GIBSON V NEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED HC WN CIV-2011-485-000913

GIBSON V NEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED HC WN CIV-2011- 485-000913 [12 June 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-000913[2012] NZHC 1320UNDER the Judicature Amendment Act 1972IN THE MATTER OF an application for judicial reviewBETWEEN ROBERT GIBSONPlaintiffAND NEW ZEALAND LAND SEARCH ANDRESCUE DOGS INCORPORATEDDefendantHearing: 21-22 May 2012Counsel: A C Beck for PlaintiffS W Rollo for DefendantJudgment: 12 June 2012In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 12th day of June 2012.RESERVED JUDGMENT OF COLLINS JIntroduction[1] The plaintiff (Mr Gibson) seeks to judicially review a decision of New Zealand Land Search and Rescue Dogs Incorporated (SAR Dogs) expelling him from its organisation. The decision by SAR Dogs to expel Mr Gibson arose primarily from events that occurred at an evaluation camp held in late August 2010. Mr Gibson seeks to have the decision to expel him quashed by this Court. MrGibson also pleads a parallel claim alleging breach of contract over the way he was expelled by SAR Dogs. He seeks damages under that cause of action.Background[2] SAR Dogs is a voluntary organisation. Its members provide rescue services in both alpine and wilderness environments. The focus of this proceeding is upon search and rescue dogs and their handlers who perform in alpine terrain.[3] The dogs and handlers who perform search and rescue services in alpine regions operate in particularly challenging conditions. The danger they face is inherent in the fact that they are often looking for persons buried by avalanches or who are lost in particularly harsh physical environments. In addition to the challenges of physical terrain, members of the alpine SAR Dogs service are often called upon to perform in unforgiving weather conditions.[4] Those who volunteer to provide search and rescue services are selfless and highly committed people who have usually had extensive experience as mountaineers and/or back country skiers and/or as alpine guides. They maintain their skills through regular training and assessment programmes.[5] Because they are operating in life threatening conditions those who become members of SAR Dogs have to develop very close bonds of trust with each other. They appreciate that their lives may be placed at risk by the decisions and actions of their colleagues. Members of SAR Dogs need to be very sure that those who undertake a search and rescue operation are completely dependable and are willing to function as part of a team.[6] Mr Gibson was instrumental in the establishment of SAR Dogs in New Zealand in 1988. He played a significant role in setting up the protocols for the training, assessment and development of SAR Dog handlers.[7] Mr Gibson has always believed in the importance of providing proper training for the handlers and dogs of those who wish to be members of SAR Dogs.For this reason he was responsible for many training programmes and instructor courses.Witnesses[8] During the hearing before me Mr Gibson and four members of SAR Dogs gave evidence. Leave was not sought for witnesses to be cross-examined in relation to the judicial review proceeding, instead witnesses gave their evidence in the usual way and were cross-examined in relation to the claim in contract.[9] I was particularly impressed by the witnesses called to give evidence on behalf of SAR Dogs. They were all inherently honest people determined to be objective and to be as fair and reasonable as possible when commenting about Mr Gibson's behaviour that led to disciplinary action being taken against him. The sense of frustration and sadness borne by SAR Dog members towards Mr Gibson was typified by the evidence of Mr Hunter. He prefixed his evidence by explaining:Mr Gibson and I worked together as young men and he is responsible for me embarking on a 25 year long career as a ski patroller, manager and dog handler. He was always an inspiration to me and he, in turn, credits me with saving his life after a climbing accident. This is a history that is hard to ignore and which makes it very sad for me to see how things have panned out. I credit Mr Gibson with shaping the future of avalanche search and rescue dogs in New Zealand literally out of thin air. Sadly, though, through his actions he has drawn his involvement to a close.[10] In contrast, Mr Gibson was not a good witness when he appeared before me. I have endeavoured to make every allowance I can for the fact that Mr Gibson wouldhave been out of his "comfort zone" when giving evidence. However, having observed the way he gave his evidence it was easy to see why his former colleagues at SAR Dogs had run out of patience with him. At times his reluctance to answer straightforward questions bordered upon petulance. He frequently exhibited disdain for those who questioned him. For example, during the course of cross-examination Mr Rollo (counsel for SAR Dogs) put to Mr Gibson that Senior Sergeant Edmonds'email of complaint (the terms of which are set out in [16]) indicated how seriously the police took the events that led to the complaint against Mr Gibson. That question (or variations of it) was put on many occasions to Mr Gibson. In the end he failed toanswer the question. In doing so Mr Gibson often took issue with the question. The transcript only partially conveys how reluctant Mr Gibson was to acknowledge anything that did not suit him.[11] There were some conflicts in the evidence presented by Mr Gibson and the witnesses called by SAR Dogs. I have resolved those conflicts by accepting theevidence of the defendant's witnesses. I have done so for the following reasons:(1) The evidence of each of the witnesses called by SAR Dogs that I have accepted was verified by at least one other witness. There was no suggestion those witnesses had collaborated.(2) This was a case in which it was possible to resolve factual disputes by assessing the credibility of witnesses through the way they conducted themselves in the witness box. Without exception the witnesses called by the defendant gave their evidence in a straightforward and objective manner. They made concessions even when thoseconcessions harmed the defendant's case. However, Mr Gibson wasless objective and appeared to be recasting events in a way that suited his purposes.August 2010 assessment camp[12] SAR Dogs organised an avalanche training and assessment camp from 27 to 30 August 2010. The camp was held at the Wairau Snow Farm on the eastern side of the Cardrona Valley. The AGM of SAR Dogs was also held during the course of this camp.[13] Mr Gibson, Mr Hunter and Mr McDonald were SAR Dogs assessors at the camp. The New Zealand Police participated in the camp. The senior police officer present was Senior Sergeant Edmonds. Mr Hunter and Mr McDonald appeared to have been appointed assessors for this event by the management committee of SAR Dogs. Mr Gibson appears to have assumed the role of being an assessor by virtue of his long experience with SAR Dogs.[14] It became apparent that deep-seated issues quickly came to the fore during the course of the camp. It is not necessary to try and pinpoint the precise cause of those issues. Suffice to say that it quickly became apparent that Mr Gibson was far from happy with a number of his colleagues. They in turn were plainly far fromsatisfied with Mr Gibson's attitude and behaviour.[15] Mr Hunter, Mr McDonald, Mr Gunn and Mr Watson from SAR Dogs described in detail the events which unfolded during the course of the camp. Mr Watson, who is a former police officer, was at the time the Secretary of SAR Dogs and played a pivotal role in the events which unfolded. The key evidence which emerged from the SAR Dog members present at the camp and which I have concluded is accurate, can be distilled to the following points:(1) On Saturday 28 August Mr Gibson, Mr Hunter and Mr McDonald undertook assessments of dogs and their handlers. On occasions Mr Gibson wanted to unilaterally fail participants without reference to other assessors contrary to the protocols that had been established for conducting assessments.(2) After the day's activities Mr Gibson and others consumed alcohol.(3) SAR Dogs AGM commenced at approximately 7.30pm that evening.Mr Gibson was described as behaving in an "appalling" manner during the AGM. Mr Watson said Mr Gibson was "heckling" and "interrupting quite inappropriately". I have concluded these wereaccurate descriptions of Mr Gibson's behaviour.(4) After the AGM had finished Mr Watson and Mr McDonald were in a discussion when they were joined by Mr Gibson. Mr Hunter joined the group soon thereafter. Mr Watson firmly but fairly questioned Mr Gibson about his behaviour. Mr Gibson responded in what was described as being a hostile manner and acted inappropriately towards Mr Hunter. Those present tried to explain to Mr Gibson that he had tobehave in a collegial way and that "if he couldn't be part of the team there was no place for him".(5) Soon thereafter Mr Gibson decided to leave the camp. It was snowing heavily and he had been drinking. Mr Gibson left the camp at approximately 11.00pm. He drove down the unsealed Wairau Snow Farm Road. From there he drove to his home in Cromwell.The complaint[16] Before the camp ended Senior Sergeant Edmonds resolved that he was goingto make a formal complaint to SAR Dogs about Mr Gibson's behaviour at the campand during the AGM. On 30 August 2010 Senior Sergeant Edmonds wrote the following email which was sent to the Chairman of SAR Dogs. The email reads:... There is a matter that needs urgent attention.Robert Gibson, a longstanding Land SAR assessor was in attendance at this course.Throughout the entire time he was there he behaved in a totally inappropriate and divisive manner.This culminating in his display of extremely immature behaviour at the AGM on Saturday night, I attended as an observer.He was intoxicated, he had been drinking from about 17:30 hours, the AGMhad started at 19:30. He was not drunk but certainly intoxicated.As the evening wore on he had at least three more glasses of wine and oneshot of Schnapps. He asked the bar manageress for more, she refused toserve him saying the Schnapps was locked away.Later an argument occurred between Mr Gibson and Steven Hunter, also aLand SAR assessor.As a result of this Mr Gibson got into his vehicle and drove home at about23:30 hours saying basically he wasn't returning. It was snowing heavilyand visibility was poor. He was still intoxicated and in the opinion of peopleI spoke to he should not have driven.The bar staff were disgusted with his behaviour and the fact no one stoppedhim driving. The bar was closed at this time. He also left a bar tab of$51.00. This was paid for by other Land SAR staff.(1) He should not have driven, and other Land SAR personnel shouldhave stopped him from doing so. If they felt they couldn't theyshould have woken me, or one of the other police staff present. Thishas been addressed with them.His behaviour put the lives of all road users at risk, and emergencypersonnel who would have had to attend any accident. Land SARsaves lives and does not put them at risk. This would cause hugeproblems for Land SAR if the media got hold of the story.(2) As a senior member of Land SAR he should have been able tocontrol himself and acted with a lot more professionalism. He haslost all credibility with all those present, and that includes novicehandlers he expects to assess.I recommend that Mr Gibson have his membership with Land SARterminated, and that he never be allowed to hold any position of trustor responsibility in the organisation again....I also feel that Cromwell Police be alerted as to the possibility that he is very likely to continue to drink and drive.The process that was followed[17] On 26 September 2010 Mr Watson sent an email to Mr Gibson. That email commenced with the following introduction:As I said to you on the phone the other day [Senior Sergeant Edmonds] complained ... about you driving off from the avalanche camp. This has gone through Police National Headquarters and the National Office of Land SAR before they put it back on the committee of Land SAR Dogs to come up with a solution. Clearly nothing should be done until you have had a right of reply. Below is the guts of the letter from [Senior Sergeant Edmonds].At this point Mr Watson set out that part of Senior Sergeant Edmonds' email of complaint which is highlighted by shading in [16] of this judgment. Mr Watson concluded his email to Mr Gibson by saying:As you can see it is pretty heavy stuff. There is no question that your credibility took a bit of a hit and I know that you weren't yourself at the time, but the remaining assessors would prefer you to take a "back seat"from now on. You have to decide what is best for you mate, perhaps youdon't need the aggravation that goes with the involvement in search dogs.Your health and happiness must come first.I hate being part of this process, but if you could relate to me your side of the story then I will report back to the committee. I have always defended you Robert and will continue to do so if I think it is appropriate.[18] On 3 October 2010 Mr Gibson responded to Mr Watson and others saying:Thank you for the opportunity to respond to the letter from Senior Sergeant Edmonds. First of all the bar bill for $51.00 was for two days and two evenings.On the evening in question I suffered a medical event, this was the following day (Sunday), relayed to the appropriate persons attending the course. I consulted a GP on the same day and was referred to a specialist to confirm the above.[19] The response from Mr Gibson caused the Chairman of SAR Dogs to write to him on 20 October 2010 saying:Thank you for the reply to the correspondence sent to you by Iain Watson as Land SAR Search Dogs secretary, regarding your behaviour at the recent avalanche assessment camp held by our organisation. However, we need to ensure that on both sides of this incident we are fully informed and unfortunately your answers do not really explain some key facts from the evening, in particular about the events surrounding your decision to drive away from the camp at nearly midnight. Below are questions that we feel need a satisfactory answer so the committee can make an appropriate and final decision on the complaint laid. The questions we have are ...The Chairman's email then set out eight specific questions, four of which related toMr Gibson's medical condition. The other questions related to the events of28 August 2010.[20] On 3 November 2010 Mr Gibson responded to the letter of 20 October from the Chairman of SAR Dogs and said:After speaking to my specialist about your request for personal information I have decided to seek advice from a lawyer on this matter so as to make sure my rights are being tended to in a proper manner.I will be in contact in due course.[21] The same day the Chairman of SAR Dogs wrote back to Mr Gibson saying:Thank you for your reply. Not wanting this issue to linger on I requested in my letter of the 20th October that a reply by the 5th of November would be appreciated. If you need more time please let me know when you will be able to provide the requested response. Land SAR Search Dogs has a committee meeting on the 27th November and I would like your response in their hand well before the meeting.[22] Mr Gibson replied the next day saying that he was seeking advice and that this could take some time. Mr Gibson said that SAR Dogs would be contacted in"due course".[23] On 5 November 2010 Mr Gibson wrote to Mr Watson asking what instigatedthe police "witch hunt" and who assessed that he was 'intoxicated" when he left thecamp. Mr Watson replied the same day explaining that the bar maid had made a comment in the morning to the effect that she was concerned as to why the police had not stopped Mr Gibson from driving. Mr Watson pointed out that the police had no opportunity to stop Mr Gibson as they were unaware of what was happening. Mr Watson explained that Senior Sergeant Edmonds spoke to the bar maid, on 29 August and thereafter decided to take the action which he took.[24] On 12 November 2010 Mr Gibson sent a handwritten medical report to Mr Watson. That handwritten note confirms that Mr Gibson was seen at Dunstan Hospital on 30 August 2010. The medical report states that Mr Gibson was diagnosed as suffering from post-traumatic stress disorder. It would appear this correspondence was not sent to the correct email address. It was not ultimately received by SAR Dogs until mid-December 2010.[25] On 17 November 2010 the Chairman of SAR Dogs wrote to members of the committee. That email explained the need for the committee to proceed in a cautious and considered manner. The Chairman canvassed the options that the committee would need to consider when assessing the complaint from Senior Sergeant Edmonds. The options set out in the email were that the committee could conclude:(1) that the complaint was not warranted; or(2) that Mr Gibson's behaviour was unreasonable but that no discipline was warranted; or(3) that Mr Gibson be censured; or(4) that Mr Gibson be suspended; or(5) that Mr Gibson be expelled.[26] The committee of SAR Dogs met on 27 November 2010. All six committee members were present. The committee unanimously resolved that Mr Gibson'sbehaviour rendered him unfit to be a member of SAR Dogs.[27] On 4 December 2010 the Chairman of SAR Dogs wrote to Mr Gibson. In that letter the Chairman:(1) referred to the email of complaint from Senior Sergeant Edmondsindicating that the senior sergeant had said that Mr Gibson's behaviour at the camp was "inappropriate, devisive and immature";(2) recorded that three members of the committee in attendance at thecamp "endorsed" the concern that Mr Gibson had "frequently act[ed] inappropriate, devisively and immaturely";(3) recorded that Mr Gibson had not answered the questions sent to him on 20 October 2010;(4) recorded that in October 20081 Mr Gibson had been involved in another incident and that he may have provoked that particular event. On that occasion Mr Gibson had apparently been warned that any further inappropriate behaviour would almost certainly bring about his expulsion from SAR Dogs;(5) recognised Mr Gibson's long involvement with SAR Dogs; and(6) concluded that Mr Gibson's behaviour was serious and that it was inthe overall interests of SAR Dogs and Mr Gibson if he be expelled.The letter concluded with the following paragraph:1 This incident actually occurred on 24 November 2007.Your expulsion has been done under clause 5(ii) of the constitution. Clause 5(ii)(b) provides you with a right of appeal but your intention to do so must be done within 28 days of receipt of this letter ...[28] On 5 December 2010 Mr Gibson gave notice of an appeal. He sought a copy of the minutes of the committee meeting of 27 November 2010.[29] On or about 9 December 2010 Mr Watson realised that Mr Gibson had not seen the complete email of complaint from Senior Sergeant Edmonds. Mr Watson remedied that oversight on 9 December 2010.[30] On 11 December 2010 Mr Watson met with Mr Gibson to explain thecommittee's decision. Mr Watson showed Mr Gibson a copy of the minutes of the27 November meeting. Mr Gibson told Mr Watson that he believed the committee had failed to follow fair processes.[31] On 19 December 2010 Mr Gibson sent a letter to SAR Dogs in which he pointed out, inter alia:(1) He had not been made aware of the allegation that he had acted in an"inappropriate, devisive and immature manner" before thecommittee's decision.(2) That the allegations relating to the earlier incident should not have been taken into account.[32] A meeting of the SAR Dogs Committee was scheduled for 19 March 2011.Prior to then Mr Gibson objected to Mr Watson's participation in the hearing. Mr Watson reluctantly agreed to step aside.[33] The SAR Dogs Committee met at Wellington on 19 March 2011. Five members of the committee were present. Mr Gibson attended. He made a presentation which consisted of a detailed written presentation and an oralpresentation. The key points that are contained in Mr Gibson's written presentationare:(1) That in Mr Gibson's view, Mr Watson was always planning on removing Mr Gibson from SAR Dogs.(2) That he drank wine and Schnapps before and after dinner on Saturday 28 August 2010, as did others.(3) That he believed he behaved "rather well' at the AGM.(4) That at the meeting that occurred after the AGM it was Mr Watsonwho was "raving" and "out of order and appeared to have been drinking".(5) That he decided to leave the camp.(6) That he was "okay to drive".(7) That when he arrived home his wife contacted his GP who gave him some medication.During the course of his oral presentation Mr Gibson addressed the incident said to have occurred in October 2007 and in particular disputed that he was in any way responsible for that incident.[34] The committee decided to defer making any decision on Mr Gibson's caseuntil they had had an opportunity to reflect on Mr Gibson's presentation.[35] Notwithstanding the fact Mr Watson had absented himself from thecommittee hearing he was nevertheless sent a copy of Mr Gibson's writtenpresentation. This prompted Mr Watson to write in very blunt terms to committeemembers. In his email Mr Watson alleged that Mr Gibson's presentation contained"no less than six outright lies". In his email Mr Watson said:I hope that all of you will not accept any of the bullshit in this document without checking the facts with someone that will tell the truth. I can take no part in the deliberation on the matter, but you guys must completely disregard the document from [Mr Gibson]. None of it can be considered a true account of what happened and therefore none of the information in itcan assist you with your decision making. Unless you want confirmation that the man is a nutter.[36] The Chairman of SAR Dogs Committee directed the members of thecommittee to disregard Mr Watson's comments. Mr Watson, however, promptly emailed committee members saying they should not disregard what he said about Mr Gibson's written presentation. Mr Watson said that he thought Mr Gibson's presentation was "a farce" and that it should "add some serious weight" to the committee's decision of 27 November.[37] On 2 April 2011 the Chairman of SAR Dogs wrote to Mr Gibson. In that letter SAR Dogs explained that the committee was unanimously of the view that the original decision to expel him would be upheld.Judicial review[38] The parties agree that SAR Dogs decision to expel Mr Gibson may be the subject of judicial review. That acknowledgement is consistent with the decisions of the Privy Council in Phipps v Royal Australasian College of Surgeons2 and the Court of Appeal in Reid v Rowley,3 Royal Australasian College of Surgeons v Phipps4 andStratford Racing Club Inc v Adlam5 and the High Court in Brady v New Zealand Kennel Club6 and Byrne v Auckland Irish Society Inc.7[39] In my assessment, the key principles of natural justice engaged by this case are:(1) The need for an accused person to know the nature of the accusations against him.(2) The need for decision-makers to disregard irrelevant considerations.2 Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 (PC).3 Reid v Rowley [1977] 2 NZLR 472 (CA).4 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA).5 Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 392.6 Brady v New Zealand Kennel Club HC Christchurch CP143/00, 6 March 2001.7 Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351 (SC).(3) The need for decision-makers to act impartially.[40] The degree to which compliance with the principles of natural justice is required will depend upon the context8 in which the duty to comply with natural justice arises. Thus, where a person is at risk of expulsion from an organisation with a consequential risk of damage to their reputation, the Courts will expect a high level of compliance with the principles of natural justice.9[41] The threshold for expulsion from an organisation will also vary depending upon context. Thus, the threshold for removing someone from an organisation such as SAR Dogs may be justifiably low where the organisation has lost confidence in aperson's ability to perform safely in extreme conditions. By contrast, the threshold for removal from a social club that meets on a Sunday afternoon may be comparatively high. In all circumstances however, there is still a minimum requirement to comply with the principles of natural justice. Even those who appear to be the least deserving are entitled to the protection of the minimum standards of natural justice when they risk expulsion from an organisation.The need for an accused person to know the nature of the allegations against him[42] In Byrne v Kinematograph Renters Society Ltd10 it was stated that "... the person accused should know the nature of the accusation made ...". Similarobservations have been made on notable occasions.11[43] In this case Mr Gibson was not made aware of the full nature of the complaint against him prior to the committee of SAR Dogs deciding on 27 November to expel him from the organisation. The allegations put to Mr Gibson in the email sent to him by Mr Watson on 26 September 2010 focused on Mr Gibson's decision to drive home on the night of 28 August 2010 in dangerous8 Refer R v Secretary of State for the Home Department; ex parte Daly [2001] 2 AC 532 (HL) at[28] per Lord Steyn.9 Durayappah v Fernando [1967] 2 AC 337 (PC) and D v Havill HC Auckland CIV-2009-404-4947, 30 September 2009.10 Byrne v Kinematograph Renters Society Ltd [1958] 2 All ER 579.11 See Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351 (SC); Durayappah v Fernando[1967] 2 AC 337 (PC) at 351; Waitemata Health v Attorney-General (2001) FRNZ 216 (CA) at239 and White v New Zealand Stock Exchange (No. 2) [2002] NZAR 342 (CA).circumstances. It transpired that when the committee of SAR Dogs consideredSenior Sergeant Edmonds' complaint on 27 November 2010, the committee considered all of his concerns, including the allegations that throughout the time Mr Gibson was at the camp he behaved in an "inappropriate and devisive manner" and that during the AGM he displayed "extremely immature behaviour".[44] Mr Watson deliberately omitted those allegations from the email he sent to Mr Gibson on 26 September 2010 because he genuinely thought they wouldunnecessarily aggravate Mr Gibson. Unfortunately Mr Watson's decision to omit all allegations from the material forwarded to Mr Gibson cannot withstand legal scrutiny. Mr Gibson needed to know the full nature of the allegations that were going to be considered by the committee when deciding his fate on 27 November 2010. This was a fundamental breach of the principles of natural justice and would by itself justify the Court quashing the defendant's decision.The need for decision-makers to disregard irrelevant considerations[45] It is a fundamental principle of administrative law that decision-makers must not base their decisions upon irrelevant considerations.12[46] In his letter of 4 December 2010 to Mr Gibson, the Chairman of SAR Dogs said:The committee noted also that you were written to on the 13 October 2008by myself as Chairman. In that letter I said "the committee felt there was astrong probability that some comment from yourself may have prompted thereaction from Mr [M]". I also wrote "the committee has agreed that you becensured in writing for your actions and you be reminded that any further conduct of this nature will almost certainly bring about your expulsion from the society. The committee wishes it to be made quite clear to you that theremust be no repeat of such behaviour". The committee sees the inappropriateand devisive comments you frequently made at the avalanche camp as similar to what it believes precipitated the incident requiring the letter in 2008.12 Poananga v State Services Commission [1985] 2 NZLR 385 (CA) at 395 per Cooke J, Brightwellv Accident Compensation Corporation [1985] 1 NZLR 132 (CA) at 150 per Richardson J,Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA)at 44 per Richardson J and Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA)at 421 per Eichelbaum CJ.[47] The letter sent to Mr Gibson in October 2008 concerned an incident that had happened at an assessment camp held at Lees Valley on 24 November 2007. On that occasion Mr Gibson was punched by Mr M who was apparently charged by the police with assault and pleaded guilty to that charge. The first Mr Gibson knew of any concerns about his behaviour on that occasion was when he received the letter from the Chairman of SAR Dogs in October 2008. In that letter Mr Gibson appears to have been found guilty and censured by the committee without having been given an opportunity to be heard. Mr Gibson vigorously protested his innocence in a letter to the committee of SAR Dogs on 17 October 2007.[48] When the Committee of SAR Dogs convened on 27 November 2010 it clearly placed some reliance on the alleged events that took place at Lees Valley on 24 November 2007. However, those allegations were:(1) not relevant to determining whether or not Senior Sergeant Edmonds'complaint should be upheld and(2) never proven to a level that would enable them to be able to be taken into account when determining what penalty should be imposed on Mr Gibson as a result of the findings made against him on 27 November 2010. The committee's suspicion that Mr Gibsonprovoked Mr M's conduct was not sufficient. More compellingevidence was required.In taking into account the alleged events of 24 November 2007 the Committee of SAR Dogs breached a fundamental principle of natural justice. This breach by itselfwould justify the Court in quashing the defendant's decision.The need for decision-makers to act impartially[49] It is a fundamental tenet of administrative law that decision-makers always act impartially. This rule manifests itself in multiple ways. For example, the rule is engaged where:(1) a decision-maker conducts an investigation into the conduct of a person complained about and then sits in judgement on that person.13(2) a person who has pre-determined the outcome of a charge sits in judgment of the case.14(3) a decision-maker sits on an appeal from their own decision.15[50] It is not necessary for a plaintiff to prove that a decision-maker has in fact acted impartially. Apparent bias or partiality will suffice. The test for apparent bias or partiality was described in the following way in Muir v Commissioner of Inland Revenue:16In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightlythrow the "bias" ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged Judge that a belief in her own purity will not do; she must consider how others would view her conduct.The Muir test was approved by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.17[51] The defendant breached the rule not to act impartially in the following three crucial ways:(1) During the course of its deliberations on 27 November 2010 the Committee of SAR Dogs took into account the observations of three members of the committee who were present at the camp. They"endorsed" Senior Sergeant Edmonds' allegations that Mr Gibson had acted in an "inappropriate, devisive and immature" manner at the13 Bonhams Case (1610) 8 Co Rep 1136; 77 ER 646 and R v Commonwealth Conciliation andArbitration Commission, ex parte The Angliss Group (1969) 122 CLR 546.14 Taito v R [2003] 3 NZLR 577 (PC).15 Church v Commerce Club of Auckland [2006] NZAR 494 (HC).16 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].17 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.camp. By "endorsing" the allegations made by the complainant, thethree committee members who were at the camp effectively became witnesses against Mr Gibson. They should therefore have not participated in deciding to uphold the complaint.(2) After Mr Watson excused himself from considering Mr Gibson's "appeal" he nevertheless wrote to the decision-makers in terms which were clearly intended to influence their decision. It is not possible from the material before me to determine that Mr Watson'scommunications referred to in [35] – [36] of this judgment in factinfluenced those who decided to dismiss Mr Gibson's "appeal".There is, however, more than sufficient evidence to establish apparent impartiality. That is to say:(a) the circumstances leading to the defendant's decisionof 2 April 2011 clearly laid the foundation for a concern that the decision-makers may act impartially; and(b) those circumstances could lead a fair minded lay observer to reasonably apprehend that the decision-makers might not impartially decide Mr Gibson'sappeal.18(3) The Committee of SAR Dogs who had heard Mr Gibson's "appeal"on 19 March 2011 comprised five of the six persons who had made the decision on 27 November 2010 to expel Mr Gibson from SAR Dogs. This unusual state of affairs reflected the fact that the constitution of SAR Dogs provides that:18 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495, Saxmere CoLtd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.(a) decisions about expulsion shall be made by the Committee of SAR Dogs but, with the qualification that(b) a decision to expel shall not be effective until any objection lodged by the member who is to be expelled has been heard and considered by the committee.These constitutional provisions are fundamentally flawed. Mr Gibson's "appeal"needed to be considered by persons who had not made the decision to expel him from SAR Dogs. Usually, small organisations like SAR Dogs can achieve compliance with this requirement of natural justice by providing for a small independent body to hear appeals on disciplinary decisions from an administrative committee.Conclusion[52] The decision by SAR Dogs to expel Mr Gibson breached the principles of natural justice in multiple respects.[53] The Court has some sympathy for the difficulties which the defendant has become embroiled in. It is a small organisation that is dependent upon volunteers. It has limited access to legal advice and assistance. Its members' natural environmentis far removed from the Wellington High Court. Nevertheless, the defendant needed to ensure that Mr Gibson was treated fairly when initiating and considering the disciplinary case against Mr Gibson. As the preceding paragraphs demonstrate, the defendant failed to comply with the basic principles of natural justice in multiple ways. Accordingly, Mr Gibson's application for judicial review succeeds. Thedefendant's decision expelling him from its organisation is quashed.Breach of contract[54] The terms of the constitution of an incorporated society can constitute a contract between the society and its members. This point was made by Salmond J inHenderson v Kane and the Pioneer Club:19The rules of the club, so far as they purport to define the rights and privileges, obligations, and liabilities which are incident to club- membership, constitute in their true legal nature and operation the terms of a binding contract between each individual member and the incorporated club itself. For any wrongful repudiation by the incorporated club of the obligations so incurred by it towards a member the remedy of that member includes, I think, an action for damages as for breach of contract.[55] In the present case, save in one respect, the defendant's breaches of the principles of natural justice analysed in [38] to [53] above also implicitly breached the terms of its own constitution. The exception concerns the composition of the committee which heard Mr Gibson's "appeal". That flawed process compliedexplicitly with the terms of cl 5(ii)(b) of the defendant's constitution. However, asexplained in [51(3)] the defendant's conduct still breached a basic principle of natural justice.[56] Mr Beck (counsel for Mr Gibson) agreed during the hearing that the Court has a discretion when deciding whether or not to award general damages in a case such as this. I will explain in [57] to [62] why it is probably not correct to regard awarding general damages for breach of contract as a matter for judicial discretion. If however I am wrong in that assessment, and if awarding general damages in thiscase was purely a matter for the Court's discretion I would not award Mr Gibson any damages. My reasons for not doing so would be:(1) Mr Gibson's primary objective was to quash the decision expellinghim from the defendant. He has achieved this objective.(2) It may have been possible for the defendant to have conducted itself in an unimpeachable way and have reached the same decision. There was sufficient admissible evidence for the defendant to justify it19 Henderson v Kane and Pioneer Club [1924] NZLR 1073 (SC) at 1076.having grave concerns about Mr Gibson's suitability to continue as amember of SAR Dogs.(3) The defendant is a voluntary body with limited financial resources. Any award of damages will dilute the defendant's ability to carry onits invaluable search and rescue activities.[57] There is, however, a legal issue as to whether or not awarding general damages for breach of contract is truly a matter for the Court's discretion. Under theprinciples that can be traced to Hadley v Baxendale20 losses flowing from breach of contract are split into two categories, namely:(1) Those losses that can reasonably be described as "natural" and which are not remote. Damages of this kind resulting from a breach of contract are recoverable.(2) Those losses that are indirect consequences of the breach are recoverable only if that kind of loss was within the reasonable contemplation of the parties at the time they made the contract.[58] In the present case Mr Gibson has referred in his evidence to the distress and anxiety he has suffered as a result of his expulsion from SAR Dogs. In this respect his claim for general damages is similar to the claim which was rejected by the House of Lords in Addis v Gramophone Co Ltd.21 In that case it was held that a manager who had been wrongfully dismissed by his employer in harsh and humiliating circumstances could only recover damages for lost income, but not for injuries to his feelings. New Zealand courts have however been willing to award damages for emotional distress caused by unlawful dismissal from employment.22 In any event, it is generally accepted in cognate jurisdictions that he rule in Addis does not apply to contracts which have as their object the provision of peace of mind and20 Hadley v Baxendale (1854) 9 Exch 341.21 Addis v Gramophone Co Ltd [1909] AC 488 (HL).22 Whelan v Waitaki Meats Ltd [1991] 2 NZLR 74 (HC) endorsed by the Court of Appeal in Ogilvy& Mather (NZ) Ltd v Turner [1994] 1 NZLR 641 (CA).prevention of distress. Thus, in Baltic Shipping Co v Dillon23 the High Court ofAustralia held that a passenger on the cruise ship "Mikhail Lermontov" was able to recover damages for their disappointment and distress they suffered when the vessel hit a rock and sunk whilst cruising in the Marlborough Sounds.[59] The occasions on which a breach of contract may give rise to an award of general damages for distress and humiliation in England and Wales were succinctly summarised by Bingham LJ in Watts v Morrow:24A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective.[60] In New Zealand, the exact scope of a Court's ability to award generaldamages for distress and anxiety arising from a breach of contract is not completely clear. In Byrne v Auckland Irish Society Inc25 Vautier J was willing to give theplaintiffs a modest award of damages for the "minor degree" of distress they sufferedfrom having been unlawfully expelled from the defendant society. It is questionable whether that decision would be made today in light of the decision of a majority of the Court of Appeal in Bloxham v Robinson.26 In that case the majority of the Court of Appeal aligned themselves with the English authorities and held that those who breach contracts are only likely to be liable to pay general damages for distress suffered by a plaintiff when one of the objects of the contract is to safeguard the innocent party from losses of that kind. This approach was consistent with the reasoning of a permanent bench of the Court of Appeal in Andrews v Parceline Express Ltd.27 In that case a self-employed courier driver had his contract terminated in breach of an implied term requiring the giving of six months notice.23 Baltic Shipping Co v Dillon [1993] 176 CLR 344.24 Watts v Morrow [1991] 4 All ER 937 (CA) at 59-60..25 Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351 (SC) at 362.26 Bloxham v Robinson (1996) 7 TCLR 122.27 Andrews v Parceline Express Ltd [1994] 2 ERNZ 385 (CA).The Court of Appeal confirmed in that case that as a general rule damages for mental distress are not recoverable for breach of contract. The Court of Appeal also held:28... the contract in this case is analogous to one providing expressly or by necessary implication for freedom from anxiety. The promised benefit was in effect for 6 months' notice of termination. The purpose of that promise was to provide a breathing space during which the parties could reorder and plan their affairs in anticipation of the contract coming to an end.I have considered whether a similar term could be implied in this case. In my assessment, interpolating such a term into the constitution of SAR Dogs would involve stretching the terms of the constitution far beyond those that were contemplated at the time the constitution of SAR Dogs was written. The constitution of SAR Dogs was not designed to compensate members for emotional harm that might be caused to them if they were unlawfully expelled from the society.[61] I have considerable sympathy for the approach taken by the dissenting judge in Bloxham v Robinson and for the views of those who have criticised the majority'sapproach.29 However, as Bloxham v Robinson is a binding authority I am obliged to follow the path of the majority in that case.[62] In this case the constitution of SAR Dogs did not include the objective of protecting members from distress and emotional harm if they were unlawfully expelled. Accordingly, SAR Dogs' breaches of its implied obligation to adhere to the principles of natural justice could not give rise to an award of damages for distress and emotional harm, even though such harm was probably foreseeable in this case.[63] In addition to seeking damages for the distress and emotional harm he has suffered Mr Gibson has identified legal fees and disbursements as another loss. Those are matters which are best dealt with when considering costs.28 At 397.29 D W McLauchlan "Mental Distress for Breach of Commercial Contracts" (1997) 3 NZBLQ130.Costs[64] Although the plaintiff is not entitled to damages, he is entitled to an award of costs on a scale 2B basis. Leave is reserved to the parties to return to the Court if any issue in relation to costs is not able to be resolved.____________________D B Collins JSolicitors:Alan Heward, City Legal, Nelson for PlaintiffWellington Community Law Centre, Wellington for Defendant