THE BOARD OF TRUSTEES OF NELSON COLLEGE v FITCHETT [2017] NZCA 572

THE BOARD OF TRUSTEES OF NELSON COLLEGE v FITCHETT [2017] NZCA 572 [7 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA456/2017[2017] NZCA 572BETWEEN THE BOARD OF TRUSTEES OFNELSON COLLEGEAppellantAND JOHN MALCOLM FITCHETTRespondentHearing: 29 November 2017Court: Kós P, Harrison and Brown JJCounsel: P W David QC and M J Austin for AppellantL S B Acland and E J Riddell for RespondentJudgment: 7 December 2017 at 11.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on a bandA basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Following Mr Fitchett's conduct at previous meetings, the Board of Trusteesof Nelson College (the Board) served Mr Fitchett with a trespass notice under s 4 ofthe Trespass Act 1980 warning Mr Fitchett to stay off the Nelson College buildingsfor a period of two years.[2] On Mr Fitchett's application for judicial review, Thomas J in the High Courtruled that the Board had no power under s 4 to issue the trespass notice and madeorders quashing the Board's decision and setting aside the notice.1[3] This appeal concerns the reconciliation of pt 7 of the Local GovernmentOfficial Information and Meetings Act 1987 (the LGOIM Act) and s 4 of the TrespassAct. The Board frames the specific issue on appeal in this way:Does a school Board of Trustees have power to issue a warning under s 4 ofthe Trespass Act 1980 to a person who has disrupted a meeting and beenrequired to leave a under s 50 of the Local Government Official Informationand Meetings Act 1987 and the Trespass Act 1980, but has refused to do so?Statutory contextLocal Government Official Information and Meetings Act 1987[4] The Board is a school board of trustees established under pt 9 of the EducationAct 1989 and, as such, is a "local authority" for the purposes of pt 7 of the LGOIMAct.2 Part 7 contains the provisions governing the conduct of local authoritymeetings.3[5] The effect of s 47 is that, except as otherwise provided by pt 7, every meetingof a local authority shall be open to the public. The power to exclude the public atlarge is contained in s 48, which is concerned primarily with confidential matters. Apower to exclude individual members of the public so as to maintain order at meetingsis provided in s 50:50 Maintenance of order(1) The person presiding at any meeting of any local authority may, if thatperson believes, on reasonable grounds, that the behaviour of anymember of the public attending that meeting is likely to prejudice orto continue to prejudice the orderly conduct of that meeting if thatmember of the public is permitted to remain in that meeting, requirethat member of the public to leave the meeting.1 Fitchett v Board of Trustees of Nelson College [2017] NZHC 1684.2 Local Government Official Information and Meetings Act 1987, s 2, definition of "local authority"and sch 2.3 Specifically, ss 45 to 54.(2) If any member of the public who is required, pursuant tosubsection (1), to leave a meeting of a local authority—(a) refuses or fails to leave the meeting; or(b) having left the meeting, attempts to re-enter the meetingwithout the permission of the person presiding at themeeting,—any constable, or any officer or employee of the local authority, may,at the request of the person presiding at the meeting, remove or, as thecase may require, exclude that member of the public from the meeting.[6] As this Court recognised in Bright v Police, the LGOIM Act does not containany offence provisions and therefore does not constitute a code.4 However, thepredominant nature of pt 7 is emphasised in s 54:54 This Part to prevail over other enactmentsAny provisions in any enactment in relation to attendance by thepublic at any meeting of any local authority or at any meeting of anycommittee or subcommittee of any local authority, or in relation toinspection of the minutes of any such meeting, shall be read subjectto the provisions of this Part.Trespass Act 1980[7] The Trespass Act is much more general in operation, and establishes criminalsanctions for the act of trespass. Bright was concerned with a prosecution under s 3,which provides:3 Trespass after warning to leave(1) Every person commits an offence against this Act who trespasses onany place and, after being warned to leave that place by an occupierof that place, neglects or refuses to do so.[8] However, in the present case the Board issued a notice warning Mr Fitchett tostay off Nelson College grounds pursuant to s 4. That section provides:4 Trespass after warning to stay off4 Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132 at [40].(1) Where any person is trespassing or has trespassed on any place, anoccupier of that place may, at the time of the trespass or within areasonable time thereafter, warn him to stay off that place.(2) Where an occupier of any place has reasonable cause to suspect thatany person is likely to trespass on that place, he may warn that personto stay off that place.(3) Where any person is convicted of an offence against this Actcommitted on or in respect of any place, the court may warn thatperson to stay off that place.(4) Subject to subsection (5), every person commits an offence againstthis Act who, being a person who has been warned under this sectionto stay off any place, wilfully trespasses on that place within 2 yearsafter the giving of the warning.[9] In contrast with s 54 of the LGOIM Act, s 13 of the Trespass Act provides thatit is subject to other enactments. It states:13 SavingsNothing in this Act shall derogate from anything that any person isauthorised to do by or under any other enactment or by law, or restrictthe provisions of any of the following enactments and instruments:(a) section 42 of the Mining Act 1971:(b) section 23 of the Civil Aviation Act 1964:(c) any enactment or instrument conferring a right of entry on anyland.[10] With reference to s 13(c) this Court in Bright v Police observed:5Section 13(c) of the Trespass Act would prevent the operation of that Act whilethe person had a right of attendance in accordance with s 47 of the LGOIMAct. However, as soon as the presumption in favour of attendance is displaced(as it would be, for example, if s 50 is validly invoked), then there is no longerany right of attendance or entry and s 13(c) of the Trespass Act cannot apply.What this does mean, however, is that, unless and until the presumption in s47 of the LGOIM Act is displaced, the Trespass Act can have no application.Factual narrative[11] The facts relevant to the appeal can be shortly stated.5 At [32].[12] Spurred by his concerns about the performance of the Board arising from issuesthat had arisen when his brother was a school employee, Mr Fitchett began attendingthe Board's meetings in May 2016. He was the only member of the public to do so.In the belief that Mr Fitchett was recording its proceedings, at a meeting on 2 March2017 the Board resolved to ban audio recordings of meetings by members of thepublic.[13] The minutes of the 2 March meeting contain the following record of the eventswhich followed:Member of the public, Mr J Fitchett then placed a recording device on thetable in front of him facing the Board members and was asked by theChairman several times if the recording device was turned off or was on.Member of the public Mr Fitchett declined to answer this question. The BoardChair then adjourned the meeting at 4.05 pm from the Boardroom and theBoard proceeded to the Headmaster's Office, with Mr Fitchett following.The Board Chairman repeated the question regarding the recording device.Mr Fitchett was unresponsive. The Board Chairman then made the decisionto postpone the meeting and the meeting ended at that point. The decisionwas then made that the meeting was postponed until an indeterminate datewith an assurance to Mr Fitchett that he would be informed of that future date.[14] At a meeting reconvened one week later, the events occurred which are thefocus of this appeal. The minutes of the meeting on 9 March 2017 relevantly state:At 4.05 pm, the Chairman asked Member of the public, Mr J Fitchett, whetherhe was recording the meeting which would be in breach of a fair and lawfulresolution of the Board that recording of meetings by the public are not tooccur. Mr Fitchett was unresponsive. The Chairman then stated that it shouldbe noted for the minutes that the member of the public, Mr J Fitchett refusedto respond and the Board now assumed that he was recording and in breach ofthe Board of Trustees resolution and therefore in breach of s 50 of the LocalGovernment Official Information and Meetings Act 1987. He also said thatMr Fitchett's behaviour was likely to prejudice or continue to prejudice theorderly conduct of the meeting if he was permitted to remain. He thereforeasked Mr Fitchett to leave the meeting. Mr Fitchett was unresponsive. MrFitchett then produced a recording device and placed it on the table in front ofhim.The Chairman stated that, for the minutes, the member of the public refusedto leave the meeting and that as Board Chair, he had the right to haveMr Fitchett forcibly removed from the meeting, but, at this time, he chose notto exercise that right. He informed Mr Fitchett that this was a flagrant breachof a lawful Board resolution, that he was committing an offence and that hewould be receiving a written consequence/response through the Board'slawyers.[15] Mr Fitchett's behaviour at the March 2017 meetings was irritating, immatureand plainly designed to cause a nuisance to the Board.6 On 15 March 2017 thesolicitors for the Board sent Mr Fitchett a letter indicating the chairman had taken theview Mr Fitchett's behaviour "was likely to prejudice or continue to prejudice theorderly conduct of the meeting if [Mr Fitchett] remained". The letter said the Boardhad passed a unanimous resolution proposing service of a trespass notice on MrFitchett pursuant to s 4 of the Trespass Act.[16] On 30 March 2017 a trespass notice was served on Mr Fitchett in the followingterms:7Trespass NoticeWarning under the Trespass Act 1980 Sections 4(1) or 4(2) and Section 4(4)TO: JOHN MALCOLM FITCHETTIn accordance with the above Act and Section you are hereby warned to stayoff the place known as:Nelson College buildings67 Waimea Road, NelsonIt is an offence punishable by a fine not exceeding $1,000.00 or imprisonmentnot exceeding 3 months to enter the above address within 2 years from thedate you receive this warning.The occupier of the above address is:NELSON COLLEGE BOARD OF TRUSTEESThe High Court judgment[17] In the High Court, Thomas J identified the issue as being whether a localauthority could issue a trespass notice pursuant to s 4 of the Trespass Act in respect ofa person who has previously been required to leave a meeting pursuant to s 50 of theLGOIM Act.6 See the description of Williams J in his decision declining Mr Fitchett interim relief: Fitchett vThe Board of Trustees of Nelson College [2017] NZHC 888 at [39].7 An earlier notice in identical terms, save that it related to not only the school buildings but alsothe grounds, was issued on 23 March 2017 but withdrawn.[18] The Judge's conclusion on that issue is captured in the following twoparagraphs:8[61] It is important to bear the purpose of the [LGOIM] Act in mind whenanalysing the effect of s 50. Section 50 cannot be read in any other way thanas applying to a specific meeting. The right to be present under s 47 iswithdrawn for the purposes only of the meeting where the disruptivebehaviour has occurred.[63] My reading of s 47, and its prevalence over s 4 of the Trespass Act, isreinforced by both s 54 of the [LGOIM] Act and s 13 of the Trespass Act. Theresult is that, while s 3 of the Trespass Act can be invoked if a person fails toleave a particular meeting when behaving in a disruptive way, a noticepursuant to s 4, the effect of which is to prohibit attendance at future meetings,cannot be issued. This conclusion is supported by a proper reading of Bright.I acknowledge the result will cause practical difficulties for the Board andother local authorities in a similar position. Those difficulties do not disturba proper interpretation of the relevant statutory framework.The parties' casesThe appellant[19] Mr David QC for the Board criticised the High Court's decision as translatingthe direction under s 47 of the LGOIM Act that meetings are open to the public intoan ever-renewing right of attendance by a person who has behaved in a disorderlymanner at previous meetings, has been asked to leave or has been removed and whomthe local authority considers will disrupt future meetings. It was his submission thatpt 7 of the LGOIM Act is silent on the issue whether a local authority has the powerto take steps to safeguard future meetings. He submitted that a sensible and practicalinterpretation which allowed a local authority to take steps under ss 3 or 4 of theTrespass Act to prevent disruption in the future would not undermine the overallpurpose of the LGOIM Act.[20] It was his contention that neither s 13 of the Trespass Act nor s 54 of theLGOIM Act could properly be interpreted as supporting a conclusion that ss 47 to 50of the LGOIM Act exclude the power of a local authority to exercise powers under theTrespass Act to protect future meetings from misconduct. In particular, s 13 was said8 Fitchett v Board of Trustees of Nelson College, above n 1.not to apply for the reason that s 47 of the LGOIM Act does not authorise a person todo something or confer right of entry on any land.Mr Fitchett[21] Mr Acland for Mr Fitchett responded that the two statutes are designed to beread together so that, pursuant to s 13(c) of the Trespass Act and s 54 of the LGOIMAct, the right of attendance in s 47 prevails over the operation of the Trespass Act. Hesupported the High Court's conclusion that the power in s 50 of the LGOIM Act limitss 47 only for the duration of the meeting that a person is required to leave. Thecontrary interpretation that upon s 50 being triggered a notice to stay off under s 4 wasable to be issued and a person's right to attend future meetings thereby extinguished,represented a significant departure from the purpose and scheme of the LGOIM Act.Such a limitation on the right of attendance in s 47 was not demonstrably justifiableand hence the Board's interpretation was inconsistent with the New Zealand Bill ofRights Act 1990.Discussion[22] In the absence of an express or implied9 licence, a person who enters on theland of another is a trespasser.10 Once it is communicated to a licensee that his or herlicence is revoked, that person will be a trespasser after the expiration of a periodreasonable in the circumstances to leave the property. A trespasser who fails to leaveanother's property after being warned to do so commits an offence under s 3 of theTrespass Act.[23] Section 47 of the LGOIM Act confers a qualified licence to enter land for thepurpose of attending meetings of a local authority. That licence is qualified by theexclusion and removal provisions in ss 48 and 50. When a person's entitlement toattend a meeting is revoked under s 50, the person will be a trespasser if that personrefuses or fails to leave the meeting within a reasonable time or, having left themeeting, attempts to re-enter without the permission of the person presiding.9 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145.10 For example the school children in Matheson v Northcote College Board of Governors [1975] 2NZLR 106 (SC).[24] Hence, at the meeting of the Board on 9 March 2017, after the chairmanlawfully invoked s 50 of the LGOIM Act and asked Mr Fitchett to leave the meeting,Mr Fitchett became a trespasser when he remained at the meeting. The chairman ofthe meeting had the right to have Mr Fitchett removed, both because s 50 makesprovision for that and because Mr Fitchett was now a trespasser. Had the chairmanthen issued the further warning to leave contemplated by s 3 of the Trespass Act,Mr Fitchett would have committed an offence under that provision by refusing toleave. A further warning was required because Mr Fitchett only became a trespasserafter failing to respond timeously to the s 50 requirement to leave. The s 50requirement to leave cannot therefore also serve as the s 3 warning. However, it is notapparent from the minutes that such a warning was issued. Instead, the Board choseto issue the notice under s 4 three weeks later.11[25] Plainly, the purpose of the s 4 notice was to ensure that Mr Fitchett did notattend the meetings of the Board for a two-year period. The narrow issue in this caseis whether s 4 of the Trespass Act is to be construed as empowering the Board to issuea notice to that effect, to a person who has previously been a trespasser, given thecontent of pt 7 of the LGOIM Act and the terms of s 13 of the Trespass Act.[26] We consider that a s 4 notice cannot have the effect of preventing a member ofthe public from attending a local authority meeting. A member of the public may onlybe excluded from such a meeting under the powers conferred in ss 48 and 50. Thereare three reasons for our conclusion.[27] First, while, as Bright recognised, pt 7 is not a code in that it does not containany offence provision, the circumstances in which the s 47 entitlement to attend maybe withdrawn are exclusively prescribed in ss 48 and 50. This is clear from the expressstatement in s 47 itself: "[e]xcept as otherwise provided by this Part, every meeting ofa local authority shall be open to the public".[28] Secondly, the effect of the saving in s 13(c) of the Trespass Act is that theentitlement under s 47 to attend a local authority meeting is not restricted or otherwise11 At [16] above.affected by the provisions of the Trespass Act.12 Section 50 of the LGOIM Act givesan ability to exclude a member of the public on a meeting-by-meeting basis only. Thes 47 right to attend is renewed at each meeting, unless or until displaced by s 50. TheTrespass Act, in and of itself, is not able to displace that right.[29] Thirdly, the Trespass Act is a statute of general effect which applies to alltrespasses on land whereas pt 7 of the LGOIM Act is confined to meetings of localauthorities. The interpretation should be preferred whereby the special provisionprevails over the general. The different foci of the two pieces of legislation is reflectedin the fact that the notice which the Board served would not achieve its purpose in theevent that a meeting of the Board was held in some place other than the Nelson Collegebuildings.[30] Consequently, while it would be open to the Board to serve a s 4 notice onMr Fitchett were he to trespass on Nelson College grounds in any other manner, thesteps which the Board may take in relation to disorderly conduct at its meetings areconfined to invoking the s 50 procedure followed by either removal in accordance withs 50(2) or the issue of a s 3 warning and prosecution of an offence under that provision.Section 4 does not confer on the Board the power to issue a notice which has thepurpose or effect of extinguishing Mr Fitchett's entitlement under s 47 to attend futuremeetings of the Board.12 Compare Police v Kanuta [1987] 1 NZLR 629 (HC) at 633.Result[31] The appeal is dismissed.[32] Mr Fitchett sought increased costs in the event that the appeal was dismissed.However, we do not consider there are any circumstances why costs should not followthe event in the usual way or which would justify increased costs. Accordingly, theappellant must pay the respondent costs for a standard appeal on a band A basis andusual disbursements.Solicitors:Hamish Fletcher Lawyers, Nelson for AppellantBamford Law, Nelson for Respondent