KENNETH ZIEGLER v PORTS OF AUCKLAND LIMITED [2014] NZHC 2186

KENNETH ZIEGLER v PORTS OF AUCKLAND LIMITED [2014] NZHC 2186 [10 September 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-000488[2014] NZHC 2186BETWEEN KENNETH ZIEGLERFirst PlaintiffDAVID PHILLIPSSecond PlaintiffAND PORTS OF AUCKLAND LIMITEDDefendantHearing: 30 July 2014Appearances: S R Mitchell for PlaintiffsR McIlraith and K Dunn for DefendantJudgment: 10 September 2014JUDGMENT OF WOOLFORD J[As to strike-out application]This judgment was delivered by me on Wednesday, 10 September 2014 at 11.00 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarIntroduction[1] In proceedings filed on 26 February 2014, the first and second plaintiffs challenge various actions of the Ports of Auckland Limited (Ports of Auckland), which have had the effect of denying them access to the port.[2] The Police issued a trespass notice to the first plaintiff on 29 November 2013, warning him to stay off the place known as the Ports of Auckland. The first plaintiff seeks a declaration that the trespass notice was unlawful and that the actions of Ports of Auckland, in refusing him access, were in breach of the New Zealand Bill of Rights Act 1990 (Bill of Rights). He also seeks an order preventing Ports of Auckland from refusing him access to the port for the purpose of boarding or leaving ships berthed at the port.[3] Ports of Auckland also advised the second plaintiff, on 10 January 2014, that he was not allowed access to the port for any purpose. On 28 January 2014, the second plaintiff sought permission to access the port to enable him to attend vessels at the port to ensure that the working conditions on the vessel complied with the international obligations of shipping companies. Such access was refused by Ports of Auckland by letter from its solicitor on 29 January 2014. The second plaintiff asserts that he is entitled to access the port as part of his right of freedom of movement, pursuant to s 18 of the Bill of Rights, and that the refusal by Ports of Auckland is an unreasonable limitation on his rights. He therefore seeks a declaration that the refusal of Ports of Auckland to allow him access to the port was unlawful.[4] Ports of Auckland now applies for orders that the statement of claim be struck out or, in the alternative, judgment be entered for Ports of Auckland on its defence to the statement of claim.Factual backgroundFirst plaintiff[5] Until 10 October 2013, the first plaintiff was employed by Ports of Auckland. His employment ended when he was dismissed for serious misconduct. Following his dismissal, it is alleged that the first plaintiff threatened to kill the General Manager, Operations for Ports of Auckland. The first plaintiff does not deny this allegation in his affidavit dated 13 May 2014 filed in opposition to the application to strike out.[6] The General Manager, Operations made a complaint to the Police. With Ports of Auckland's permission, the Police issued a trespass notice to the first plaintiff warning him off land occupied by Ports of Auckland. Ports of Auckland relies on the trespass notice and has advised the first plaintiff that he is not to come onto its property.[7] The first plaintiff says that he has been offered work on a coastal ship, but has been unable to accept the work offered because Ports of Auckland has refused him access to the port. He also says that the trespass notice prevents him from working as a stevedore for one of the private stevedoring companies which operates at the port.Second plaintiff[8] Until 29 May 2014, the second plaintiff was the walking delegate at the Auckland Branch of the Maritime Union of New Zealand. This was a fulltime elected position. As part of his work with the union, the second plaintiff attended the port with members of the union who were employed by Ports of Auckland. The second plaintiff notes that as a union official he used to be able to attend the port without requiring the consent of Ports of Auckland. However, after amendments to the Employment Relations Act 2000, he was required to obtain consent.[9] Ports of Auckland advised the second plaintiff on 10 January 2014 that he was not allowed access to the port for any purpose because of blogs he had writtenon http://socialistaotearoa.blog.co.nz/. In these blogs the second plaintiff referred to employees of Ports of Auckland who did not belong to the Maritime Union of New Zealand as scabs and said that scabs should "live everyday fearing a backlash and looking over their shoulders". Following advice, the second plaintiff madeapplication to the Employment Relations Authority seeking an order granting him access.[10] In addition, the second plaintiff has accessed the port for reasons unrelated to employment issues of union members. At times, he has completed shipping inspections for the International Transport Federation (ITF). On 28 February 2014, the ITF asked the second plaintiff to attend a vessel, which was to berth at the port that day. The vessel was covered by an ITF agreement, which entitled the ITF to have a representative attend the vessel to ensure that the seamen had been paid in accordance with their employment agreement. The second plaintiff, therefore, requested his solicitor to write to the solicitors for Ports of Auckland, seeking access to the port for the purpose of visiting the vessel and undertaking an inspection for the ITF. The solicitors acting for Ports of Auckland advised the second plaintiff'ssolicitor that he would not be allowed access to the port in order to fulfil his role as ITF inspector.[11] In March 2014, the second plaintiff resigned his employment with the Maritime Union of New Zealand. He says that he would like to obtain part-time work as a stevedore. He does not believe that Ports of Auckland would offer him a position, but says there is work available from private stevedoring companies for employees with his skills. However, because he has been denied access to the port, he cannot accept any work that may be available to him.Strike-out principles[12] Rule 15.1 of the High Court Rules provides that a Court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action. The criteria to be applied on a strike out application are well settled:11 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court inCouch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].(a) pleaded facts, whether or not admitted, are assumed to be true;(b) the causes of action must be clearly untenable;(c) the jurisdiction is to be exercised sparingly, and only in clear cases;(d) the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument;(e) the Court should be particularly slow to strike out a claim in any developing area of law; and(f) defendants should not be subjected to substantial costs, often only partially recoverable, in defending untenable claims.Issues for determination[13] There is little in the way of factual dispute between the parties. The key issues in this application are:(a) whether the claims of the first and second plaintiffs are matters that are amenable to judicial review;(b) whether the first plaintiff can succeed with a claim against Ports of Auckland that the trespass notice is unlawful; and(c) whether the Bill of Rights applies to Ports of Auckland.Are the matters complained of amenable to judicial review?[14] Ports of Auckland accepts that the exercise of statutory powers are reviewable pursuant to the Judicature Amendment Act 1972, but submits that in this case it did not exercise a statutory power. Even if Ports of Auckland had exercised a statutory power of decision, it submits that judicial review is not the appropriate procedure since the first and second plaintiffs were not questioning the process by which Ports of Auckland decided to decline access to the port. Rather, theirchallenge is to the substance of the decisions made by Ports of Auckland. Judicial review is not an appeal from a decision, but a review of the process by which a decision was made.[15] The first and second plaintiffs note that the Judicature Amendment Act 1972 gives the Court jurisdiction to review statutory powers of decision and submit that, in issuing the trespass notice, Ports of Auckland was exercising a statutory power of decision. Further, the decisions not to allow access to the port are reviewable as Ports of Auckland is obliged to comply with the provisions of the Bill of Rights. The decisions breached the obligations to act consistently with the Bill of Rights when making decisions and, accordingly, the provisions of the Judicature Amendment Act 1972 are applicable. In addition, the decisions are sufficiently public that they may be reviewed at common law.[16] The parties were in substantial agreement that judicial review was only available if the decisions of Ports of Auckland permitting the trespass notice to be issued to the first plaintiff and denying access to the second plaintiff were decisions made in the public interest. Both counsel cited Mercury Energy Limited v Electricity Corporation of New Zealand2 in which the Privy Council considered an application for judicial review in relation to a commercial contract. The Privy Council found that decisions of the Electricity Corporation of New Zealand, a state-owned enterprise, could be subject to review. However, in the circumstances of the particular case, it was not amenable to review because of the commercial nature of the decision that was sought to be reviewed.[17] Reference could also be made to Brady & Ors v Presbyterian Church of Aotearoa New Zealand3 in which Associate Judge Doogue confirmed that the decision under review had to be sufficiently public in nature and effect to warrant theexercise of the Court's supervisory jurisdiction. In that case, declarations were sought that trespass notices issued against church members were invalid and that the plaintiffs had been wrongfully excluded from church property. Associate Judge Doogue held that the claim for declaration could not succeed because a decision to2 Mercury Energy Limited v Electricity Corporation of New Zealand [1994] 2 NZLR 385 (PC).3 Brady & Ors v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 29.exclude a number of church members could not be described as the exercise of a power that is in substance public or that has important public consequences.[18] Counsel for the plaintiffs submits that Ports of Auckland has both commercial and public roles. While acknowledging that Ports of Auckland is free to determine who it deals with commercially, counsel submits that it is acting in a public role when it regulates access to the port. Some 3,000 people access the port daily with very many of them working for private businesses such as stevedoring companies, engineering companies and companies that provide fumigation services. There are also a large number of Government employees who access the port, including Ministry for Primary Industries and NZ Customs staff. In addition, seamen access the ships on which they work through the port. In determining who will access the port, counsel submits that Ports of Auckland is acting as the manager of infrastructure for its owner, the Auckland Council, for the benefit of the people of Auckland and New Zealand. Counsel submits that the port is a 'quasi public space",which is generally available for use by members of the public who have reason to be there.[19] Counsel for Ports of Auckland submits that it's principal objective, as set outin its statement of intent, is to operate as a successful business. The land on which the port operates is owned and/or occupied by Ports of Auckland, not the Auckland Council. It is a Customs controlled area, which means that it is fenced off from the public and visitors must proceed through security and be accompanied at all times by Ports of Auckland staff or contractors. Counsel submits that the general public do not have a right of access. Persons not employed by Ports of Auckland who regularly work at the port have all been security vetted by their employers.[20] Having carefully considered the competing submissions, I am of the view that the service of the trespass notice on the first plaintiff by the Police as agent for Ports of Auckland and the refusal of access to the second plaintiff by Ports of Auckland were not sufficiently public in nature to warrant the intervention of the Court by way of judicial review. Both actions taken by Ports of Auckland arose out of the commercial activities undertaken by Ports of Auckland. The first plaintiff was employed by Ports of Auckland, but dismissed for serious misconduct. He thenallegedly threatened to kill the General Manager, Operations of Ports of Auckland. There is, in my view, nothing public in nature about the service of a trespass notice in those circumstances. The fact that the trespass notice has the consequences that the first plaintiff is now unable to work for one of the private stevedoring companies which operates at the port or to accept work as a seaman on a coastal vessel because he is unable to access it through the port is an unfortunate but inevitable consequence of his conduct. The General Manager, Operations of Ports of Auckland should not feel restricted in undertaking his employment on land owned and/or occupied by Ports of Auckland on which private stevedoring companies operate or where coastal vessels berth.[21] Similarly, the second plaintiff was employed by the Maritime Union of New Zealand. The union is vehemently opposed to the employment of non-union labour by Ports of Auckland. The second plaintiff made comments on a blog which could be seen as threats to the safety of non-union employees of Ports of Auckland. There is, again, in my view, nothing public about the refusal of access in those circumstances. The fact that the second plaintiff has now resigned his employment with the Maritime Union of New Zealand and is unable to accept any offer of employment from a private stevedoring company is again an unfortunate but inevitable consequence of his conduct. Non-union employees of Ports of Auckland should not be subject to possible threats to their safety while working on port land.[22] Counsel for the plaintiffs focused on the consequences of the trespass notice and the denial of access in the form of restrictions on employment opportunities, but service of the trespass notice on the first plaintiff and the denial of access to the second plaintiff were not intended to restrict their employment opportunities. The actions taken by Ports of Auckland were intended to address issues which had arisen in the commercial operation of the port, in particular, the perceived need for measures to protect the interests of its employees.[23] This finding is sufficient to allow the application to strike-out the proceeding, but in case I am wrong in that regard, I now turn briefly to the two other issues for determination.Was the service of the trespass notice unlawful?[24] The first plaintiff submits that the trespass notice was not issued with the authority of Ports of Auckland, the occupier of the port, and the statutory criteria for the issue of a notice was also not met.[25] The trespass notice is annexed to the affidavit of Raoul Duncan Borley, the General Manager, Operations, sworn on 29 April 2014. At the foot of the notice itstates that "This warning is given by the person authorised by the occupier of theabove address". It is then signed by a Constable David Williams as the occupier or person authorised by the occupier.[26] Section 4(2) of Trespass Act 1980 provides:(2) Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place."Occupier" is defined in s 2. It means, in relation to any place or land, any person in lawful occupation of that place or land and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land.[27] Mr Borley states that on 11 November 2013 he made a complaint to the Police about the first plaintiff, who had allegedly told a third person that he wasgoing to "kill the person" responsible for his dismissal for serious misconduct. Following the complaint, Mr Borley discussed with the Police the possibility of the first plaintiff being issued with a trespass notice. Mr Borley states that the trespass notice was subsequently issued with Ports of Auckland's permission. He also states that Ports of Auckland relies on the trespass notice and has advised the first plaintiff that he is not to come onto Ports of Auckland property.[28] Counsel for the first plaintiff submits that Mr Borley's evidence is not clearand cannot be seen as stating that Ports of Auckland authorised the notice. He submits that the issue of a notice may have been discussed with the Police, but that the Court cannot be satisfied that authority to issue it had been given. With respect, Mr Borley's evidence is, in my view, quite clear and I have no doubt that the Policehad authority from Ports of Auckland in terms of the Trespass Act to issue and serve the trespass notice on the first plaintiff.[29] Counsel for the first plaintiff also submits that neither Ports of Auckland nor the Police had reasonable cause to suspect that the first plaintiff was likely to trespass on the port, as is required by s 4(2) of the Trespass Act. Counsel submits there is no suggestion in the affidavit evidence that at the time the trespass notice was served the first plaintiff had trespassed on the port. He also submits that there is no evidential basis to justify a view that the first plaintiff was likely to trespass. While the first plaintiff is alleged to have made threats in relation to the General Manager, Operations, Ports of Auckland, there is no suggestion that following his dismissal he had tried to access the port or had done so. In fact, counsel submits that the evidence is that the first plaintiff specifically sought permission to access the port and did nothing to contest the issue once he had been declined permission.[30] However, I note that the statutory test is not a particularly high test. It talks only of reasonable cause to suspect, rather than reasonable cause to believe that the person was likely to trespass on that place. Counsel for Ports of Auckland submits that, given that the trespass notice had been issued and served on the first plaintiff in the context of an alleged death threat, it is not reasonably arguable that the statutory test was not met. I also note that the first plaintiff had been dismissed in October 2013. The complaint was made to the Police in November 2013 and the trespass notice issued the same month. The first plaintiff acknowledges that he was interviewed by the Police before being served with the trespass notice and, accordingly, Constable Williams had the opportunity to make a reasoned judgement as to whether or not the statutory criteria for the issue of a notice was met.[31] I am of the view that the issue of whether Constable Williams had reasonable cause to suspect that the first plaintiff was likely to trespass on the port is a question of fact. This is not a factual appeal. The Court can only intervene in an application for judicial review of a statutory power of decision on a question of fact if the decision was plainly wrong. The first plaintiff is unable to demonstrate that the decision to issue the trespass notice was plainly wrong.Does the Bill of Rights apply to Ports of Auckland?[32] Counsel for the plaintiffs submits that the actions of Ports of Auckland in denying them access to the port are unreasonable and a breach of the Bill of Rights. Counsel acknowledged that, to succeed on this aspect of the claim, they must establish that the Bill of Rights applies to Ports of Auckland when determining who will access the port and then establish that Ports of Auckland's actions are unreasonable.[33] Section 3 of the New Zealand Bill of Rights Act 1990 provides:This Bill of Rights applies only to acts done—(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.Counsel for the plaintiffs accepts that the Bill of Rights could not apply to all Ports of Auckland's activities, and in particular, it's purely commercial activities relating to its stevedoring business. In addition, counsel acknowledges that it would not apply to other Ports of Auckland activities, such as contracting with shipping companies. However, counsel submits that providing access to the port is not a purely commercial activity and is provided for the benefit of Auckland and New Zealand. Provision of infrastructure is for the public, not the private good. Counsel submits that in controlling who will access the port, Ports of Auckland acts not in its own commercial interests, but in a public role.[34] In Ransfield v Radio Network Limited4 the Court struck out a Bill of Rights claim on the basis that conducting a talkback radio programme was not the performance of a public function, pursuant to s 3. In assessing the claim in Ransfieldthe Court held that an act required three elements in order to fall within s 3(b):5(a) the act must be done 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; and4 Ransfield v Radio Network Limited [2005] 1 NZLR 233.5 At [47].(c) which is public.[35] The Court held that (a) and (b) were satisfied as Radio Network was broadcasting radio programmes under a statutory licence – an activity that would have been unlawful without that licence. The Court then went on to consider whether the Radio Network was exercising a public function or power. In so doing, the Court was of the view that it was essential to focus on the particular function, power, or duty at issue. The question was how closely a particular function, power or duty was connected to or identified with the exercise of the powers and responsibilities of the State. Is it "governmental" in nature or is essentially of aprivate character?[36] I am of the view that the exercise of Ports of Auckland's powers in thepresent case was private in nature, not governmental. I accept the submissions of counsel for Ports of Auckland that it exercised a right open to all land owners and did so in pursuit of its commercial activities. Ports of Auckland was not excluding the plaintiffs from public land or from land that members of the public are able to access. The ultimate ownership of Ports of Auckland by the Auckland Council does not alter this analysis. Both the first and second plaintiffs wish to enter the port for the purpose of working for another employer who operates on or from the port. Ports of Auckland has a commercial interest even in the activities of private stevedoring companies through berthage fees for ships that call at the port. Ports of Auckland is not controlled by the Government, does not receive any Government funding, does not exercise any power on behalf of the Government, and does not have any coercive powers.[37] Ports of Auckland is not subject to the Local Government Official Information and Meetings Act 1987, the Official Information Act 1982 or the Ombudsmen Act 1975. These are further indications that Ports of Auckland is not seen as exercising governmental powers and subject to the typical oversight mechanisms that attach to the exercise of public power.[38] Accordingly, I am of the view that the Bill of Rights did not apply to Ports ofAuckland's actions in the present case and that therefore this cause of action cannot succeed.Result[39] The application to strike out this proceeding is granted. The actions of Ports of Auckland, in the present case, are not amenable to judicial review. It also cannot be shown that the issue of the trespass notice was plainly wrong. The Bill of Rights is also not applicable in the present case.[40] Ports of Auckland are entitled to costs on a 2B basis.____________________________Woolford J