FALUN DAFA ASSOC OF NZ INC V AUCKLAND CHILDREN'S CHRISTMAS PARADE TRUST BOARD HC AK CIV 2008-404-007714

FALUN DAFA ASSOC OF NZ INC V AUCKLAND CHILDREN'S CHRISTMAS PARADE TRUST BOARD HC AK CIV 2008-404-007714 27 November 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-007714BETWEEN FALUN DAFA ASSOCIATION OF NEW ZEALAND INCORPORATED Plaintiff AND AUCKLAND CHILDREN'S CHRISTMAS PARADE TRUST BOARD Defendant Hearing: 26 November 2008 Appearances: E Orlov and M T C Wu for Plaintiff M C Harris for Respondent Judgment: 27 November 2008ORAL JUDGMENT OF RANDERSON JSolicitors: A McClymont, 3/1A Kingsivew Road, Mt Eden, Auckland Gilbert Walker, PO Box 1595, Shortland Street, Auckland 1140Introduction[1] For some 75 years a Christmas Parade (popularly known as the Santa Parade) has been held in Auckland City. It is primarily intended for the entertainment of children. The parade comprises a number of elements including floats, bands and individual performers. Queen Street is closed for the occasion which traditionally ends with the arrival of Santa on a float. [2] The parade began on the initiative of the Farmers' Trading Company. However, in 1991 a charitable trust was formed which assumed responsibility for putting on the parade. The Farmers' Trading Company donated the floats, costumes and other items it had acquired over the years. [3] The trust was formed by a Deed dated 9 May 1991 and the Board was subsequently incorporated under the Charitable Trusts Act 1957 as the Auckland Children's Christmas Parade Trust Board Incorporated. I record that at the commencement of the hearing I ordered by consent that the Board be substituted as the correct defendant. [4] The plaintiff is an incorporated association formed by Falun Gong practitioners. The practice of Falun Gong is described as an ancient, peaceful and spiritual practice involving the development of mind, body, and spirit through harmonious meditation, exercise and training. Practitioners are said to cultivate the virtues of truthfulness, compassion and forbearance. [5] For some years, the plaintiff has been seeking to take part in the Auckland Christmas Parade but its requests to participate have been denied by the Trust Board either directly or through a company the Trust Board hires to organise the parade. [6] This year, the Auckland Christmas Parade is to take place next Sunday (30 November 2008). The plaintiff's application to participate in the parade has again been declined. In this proceeding the plaintiff seeks judicial review of the Trust Board's decision to decline permission to participate in the parade. The plaintiff's principal complaint is that the Trust Board has discriminated against it onthe grounds of the plaintiff's imputed political beliefs. In doing so, the plaintiff alleges that the Trust Board has committed reviewable error in administrative law terms. The plaintiff also alleges that the Trust Board has breached certain provisions of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. The plaintiff claims declaratory and injunctive relief as well as damages. [7] The plaintiff has also sought urgent interim relief in the form of an injunction requiring the Trust Board to permit the plaintiff to participate in the parade due to take place on 30 November or alternatively a declaration that the plaintiff has the right to participate in it. Specifically, the plaintiff seeks to enter in the parade its band known as the Divine Land Marching Band. [8] The Trust Board denies any discriminatory conduct and submits there is no arguable basis for the plaintiff's claim and that, in any event, relief should be declined as a matter of discretion.The Issues[9] The issues arising are: a) Is the Trust Board amenable to judicial review? b) Does the New Zealand Bill of Rights Act apply to the Trust Board? c) Is there an arguable case of breach of New Zealand Bill of Rights Act or the Human Rights Act or any other basis for intervention on administrative law grounds? d) Should interim relief be granted?The facts in more detail[10] The settlors of the Trust under the Deed of 9 May 1991 were the Farmers' Trading Company Limited, the Auckland Regional Chamber of Commerce Incorporated, the Retail and Wholesale Merchants Association of New Zealand Incorporated, Radio New Zealand Limited and Wilson and Horton Limited. Theinitial trustees were all drawn from those organisations. The recitals to the Deed record that the settlors have determined that:...the continuation of a parade for the benefit of the people and particularly for the children of the City of Auckland and its environs is in the interests of the City and its citizens.[11] The desire was expressed that the Christmas Parade should remain a permanent feature, the settlors having decided to establish the Trust to "co-ordinate and organise such a parade on a regular basis and to provide a facility for funding the cost of such a parade". Entertainment was to be provided through floats, bands, marching girl troupes or other activities as the trustees might decide from time to time. [12] The aims and objects for the Trust when originally established were:(a) To promote the theme of Christmas as a religious and festive occasion for the benefit through entertainment and enjoyment of the people of Auckland and its environs with particular emphasis on entertainment for children and in particular without limiting the generality of the foregoing to undertake such promotion by means of an annual Christmas Parade through the streets of Auckland. (b) To promote and enhance the welfare and development of the children of the City of Auckland and its environs through access to and the provision of family oriented entertainment. (c) To provide a facility for the entertainment of the people of Auckland with the intention of involving community service clubs, social welfare organisations and organisations established for the care of the handicapped and poor. (d) To foster goodwill amongst the people of Auckland and its environs by promotion of the City and its involvement in the provision of activities for children. (e) To assist causes designed to promote the religious and festive aspects of Christmas for the benefit of children. (f) To do all things and take all steps which in the opinion of the Board are appropriate to promote the aims and objects of the Trust and to ensure that these can be fulfilled.[13] Importantly clause 3 of the original Deed went on to state:AND IT IS DECLARED that the Board may undertake all or any of the above aims and objects which it may determine in its absolute discretionfrom time to time BUT to the intent that the primary objects shall be those set forth in paragraphs (a) and (b) above. In that regard the Board shall ensure that the promotion of Christmas shall include the organisation, operation and management of a Christmas parade through the streets of the City of Auckland and its environs.[14] The Deed went on to provide for a number of functions and powers of the Board not directly relevant for present purposes. [15] In 2008 the Deed was varied to delete paragraphs (a) to (f) of clause 3 of the 1991 Deed and to substitute the following aims and objects for the Trust:(a) To educate the community about New Zealand's religious and cultural heritage. (b) To promote and enhance the health, welfare and development of the children of the City of Auckland. (c) The relief of poverty and the care of the handicapped and elderly. (d) The promotion and support of performing and creative arts. (e) To improve the health of the people of Auckland. (f) To raise funds from time to time for any purpose recognised as charitable by the New Zealand Charities Commission.[16] In all other respects the terms of the Deed remained unchanged. [17] The current Board comprises seven trustees: the Chairman, Mr Michael Barnett; Ken Baguley of the Auckland City Council; Mr Andrew Dick of Deloitte; Mr Stuart Dwight of The Radio Network; Mr Ian Halsted, a retired executive; Mr Alex Swney, chief executive of Heart of the City; and Mr Rod McDermott, chief executive of Farmers. [18] On 8 September 2008 the plaintiff wrote to Mr Barnett requesting permission to enter its Divine Land Marching Band in the 2008 Christmas Parade. The letter stated that the Band had performed successfully at a number of Christmas Parades in other places in New Zealand. Mr Barnett was advised that the plaintiff would provide an undertaking to abide by any relevant conditions governing participants in the parade. The letter added:For the sake of completeness, our objection is to the Chinese Communist Party's persecution of Falun Dafa practitioners in China. We love China, and stress that China is not to be confused with the Chinese Communist Party. The most important issue is the Chinese Communist Party's persecution of Falun Dafa practitioners in China, not the issue of whether Falun Dafa is "political". Who should be condemned? The persecutor or the persecuted? In fact, Falun Dafa is not "political". We are a spiritual group, as acknowledged by Amnesty International, Human Rights Watch and the United States Department of State in their Country Reports on Human Rights Practices. We have no interest in politics neither do we have any political aspirations. Please be advised that in the interests of accuracy and for the avoidance of error a copy of this letter will be forwarded to media so that all persons are aware of our position, and of course the undertakings we have made to you above.[19] Mr Barnett responded in writing on 14 October 2008 in the following terms:This is to inform you that Falun Dafa's application to participate in the 2008 Auckland Christmas Parade has been declined. The Auckland Farmers Santa Parade is a fun family occasion attended by hundreds of thousands of New Zealanders in the spirit of Christmas and to welcome Santa to town for the festive season. We are not prepared to have this family occasion hijacked by other organisations and their agendas. No further consideration will be given to this matter.[20] A solicitor on behalf of the plaintiff then wrote on 29 October 2008 to Ms Pam Glaser, the director and principal shareholder of the company responsible for organising the Christmas Parade on behalf of the Trust Board. The solicitor's letter alleged that the refusal to allow the plaintiff to participate in the parade was discriminatory under the Human Rights Act and the New Zealand Bill of Rights Act. Legal proceedings were threatened. Solicitors for the Trust Board responded on 18 November 2008 denying responsibility. This proceeding was then filed on 19 November 2008, just over one week ago. [21] Thus, by this time, the battle lines were essentially drawn. The plaintiff maintained it was not a political organisation and that the participation of its band would be an appropriate entertainment for the purposes of the parade. On the other hand, the Trust Board was firmly of the belief the plaintiff had a political agenda in relation to its claims of persecution of Falun Gong practitioners by the Chinese government and that the participation by the plaintiff in the parade was inappropriatein terms of family entertainment. Participation by the plaintiff was said to be inconsistent with the Board's policy, applicable to all, that groups advocating particular causes, however worthy, should not be permitted to take part. Extensive affidavits have been filed, the relevant parts of which I canvass later in this judgment.First Issue – Is the Trust Board amenable to judicial review?[22] The answer to this issue essentially depends on two sub-issues: a) In declining to permit the plaintiff to participate in the parade, was the Trust Board exercising a statutory power as defined in s 3 Judicature Amendment Act 1972; b) Was the refusal to permit the plaintiff to take part the exercise of a power of a sufficiently public nature to warrant invoking the Court's supervisory jurisdiction either under the Judicature Amendment Act or at common law? [23] Mr Harris, on behalf of the Trust Board, did not seriously dispute that the Trust Board was exercising a statutory power of decision which affected the rights or privileges of the plaintiff. I am satisfied that, in strict terms, the Trust Board's decision does constitute the exercise of a statutory power of decision for the purposes of s 3 Judicature Amendment Act, in that the Board is a body corporate and was exercising powers available to it in terms of its constitution. The decision declining permission to take part undoubtedly affected the plaintiff's rights or privileges. [24] But, as Mr Harris submitted, the Judicature Amendment Act is largely procedural and the issue as to whether the Court should intervene in administrative law in the case of a non-statutory body such as the Trust Board must still be determined. This more difficult question is whether the exercise of the power is of a sufficiently public nature, or its exercise has a sufficient public effect, to warrant the exercise of the Court's supervisory jurisdiction. Mr Orlov relied on the decision ofthe United Kingdom Court of Appeal in R v Panel on Takeovers and Mergers ex parte Datafin plc (1987) QB 815 at 845-847 and New Zealand decisions including Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 (CA) at 178; Electoral Commission v Cameron [1997] 2 NZLR 421 (CA) at 431;Velich v Body Corporate No 164980 (2005) 6 NZCPR 143 (CA) and Dunne v Canwest TV Works Ltd [2005] NZAR 577. [25] Mr Orlov submitted there are a number of factors supporting the submission that the Trust Board was performing a public function when declining to permit the plaintiff to take part in the parade. First, he submitted that the Auckland City Council had issued a permit to the Trust Board under its by-laws and had also exercised its power under the Local Government Act 1974 to effect road closures to enable the parade to take place. He submitted that the Auckland City Council had effectively delegated its control of public roads to the Trust Board. In doing so, the Trust Board had therefore taken on a statutory function in the place of the Council namely excluding people from the use of public roads. [26] Secondly, public funds have been provided by the Auckland City Council as one of the major sponsors of the parade. Thirdly, the parade was a major public event attracting up to 300,000 people annually. Fourthly, as a charitable trust incorporated under the Charitable Trusts Act, the Trust Board was a public trust (as distinct from a private trust such as one established by will or a family trust). [27] Mr Harris submitted that decisions of trustees of charitable trusts are not normally subject to judicial review. He submitted that the plaintiff's claim was at the outer edge of bodies subject to administrative law duties. He relied on the decision of Wild J in Macaskill v Ogden HC WN CIV 2003- 485-2172 21 April 2004. In that case the plaintiffs attempted to challenge by way of judicial review the legality of decisions made by the defendants to amend a trust deed relating to the distribution of assets in the Hutt Mana Energy Trust. It was held that the trustees were not exercising a statutory power and that there could not be "higher standards or additional obligations for trustees' conduct at public law than are imposed on trustees in equity": at [26] to [28].[28] Mr Harris submitted there is an established body of case law developed in the law of trusts to control the exercise of trustees' powers including through the duties to act in good faith, responsibly and reasonably. [29] In Craddock v Crowhen (1995) 1 NZSC 40,331, Tipping J was prepared to equate the equitable duties of trustees to administrative law standards. In particular, the Court would interfere with the decision of trustees if it was unreasonable in the Wednesbury sense of being beyond the bounds of reason or a decision no reasonable trustee could rationally have made in all the circumstances. The Court would not intervene simply because it would have made a different decision. [30] However, charities are not necessarily immune from judicial review:De Smith's Judicial Review (6ed 2007) at para 2-010. But a cautious approach has been taken: see the observations of the English Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] 1 QB 48 at 69 and the conclusion of that Court in R (on the application of Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. [31] In Scott v National Trust [1998] 2 All ER 705, Robert Walker J accepted that an important body such as the National Trust might be amenable to judicial review (noting particularly that it was a charitable institution regulated by Act of Parliament and of great national importance): at 712. But Robert Walker J also held at 716 that it was well established that judicial review would not normally be granted where an alternative remedy is available. Since Parliament had laid down a special procedure (the bringing of charity proceedings in the Chancery Division), judicial review should not lie. [32] Mr Harris responsibly cited my own decision in Marshall v National Spiritual Assembly of the Bahá'is of New Zealand Inc [2003] 2 NZLR 205 where I concluded it was arguable that a statutory power of decision was being exercised in relation to a charitable trust formed for religious purposes. That case involved a decision by the church to remove the plaintiff from membership of it. In the end, the proceedings were struck out as not disclosing a cause of action. The existence of alternative remedies in equity was not canvassed in that case.[33] In summary, judicial review may be available in the case of charitable bodies but only where it is clearly established that the body in question is exercising significant public functions or with substantial public effects which warrant intervention on public law grounds. Otherwise, a charitable trust will ordinarily be treated as exercising private powers, subject to the usual obligations in equity. [34] In the present case, the submission that the Trust Board was effectively exercising powers delegated by the Auckland City Council is not sustainable. An examination of the permit granted by the Auckland City Council to the Trust Board dated 24 November 2008 under clause 20.6.1 Auckland City Consolidated By-law 2008, demonstrates that full responsibility for the event was placed on the Trust Board subject to a large number of standard conditions and some special conditions. Notably the Trust Board was made responsible for ensuring compliance with all relevant legislation. There is nothing in the documentation to suggest that the Trust Board was effectively acting in place of the Auckland City Council in holding the parade. The closure of streets under the Local Government Act for the purposes of the parade was effected by the Auckland City Council itself. [35] Importantly, the grant of the permit says nothing about who may take part in the parade. That is a matter which is left entirely to the discretion of the Trust Board under its Deed. [36] For reasons which I will canvass more fully when dealing with the second issue, I am not persuaded there is any seriously arguable case that, in declining permission for the plaintiff to take part in the parade, the Trust Board was exercising public powers. As Mr Orlov accepted, the Trust Board, by the terms of its empowering Deed, had a discretion (described in the Deed as "absolute") to determine how the parade was organised and who could take part in it. While the parade was undoubtedly staged for the benefit of the public and occurs in a public place, it does not follow that the powers being exercised are of a public nature for the purposes of administrative law. Unlike the National Trust in the Scott case the Trust Board is not regulated by statute except to the very limited extent of the provisions of the Charitable Trusts Act. The existence of some public funding from the Council does not cause me to reach any different conclusion.Second Issue - Does the New Zealand Bill of Rights Act (NZBORA) apply to the Trust Board's decision?[37] The application of NZBORA is governed by s 3:3 ApplicationThis Bill of Rights applies only to acts done— (a) By the legislative, executive, or judicial branches of the government of New Zealand; or (b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.[38] It is common ground that the Trust Board does not fall within s 3(a) but it was submitted for the plaintiff that it fell within s 3(b). Counsel cited my decision inRansfield v Radio Network Ltd [2005] 1 NZLR 233 in which I held that private radio stations broadcasting under licences issued in terms of the Radio Communications Act 1989 did not fall within s 3(b) NZBORA and so was not required to ensure freedom of expression under s 14 NZBORA. [39] There are three elements which must be shown to exist if NZBORA is to apply to a person or body under s 3(b): The action in question must occur: (a) in the performance of a function, power or duty by any person or body; (b) which is conferred or imposed by or pursuant to law; and (c) which is public. [40] There was no question in Ransfield that the radio stations were performing functions conferred or imposed by or pursuant to law. That followed from the grant of the relevant licences under the Radio Communications Act. There is an initial question in this case as to the source of the authority exercised by the Trust Board and whether the functions it exercises are conferred or imposed by or pursuant to law. Obviously, functions conferred by or pursuant to legislation (including subordinate legislation) would amount to functions conferred or imposed by or pursuant to law. But the only functions conferred on the Trust Board in this casefollow from the terms of the 1991 Deed entered into by the settlors and the original trustees. No authority was cited on this point and, in the time available to me, I have not been able to locate any authority on the point. But in Rishworth et al The New Zealand Bill of Rights (2003) at 96-98 a construction of s 3(b) is favoured which would hold that state imposition of the function is not necessary. It is sufficient if a private body voluntarily assumes power. The function is conferred pursuant to law if the law facilitates the voluntary assumption of the function such as through contract or the constitution of a body corporate. For present purposes, I assume, without deciding, that this interpretation may be open. [41] In Ransfield having reviewed the authorities my conclusions on the public functions issue were summarised:[69] ... (a) The fact that the entity in question is performing a function which benefits the public is not determinative. If it were, anyone delivering goods or services to the public under licence or other authority conferred by law, would fall within the section. That could not have been intended. (b) Whether the function, power, or duty is carried out in public is immaterial. A public function, power, or duty under s 3(b) may be performed in private. (c) Whether the entity is amenable to judicial review is not necessarily decisive and some care needs to be taken in applying decisions from that context for the reasons I have set out. (d) The primary focus of inquiry under s 3(b) is on the function, power, or duty rather than on the nature of the entity at issue. Nevertheless, the nature of the entity may be a relevant factor in determining whether the function, power, or duty being exercised is a public one for the purposes of s 3(b). (e) A person or body may have a number of functions, powers, or duties, some of which may be public and some private. It is essential to focus on the particular function, power, or duty at issue. (f) Given the many and varied mechanisms modern governments utilise to carry out their diverse functions, no single test of universal application can be adopted to determine what is a public function, duty, or power under s 3(b). In a broad sense, the issue is how closely the particular function, power, or duty is connected to or identified with the exercise of the powers and responsibilities of the State. Is it "governmental" in nature or is it essentially of a private character?(g) Non-exclusive indicia may include: (h) Whether the entity concerned is publicly owned or is privately owned and exists for private profit; (i) Whether the source of the function, power, or duty is statutory; (j) The extent and nature of any governmental control of the entity (the consideration of which will ordinarily involve the careful examination of a statutory scheme); (k) Whether and to what extent the entity is publicly funded in respect of the function in question; (l) Whether the entity is effectively standing in the shoes of the government in exercising the function, power, or duty; (m) Whether the function, power, or duty is being exercised in the broader public interest as distinct from merely being of benefit to the public; (n) Whether coercive powers analogous to those of the State are conferred; (o) Whether the entity is exercising functions, powers, or duties which affect the rights, powers, privileges, immunities, duties, or liabilities of any person (drawing by analogy on part of the definition of statutory power under s 3 Judicature Amendment Act 1972); (p) Whether the entity is exercising extensive or monopolistic powers; (q) Whether the entity is democratically accountable through the ballot box or in other ways. [70] I emphasise that a decision in any particular case as to the applicability of NZBORA will be fact dependent. The suggestions I have made are no more than a range of possible considerations. There may well be others. A flexible and generous approach is required. However, it must also be recalled that a private organisation (whether or not it is providing services to the public) is entitled to manage its business as it sees fit. Unless it is exercising public functions, powers, or duties conferred or imposed by or pursuant to law in terms of s 3(b), the only constraints upon its freedoms are those imposed by the general law.[42] In submitting that the Trust Board was performing public functions in relation to the parade, Mr Orlov relied on much the same factors as already discussed in relation to the first issue. Mr Harris submitted to the contrary that the Trust Board was not carrying out a public function within the meaning of s 3(b), drawing on the indicia set out in Ransfield.[43] There is no doubt that the Trust Board performs a function for the benefit of the public and that the parade which is its principal raison d'être is carried out in public in the city streets. But neither of those matters is in any way determinative, the central question being how closely the relevant function, power or duty is connected to or identified with the exercise of the powers and responsibilities of the State. Is it "governmental" in nature or is it essentially of a "private character"? [44] Here the Court is not concerned with a company or similar commercial entity existing for the purpose of private profit. The Trust Board is not publicly owned. While it receives funding from some public sources it also receives funding from private sources. That funding is by way of donation and does not signify control over the Trust Board's functions. The Trust Board was established by deed and not pursuant to legislation. Incorporation under the Charitable Trusts Act does not affect the functions, powers or duties of the Trust Board which remain those sourced from the Trust Deed. The Charitable Trusts Act provides some light-handed regulatory control but is not concerned in any way with the day-to-day operations and decisions of the Board. The Board does not stand in the shoes of either central or local government and it has no coercive powers analogous to those of the State. Whether it exercises functions, powers or duties in terms of s 3 Judicature Amendment Act is not necessarily determinative. The question of public function under s 3(b) NZBORA is different. The Trust Board has authority to stage the Christmas Parade under the permit issued by the Auckland City Council but the opportunity to apply for such a permit is available at large. The Board is not democratically accountable through the ballot box. [45] Viewed overall, the case for suggesting that the functions of the Trust Board fall within s 3(b) NZBORA is very weak.Third Issue – Is there an arguable case of breach of NZBORA or the Human Rights Act (HRA)?[46] While the statement of claim alleges a breach of ss 13, 14, 16, 17, 18, 19 and 20 NZBORA and breach of Parts 1A and 2 HRA, Mr Orlov focused his argument principally on s 19(1) NZBORA, Part 1A HRA and s 21 HRA. [47] Section 19(1) NZBORA provides:Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.[48] For present purposes, Mr Orlov confined his argument under the HRA to Part 1A. Relevantly ss 20I and 20J provide:20I Purpose of this PartThe purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 is in breach of this Part if the act or omission is that of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990. ...20 J Acts or omissions in relation to which this Part applies(1) This Part applies only in relation to an act or omission of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990, namely— (a) the legislative, executive, or judicial branch of the Government of New Zealand; or (b) a person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. (2) Despite subsection (1), this Part does not apply in relation to an act or omission that is unlawful under any of sections 22, 23, 61 to 63, and 66. (3) If this Part applies in relation to an act or omission, Part 2 does not apply to that act or omission. (4) Nothing in this Part affects the New Zealand Bill of Rights Act 1990.[49] Mr Orlov also relied on three of the prohibited grounds of discrimination set out in s 21 HRA:• Religious belief (s 21(1)(c));• Ethical belief (s 21(1)(d)); and• Political opinion (s21(1)(j)). [50] There is a significant circularity between s 19 NZBORA and Part 1A HRA. But, in both cases, the relevant parts of the legislation only apply if the person or body falls within s 3 NZBORA. While I have concluded that the plaintiff has only a weak case for establishing that the Trust Board falls within s 3 NZBORA, it is nevertheless necessary to canvass the merits of the plaintiff's case on the discrimination allegation. [51] Mr Orlov submitted on the basis of the evidence of a member of the plaintiff, Ms Cao, that the plaintiff was not a political organisation. Rather, he submitted, it was a religion or creed, referring me to the case of Ontario Human Rights Commission v Huang & Ors (2006) HRT01 18 January 2006, and also to two decisions of the Refugee Status Appeals Authority in New Zealand: Appeals 76147 (29 February 2008) and 76200/76201 (21 July 2008). In the New Zealand cases, Falun Gong practitioners were found to be refugees on the basis that there was a real chance of their being persecuted if returned to China. The judgments record that in July 1999, the Chinese government banned Falun Gong. Various Country Reports were cited referring to the persecution, and allegations of the torture of, Falun Gong practitioners while in Chinese custody. In the Canadian case, the Ontario Human Rights Commission found that the practice of Falun Gong by the complainant was a form of creed within the meaning of the Human Rights Code R.S.O. 1990. [52] It is unnecessary for me in the context of this proceeding to determine whether Falun Gong and the plaintiff association can properly be characterised as a religion or creed. Certainly that is asserted, but on the plaintiff's own affidavits it is accepted that the belief by Falun Gong practitioners that they have been persecuted by the Chinese Communist Party has caused them to protest against that persecution.The evidence shows that this has occurred on a widespread basis in a number of countries overseas as well as in New Zealand. [53] In argument, Mr Orlov accepted that the plaintiff did engage in political activities in the sense that it attempts to draw attention to the alleged persecution of Falun Gong practitioners for the purpose of mobilising world opinion in the hope that pressure will be brought to bear on the Chinese government to change its policies. Mr Orlov submitted that the plaintiff's participation in the parade would not involve any form of protest and an undertaking would be given to that effect. [54] Perhaps the strongest evidence of alleged discrimination that Mr Orlov was able to rely upon was in relation to the 2006 parade. By a letter of 6 September 2006, Ms Glaser informed a member of the plaintiff that the Divine Land Brass Band was invited to participate in the parade that year. Ms Glaser said she was not informed that the Divine Land Brass Band was the Falun Dafa Band and when she became aware of this, she withdrew the invitation. [55] The Trust Board says that this was consistent with previous advice given to Falun Dafa and with the Trust Board's policy that it is not appropriate for the parade to provide a platform for political, advocacy, or special interest groups in any form. As Mr Barnett put it in his affidavit:We simply consider that we can best achieve our wish to provide a fun Christmas event for the children of Auckland by keeping it free from associations with politics, special interests, causes and other themes which, in our view, detract from the ethos of the kind of event we put on.[56] In her affidavit, Ms Glaser added:The focus of the parade is very much the young children of Auckland. Our vision statement is to put on an event that turns children's "fantasies into reality". Our mission statement is "to delight families by staging an annual fantasy Santa parade to herald the start of the Festive Season in Auckland.[57] Ms Glaser informed the Court that the composition of the parade varies each year. Research is undertaken to establish what appeals to children by way of entertainment and new acts are included accordingly. There are also practical constraints such as the overall length of the parade given the time constraints withinwhich it must be completed. Entry to the parade has never been open to all comers both to preserve the ethos and flavour of the parade and for practical reasons. [58] Mr Orlov submitted that the events in 2006 demonstrated that the Divine Land Brass Band was excluded solely on the basis of the Board's view of the political beliefs of the plaintiff. He submitted that but for the Trust Board's view about those beliefs, the band would have been permitted to take part. He also relied on an exchange of emails between Mr Barnett and an Auckland City Councillor in 2007. The councillor was supportive of the plaintiff's band being permitted to take part in the Christmas Parade but Mr Barnett insisted that the plaintiff's role was political. [59] There is no doubt that there has been persistent pressure by the plaintiff and its supporters to obtain entry into the Christmas Parade. That has occurred for a number of years but the plaintiff's efforts have been firmly resisted by the Trust Board. The Trust Board now says that it has lost any trust in the plaintiff and suggests that it and its supporters have been acting in an intimidatory way towards the Trust Board. These allegations are denied by the plaintiff and I am unable to determine them in the present context. Suffice to say that the relationship between the parties seems to have broken down. [60] For present purposes, it is important to recognise that the Trust Board is obliged to act in furtherance of its objectives as established by the Trust Deed and the 2008 amendment. Those objectives are expressed in broad public interest terms and include a variety of objectives. The intention of the Trust Deed was to confer upon the Board a wide discretion as to how it would achieve its objectives. In exercising its powers it must act in good faith, responsibly and reasonably. In organising the annual Christmas Parade for Auckland, the Trust Board is entitled to develop policies which, in its discretion, it considers best suit its statutory objectives. [61] There could be no objection in principle to the Board's policy as outlined by Mr Barnett. The question in this proceeding is whether that policy has been applied in an even-handed way or whether the Trust Board has improperly discriminated against the plaintiff by reason of its admitted political or advocacy stance in relationto its beliefs (no doubt sincerely held) about the persecution of Falun Gong practitioners in China. And, there is the further question whether, as Mr Orlov submitted, the Trust Board has effectively closed its mind to the possibility that the plaintiff could enter the parade. [62] It is impossible in the context of an interim relief and interim injunction hearing such as this to reach any final conclusions on this issue. Mr Barnett is only one of seven trustees. The trustees, in terms of the Trust Deed, may act by a majority but the Court would need to have evidence from all of the trustees (and if necessary cross-examination). As well, the plaintiff's witnesses would need to be cross-examined. Further material may also become available on discovery of documents which has not yet occurred. [63] Doing the best I can on the material currently available, I cannot say that the plaintiff has any more than an arguable case on the merits should it be established that the Trust Board falls within s 3(b) NZBORA for the purposes of that Act and the HRA, a prospect I consider to be relatively weak.Fourth Issue - Should relief be granted?[64] The Court has been asked to grant a mandatory injunction on the basis of an interlocutory application. The effect of the grant of the injunction at this stage would be to grant the plaintiff the relief it seeks in the substantive proceeding. In terms of s 8 Judicature Amendment Act, an interim order may be granted where necessary to preserve the plaintiff's position. The grant of the injunction sought here would not preserve the plaintiff's position, it would effectively grant the remedy it seeks. It is well-established that in order to take this step, the Court must have a high level of confidence that the plaintiff would ultimately establish its case at the subsequent substantive hearing: see the authorities gathered in McGechan on Procedure at para HR 238.26. For the reasons already given, I am not confident to the level required that the plaintiff would ultimately succeed or would have a substantial prospect of doing so to the extent that the Court would be justified in granting relief at this stage.[65] The balance of convenience slightly favours the refusal of the injunction at this stage. The plaintiff has not demonstrated that it would suffer any material loss or harm if the injunction is refused. Mr Orlov referred to a loss of dignity but the plaintiff will still have the opportunity of pursuing its case if it wishes to do so and, if ultimately successful, may have the opportunity of taking part in future Christmas Parades. [66] On the other hand, if the injunction is granted, there would be a level of inconvenience for the Trust Board and the organisation of the parade. Participants are required to take part in rehearsals which have already been completed. Beyond that, there is no evidence that serious inconvenience would result if the plaintiff were permitted to take part in the parade. I do not overlook the undertaking that no political statements would be made but I also note the Trust Board's view that the inclusion of the Band would inevitably be linked to the plaintiff's cause which would be contrary to the Board's policy of not including any group who advance or advocate particular causes. [67] Standing back and considering the overall justice of the case, the plaintiff's case in law is relatively weak and there is nothing to suggest that the plaintiff would suffer irreparable or any serious harm if an injunction is refused. It will have the opportunity of establishing its case in due course when all the relevant material can be placed before the Court and full argument heard. This case is not one where the Court can have a high level of confidence that the plaintiff will ultimately succeed such that the substantive relief it seeks should be granted now ahead of the substantive hearing. [68] Finally, I need to emphasise that it is not the role of this Court to decide who may enter the Santa Parade. That is the role of the Trust Board. This Court's function is to ensure that any decision taken is in accordance with law. [69] The application for interim relief will be refused. Costs are reserved.______________________________ A P Randerson, J Chief High Court Judge