjournment  applications  made  by Mr  Stuart- Menteath.  He wanted time so that he could obtain documentation he was seeking from Solid Energy and Provision Security under the Official Information Act 1982.

[10]     In late-2007 the Registrar sent a fixture notice stating that the hearing would be held in Christchurch on 22 February 2008 at 10 a.m.   The fixture notice also contained a special note advising that it was possible, depending on the length of time required to hear the preceding case, that Mr Stuart-Menteath’s matter could be brought forward.

[11]     As  it  transpired,  the  preceding  case  did  finish  early,  and  time  became available to commence Mr Stuart-Menteath’s case on 21 February.   The case was called, but Mr Stuart-Menteath did not appear, having earlier advised a Court official that because of other commitments he would not be able to attend at such short notice.   There is a dispute as to whether Mr Stuart-Menteath also told the Court official that some of his witnesses were unavailable for 21 February.

[12]     The Registrar held that the case should have been ready to proceed on 21

February, relying on the note in the fixture notice.   He struck out Mr Stuart- Menteath’s complaint, effectively for want of prosecution, and later awarded costs against him in favour of Provision Security.

[13]     Aggrieved by those decisions, Mr Stuart-Menteath took two steps.

[14]     First, he made a formal complaint against the Registrar to the Minister of Justice requesting that the Minister remove the Registrar from office.  Section 7(3) of the Act empowers the Minister of Justice to remove the Registrar at any time for inability or misbehaviour.  It appears the Minister rejected the complaint.

[15]     Mr Stuart-Menteath’s second step was to file judicial review proceedings. These  were  successful,  Fogarty J  holding that  under  the  Act  the  Registrar  was obliged to fix a specific date and time for the hearing.  The special note in the fixture notice advising that the allocated date might change was accordingly ultra vires and not  enforceable.    Fogarty  J  quashed  the  Registrar’s  decision  and  directed  the Registrar  to set  a  new  time  and  place  for  the  hearing of  Mr  Stuart-Menteath’s complaint against Provision Security.

[16]     The Registrar duly set the complaint down for hearing on 18 and 19 February

2010.

[17]     Mr Stuart-Menteath then applied for the Registrar to recuse himself on the grounds of bias.   The Registrar declined to recuse himself and the hearing subsequently took place over two days in February 2010, with both Mr Stuart- Menteath and Provision Security calling witnesses.

[18]     In his substantive decision of 31 March 2010, the Registrar dealt with each of Mr Stuart-Menteath’s complaints.  In relation to the first complaint (employment of non-certificated persons as security guards) he found that Provision Security had employed the two men in question as bushcraft advisers and that there was no evidence the two were working as security guards.  As regards the second complaint, the Registrar found the security guards had breached their statutory obligation to

produce the certificates but held the complaint must fail because it was a complaint against Provision Security and not the security guards themselves.   The Registrar also dismissed the complaint of misconduct, finding on the evidence that the various allegations made by Mr Stuart-Menteath were not established.

[19]     Turning to the issue of leave, the Registrar said he was satisfied Mr Stuart- Menteath did have a personal interest in the complaints, that he had acted in good faith and that his complaints were neither frivolous nor vexatious.   The Registrar further found that although the complaints alleging misconduct had been ultimately unsuccessful, they had raised serious issues, while the complaint about failing to produce the certificates was well-founded and had only failed for a technical reason. Leave was accordingly granted.

[20]     For the same reasons that had persuaded him leave should be granted, the

Registrar also held that costs should lie where they fall.

Apparent bias

Mr Stuart-Menteath’s submissions

[21]     In declining to recuse himself, the Registrar referred to the decision of Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 and held that the fact of his having made previous decisions and directions adverse to Mr Stuart-Menteath was not sufficient to justify recusal.

[22]     However, Mr Stuart-Menteath submitted this reasoning was misconceived because the previous adverse decisions had not in fact been the basis of his application for recusal.  Rather, the application for recusal had been primarily based on the contents of a letter which the Registrar had written in July 2008 to the Minister of Justice when responding to Mr Stuart-Menteath’s complaint against him personally. The letter was written prior to the judicial review proceedings.   Mr Stuart-Menteath contends that certain comments in the letter show pre-determination and personal animosity on the part of the Registrar such that a reasonable fair- minded and informed person would consider the Registrar had formed a concluded

view about Mr Stuart-Menteath’s integrity and his complaint, was harbouring resentment against him and would be unlikely to be able to act impartially at the rehearing.

[23]     In support of these contentions Mr Stuart-Menteath drew my attention to the following passages in the Registrar’s letter:

17        … Again, my decision speaks for itself.  I do not often make awards of costs, particularly where there is merit in the complaint or objection, even if not sustained.  Where, as here, a complainant fails to appear without any apparent justification, or a complaint or objection is entirely devoid of merit, then generally speaking I will award costs.

18        At paragraph 14 of the complainants submission of 26 February, he makes an extraordinary revelation.  The reason he would not attend Court on
21 February, was that he was repairing the floor of his wife’s house.  It is not
surprising that he would not reveal this to [s 9(2)(a) OIA].  I suggest that this indicates that the complainant had no real intention of supporting his complaint.   If he truly had difficulty arranging for his witnesses to be at Court on the 21st, which he only now raises, surely he could have left the repair work for a short period to come to Court to advise me, and Mr Darroch of that, which may have led to an adjournment to the following day, possibly with no opposition from the latter.

…

21        In conclusion I can only say that at all times I was fair to both parties.  I gave the complainant every opportunity to present his case, but he seemed reluctant to do so. Any documents relevant to his complainants were supplied to him.   By the same token, discovery is not to be used as a “fishing” expedition, by one party to try and see what the other party “may have on him.”   I suspect that the complainants principal desire was to get discovery from Solid Energy, but it was not a party to the proceedings, and it was unrealistic of the complainant to expect me to order a non party to make disclosure of any documents that might refer to him, when I doubt that I have jurisdiction to do so, and in any event when such documentation was not relevant to the issues I had to determine.

22        Also, I do not accept that the complainant gave as a reason for his non  attendance  at  the  hearing,  that  his  witnesses  were  not  available. [s 9(2)(a)] is a senior and experienced Court official.   She was precise in reporting her conversations with the complainant to me, and the alleged unavailability of witnesses was never raised with her.

23        Needless to say, I reject entirely the scurrilous assertions of the complainant against me, and maintain that the foregoing account confirms that at all times the necessary legal principles, relevant to a contested issue, were applied.

[24]    In addition to these passages, Mr Stuart-Menteath also relies on another statement in the letter to the effect that Mr Stuart-Menteath was aware he was being observed by the security guards on Mt Augustus.  According to Mr Stuart-Menteath, that statement is inconsistent with the evidence and therefore demonstrates bias. So too in his submission does the Registrar’s assertion to the Minister that Mr Stuart- Menteath had agreed to the fixture dates in February 2008.

[25]     Mr  Stuart-Menteath  further  argues  that  the  fact  the  Registrar  did  not specifically address the contents of the letter in his recusal decision was in itself evidence of bias and judicial misconduct.

[26]     While Mr Stuart-Menteath stated that if required he would be able to prove actual bias, his written submissions identified the relevant test as being that for apparent bias, and the case was argued on that basis.  I am satisfied that is the correct approach.

Discussion

Legal principles – the test for apparent bias

[27]     Following Saxmere Co Ltd v  Wool Board Disestablishment Co [2010] 1

NZLR 35 (SC), the test to be applied is whether a fair-minded lay observer might reasonably apprehend there was a real possibility the Registrar might not bring an impartial mind to the determination of Mr Stuart-Menteath’s complaint.  As noted in Saxmere, the application of the test involves a two-step inquiry:

i)         the  identification  of  what  it  is  said  might  lead  a  Judge  to decide a case other than on its legal and factual merits;

ii)        there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

[28]     Under Saxmere, the fair-minded lay observer is presumed to be intelligent and to view matters objectively.  He or she is neither unduly sensitive or suspicious,

nor complacent about what may influence the Judge’s decision.  He or she must be taken to be a non-lawyer, but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.

[29]     The observer must also be taken to understand various matters relating to the conduct of Judges.   Relevantly to this case, these include the fact that a Judge or decision-maker is expected to be independent in decision-making, and that a Judge has an obligation to sit on any case allocated to that Judge unless grounds for disqualification exist.

[30]     Finally, the Court stressed that the matter of apparent bias:

[10]      … is not to be tested by reference to the perhaps individual and certainly motivated views of the particular litigant who has made the allegation of bias and is endeavouring to influence a result or overturn a decision and is therefore the least objective observer of all.

Application of legal principles

[31]     I accept that some parts of the Registrar’s letter are strongly worded and that it reveals a degree of frustration and irritation.   I also accept that the letter does question Mr Stuart-Menteath’s credibility.

[32]     However after very careful consideration, and mindful of the fact that it is an objective assessment that is required, and mindful too that the test for bias is applied less rigorously to low-level administrative tribunals, I have come to the conclusion that the letter does not satisfy the test for apparent bias.

[33]     I have come to that conclusion for the following reasons:

i)         The fact of the previous adverse decisions was not sufficient to justify recusal. While Fogarty J does state in his judgment that the Registrar was “not treating Mr Stuart-Menteath fairly and reasonably” on the 21st  February 2008, the judgment makes it

clear this was mainly because of the Registrar’s error in law regarding the status of his note. Mr Stuart-Menteath’s invocation of Fogarty J’s words in support of an argument about bias is thus misconceived.

ii)        It  is  well  established  that  the  fact  a  litigant  has  made  a complaint against the decision-maker does not of itself require the decision-maker to step aside: see Samuels v Ministry of Fisheries [2003] 1 NZLR 552.

iii)     It is also well established that adverse judicial comments indicating the decision-maker found the plaintiff unreliable or doubted his credibility are not on their own sufficient.  Nor are comments that express a degree of impatience or frustration. See Muir; Collier v Attorney-General [2002] NZAR 257 (CA); Locobail (UK) Limited v Bayfield Properties Limited [2000] QB 451 (CA).

iv)       In my view, the comments at issue in this case were not so extreme and unbalanced as to demonstrate the Registrar had formed a fixed opinion about the ultimate merits of the complaint against Provision Security.  Nor do they cast doubt on his ability to hear the complaint with an open mind.

v)        The concerns about the scope of the disclosure being sought by Mr Stuart-Menteath were reasonable and were expressed in measured and provisional terms such as “my tentative view”, “suggests”, “formed the impression”.  Mr Stuart-Menteath was inter alia seeking discovery of documents for a period well outside the two days at issue and from a non-party.   As he himself responsibly acknowledged in oral submissions before me, his application could fairly be described as a fishing expedition and was more widely worded than he had really intended.

vi)       The Registrar’s letter does not address the substantive merits of the complaint against Provision Security.  I am satisfied that the reference to a complaint being “entirely devoid of merit” was not a reference to Mr Stuart-Menteath’s complaint and is not capable of being interpreted in that light.  The structure of the sentence and the punctuation make it clear the Registrar is talking generally about the two types of situations where he usually awards costs, with Mr Stuart-Menteath’s case being in the first category (complainant failing to appear without apparent justification) but not the second “entirely devoid of merit” category.

vii)      In stating that he did not accept Mr Stuart-Menteath had told the  court  official  about  the  unavailability of  witnesses,  the Registrar was relying on the information supplied to him at the time by the member of staff.

viii)     Account must also be taken of the context in which the letter was written.   The Registrar was required to respond to the Minister and obliged to explain the reasons for his decisions striking out the complaint and awarding costs.

ix)       The use of the word “scurrilous” was perhaps unfortunate, but again must be seen in context.   After all, the Registrar was responding   to   allegations   of   serious   impropriety   and corruption which were on anyone’s view of it extravagant and unwarranted. (Mr Stuart-Menteath told the Minister the Registrar felt his role was to ensure the security guard industry was protected from the bad publicity which might result from a   successful   complaint.)   Viewed   in   that   context,   the Registrar’s use of the word scurrilous appears to mean something like ‘completely without foundation’.  As submitted by the amicus, Ms Baltakmens, the word reflects a measure of frustration (and I would suggest a degree of indignation) but

does not import the degree of personal animosity argued for by

Mr Stuart-Menteath.

x)        A fair-minded lay observer would also take into account that the Registrar was a qualified lawyer and so by training and experience able to put the complaint to the Minister from his mind when it came time to address the merits of the complaint against Provision Security.

xi)       The Registrar’s statement that Mr Stuart-Menteath was aware he was being observed is not without evidential foundation, there being material in the original letter of complaint against Provision Security to support that inference.  In any event, that kind of error (if error it was) is not in itself an indication of bias. Similarly the statement in the letter that Mr Stuart- Menteath had agreed to the fixture dates.

xii)      Although the recusal decision does not discuss the contents of the letter in any detail, it is clear the Registrar was aware the letter was part of the application and that he took it into account.

[34]     A further argument raised by Mr Stuart-Menteath was that the Registrar’s substantive decision of March 2010 was so riddled with numerous elementary errors that  it  too  demonstrated  bias.    However,  following  Riverside  Casino  Limited  v Moxon [2001] 2 NZLR 78 (CA), this contention overlooks the distinction between error and bias.  An unclear or erroneous view of the law does not amount to bias.

[35]     That said, it is still necessary for me to consider the alleged errors identified by  Mr  Stuart-Menteath  because  in  addition  to  his  argument  that  the  errors demonstrate bias, he also relies on them as stand-alone independent grounds for judicial review, citing unreasonableness, illegality, irrationality and breach of the rules of procedural fairness.

[36]     I therefore now turn to consider the various alleged errors.

Alleged errors of law

Did the Registrar err in his interpretation of s 46(3)?

[37]     Section 46 states:

46	Production of certificate of approval

(1)        Every holder of a certificate of approval shall produce his certificate of approval on demand to—

(a)	The Registrar; or

(b)	Any member of the Police; or

(c)        Any  person  with  whom  he  is  dealing  in  the  course  of transacting or attempting to transact the business to which the certificate of approval relates.

(2)        Every holder of a certificate of approval shall, on demand by any other person specified in subsection (1) of this section, inform that other person of the name and address of the licensee by whom the holder is employed.

(3)        Every holder of a certificate of approval who knowingly contravenes subsection (1) or subsection (2) of this section commits an offence against this Act.

[38]     The Registrar held that the offence created by s 46(3) was an offence that could only be committed by the holder of the certificate.   That meant Mr Stuart- Menteath’s  complaint  must  fail  because  it  was  a  complaint  against  Provision Security, not the actual certificate holders themselves.

[39]     Mr Stuart-Menteath argues that in so holding the Registrar has misinterpreted s 46(3) by inserting a word (namely the word “only”) that is simply not there.  Mr Stuart-Menteath further contends that the Registrar erred in not considering the imposition of vicarious liability especially given the Registrar’s finding that the failure to produce the certificate was caused by inadequacies in Provision Security’s administrative systems.

[40]     I do not accept that submission.   The express wording of s46 is clear and unambiguous.  For obvious practical reasons, the statutory obligation to produce the certificate is imposed only on the certificate holder. Section 46 does not mention the licensee  and  does  not  purport  to  impose  any  obligation  on  it  to  produce  the certificate. The responsibilities and duties of the licensee regarding certificates and other matters are the subject of specific provisions elsewhere in the legislation.  In those circumstances I see no room for any expression of vicarious liability under s
46.

[41]     That said, section 59(3) does provide for a complaint to be brought against the licensee where the licensee has been guilty of negligence in the course of the business to which the licence relates.   The Registrar was of the view that such a general provision could not over-ride the specific. I am not persuaded that is necessarily correct where the employee’s failure to produce the certificate is the result of negligence on the part of the licensee.  However, it is unnecessary for me to reach a concluded view on that point because Mr Stuart-Menteath’s complaint about the non production of the certificate was brought under section 46 and the case was argued on that basis.

Was the Registrar’s decision to admit the written statement of an absent witness a breach of the rules of natural justice?

[42]     Mr Stuart-Menteath argues that the hearing was procedurally unfair because the Registrar allowed a witness statement to be admitted in evidence without the witness a Mr McDonald being present. As a result, Mr Stuart-Menteath says he was deprived of the right of cross-examination guaranteed him by s 56(3).

[43]     Section 56(3) provides:

At  the hearing,  the  complainant,  the  licensee,  and the  Commissioner  of Police or any other member of the Police on his behalf, shall be entitled to appear and to be heard, and to call evidence, and to cross-examine and re- examine witnesses.

[44]     The witness in question Mr McDonald was one of the security guards on Mt

Augustus. Provision Security had been unable to contact him and it would have been

impractical to adjourn the proceeding.  He was no longer in their employment and had gone overseas some time ago.

[45]     I  do  not  accept  that  the  decision  to  admit  his  statement  constitutes  a reviewable error for the following reasons.

[46]     First, it appears Mr Stuart-Menteath actually consented to the statement being admitted into evidence because aspects of it were favourable to his case and also because he himself wanted to adduce a statement from one of his own witnesses without that person being there.

[47]     Secondly,  the  right  of  cross-examination  conferred  by s  56(3)  is  not  an absolute right.   Section 10 provides that the Registrar is to be a Commission of Inquiry and that he may receive as evidence any statement, document, information, or matter that in his opinion may assist him to deal with the matter, whether or not it would be otherwise admissible in a Court of law.

[48]     Further, the statement would have been admissible in any event under s18 of the Evidence Act 2006, Mr McDonald being absent overseas and the circumstances relating  to  the  statement  providing  reasonable  assurance  it  was  reliable.    His statement was consistent with other evidence.  The fact the statement was not tested in cross-examination was obviously something which would go to its weight, a point expressly noted by the Registrar.

[49]     Another argument raised by Mr Stuart-Menteath was that Mr McDonald was entitled to be there to defend himself.  However, the complaint was against Provision Security, not Mr McDonald.  Further the Registrar had ruled that if after hearing the evidence, he considered that severe criticism of Mr McDonald was warranted, he would be prepared to reconvene the hearing to give Mr McDonald an opportunity to be heard.

[50]     I am satisfied the admission of the McDonald statement is not grounds for review.

Did the Registrar err in failing to impose any penalty?

[51]     Mr Stuart-Menteath contends the Registrar was required to impose a penalty, having found that the two employees of Provision Security had failed to comply with their statutory obligation to produce their certificates of approval on demand.

[52]     However, the Registrar’s power to impose a penalty is derived from s 57(1):

(1)        If, after hearing a complaint in respect of a licensee in accordance with section 56 of this Act, the Registrar is satisfied that the grounds of the complaint have been proved, he may do all or any of the following things:

(a)        Subject to section 58 of this Act, make an order cancelling the licence:

(b)        Make an order suspending the licence for such period, not exceeding 3 years, as the Registrar shall specify in the order:

(c)	Fine the licensee any amount not exceeding $500: (d)	Reprimand the licensee:
(e)        Where the Registrar is satisfied in the case of a licensee that is a company that the grounds of the complaint relate to any conduct or omission by a particular officer of the company, make an order directing the licensee to terminate the employment of that officer within such time as the Registrar shall specify in the order.

[53]     The power only arises if the Registrar is satisfied that the grounds of the complaint in respect of a licensee are proved.   For the reasons already discussed, Provision Security was not liable under s 46(3) for the failure to produce certificates. Further, the power to impose a penalty is not mandatory, but remains a discretionary power as evidenced by the use of the word “may”.

Did the Registrar err in finding the evidence did not establish the security guards had implied they had authority to escort members of the public off Mt Augustus?

[54]     Mr Stuart-Menteath challenges the Registrar’s finding on this issue, arguing that it was based on the improperly admitted McDonald statement some of which was contradictory.

[55]     For the reasons already traversed, I am satisfied the Registrar was entitled to have regard to the McDonald statement.

[56]     Further, in any event the McDonald statement was not the only evidence on this issue. There was evidence from other Provision Security employees as well as evidence from Mr Stuart-Menteath himself.

[57]   The issue was a factual question which the Registrar determined after considering all the evidence.

[58]     Correctly   analysed   the   arguments   raised   by   Mr   Stuart-Menteath   are arguments about the weight that was placed on evidence, something which subject to requirements  of  rationality  and  reasonableness  was  a  matter  for  the  Registrar. Judicial review is not a merits based appeal.

[59]     I am satisfied the Registrar’s finding was a reasoned and reasonable one.

Did the Registrar err in stating that neither of the two bushcraft advisers acted without a security guard ?

[60]     Mr Stuart-Menteath contends that an assertion to this effect at [4] of the

Registrar’s decision is false and contrary to the evidence.

[61]     Paragraph 4 is however a summary of Provision Security’s response to the complaint and does not purport to be a finding by the Registrar.

[62]     The   main   reason   why   the   Registrar   dismissed   Mr   Stuart-Menteath’s complaint regarding the employment of bush craft advisers was because he found on the evidence that they did not in fact undertake any security work or purport to do so but only ever acted as alpine guides. He also stated that it seemed from the evidence that they worked in tandem at all times with the guards.

[63]     Again this was a factual issue and a matter of the weight to be placed on the evidence. It is not a ground for judicial review.

[64]     The same point applies to another alleged error raised by Mr Stuart-Menteath namely that the Registrar was wrong to find the surveillance of him had not been covert.

Did the Registrar err in relying on documentation that was not part of the evidence?

[65]     It   was   common   ground   that   during  the   protests   the   Department   of Conservation had imposed a 300 metre exclusion zone adjacent to Solid Energy’s mining licence boundary for safety reasons.

[66]     In his decision, under the heading ‘Background’, the Registrar stated:

10.	… An authority to enter [the exclusion zone], dated 15th   March
2007, was given to the NZ Police, SEL and the licensee.  It provided inter alia:

“This  Authority  allows  the  above  mentioned  persons  to carry out safety inspections and related duties reasonably associated with compliance with Solid Energy New Zealand Ltd's health and safety obligations under concession PAC-11-24-24-03 within the closed public conservation land area.”

11.	A concession was later granted to the licensee by DoC but that was in 2008, after the events in question.  Notwithstanding that, in May
2007, personnel of the licensee were entitled to enter the DoC land
outside the exclusion zone, as for any other member of the public.

[67]     Mr Stuart-Menteath takes issue with aspects of the background statements made by the Registrar.

[68]     His first objection is that neither the concession nor the authority were put in evidence and that accordingly the Registrar’s reliance on the documentation was a breach of the rules of procedural fairness.

[69]      However,  according  to  counsel  for  Provision  Security  Mr  Darroch,  the relevant evidence was given by a director of Provision Security and the documents produced through him. Mr Darroch represented Provision Security at the hearing. Mr Darroch also says that Mr Stuart-Menteath cross- examined the director at length.

[70]     Mr Darroch is an officer of the Court and of course the fact the Registrar was able  to  quote  from  the  authority tends  to  confirm  it  was  produced  as  does  the director’s written brief of evidence which says a copy of the authority is attached.

[71]     Mr Stuart-Menteath did not provide the Court with a complete transcript of the evidence and the exhibits but only selected excerpts

[72]     The director’s written brief of evidence refers to the date of the authority as being 15 February 2007 whereas the Registrar’s decision says it is 15 March 2007. No one has suggested there were two different authorities and in the circumstances I consider the most likely explanation is that either the director or the Registrar has made a mistake with the date.

[73]     I am satisfied Mr Stuart-Menteath’s contention regarding the documentation is without merit.

Did the Registrar err in stating that in May 2007 Provision Security personnel were entitled to enter the DOC land outside the exclusion zone as for any other member of the public?

[74]     Mr Stuart-Menteath also challenges the Registrar’s statement that in May

2007 Provision Security personnel were entitled to enter conservation land outside the exclusion zone as for any other member of the public.

[75]     The  nature  of  Mr  Stuart-Menteath’s  objection  to  this  statement  was somewhat confused and at times contradictory.

[76]     At  times,  he  appeared  to  be  arguing  that  the  correct  position  was  that Provision Security had  no legal right to conduct security operations outside the exclusion zone unless it had been granted a concession.  His argument was that as at May 2007, it did not have the necessary concession. The only authority it had as at May 2007 was to conduct activities within the exclusion zone which had a health and safety purpose associated with Solid Energy’s mining operations.

[77]     In support of his contention that a concession was required for any activity outside the exclusion zone (regardless of the nature of those activities) Mr Stuart- Menteath  had  adduced  a  copy of  an  email  letter  dated  19  June  2007  from  the Department of Conservation to himself as well as a letter dated 11 July 2007 from Department of Conservation to Provision Security regarding another complaint.

[78]     I was not provided with a copy of the June 2007 email.   However, in his decision the Registrar quotes passages from the email and says correctly construed it does  not  go  so  far  as  Mr  Stuart-Menteath  was  claiming.     The  Registrar’s interpretation  of  the  email  was  that  it  was  only  proscribing  specified  activities namely the detention or removal of members of the public from either inside or outside the zone.

[79]     As for the letter of 11 July 2007 (which Mr Stuart-Menteath did provide to the Court) its primary concern was the actions of Provision Security in issuing trespass notices and filming on conservation land in February 2007.

[80]     The Registrar’s view was that the security guards had all the rights of an ordinary citizen and accordingly had as much right as Mr Stuart-Menteath to be on Mt Augustus outside the exclusion zone. That must be correct. Mr Stuart-Menteath submitted the Registrar was wrong to equate security guards with members of the public because unlike members of the public, security guards are bound by a code of practice. He argued that by overlooking the code, the Registrar had failed to take relevant evidence into account.  However, the mere existence of a code of practice cannot  possibly mean  security  guards  are  somehow  prevented  from  going  onto public land. It may regulate what they do there but that is a different issue.

[81]     The Registrar further held that while on Department of Conservation land the guards were entitled to advise all those in the vicinity of the exclusion zone of its existence and the fact that they could not legally enter the zone. He said he saw nothing untoward in the security guards advising members of the public to that effect.   Again, in my view, that proposition appears eminently reasonable and is arguably supported by the Department’s July 2007 letter.

[82]     There was no direct evidence from the Department of Conservation at the hearing as to whether such purely advisory activities would require a concession. Further, even if a concession was required, the relevance of that to the complaint is tenuous.

[83]      A  breach of s66(2) could only occur if the guards had:

a)        either orally or in writing claimed, suggested or implied that, by virtue of their licences, certificates of approval, occupation, or business, they had any power or authority that they did not in law have; or

b)        used or attempted to use their licences or certificates of approval for the purpose of exercising, claiming, suggesting, or implying such a power or authority; or

c)        either  orally  or  in  writing  described  or  referred  to  themselves  as detectives or by any other expression or term containing the word “detective”; or

d)        worn any article of clothing, badge or other article that is likely to cause any member of the public to believe that the holder of the licence or certificate of approval is a member of the Police.

[84]     In my view, correctly advising someone of the existence of an exclusion zone further up the mountain without more is not capable of constituting a breach of s66(2) and in particular does not amount to an implied assertion that by virtue of their   certificate   etc   the   guards   had   a   concession   from   the   Department   of Conservation to give that advice.

[85]     Another  criticism  made  by  Mr  Stuart-Menteath  was  that  the  Registrar supported his findings by reference to the authority to enter, yet the authority related to “inside’ the exclusion zone, not outside it.   However, it is clear from the decision that the reason the Registrar mentions the authority was because he understood Mr Stuart-Menteath to be alleging in evidence that Provision Security did not have any

authority to operate at all on Mount Augustus whether inside the exclusion zone or outside it.

[86]     Compounding the confusion is that in some paragraphs of the statement of claim and written submissions, Mr Stuart-Menteath appears to accept that Provision Security did have the legal right to enter conservation land outside the zone for the purposes of issuing a health and safety warning to members of the public.

[87]     In these other paragraphs, Mr Stuart-Menteath says he accepts they had the right  to  give  safety  advice  but  argues  that  this  was  not  the  gravamen  of  his complaint. Rather the gravamen of his complaint was that the security guards were engaged in activities that had nothing to do with health and safety such as keeping him under observation. He therefore argues that the Registrar overlooked the substance of the complaint and so fell into error.

[88]     However his complaint was based on s66 and implied assertions of authority. The fact that someone was camping nearby and keeping him under observation to ensure he did not enter the exclusion zone does not amount to a breach of s66.

Did the Registrar err in stating that throughout the evidence, Mr Stuart-Menteath denied he had any involvement with the protest group?

[89]     The statement of claim pleads that contrary to a statement by the Registrar to the above effect, at no point in his evidence did Mr Stuart-Menteath ever confirm or deny that he had any involvement with the protest group.

[90]     In his written submissions however Mr Stuart-Menteath says it would have been obvious from his complaint, and briefs of evidence that he had contact with people involved in the action group including a member of the group whom he called to give evidence.

[91]     The written submissions then go on to state that because it was so obvious, the Registrar must have believed Mr Stuart-Menteath was lying when he denied any

involvement. At the same time, the submissions also accuse the Registrar of manufacturing or using false evidence.

[92]     Mr  Stuart-Menteath  did  not  provide  me  with  a  complete  copy  of  the transcript so I have been unable to ascertain exactly what he said in evidence about the degree of his involvement with the protest action group.

[93]     What Mr Stuart-Menteath was at pains to tell me however was that he was not a member of the protest group and that his purpose in going up  to Mount Augustus was not to protest but to check on spotted kiwi.  That being the position, I consider it fair and reasonable to describe that as an assertion he was not involved with the protest action group.  That bears on the genuineness of his complaint and his conduct on the mountain.

[94]      There is no suggestion in the decision that the Registrar considered Mr Stuart Menteath was lying about his lack of involvement with the protest action group. Significantly,  the  Registrar  expressly records  the  evidence  did  not  establish  Mr Stuart-Menteath was involved in any protest activity.

[95]     I am satisfied this argument is also without merit.

Outcome

[96]     For the reasons detailed above, none of the grounds of review invoked by Mr Stuart-Menteath are sustainable.   The decision of the Registrar was reasoned and reasonable. It followed a fair and extensive hearing. The Registrar was not required to recuse himself and the decision was not vitiated for apparent bias.

[97]     The application for judicial review is accordingly dismissed.

[98]     As regards costs, my expectation is that the parties will reach agreement.  If, however, that does not prove possible and I am required to make an award, Mr Darroch is to file and serve submissions first, with submissions from Mr Stuart- Menteath to be filed and served within ten working days thereafter.

[99]     It may assist the parties if I indicate my provisional view is that costs should follow the event, meaning that because Mr Stuart-Menteath was unsuccessful he should pay costs to Provision Security on a 2B basis.

[100]   Finally, I would like to record my thanks to Ms Baltakmens for her very helpful submissions.

Solicitors:
Duncan Cotterill, Christchurch
Crown Law, Wellington

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