In the High Court of New Zealand Auckland Registry I Te Koti Matua O Aotearoa Tāmaki Makaurau Rohe CIV 2018-404-1501xxx
Under: Part 30 of the High Court Rules 2016 New Zealand Bill of Rights Act 1990
Between: Malcolm Bruce Moncrief-Spittle, First Applicant
And: David Cumin, Second Applicant
And: Regional Facilities Auckland Ltd as trustee of Regional Facilities Auckland, First Respondent
And: Auckland Council Second Respondent
And: Philip Bruce Goff, Mayor of Auckland Third Respondent
APPLICANTS’ SUBMISSIONS
Date: 5 August 2019 Next Event Date: Hearing on 2 September 2019
Level 5, Wakefield House 90 The Terrace Tel +64 4 815 8050 PO Box 10388 Fax +64 4 815 8039 Wellington 6140
Solicitor: Stephen Franks ([email protected]) Counsel: Jack Hodder QC ([email protected]) Jordan Grimmer ([email protected])
May it please the Court –
1. INTRODUCTION
1.1 This judicial review proceeding engages the exercise—or rather hindrance— of important freedoms, in particular freedom of thought and expression, and of freedom of association and peaceful assembly. These are of fundamental importance because they are essentials of a liberal democracy.
1.2 Such freedoms may be exercised in various media and fora, including public meetings. Town halls and other municipal venues have provided venues for political meetings for generations in New Zealand. In Auckland, municipal venues are now controlled by the respondents. Denial of such venues on the basis that the Mayor or the Council disagrees with the political or social views of those who are to speak at a proposed meeting undermines the aforementioned freedoms.
1.3 In the evidence filed by the respondents (which does not include any evidence form the Mayor), and their pleadings, they assert that the denial of a venue for the proposed Molyneux/Southern public meeting (the Event) was not for political reasons, but on “security” grounds. Even if the proposed speakers’ social/political views were irrelevant (which is contradicted by the Mayor’s contemporaneous public statements), the “security” reasons for denial of a venue still amounts to pre-empting the exercise of the relevant freedoms. And this was done with no consultation with the Police or other credible evidence of a genuine security risk, and with no meaningful consideration of those relevant freedoms.
1.4 The applicants plead and give evidence of their concern that this denial of venue in relation to public facilities by those operating within a statutory context (the Local Government Act 2002) created an abysmal precedent – pre-emption of the exercise of the relevant freedoms by contrived or ill-founded concerns about supposed health and safety risks associated with possible non-peaceful or non-lawful protests against the Event.1 More bluntly, the precedent is that of success of “the thug’s veto”.
1 Third Amended Statement of Claim at [33] [PB Tab 1 p 7].
2
1.5 In these circumstances, the applicants respectfully submit that judicial review of the respondents’ conduct is available, and that the declaratory relief sought is well justified.
2. FACTS
Chronology 2.1 A detailed chronology is attached as the Schedule to these submissions.
Summary of key events
Axiomatic books the Bruce Mason Centre for the Event 2.2 Axiomatic Media Pty Ltd (Axiomatic) is an Australian-registered events promotion and management company.2 David Pellowe is a director and shareholder of Axiomatic.3
2.3 In 2018, Axiomatic organised a speaking tour across Australia and New Zealand for Lauren Southern and Stefan Molyneux.4 Ms Southern and Mr Molyneux are political commentators and media personalities (the Speakers).5
2.4 In June 2018, Axiomatic approached the first respondent, Regional Facilities Auckland Ltd (RFAL), to hire a venue for Ms Southern and Mr Molyneux to complete a speaking and question/answer event in Auckland.6
2.5 RFAL is a council-controlled organisation and acts as trustee of Regional Facilities Auckland (RFA). RFA is a charitable trust and substantive council-controlled organisation which owns almost all the venues that are suitable for events of this kind. The division of RFA which manages the venues is called Auckland Live. Unless otherwise specified, RFAL, RFA and Auckland Live will be grouped together as RFA in these submissions.
2.6 Following an initial phone call on 13 June 2018 with Wendy Pafalani (Account Manager in Presenter Services at RFA), on the same day, Axiomatic emailed
2 Affidavit of David James Pellowe sworn 18 July 2018 at [9] [CB1 Tab 3 p 70]. 3 Affidavit of David James Pellowe sworn 18 July 2018 at [1] [CB1 Tab 3 p 69]. 4 Affidavit of David James Pellowe sworn 18 July 2018 at [12]–[13] [CB1 Tab 3 p 70]. 5 Affidavit of David James Pellowe sworn 18 July 2018 at [12]–[13] [CB1 Tab 3 p 70]. 6 Affidavit of David James Pellowe sworn 18 July 2018 at [21]–[23] [CB1 Tab 3 p 72].
3
RFAL information about the Event which included details about the Speakers.7
2.7 The email to RFA included the Event’s title as “STEFAN MOLYNEUX & LAUREN SOUTHERN LIVE: AN AXIOMATIC EVENT” and outlined “There will be 2 keynote speakers; Lauren - a documentary filmmaker and bestselling author, Stefan - a renowned philosopher and author”.8
2.8 RFA subsequently, on 15 June 2018, sent Axiomatic a venue-hire agreement for the Bruce Mason Centre for 3 August 2018.9 Axiomatic signed and returned the venue-hire agreement on the same day. RFA then signed the venue-hire agreement on 18 June 2018.10
2.9 On 27 June 2018, RFA sent Axiomatic a “Tour Risk Assessment” form to complete.11 Under the venue-hire agreement, that form was not required to be returned until 10 days before the Event.12
2.10 Tickets for the Event went on sale on 29 June 2018.13 On that day, Malcolm Moncrief-Spittle, the First Applicant, bought a ticket for the Event and dinner with the Speakers for $771.23, and booked flights and accommodation.14
Some complaints about the Event and the Speakers’ views 2.11 On 3 July 2018, following a complaint from a member of the public about the Speakers’ views and RFA taking the booking, Glen Crighton (Manager of Presenter Services at RFA) began to research the Speakers online.15
7 Affidavit of David James Pellowe sworn 18 July 2018 at [31] [CB1 Tab 3 p 73]. 8 Affidavit of David James Pellowe sworn 18 July 2018 at [35] [CB1 Tab 3 p 74] and DJP-1 p 10–11 [CB1 Tab 4 p 99–100]. 9 Affidavit of David James Pellowe sworn 18 July 2018 at [36] [CB1 Tab 3 p 74] and DJP-1 p 14–16 and 21–49 [CB1 Tab 4 p 103–105 and 110–138]. 10 Affidavit of David James Pellowe sworn 18 July 2018 at [37] [CB1 Tab 3 p 74–75] and DJP-1 p 50–59 [CB1 Tab 4 p 139–148]. 11 Affidavit of David James Pellowe sworn 18 July 2018 at [39] [CB1 Tab 3 p 75] and DJP-1 p 75 [CB1 Tab 4 p 164]. 12 Affidavit of David James Pellowe sworn 18 July 2018 at DJP-1 p 29–30, clause 3.1(c)(iii) [CB1 Tab 4 p 118–119]. 13 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [14] [CB1 Tab 9 p 238]. 14 Affidavit of Malcom Bruce Moncrief-Spittle sworn 18 July 2018 at [30]–[31] [CB1 Tab 1 p 7]. 15 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [16]–[20] [CB1 Tab 9 p 239–240].
4
2.12 Mr Crighton learned of some further complaints on 5 July 2018. These focused on the Speakers’ views.16 For example:
(a) “These people are incredibly heinous and their ideas are dangerous”.17
(b) “We are better than this. We don’t need or want these people in NZ”.18
RFA asks its security team to investigate 2.13 On 5 July 2019, Mr Crighton asked the RFA security team to investigate:
(a) At 9.30am, Mr Crighton emailed Dean Kidd (Manager of Safety and Security at RFA) “flagging that [they] will have a controversial event” at the Bruce Mason Centre on 3 August 2018.19
(b) Mr Kidd replied at 11.37am, saying they will “gather further intelligence” and let Mr Crighton know: 1) what their findings are; 2) what the risk rating is; and 3) mitigation strategies.20
2.14 Later that afternoon, at around 3pm, Mr Crighton was of the view that the complaints “were not out of the ordinary for an event that involved political discussions, but that it was prudent to find out more about the tour”.21
2.15 He then learned that details about the Australian venues were not to be publicly released until 24 hours before the events and became concerned “that there was more to this than just the odd public complaint”.22
Mr Macrae learns about the “emerging issues” 2.16 Mr Crighton and Ms Pafalani then spoke to Robin Macrae (Director, Auckland Live and Auckland Conventions, RFA) about the Event.23 This was when
16 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [20]–[25] [CB1 Tab 9 p 240–241]. 17 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC-1 p 55 [CB1 Tab 10 p 302]. 18 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC-1 p 70 [CB1 Tab 10 p 317]. 19 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [20]–[21] [CB1 Tab 9 p 240] and GRC-1 p 53 [CB1 Tab 10 p 300]. 20 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [21] [CB1 Tab 9 p 240] and GRC-1 p 56 [CB1 Tab 10 p 303]. 21 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [24]–[26] [CB1 Tab 9 p 240–241]. 22 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [26]–[30] [CB1 Tab 9 p 241–242]. 23 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [41] [CB2 Tab 7 p 497].
5
Mr Macrae first became aware of the “emerging issues” in relation to the Event.24
Auckland Peace Action complains 2.17 At 8.10pm that evening, Valerie Morse (Auckland Peace Action), complained about the Event to Mr Macrae by email and asked for it to be cancelled.25 In her complaint, among other things, Ms Morse said:26
(a) The Speakers are “two prominent fascists”.
(b) “These two individuals are a threat to the peace and good order of New Zealand: the purpose of their visit to New Zealand is to encourage racist violence and hatred, and to support the collective organising of fascists”.
(c) RFA may be in breach of the racial disharmony provisions of the Human Rights Act 1993 if the Event proceeds.
2.18 Notably, Ms Morse did not make any threat in her complaint and did not mention blockading the Event.
2.19 At 8.48pm, Ms Morse sent a similar complaint to Cr Cathy Casey (Albert- Eden-Roskill Ward) asking for her “solidarity and support in getting this event cancelled”.27 This time, Ms Morse added that they “did not want people like this in our communities”.28 Again, however, no threat was made.
Auckland Council and the Mayor’s Office contacts RFA 2.20 At 9.21pm, Cr Casey forwarded Ms Morse’s complaint to Stephen Town (CEO of Auckland Council), noting she is “really concerned by the comment that ‘the purpose of their visit to New Zealand is to encourage racist violence and hatred, and to support the collective organising of fascists’”.29 She asked
24 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [41] [CB2 Tab 7 p 497]. 25 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [45] [CB2 Tab 7 p 497–498] and RRM3 p 20 [CB2 Tab 8 p 529]. 26 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [45] [CB2 Tab 7 p 497–498] and RRM3 p 20 [CB2 Tab 8 p 529]. 27 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 22 [CB2 Tab 8 p 531]. 28 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 22 [CB2 Tab 8 p 531]. 29 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 21 [CB2 Tab 8 p 530].
6
Mr Town to “urgently investigate” and to “advise on any reputational risk” to Auckland Council if the Event goes ahead.30
2.21 At 9.42pm, a member of the public complained to the Mayor about the Event, referring to the Speakers as “nasty racists”.31 She also forwarded the Mayor an email she had sent to school principals, in which she said there was an opportunity to “[refuse] a platform for these people to spread their ugly message”.32
2.22 Then, at 8.43am on Friday 6 July 2018, Mr Town’s personal assistant forwarded Cr Casey’s email to Mr Macrae and asked him to investigate Ms Morse and Cr Casey’s concerns.33
2.23 Around the same time, Mr Macrae was asked to respond to concerns about the Event from the Mayor’s Office:
(a) At 8.59am, the Mayor’s Office forwarded the complaint received at 9.42pm the previous night to Paul Brewer (Chief Operating Officer at RFA) and asked RFA to respond on behalf of the Mayor.34
(b) At 9.02am, Mr Brewer forwarded the email from the Mayor’s Office to Mr Macrae.35
Auckland Peace Action issues press release 2.24 At 9.02am, Auckland Peace Action issued a press release in relation to the Event.36 Among other things, Auckland Peace Action said:37
(a) “Auckland Peace Action (APA) calls on the Minister of Immigration to refuse racist hatemongers Stefan Molyneux and Lauren Southern entry to New Zealand. These prominent alt-right fascists are intending to travel to New Zealand to hold a public events in early August.”
30 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 21 [CB2 Tab 8 p 530]. 31 Affidavit of Robin Roger Macrae affirmed 23 July 2018 at RRM1 p 12 [CB1 Tab 11 p 375]. 32 Affidavit of Robin Roger Macrae affirmed 23 July 2018 at RRM1 p 13 [CB1 Tab 11 p 376]. 33 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 21 [CB2 Tab 8 p 530]. 34 Affidavit of Paul Newton Brewer sworn 23 July 2018 at PNB1 p 1 [CB1 Tab 7 p 211]. 35 Affidavit of Paul Newton Brewer sworn 23 July 2018 at PNB1 p 1 [CB1 Tab 7 p 211]. 36 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC1 p 89 [CB1 Tab 10 p 336]. 37 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC1 p 89 [CB1 Tab 10 p 336].
7
(b) “We stand in solidarity with the Muslim Community in Aotearoa who are opposing these fascists. If they come here, we will confront them on the streets. If they come, we will blockade entry to their speaking venue.”
(c) “We are preparing to take action to stop their public event if the Minister fails to do so. We encourage people across Auckland to join us and say NO to hate.”
RFA decides to cancel the Event 2.25 At around 9.15am/9.30am, there was an internal RFA meeting about the Event.38 Mr Macrae, Mr Brewer, Mr Crighton and Ms McGrath attended the meeting.39
2.26 Mr Macrae has said he wanted to “reflect more following the meeting” but that he “had formed the preliminary view that for health and safety reasons, the best course of action was to cancel the Event” and that others “would have come away from that discussion thinking it was highly likely [he] would decide to cancel the contract for safety/security reasons”.40
2.27 Around this time, the Council and Mayor’s office communicated to RFA about the Event again:
(a) At 9.49am, Cr Casey sent an article about the Speakers potentially getting banned from New Zealand to Mr Town and asked whether the Council “can be proactive here”.41 Mr Town’s personal assistant forwarded this email to Mr Macrae at 9.51am.42
(b) Mr Burgess, from the Mayor’s office, called Mr Brewer about the Event just after 10am.43 Mr Brewer explained to Mr Burgess that they “were probably moving towards cancelling the Event because of security concerns”.44
38 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [50] [CB2 Tab 7 p 498]. 39 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [51] [CB2 Tab 7 p 498]. 40 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [62] [CB2 Tab 7 p 500–501]. 41 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM-3 p 47 [CB2 Tab 8 p 556]. 42 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM-3 p 47 [CB2 Tab 8 p 556]. 43 Affidavit of Michael Geoffrey Burgess affirmed 23 July 2019 at [11] [CB1 Tab 8 p 223]. 44 Affidavit of Michael Geoffrey Burgess affirmed 23 July 2019 at [11] [CB1 Tab 8 p 223].
8
2.28 At 10.10am, Kat Saunders (Senior Communications and Marketing Advisor at RFA), sent Mr Macrae the press release from Auckland Peace Action about blockading the Event.45
2.29 By no later than 11am on 6 July 2018, Mr Macrae “finalised” his “decision to cancel the contract in the interests of safety and security”.46 Mr Macrae’s reasons are contained in his affidavit of 19 June 2019 at [52]–[70] [CB2 Tab 7 p 498–502], but in summary he says he took into account:
(a) The particular features of the Bruce Mason Centre and its location in the Takapuna shopping in business district, and its implications for safety and costs.
(b) There would be a conflict of views between any protestors and those attending the Event.
(c) RFA’s previous experience with Auckland Peace Action blockading an event and their statements regarding the Event.
(d) The Australian venues were not to be released publicly until 24 hours before the events where Axiomatic took a different approach in New Zealand.
(e) That RFA had not learned of the Speakers’ reputations until after tickets had gone on sale.
(f) Axiomatic had not completed the Tour Risk Assessment form.
(g) The need to be able to evacuate the venue safely.
(h) His obligations under the Health and Safety at Work Act 2015.
The Mayor wants to tweet 2.30 Mr Burgess, from the Mayor’s Office, called Mr Brewer at about 11.25am asking for an update.47 The Mayor’s Office wanted to “match up timing” with the Mayor’s communications.48 Mr Brewer told Mr Burgess that it had
45 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [68] [CB2 Tab 7 p 502]. 46 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [70] [CB2 Tab 7 p 502]. 47 Affidavit of Michael Geoffrey Burgess affirmed 23 July 2019 at [19] [CB1 Tab 8 p 224]. 48 Affidavit of Michael Geoffrey Burgess affirmed 23 July 2019 at [19] [CB1 Tab 8 p 224].
9
been decided to cancel the Event because of safety and security reasons but that RFA “needed to make sure it followed the letter of the law”.49
2.31 Mr Burgess also sent Mr Brewer two text messages that day before Axiomatic was informed that RFA had decided to cancel the Event:50
(a) At 12.30pm, Mr Burgess told Mr Brewer “would love to push the buttons soon”.
(b) At 1.45pm, Mr Burgess said “Mayor getting itchy twitter fingers…”.
(c) Mr Brewer replied that “There are big legal issues at stake with big price tags if we get the wording wrong . Plse wait”.
RFA informs Axiomatic of cancellation 2.32 RFAL then called Axiomatic at 2.15pm and informed them that they were cancelling the Event. Among other things, on that call:
(a) Mr Macrae said they were “really concerned about the security side”.51
(b) Mr Macrae said “So we talked with our security people here, we’ve had some early conversations with the police and we’re really at the stage where we want to terminate the contract for the event at the Bruce Mason Centre”.52
(c) Mr Pellowe asked “Is there anything we can do to satisfy your fears? Anything preventative, precautionary protection measures we can do, or is it pretty much finished conversation?”.53 Mr Macrae replied that “It’s pretty much finished, I think, on the security side”.54
(d) Clancy Roberts, Axiomatic’s security consultant, said “I just want to say if there’s any chance whatsoever, I’m more than happy to work with your security to do whatever is necessary to I guess, bring
49 Affidavit of Michael Geoffrey Burgess affirmed 23 July 2019 at [20] [CB1 Tab 8 p 224]. 50 Affidavit of Paul Newton Brewer sworn 23 July 2018 at PNB1 p 4 [CB1 Tab 7 p 214]. 51 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 36 [CB2 Tab 4 p 363]. 52 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 36 [CB2 Tab 4 p 363]. 53 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 36 [CB2 Tab 4 p 363]. 54 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 36 [CB2 Tab 4 p 363].
10
security up to a point you’re comfortable to run this event if there’s any chance of getting it off the ground”.55
(e) Mr Macrae said “From our perspective, and this is the decision we just need to notify of and we will obviously follow it up with a formal communications”.56
(f) Mr Roberts said “We do appreciate you and obviously made very clear this has got nothing to do with freedom of speech or any sort of swaying one way or the other. It’s obviously been a security decision. I assume you’ve been leant on by a council or police as well, that they’re not happy for this to go ahead. Once again, if there is anything we can do to get this going, more than happy to work through anything”.57
The Mayor tweets 2.33 At 2.13pm, the Mayor tweeted:
@AklCouncil venues shouldn’t be used to stir up ethnic or religious tensions. Views that divide rather than unite are repugnant and I have made my views on this very clear. Lauren Southern and Stefan Molyneux will not be speaking at any Council venues.
2.34 The Mayor tweeted again at 3.08pm:
Let me be very clear, the right to free speech does not mean the right to be provided with an @AklCouncil platform for that speech.
RFA security team investigates 2.35 Seemingly unaware that the Event had been cancelled, Mr Kidd emailed someone in the New Zealand Police at 3.49pm, saying:58
(a) They “need to talk with the local police to check whether this event is on your radar and if so what threat rating it may have”.
55 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 38 [CB2 Tab 4 p 365]. 56 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 39 [CB2 Tab 4 p 366]. 57 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 39 [CB2 Tab 4 p 366]. 58 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC1 p 59 [CB1 Tab 10 p 306].
11
(b) That they are “conducting a risk assessment of this event ourselves and would typically staff this with a robust security plan in order to mitigate any unwanted behaviour at the event”.
(c) And that he would “welcome a chance to meet with yourself or a NZ Police representative on site”.
2.36 At 7.35pm, on 6 July 2018, Mr Kidd sent a follow up email noting the Event had been cancelled, prior to the police contact replying.59
2.37 Since then, the Police has provided the following information under the Official Information Act 1982:60
(a) There had been no correspondence between Police and Auckland Council [employees, elected officials or agents] in relation to Stefan Molyneux and Lauren Southern.
(b) The police did not receive any threats in relation to the Event. Its intelligence section garnered information from social media in relation to the Speakers’ proposed visit to New Zealand, none of which indicated any direct/in-direct threats to either persons.
(c) The Police was not aware of the Event “until the refusal by Auckland City Council to use their facilities”.
Post-cancellation events 2.38 On 10 July 2018, the Mayor was interviewed on Radio New Zealand’s Morning Report.61 Among other things, the Mayor said:62
(a) “No look I made a decision totally in line with the policy of Auckland Council which is that we are an inclusive city, we are a city with 40% migrant population, people born overseas and, you know, I’m not banning anyone by the way. The government can choice to do that if
59 Affidavit of Glen Robert Crighton sworn 23 July 2018 at GRC1 p 59 [CB1 Tab 10 p 306]. 60 Affidavit of Aimee Claire Dartnall affirmed 10 May 2019 at ACD-1 p 1–2 [CB2 Tab 3 p 299– 300]. 61 Affidavit of Michael Frances Maughan sworn 18 July 2018 at MFM-1 p 38–39 [CB1 Tab 2 p 57–58]. 62 Affidavit of Michael Frances Maughan sworn 18 July 2018 at MFM-1 p 38–39 [CB1 Tab 2 p 57–58].
12
it wishes, what I am simply saying is I am not going to aid and abet people that spout racist nonsense by providing them with a venue.”
(b) “Yes, I took that initiative in line with clear council policy which sets out in our Auckland Plan that we are an inclusive society and that means, and I’ve also signed up as, as the other counsellors have, as give nothing to racism. I have signed up that I will not tolerate people who spout racist views.”
(c) “I haven’t stopped them speaking, I have simply not been complicit with their views by providing them with a venue from which to do it”.
2.39 RFA sent Axiomatic a formal cancellation letter on 10 July 2018, which provided:63
3. Since the time the Agreement was entered into, RFA has become aware of information that has led us to the conclusion the Event cannot be hosted at an RFA venue without posing an unacceptable risk to the security and safety of the presenters, RFA staff, contractors, and patrons attending the Event.
4. Accordingly, RFA is not comfortable allowing the Event to proceed at an RFA venue. An update to this effect has been published on our website, and ticket sales via the Ticketmaster website have been suspended.
2.40 As at 18 July 2018, Axiomatic had approached more than six alternative venues.64 All declined to host the Event.65
2.41 Connections to the Mayor or Auckland Council hindered Axiomatic from finding another venue:
(a) The ASB showgrounds advised Mr Pellowe they could not assist because the Mayor is their vice-patron.66
63 Affidavit of David James Pellowe sworn 18 July 2018 at [67] [CB1 Tab 3 p 81] and DJP-1 p 87 [CB1 Tab 4 p 176]. 64 Affidavit of David James Pellowe sworn 18 July 2018 at [97] [CB1 Tab 3 p 84]. 65 Affidavit of David James Pellowe sworn 18 July 2018 at [97] [CB1 Tab 3 p 84]. 66 Affidavit of David James Pellowe sworn 18 July 2018 at [101] [CB1 Tab 3 p 85].
13
(b) The Trusts Arena advised Mr Pellowe that they “have a reporting line to RFA (Regional Facilities Auckland) and that may pose an obstacle”.67
(c) In discussing alternative venues with Mr Pellowe, Mr Crighton focused on whether venues were connected with the Council. For example, in relation to the Logan Campbell venue he said “They’re a trust, but I think they’re independent from the council” and in relation to the Trusts Arena he said “They’re indirectly funded by the council, so don't be surprised if they say no”.68
2.42 All of the Australian events proceeded on the planned days, with varying degrees of protest.69
2.43 Axiomatic eventually, after 30 July 2018, secured the PowerStation venue in Auckland for the Event.70
2.44 The PowerStation owners cancelled the event on 3 August 2018, hours before it was scheduled to start, without giving reasons to Axiomatic.71
3. BACKGROUND OF REGIONAL FACILITIES AUCKLAND
(1) Council-controlled organisations generally 3.1 As noted, RFA is a “council-controlled organisation”. Council-controlled organisations are entities originating in the Local Government Act 2002 (LGA),72 and are described by the Auckland Council Governance Manual in the following terms:73
Council-controlled Organisations (CCOs) perform a vital role in helping the council achieve its strategic goals, delivering a range of services to residents and visitors on behalf of the council. Taken together, their activities make a significant contribution to community wellbeing. The council has a collaborative and
67 Affidavit of Robin Roger Macrae affirmed 15 November 2018 at RRM-2 p 54 [CB2 Tab 5 p 449]. 68 Affidavit of David James Pellowe sworn 15 May 2019 at DJP-2 p 49 [CB2 Tab 4 p 376]. 69 Affidavit of David James Pellowe sworn 15 May 2019 at [5]–[24] [CB2 Tab 4 p 320–323]. 70 Affidavit of David James Pellowe sworn 15 May 2019 at [25]–[27] [CB2 Tab 4 p 323–324]. 71 Affidavit of David James Pellowe sworn 15 May 2019 at [30] [CB2 Tab 4 p 324]. 72 Section 6 of the Act extensively defines the term “council-controlled organisation”. 73 Affidavit of Philip Richard Wilson, sworn 23 July 2018 at PRW1 p 1 [CB2 Tab 2 p 9].
14
cooperative relationship with its CCOs, and views its CCOs as partners in the delivery of the council's objectives and priorities for Auckland.
3.2 Section 59 of the LGA sets out the principal objectives of council-controlled organisations. The scope is wide, potentially spanning commercial and non-commercial objectives:
59 Principal objective of council-controlled organisation
(1) The principal objective of a council-controlled organisation is to— (a) achieve the objectives of its shareholders, both commercial and non-commercial, as specified in the statement of intent; and (b) be a good employer; and (c) exhibit a sense of social and environmental responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so; and (d) if the council-controlled organisation is a council- controlled trading organisation, conduct its affairs in accordance with sound business practice.74 (2) In subsection (1)(b), good employer has the same meaning as in clause 36 of Schedule 7.
3.3 More generally, the stated purpose of the LGA is “to provide for democratic and effective local government that recognises the diversity of New Zealand communities”.75 And relatedly, the purpose of local government includes the enablement of “democratic local decision-making”.76
(2) The creation of RFA and RFAL 3.4 RFAL was established in 2010, as part of what is informally known as the Auckland “supercity merger”.
3.5 The legislation enacting the merger empowered the Governor-General, by order in council, to direct the establishment of council-controlled organisations of the Auckland Council.77
74 RFA and RFAL are not council-controlled trading organisations. 75 Local Government Act 2002, s 3. 76 Local Government Act 2002, s 10. 77 Local Government (Tamaki Makaurau Reorganisation) Act 2009, s 44.
15
3.6 RFA and its holding trustee RFAL were established by cl 9 Local Government (Tamaki Makaurau Reorganisation) Establishment of Council-controlled Organisations Order 2010.
3.7 In accordance with this Order, RFAL was incorporated on 17 October 2010 and is the sole trustee of the charitable trust that holds RFA. Auckland Council is RFAL’s sole shareholder and appoints and removes its directors.78
(3) The objectives and assets of RFA and RFAL
3.8 The trust deed for RFA reflects the objectives in cl 9 of RFA’s establishing Order, which are: 79
(a) Engaging the Communities of Auckland: to support the vision of Auckland as a vibrant city that attracts world class events and promotes the social, economic, environmental, and cultural well-being of its communities, by engaging those communities (and visitors to Auckland) daily in arts, culture, heritage, leisure, sport, and entertainment activities; and (b) Providing World Class Regional Facilities: to continue to develop, applying a regional perspective, a range of world class arts, culture, heritage, leisure, sport, and entertainment venues that are attractive both to residents of and visitors to Auckland.
3.9 RFA is further required to operate on a “prudent commercial basis, so that facilities are operated as successful financially sustainable community assets”.80
3.10 However RFA’s overall objectives are not profit-driven. It is a charitable entity “for the benefit of the public and not for private profit”.81 The trust deed expressly provides that it does not permit RFA’s activities or business to be carried out “for the private profit of any person”. Importantly, the definition of “person” includes local or regional authorities.82
78 Affidavit of Philip Richard Wilson sworn 23 July 2018 at [17] [CB2 Tab 1 p 5]. 79 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 186–187, see cl 3.2 [CB2 Tab 2 p 194–195]. 80 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 187, see cl 3.2(e) [CB2 Tab 2 p 195]. 81 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 186, at cl 3.1 [CB2 Tab 2 p 194]. 82 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 188, see cl 3.6, and 184, see cl 1.1 definition of “person” [CB2 Tab 2 p 194 and 192].
16
3.11 RFA owns or manages $1.3 billion of Auckland’s major facilities, landmark venues, collections and assets. These include:83
(a) ANZ Viaduct Events Centre (building owner only);
(b) Aotea Centre;
(c) Aotea Square (management rights);
(d) Auckland Art Gallery;
(e) Auckland Town Hall (management rights);
(f) Auckland Zoo;
(g) Bruce Mason Centre (unit titles) and Killarney Street car park;
(h) MOTAT (land owner only);
(i) Mt Smart Stadium (building owner only);
(j) QBE North Harbour Stadium;
(k) Queens Wharf, including The Cloud and Shed 10 (managed only);
(l) Spark Arena (ownership interests only);
(m) The Civic;
(n) The Trusts Arena (land owner only);
(o) Western Springs Stadium.84
3.12 RFA continues to receive significant ratepayer subsidies. In 2018, almost 30 per cent of its revenue came from Auckland Council operational grants, totalling approximately $24.1 million.85
83 Affidavit of Philip Richard Wilson dated 23 July 2018 at PRW1 p 205 and 271 [CB2 Tab 2 p 213 and 279]. 84 RFA also provides funding to the Trusts Arena, Vodafone Events Centre, and North Shore Events Centre, although these entities do not have a direct operational connection to RFA: Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 205 [CB2 Tab 2 p 213]. 85 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 216 [CB2 Tab 2 p 224].
17
(4) RFA and RFAL’s relationship with Auckland Council 3.13 As the sole shareholder of RFAL, Auckland Council has shareholder rights in the company in accordance with the Companies Act 1993 and RFAL’s constitution. Auckland Council’s Finance and Performance Committee has the delegated authority to exercise the Council’s power as a shareholder.86 This includes the right to appoint all of RFAL’s directors.
3.14 Because RFA owns or controls assets worth more than $10 million, it is a “Substantive” council-controlled organisation in terms of Auckland Council’s Governance Manual. This means that RFA must “give effect to” Auckland Council’s Long-Term Plan and act consistently with any relevant aspects of council plans and strategies.87
3.15 As a council-controlled organisation, RFA is subject to Auckland Council’s “formal and informal tools and governance processes enable it to influence its CCOs, but not to direct specific operational decisions”. These tools and processes include:88
(a) The Statement of Intent, in which RFA must annually document strategic priorities for the following three years and agree to these with the Council.
(b) Reporting requirements at the end of the first and third quarters, set against the performance measures in the Statement of Intent.
(c) A ‘No Surprises’ protocol, involving a collaborative relationship built on “strong, clear, regular communication”. This means that council-controlled organisations “should assess whether an issue is likely to attract public interest and ensure the mayor, councillors and/or local boards are briefed. This gives the council an opportunity to provide guidance on issues prior to decisions being made or any public release of information.”
86 Affidavit of Philip Richard Wilson sworn 23 July 2018 at [14] [CB2 Tab 1 p 5]. 87 Affidavit of Philip Richard Wilson sworn 23 July 2018 at PRW1 p 2 and 5 [CB2 Tab 2 p 10 and 13]. 88 Affidavit of Philip Richard Wilson sworn 23 July 2018 at [13] [CB2 Tab 1 p 5] and PRW1 p 5– 8 [CB2 Tab 2 p 13–16].
18
3.16 The “No Surprises” protocol does not clearly say or imply that the Mayor has any operational control over a council-controlled organisations such as RFA.
4. PLEADINGS
4.1 The applicants advance three grounds of review against the respondents:
(a) First, that the Decision, the Cancellation and the RFAL Representation were each irrational, perverse and arbitrary. Note that in these submissions, “the Decision, the Cancellation and the RFAL Representation” will generally be subsumed into “the decision to cancel the venue-hire agreement”.
(b) Second, the respondents failed to act consistently with the applicants’ rights guaranteed under the New Zealand Bill of Rights Act 1990.
(c) Third, that the decision to cancel the venue-hire agreement was dictated by Mayor Goff, and was consequently ultra vires and illegal.
4.2 Auckland Council is a party because RFA is a council-controlled organisation and it was involved in the decision to cancel the venue-hire agreement. Mayor Goff is a party because of the third ground of review.
4.3 If the Court is satisfied than one or more of the grounds of review is established, the applicants seek:
(a) an order declaring that RFAL acted unlawfully in
(i) making the Decision;
(ii) cancelling the Licence; and/or
(iii) making the RFAL Representation; and
(b) an order as to costs.
19
5. APPROACH TO JUDICIAL REVIEW
5.1 To the best of counsel’s knowledge, there have been no cases in which courts have considered the amenability to judicial review of decisions made by council-controlled organisations.
5.2 However, the applicants’ submission is that the matters raised in the claim are amenable to judicial review on standard grounds in relation to the exercise of public powers.
5.3 In short, that is because although the decision to cancel the venue-hire agreement did involve a contract, the venue is a public facility, held by a not-for-profit public body, and RFA’s decisions relating to the venue in this case involved public functions.
5.4 However, the respondents plead that RFA was merely acting in a commercial capacity.89 The submissions below anticipate, and deny, arguments by the respondents that assert non-justiciability or a “narrow approach” to judicial review.
(1) A “narrow approach” to reviewability is not required
(A) Decisions involving public law elements – the law 5.5 Courts have expressed caution about reviewing decisions that have little public law element and which are principally commercial or contractual. These issues have principally arisen in challenges to contracting decisions made by State enterprises and procurement decisions by government bodies. In many of these cases, Courts have applied what might be termed a “narrow” approach to reviewability:90
(a) In Ririnui v Landcorp Farming Ltd, the Supreme Court considered the reviewability of a decision made by a State enterprise that had disappointed an iwi’s hopes to secure a contract. The majority held that “even if” the narrow approach to reviewability was correct, it would not necessarily apply to all commercial decisions made by State enterprises. Here, a wider approach to review was required
89 Third Amended Statement of Defence at [35] [PB Tab 2 p 17]. 90 See also Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) at 391; Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZHC 385, [2009] 1 NZLR 776 at [76]–[79], [87].
20
because this was not an “ordinary commercial transaction”, as indicated by the special Treaty of Waitangi context in which the decision was made, and in which this State enterprise operated.91
(b) Most recently, the Court of Appeal considered the reviewability of commercial decisions in Attorney-General v Problem Gambling Foundation of New Zealand.92 The context was a procurement decision for public health services associated with gambling, made by the Ministry of Health. The Court distinguished Ririnui on the basis of the “broader public interests” that were at play in that case.93 It held that the “narrow” approach to review should apply, as indicated by the following factors:
(i) Significantly, the decision was a procurement decision made by the Ministry and was thus commercial;94
(ii) Significantly, the applicant was a disappointed commercial party seeking public law remedies to address prejudice to its commercial prospects, not seeking to raise wider public interest issues;95
(iii) The procurement process did not create contractual relations and left an informal process for concluding the contracts;96
(iv) The governing legislation did not stipulate any procedural protections; 97
91 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [65]-[67], per Elias CJ and Arnold J, Glazebrook J concurring at [147]. 92 Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 409, [2019] 2 NZLR 470. 93 At [46]. 94 At [41], [53]. 95 At [42], [53]. 96 At [49], [53]. 97 At [48].
21
(v) The mandatory rules for procurement were non-legal directives and did not create enforceable procedural obligations for disappointed parties; 98
(vi) Alternative avenues to address concerns existed, such as the Ombudsman, the Auditor-General and Parliament;99 and
(vii) A broader scope of review might handicap the Ministry’s ability to meet its objective of providing public health services.100
5.6 None of these cases suggest that a “narrow” approach to reviewability should apply in this instance. Rather, the factors indicate in favour of reviewability.
(B) RFA and RFAL are not analogous to State enterprises 5.7 The nature of a council-controlled organisation is different from that of a State enterprise.
5.8 Unlike council-controlled controlled organisations, the “principal objective of every State enterprise” is to “operate as a successful business” and, in addition, be “as profitable and efficient as comparable businesses that are not owned by the Crown”.101
5.9 In contrast, the LGA does not require council-controlled organisations to have specifically commercial or profit-driven objectives. Instead, their objectives can be “commercial or non-commercial”, as specified in each organisation’s statement of intent.
98 At [51]. 99 At [50]. 100 At [52]. 101 State-Owned Enterprises Act 1986, s 4: 4 Principal objective to be successful business (1) The principal objective of every State enterprise shall be to operate as a successful business and, to this end, to be— (a) as profitable and efficient as comparable businesses that are not owned by the Crown; and (b) a good employer; and (c) an organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so.
22
5.10 RFA’s charitable trust deed, as affirmed in its statement of intent, is decidedly “not for profit”. Although RFA has to operate on a “prudent commercial basis”, this must be read alongside its wider, social objective of “[e]nriching life in Auckland by engaging people in the arts, environment, sport and events.”
5.11 The lack of commerciality is also indicated by the fact that RFA continues to receive significant subsidies from the Auckland Council. Auckland Council’s subsidisation of RFA might explain why Axiomatic had difficulty relocating the Event to a private-sector venue.
5.12 Therefore, the narrow approach to review of State enterprise decisions need not be applied. Rather, the decisions should be analysed to see if they are “commercial” in the sense required by Problem Gambling.
(C) The decision in this case was not “commercial” so as to require the “narrow approach” 5.13 The decisions made by RFA in this case, and the context in which RFA operates, were not “commercial”. The regular approach to reviewability should apply.
5.14 The context of this case can be contrasted against many of the factors the Court of Appeal considered relevant to the adoption of the “narrow” approach in Problem Gambling.
5.15 First, although the decisions did involve a contract (the venue-hire agreement) the decisions were not made in a competitive procurement context, and no factors indicate that RFA’s decision to cancel the venue-hire agreement was economically motivated or profit-driven. The decisions lack any real degree of commerciality.
5.16 Second, the applicants are not disappointed commercial parties seeking public law remedies to address prejudice to their commercial prospects. Significantly, they are bringing these proceedings because of the public interest concerns raised by RFA’s decisions. And, only declaratory relief is sought.102
102 See Affidavit of Malcolm Bruce Moncrief-Spittle sworn 18 July 2018 from [7] onwards [CB1 Tab 1 p 2 onwards]; and Affidavit of David Cumin affirmed 20 July 2018 at [49] [CB1 Tab 6 p 202–203].
23
5.17 Thirdly, the parties in this case did have contractual relations, but RFA made the positive decision to cancel that contract. Legal relations existed, the proximity between RFA and Axiomatic was not “informal”.
5.18 Fourthly, there is nothing indicating that applying a broader scope of review in this case would realistically stymie RFA’s ability to meet its objectives.
(D) The decision in this case did not involve an “ordinary commercial transaction” 5.19 This was not an “ordinary commercial transaction”.103 Rather, RFA’s decision to cancel the venue-hire agreement engaged broader public interests that, as in Ririnui, indicate that a narrow approach to judicial review should not be adopted:
(a) The Event was going to be a forum for members of the public to attend and engage with well-known international speakers about politically topical matters.
(b) RFA’s own evidence indicates that it was aware of the nature of the Event when it made the decision to cancel the venue hire agreement.104
(c) The Event also fell broadly within the ambit of RFA’s objectives to “promote the social, economic, environmental, and cultural well-being of its communities, by engaging those communities (and visitors to Auckland) daily in arts, culture, heritage, leisure, sport, and entertainment activities”.
(d) The Event would have engaged wider, democratic issues of relevance to Aucklanders and New Zealanders.
(e) There was a high level of governmental involvement in RFA’s decision to cancel the venue-hire agreement. Mayor Goff and Mr Town (Auckland Council CEO) both contacted RFA about the Event on multiple occasions in the 24 hours leading to the decision, including asking RFA to respond to complaints. On 6 July, the
103 Per Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [65]. 104 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [17] [CB1 Tab 9 p 239].
24
Mayor’s Office was also in continuous contact with RFA to “match up timing” of their respective communications.
(f) RFA’s decision ultimately deprived the prospective attendees, such as Mr Moncrief-Spittle, of the ability to participate in the Event and engage with the Speakers through the filter of a public forum.
5.20 These factors all indicate against a “narrow” approach to judicial review.
(2) The absence of a literal “statutory power of decision” is not determinative 5.21 These proceedings have been brought under part 30 of the High Court Rules 2016, which does not include the “statutory power of decision” gateway to review under the Judicial Review Procedure Act 2016 (JRPA).
5.22 However, even if the Court were to treat these proceedings as if they were brought under the JRPA, it would not be necessary for the applicants to identify a specific “statutory power of decision” to establish reviewability:
(a) In Mercury Energy v Electricity Corporation of New Zealand, the Privy Council accepted that, in principle, contracting decisions made by a State enterprise can be amenable to judicial review under both the common law and the Judicature Amendment Act 1972 (the precursor to the JRPA),105 even where there was no exercise of a statutory power. This was because “decisions made by a body established by statute, may adversely affect the rights and liabilities of private individuals without affording them any redress”.106
(b) In Royal Australasian College of Surgeons v Phipps, the Court of Appeal said that “[t]he Courts have made it clear that in appropriate situations, even although there may be no statutory power of decision or the power may in significant measure be contractual, they are willing to review the exercise of the power…”.107 In that case, the Court reviewed a decision (under the Judicature Amendment Act) because it was made pursuant to a combination of
105 Both under common law and the Judicature Amendment Act 1972 (precursor to the Judicial Review Procedure Act 2016). 106 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) at 388. 107 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 12.
25
contractual and constitutional powers. Although these powers did not specifically grant a power to make the decision, they were both necessary for the decision to be made.108
(3) Conclusion 5.23 There is no barrier to the reviewability of the decision to cancel the venue-hire agreement, and judicial review can proceed on the standard basis, considering matters beyond “fraud, corruption, bad faith or analogous circumstances”.
6. FIRST GROUND OF REVIEW: THE DECISIONS WERE IRRATIONAL, PERVERSE AND ARBITRARY
6.1 The normal approach to judicial review should apply. Although the decision was nominally made in a local government context, it is not a rating, bylaw or policy decision that made by democratically elected representatives of the kind that might customarily receive a “deferential” approach to review.109
6.2 The applicants’ primary submission, founded on common law principles, is that RFA’s decision to cancel the venue-hire agreement was irrational, perverse and arbitrary for several reasons.
(1) Absence of information and inquiries 6.3 First, RFA made the decision in the absence of relevant information, disregarding proper inquiries. The learned authors of De Smith’s Judicial Review observe that “a material mistake or disregard of a material fact in and of itself renders a decision irrational or unreasonable”.110 The key facts in this case indicating this form of irrationality are that:
(a) At 9.30am on 5 July, RFA “flagged” the event to its security team. At 11.37am, its head of security (Mr Kidd) advised they will “gather further intelligence”, and then advise of three things: “findings”, “risk rating” and “mitigation strategies”. Yet RFA cancelled the Event within the next 24 hours. Seemingly unaware, Mr Kidd was still
108 At 12. 109 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397, 413. 110 Woolf and others De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013) at [11-056].
26
gathering intelligence at 3.49pm on 6 July (hours after the venue-hire agreement had been cancelled).111
(b) The OIA information obtained after the cancellation shows that the Police did not actually receive any threats in relation to the Event, whether directly or indirectly.112
(c) When Mr Macrae from RFA informed Axiomatic about the decision to cancel the venue-hire agreement, he said “we’ve had some early conversations with the Police”.113 But it now appears this was untrue, and there had been no conversations with the Police at this stage.
(d) In less than 24 hours, RFA’s position changed from having minimal concerns about the Event, to cancelling it. On the afternoon of 5 July, Mr Crighton remained of the view that the complaints “were not out of the ordinary for an event that involved political discussions, but that it was prudent to find out more about the tour”.114 Auckland Peace Action threatened to blockade the Event in the morning of 6 July, and RFA made the decision to cancel the venue-hire agreement less than two hours after that. The decision did not demand this level of urgency.
(e) RFA reached the view that health and safety risks could not be managed 18 days before Axiomatic was required to return their risk management form (which would have been 24 July 2018). Axiomatic considers that it may have been able to effectively manage the risks.
(f) RFA engaged in no real consultation with Axiomatic about its own ability to manage the Event before making the decision to cancel the venue-hire agreement. And, RFA refused to engage with Axiomatic when Axiomatic indicated that it had its own, skilled security personnel.
111 Affidavit of Glen Robert Crighton sworn 7 July 2018 at [22] [CB1 Tab 9 p 240] and GRC1-59 [CB1 Tab 10 p 59]. 112 Affidavit of Aimee Claire Dartnall affirmed 10 May 2019 at ACD-1 p 1–2 [CB2 Tab 3 p 299– 300]. 113 Affidavit of David James Pellowe sworn 14 May 2019 at DJP-2 p 36 [CB2 Tab 4 p 363]. 114 Affidavit of Glen Robert Crighton sworn 23 July 2018 at [24]–[26] [CB1 Tab 2 p 240–241].
27
(2) Failure to follow own procedure 6.4 Second, RFA’s irrationality is indicated by the fact that it failed to follow or consider its own detailed health and safety procedures before deciding to cancel the venue-hire agreement on health and safety grounds.115 In Chiu v Minister of Immigration, the Court of Appeal held that the New Zealand Immigration Service’s failure to properly interpret its own manual meant its decision was unreasonable.116
(3) The “thug’s veto” 6.5 Thirdly, hastily cancelling the venue-hire agreement on the basis of a purported (and unsubstantiated) threat by a protest group also creates a perverse situation: what Dr Cumin calls the “thug’s veto”.117
6.6 Related to this idea of a “thug’s veto” is the principle, established in the 1882 decision Beatty v Gillibanks, that people who assemble for a lawful object not intending to break the peace do not constitute an unlawful assembly, despite the fact they might have reason to believe that a breach of the peace will occur because their meeting could be protested by others.118 That case involved militant members of the Salvation Army who had been charged with unlawful assembly and disturbing the peace after their parade was met with riotous protest from the antagonistic “Skeleton Army”.
6.7 Placing those who wish to peacefully assembly for lawful purposes at the mercy of protestors (or rumours of protestors) puts a perverse amount of power in the hands of the protestors. Such a situation has a particularly harmful impact on someone in the situation of Dr Cumin, a member of New Zealand’s Jewish community. He wishes to engage in public events about Israel and Jewish life which, though innocuous, are frequently protested and threatened with disruption, sometimes violent disruption.119 But on RFA’s logic, any of these events at a RFA venue could be liable to cancellation based on rumours of protests. This would be a perverse outcome.
115 Affidavit of Aimee Claire Dartnall affirmed 10 May 2019 at ACD-1 p 13 to 20 [CB2 Tab 3 p 311–318]. 116 Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA) at 550. 117 Affidavit of David Cumin affirmed 20 July 2018 at [37] [CB1 Tab 6 p 200]. 118 Beatty v Gillbanks (1882) 9 QBD 308. While this decision was later described as “somewhat unsatisfactory” by Lord Hewart CJ in Duncan v Jones [1936] 1 KB 218, Lord Carswell in the House of Lords said the same criticism could be made of the latter case; see R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55, [2007] 2 AC 105 at [99]. 119 Affidavit of David Cumin affirmed 20 July 2018 at [37] to [49] [CB1 Tab 6 p 200–202].
28
(4) Inconsistent with freedom of speech as protected by the common law 6.8 Fourthly, the decision to cancel the venue-hire agreement was irrational, arbitrary and perverse because it unduly trampled on the common law rights of free speech and expression held by the Event organisers and the ticketholders.
6.9 In Attorney-General (SA) v Corporation of the City of Adelaide, French CJ in the High Court of Australia cited considerable authority, going back to Blackstone, when making the observation that “[f]reedom of speech is a long-established common law freedom”.120 In the same case, Heydon J also observed that “[t]he common law right of free speech is a fundamental right or freedom falling within the principle of legality”.121
6.10 Halsbury’s Laws of England, while recognising that it was “traditionally seen as a residual right” traverses the areas where the common law right to freedom of speech gained prominence, including in relation to defamation, open justice, and Parliamentary privilege:122
464. Freedom of expression in domestic law.
Freedom of expression finds some historic recognition in the common law of England and Wales. Defences of fair comment and justification were raised as early as 1891 in response to libel suits, and in the twentieth century a number of statutes made explicit reference to freedom of expression. The principle of open justice has been at the heart of the judicial system for almost a century. However, freedom of expression was traditionally seen as a residual right, with the concept of a positive right to free expression going unprotected in English law until the enactment of the Human Rights Act 1998, by which time the courts had already begun to rely on the concepts of freedom of expression and freedom of the press in their development of the common law and their interpretation of statutes and freedom of expression was already considered to have attained the status of a constitutional right.
The common law affords some types of speech particular protection: for example, debate and proceedings in Parliament are absolutely privileged against impeachment or question in any
120 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [43] and fn 165, citing “Blackstone, Commentaries on the Laws of England (1769), bk 4, pp 151-152; Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ; R v Commissioner of Metropolitan Police; Ex parte Blackburn [No 2] [1968] 2 QB 150 at 155 per Lord Denning MR; Wheeler v Leicester City Council [1985] AC 1054; Attorney-General (UK) v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 at 203 per Dillon LJ.” 121 At [151]. 122 Halsbury’s Laws of England (5th ed, 2018, online ed) vol 88A Rights and Freedoms at [464].
29
court or place outside of Parliament, and reports of parliamentary proceedings are also privileged. Reports of court proceedings are privileged against defamation actions as long as they are fair, accurate and not motivated by malice. Anything said by witnesses, advocates or judges in the course of litigation or as part of the process of investigating crime is also protected from defamation actions.
6.11 By cancelling the venue-hire agreement against a backdrop of unsubstantiated security concerns, RFA, without proper justification, acted inconsistently with the common law rights of freedom of speech held by the Event organisers, the Speakers, and prospective attendees such as Mr Moncrief-Spittle. They were denied the right to participate in the Event, held at the Venue, where they could openly engage with political ideas through discussion and debate – not only with the Speakers, but with others who would be attending. There is no suggestion that these people would be participating in anything unlawful at the Event.
6.12 There does not appear to be any positive law abrogating the residual common law right of freedom of speech in this situation.123 It was perverse for RFA to give it apparently minimal consideration to this fundamental right in its decision-making process.
(5) Conclusion 6.13 Each of the four matters, whether considered individually or cumulatively, indicate that RFA’s decision to cancel the venue-hire agreement was irrational, perverse, arbitrary and unlawful as a matter of common law principle and authority. This Court should declare it as such.
7. SECOND GROUND OF REVIEW: RFA FAILED TO ACT CONSISTENTLY WITH NZBORA
(1) NZBORA applies to RFA’s decision 7.1 The applicants’ submission is that NZBORA applies to RFA’s responsibilities as a council-controlled organisation pursuant to s 3(b):124
123 Especially to the extent that the safety concerns were still unexplored at the time of cancellation. 124 See New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2 NZLR 834 at [47]: “The NZBORA undoubtedly applies to the Council’s responsibilities as a supplier of water pursuant to s 3(b)”. This was tacitly accepted on appeal by the Supreme Court and Court of Appeal.
30
3 Application This 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.
7.2 The question of whether an act was done in the performance of a “public function, power or duty” is not identical to the question of amenability to judicial review. 125 However many of the considerations will be similar.
7.3 In Low Volume Vehicle Technical Association Inc v Brett, Kós P for the Court of Appeal noted that courts should apply a “generous interpretation” to the scope of s 3(b).126 The key question is whether “[the power, function or duty] is ‘governmental’ in nature or is it essentially of a private character?”127 His Honour then affirmed several “non-exclusive indicia” of public functions, powers and duties that had been set out in an earlier High Court decision:
[25] The essential focus of the Court’s enquiry here is on the act undertaken, and whether it was “in the performance of a public function, power or duty” conferred by law. As Randerson J observed in Ransfield v Radio Network Ltd, in a broad sense the issue is how closely the particular function, power or duty is connected to or identifies with the exercise of the powers and responsibilities of the State. In other words: “Is [the power, function or duty] ‘governmental’ in nature or is it essentially of a private character?” Randerson J went on to suggest certain non- exclusive indicia: ownership (public or private); economic purpose (for profit or not); whether the source of the function, power or duty is statutory; the extent of governmental control; any public funding for the function, power or duty; whether the entity is “effectively standing in the shoes of the government in exercising the function, power or duty”; whether it is exercised in the broader public interest (as opposed to simply being of benefit to the public); whether coercive powers analogous to those held by the State are conferred; whether the functions, powers or duties affect the rights, powers, privileges, immunities, duties, or liabilities of any person; whether the powers are extensive or monopolistic; and whether the entity is democratically accountable.
7.4 Applying these non-exclusive indicia to the present case, it is apparent that RFA’s responsibilities, including the acts at issue in this proceeding, were
125 Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC) at [69](e). 126 Low Volume Vehicle Technical Association Inc v Brett [2019] NZCA 67 at [24]. 127 At [25].
31
done in the “performance of [a] public function”. Many of these points have been made earlier in relation to reviewability, but are repeated here for convenience:
(a) There was a high level of government involvement in the decision to cancel the venue-hire agreement. Mayor Goff and Mr Town (Auckland Council CEO) both contacted RFA about the Event on multiple occasions in the 24 hours leading to the decision, including asking RFA to respond to complaints. On 6 July, the Mayor’s office was also in continuous contact with RFA to “match up timing” of their respective communications.
(b) RFAL and RFA are owned by the Auckland Council, and were created by Parliamentary Order. The Bruce Mason Centre was also vested in RFA by Parliamentary Order.
(c) RFA is a not-for-profit charitable trust. It is a CCO that has to exhibit a sense of social responsibility.
(d) In 2018, almost 30 per cent of RFAL’s revenue came from the Auckland Council, so it is in effect ratepayer subsidised. Moreover, RFAL’s operating loss also helps to explain why Axiomatic had difficulty in relocating the Event to a private sector venue.
(e) RFA has broad social objectives of “supporting Auckland as a vibrant city” through “arts, culture, heritage, leisure, sport, and entertainment activities”.
(f) The large venues owned or managed by RFA (such as the Bruce Mason Centre) are not comparable to the other Auckland Council venues, “such as community centres or war memorial halls”, which are “non-professional community facilities” that are unlikely to be suitable for large, ticketed events for between 600-1,200 people.128
(g) Venues for debate and exchange of ideas (such as town halls) have traditionally formed a part of the services offered by local governments in New Zealand. The commercialisation of these
128 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [23] [CB2 Tab 7 p 493].
32
venues should not negate their ongoing role and function in public life.
(h) The decision to cancel the Event was made on “safety and security grounds”, which in itself is a public interest basis. Moreover, the “safety and security grounds” did not arise because of the inherent nature of the Event, but purportedly because of fears about protestors.
(i) The decision to cancel the venue-hire agreement affected the contractual rights of Axiomatic (the organisers of the Event), and this consequentially affected the contractual rights of the applicants (as ticketholders), who were unable to attend any event. The decision ultimately meant that no event featuring the Speakers could go ahead.
(2) The relevant NZBORA rights 7.5 The case raises five of the fundamental freedoms guaranteed under NZBORA:
13 Freedom of thought, conscience, and religion Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
14 Freedom of expression Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
16 Freedom of peaceful assembly Everyone has the right to freedom of peaceful assembly.
17 Freedom of association Everyone has the right to freedom of association.
19 Freedom from discrimination (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
7.6 Section 5 of NZBORA provides the mechanism by which the fundamental rights and freedoms may be lawfully restrained.
5 Justified limitations Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such
33
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7.7 In relation to s 5, in Hansen v R McGrath J observed:129
To be prescribed by law, limits must be identifiable and expressed with sufficient precision in an Act of Parliament, subordinate legislation or the common law. The limits must be neither ad hoc nor arbitrary and their nature and consequences must be clear, although the consequences need not be foreseeable with absolute certainty.
7.8 The applicants’ submission is that the decision to cancel the venue-hire agreement was inconsistent with these fundamental rights, which were mandatory considerations that RFA failed to properly consider.
(A) Freedom of expression/speech as a fundamental right 7.9 Freedom of expression, as set out in s 13 of NZBORA, is an especially important right in a free and democratic society.
7.10 In Attorney-General v Smith, Kós P, writing for the Court of Appeal, adopted the four rationales for protection of freedom of expression and freedom of speech, as explained by Professor Petra and Dr Andrew Butler.130
7.11 The Court of Appeal said the first, and most influential justification for free speech, was the “marketplace of ideas”, articulated by Oliver Wendell Holmes J in his dissenting judgment in Abrams v United States. The Court of Appeal observed that:131
The marketplace is the best test of truth and offensive, bad and false ideas should all be permitted to be expressed and then criticised without the predetermination inherent in censorship or like constraints. It might be noted that Holmes J lived in a pre- “post-truth” world, whereas nowadays unregulated social media permits just about anything to be published. But earlier centuries had pamphleteers operating in much the same way; it was only their reach that was really different.
7.12 The second rationale for freedom of speech was that it is “the engine room of a democratic state”. The Court noted that effective democratic
129 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [180], per McGrath J. 130 Attorney-General v Smith [2018] NZCA 24, 2018] 2 NZLR 899. See Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington 2015) at [13.6]. 131 At [34]. See Abrams v United States (1919) 250 US 616 at 630.
34
government works best through vigorous debate; something that only a broad conception of free speech can maintain.132
7.13 Thirdly, the Court of Appeal observed that freedom of expression is valuable in its own right as a matter of human self-fulfilment. The Court referred to the Supreme Court of Canada decision R v Sharpe, where L’Heureux-Dubé, Gonthier and Bastarache JJ held self-fulfilment is one of the rationales for free expression and therefore “all content regardless of its popularity, aesthetic or moral tastefulness or mainstream acceptance” is protected. The Court also cited further sources supporting this rationale: 133
Professor Claudia Geiringer and Steven Price add to this that speech is part of who we are. Emotional and intellectual development is facilitated by self-expression. That covers “all communicative expression”. The European Court of Human Rights has observed that the right to create, perform, distribute or exhibit works of art contributes to an exchange of ideas and personal fulfilment of individuals and that that is essential for a democratic society.
7.14 Finally, the Court noted the importance of freedom of speech as a “societal safety valve”. This was said to be because, “repression by the government of free speech encourages conspiracy”; and “in the battle for public order, free speech is the ally, not the enemy”. The Court also cited the speech of Lord Steyn in R v Secretary of State for the Home Department, ex parte Simms, in which His Lordship said that “people are more ready to accept decisions that go against them if they can in principle seek to influence them.”134
7.15 As noted above, freedom of expression/speech has common law underpinnings substantially predating its statutory recognition in NZBORA.
7.16 In Attorney-General v Smith, the Court of Appeal also applied a “hierarchical analysis” to protected expression, with political, intellectual and educational speech being “high value”. “Low value” speech was characterised as including “mundane and innocuous” expression such as private discourse or
132 At [35]. 133 At [36]. See R v Sharpe (2001) 194 DLR (4th) 1 (SCC) at [141]. 134 At [37]. See R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 126.
35
commercial radio, or hateful and dangerous speech. Constraint of the former would “seldom be justifiable under s 5”.135
7.17 By cancelling the venue-hire agreement, RFA affected the rights of prospective attendees (those in the class of Mr Moncrief-Spittle) from expressing their views at the Event, which was in the nature of a public forum. The rights of Axiomatic and the Speakers were similarly affected.
(B) Freedom of thought, and to adopt and hold opinions 7.18 Section 13 of NZBORA protects the right to freedom of thought. Professor Petra and Dr Andrew Butler observe that it complements the right to freedom of expression found in s 14 of NZBORA136
7.19 The New Zealand Courts have not considered the right to freedom of thought, or the right to adopt and hold opinions, in any great detail. In Moonen v Film and Literature Board of Review, the Court of Appeal dismissed the argument that classifying a book as objectionable material breached the appellant’s s 13 right of freedom of thought:137
[37] … The fact that the recipients are by the censorship deprived of the opportunity of forming such thoughts is inherent in the concept of censorship, but it is not the thoughts that are being censored.
7.20 Professor Petra and Dr Andrew Butler criticise this reasoning, however, observing that “it is hard to see how censorship of the book did not indirectly also censor the thoughts potential readers would have.”138
7.21 The applicants’ submission is that the decision to cancel the venue-hire agreement indirectly affected the rights of prospective attendees to form thoughts and opinions as the Speakers dynamically expressed their views at the event, through the critical filter of a public forum. To this extent, the right in s 13 was engaged and should have been considered by RFA.
135 At [38]. 136 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington 2015) at [14.19]. 137 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [37]. 138 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington 2015) at [14.6.16].
36
(3) Freedom of association and assembly 7.22 The rights of freedom of association and lawful assembly have been recognised at common law as being corollaries to individual liberty and freedom of speech.139
7.23 Recently, in Ineos v Upstream Ltd v Persons Unknown, the English Court of Appeal noted the common law’s guarantee of this right, observing that Professor Dicey had discussed in-depth “the right of public meeting”:140
36 The right to freedom of peaceful assembly is guaranteed by both the common law and article 11 of the ECHR. It is against that background that the injunctions have to be assessed. But this right, important as it is, does not include any right to trespass on private property. Professor Dicey in his Introduction to the Study of the Law of the Constitution, 10th ed (1959) devoted an entire chapter of his seminal work to what he called the right of public meeting saying this at p 271:
“No better instance can indeed be found of the way in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than a result of the view taken by the courts as to individual liberty of person and individual liberty of speech. There is no special law allowing A, B and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E, and F, and so on ad infinitum, lead to the consequence that A, B, C, D, and a thousand or ten thousand other persons, may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner.”
7.24 In Morse v Police, Elias CJ explained the wide applicability of the right to freedom of assembly:141
[110] … [M]embers of the public are entitled to enjoy tranquillity and security in public places. They also enjoy rights protected by the Bill of Rights Act, in particular, the right to freedom of peaceful assembly. That right, which is usually claimed by those engaged in political protest, complements other civil rights under the Bill of Rights Act, including freedom of expression. Freedom of assembly is not limited to gatherings for the purpose of protest. It extends to formal and informal assemblies in participation in community life. Gatherings for purposes that are ostensibly less political are
139 Watch Tower Bible and Tract Society v Mount Roskill Borough [1959] NZLR 1236 (SC) at 1242. 140 Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515, [2019] 4 WLR 100. 141 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
37
also important to citizens for forming opinions and, ultimately, for participating in the democratic process.
7.25 Cancelling the venue-hire agreement affected the rights of prospective attendees (ie those in the class of Mr Moncrief-Spittle) to peacefully assemble at the securely controlled public venue, and to freely associate with others who also wish to engage with and critique the ideas of the Speakers.
7.26 It also threatens the freedom of Dr Cumin and the class of people that he represents to access events, peacefully assemble and associate at public venues run by RFA.
(4) Freedom from discrimination 7.27 The prohibited grounds of discrimination under s 21 of the HRA include
(j) Political opinion, which includes the lack of a particular political opinion or any political opinion:
7.28 Unlawful discrimination would contravene s 19 of the NZBORA and also have consequences under the HRA. Relevantly, these include:
65 Indirect discrimination Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part of this Act has the effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part of this Act other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.
7.29 RFA’s cancellation of the venue-hire agreement followed complaints made to RFA and Auckland Council staff relating to the political views of the Speakers. While it may have been RFA’s perception that protests caused by these possibly controversial views would raise safety concerns, the cancellation put those wishing to attend this Event in a less advantageous position than those who might wish to attend a less controversial political event.
7.30 The result was that the cancellation of the venue-hire agreement indirectly discriminates against the Speakers and those who might hold political
38
opinions sympathetic to the Speakers, such as Mr Moncrief-Spittle who is “essentially a fan and admirer of Southern and Molyneux’s work.”142
(3) RFA failed to take the NZBORA rights into consideration 7.31 In a free and democratic society that affirms the NZBORA rights, it is incumbent on officials performing public functions to acknowledge NZBORA rights when making discretionary decisions, and be “alive” to the NZBORA implications of their decision. This was the conclusion Wylie J reached in Smith v Attorney-General, a case involving a prisoner who wished to wear a wig but was not permitted to do so by his prison manager.143
7.32 His Honour held that s 14 was a mandatory relevant consideration for the prison manager, who should have considered whether the decision was a reasonable limit prescribed by law; “[I]n other words, she should have acknowledged the right affirmed by s 14 and considered s 5 of the NZBORA.”144
7.33 While our case lacks the prison backdrop of Smith, the nature of RFA’s decision and its context still demands that proper attention should have been given to NZBORA considerations.
7.34 The content of discussion at the Event involved topical political speech at the “high level” of the hierarchy. RFA personnel knew this. This meant that extra consideration should have been given to whether cancellation was justifiable in light of the (unsubstantiated) security risk.
7.35 Mr Macrae from RFA indicates that when he was deciding whether to cancel the Event, he considered the “Freedom of Speech Policy 2016/7 of the University of Bristol” and the “Nottingham Trent University Code of Practice on Freedom of Speech”. This was because RFA did not have a policy that covered a situation like this.145
7.36 Neither of these documents dictate the procedure or result reached in this case, even if they are relevant:
142 Affidavit of Malcolm Bruce Moncrief-Spittle sworn 18 July 2018 at [39] [CB1 Tab 1 p 9]. 143 Smith v Attorney-General [2017] NZHC 463, [2017] 2 NZLR 704 at [74]. This decision was overturned on appeal, but on a different ground (being that a prisoner’s desire to wear a wig did not engage the principle of freedom of expression). 144 At [74]. 145 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at [63] [CB2 Tab 7 p 501].
39
(a) The Bristol policy indicates that “concern about public order issues does not automatically block such an event taking place” and that advice should be sought about the matter, including from Security Services,146 as well as Police and the Public Relations Department.147
(b) The Nottingham Trent Code does not principally address public order concerns, being focussed more on speakers with terrorist or extremist views. But it does says that safety and security will be given consideration when determining whether to hold an event.148
7.37 If a purported security risk posed by protesters was the only reason for cancelling the Event, then the decision to cancel the venue-hire agreement could not have been demonstrably justifiable in this case. Protest is a risk that arises with most political speakers and one that Axiomatic and the Bruce Mason Centre could, in conjunction with the Police and other security service, have been well-equipped to deal with. Indeed, none of the public venues in Australia concluded that the risk was unacceptable. Auckland was the outlier. And the undue haste with which RFA made the decision meant that the balancing of NZBORA rights against the security risks was not properly performed.
7.38 Cancelling the Event was a radical decision, and one that failed to respect fundamental rights under the NZBORA. It should have been a last resort option. Yet, RFA refused to engage with both Axiomatic and the Police so as to explore the concerns or attempt to develop solutions that would uphold the four fundamental freedoms in the face of threats of coercive opposition.
(4) Conclusion 7.39 RFA failed to act consistently with the applicants’ rights guaranteed under NZBORA, in that it failed to consider how the decision to cancel the venue-hire agreement would affect the NZBORA rights of parties, principally those of prospective attendees such as Mr Moncrief-Spittle.
146 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 38 [CB2 Tab 8 p 547]. 147 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 37 [CB2 Tab 8 p 546]. 148 Affidavit of Robin Roger Macrae affirmed 19 June 2019 at RRM3 p 44 [CB2 Tab 8 p 553].
40
8. THIRD GROUND OF REVIEW: INVOLVEMENT OF MAYOR GOFF
8.1 The third ground of review is contingent because it remains unclear whether Mayor Goff influenced the conduct of RFA.149
8.2 Mayor Goff publicly claimed responsibility for the decision to cancel the venue-hire agreement, including in the Tweet and during his interview with RNZ Morning Report:
(a) On 6 July 2018 at 2.13 pm, Mayor Goff tweeted:150
@AklCouncil venues shouldn’t be used to stir up ethnic or religious tensions. Views that divide rather than unite are repugnant and I have made my views on this very clear. Lauren Southern and Stefan Molyneux will not be speaking at any Council venues.
(b) On 10 July 2018, Mayor Goff was interviewed on Radio New Zealand’s Morning Report. During that interview, Mayor Goff made the following comments:151
Gyles Beckford: Well did you make the decision [to ban two far right Canadian activists from speaking at City Council venues] by yourself?
Phil Goff: No look I made a decision totally in line with the policy of Auckland Council […]
Gyles Beckford: I still don’t know whether you - did you make the decision yourself? Or did you consult with them?
Phil Goff: Yes, I took that initiative in line with clear council policy that sets out in our Auckland Plan that we are an inclusive society and that means, and I’ve signed up to this, as the other counsellors have, as give nothing to racism. […]
8.3 Mayor Goff’s own claims now appear to stand in contrast to the evidence of RFA’s staff members. They disclaim any involvement of Mayor Goff in RFA’s decision to cancel the Event. For example, Mr Macrae, the director of Auckland Live says that he made the decision to cancel the contract, and that
149 Third Amended Statement of Claim at [31] and [48] [PB1 Tab 1 p 6 and 10]. 150 Affidavit of Michael Francis Moughan sworn 18 July 2018 at MFM-1 p 35 [CB1 Tab 2 p 53]. 151 Affidavit of Michael Francis Moughan sworn 18 July 2018 at MFM-1 p 38 [CB1 Tab 2 p 57].
41
he “did not experience or feel any pressure from the Mayor or the Mayor’s office about cancelling the Event.”152
8.4 Similarly Mr Brewer, a member of the RFAL executive team, deposes that:153
“in terms of the decision to cancel, I emphatically confirm that I felt no pressure at any time from the Mayor’s office in relation to the Event. I also confirm that I am sure that I did not indicate to anyone else in RFAL that there was any pressure from the Mayor or the Mayor’s office to cancel the Event.”
8.5 There is no lawful basis for Mayor Goff to have involved himself in the decision to cancel the venue-hire agreement:
(a) the Mayor of Auckland does not have any lawful power or function to grant or cancel licences to use the public venues;
(b) CCOs are required to operate independently of the Mayor and other councillors;154
(c) The RFA, who is wholly owned and controlled by the Auckland Council, is responsible for granting licences to use the public venues.
8.6 There is also a public interest in ensuring that an influential politician such as the Mayor of Auckland is not the arbiter of acceptable political opinion. The undesirability of such a situation was explained in Browne v Canwest TV Works Ltd, where Wild J in the High Court held that it would have been inappropriate for the Broadcasting Standards Authority, an independent statutory body, to take account of the views of then Prime Minister Helen Clark as to what constituted standards of good taste and decency:
[76] The Prime Minister’s comments could be viewed as indicative of current standards of good taste and decency. Because of her position as leader of three successive governments, the Prime Minister’s views command respect. On the other hand, it could be objected that, on a topic such as Bloody Mary, the Prime Minister’s views had no more validity than those of any other responsible individual. A further point that may have influenced the Authority in not referring to the Prime Minister’s views is that the Authority is constituted as an independent body. […] Referring to the Prime Minister’s views about Bloody Mary would invite the criticism that the Authority
152 Affidavit of Robin Roger Macrae affirmed 23 July 2018 at [5], [49] and [51] [CB1 Tab 11 p 350, 357 and 358]. 153 Affidavit of Paul Newton Brewer sworn 23 July 2018 at [22] [CB1 Tab 7 p 209]. 154 Local Government Act 2002, s 60.
42
was not acting independently. It would also cause the Authority to infringe the general principle of law that discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion.
8.7 To the extent the decision to cancel the venue-hire agreement was ordered or dictated by Mayor Goff, this was an improper and invalid exercise or purported exercise of the powers and functions conferred on the Mayor of Auckland.
9. CONCLUSION
9.1 On the basis of the preceding submissions and on any one or more of the grounds pleaded, the applicants respectfully seek the relief sought in the Statement of Claim, namely:
(a) an order declaring that RFAL acted unlawfully in
(i) making the Decision;
(ii) cancelling the Licence; and/or
(iii) making the RFAL Representation; and
(b) an order as to costs.
......
JE Hodder QC / JK Grimmer Counsel for the applicants
43
Schedule: Applicants’ Chronology of Events
The chronology below refers to the following people:
Person Role Brewer, Paul Chief Operating Officer, Regional Facilities Auckland Burgess, Michael Director of Communications and External Relations, Mayor’s Office Casey, Cathy Councillor, Auckland Council, Albert-Eden-Roskill Ward Crighton, Glen Manager, Presenter Services, Auckland Live Edmonds, Will Communications Adviser, Mayor’s Office Erueti, Ropu Correspondence Coordinator, Mayor’s Office Goff, Phil Mayor of Auckland Haldane, Bernie Deputy Director and Head of Programming and Presenter Services, Auckland Live Kennedy-Smith, Hope Member of the public that complained Kidd, Dean Head of Security, Auckland Live Lolesi, Gillian Member of the public that complained Macrae, Robin Director, Auckland Live McGechan, Andrew Member of the public that complained McGrath, Meredith Communications Adviser, Auckland Live Moncrief-Spittle, First Applicant, purchased ticket to the Event Malcolm Morse, Valerie Auckland Peace Action Niall, Todd Journalist, Stuff Pafalani, Wendy Account Manager, Presenter Services, Auckland Live Pellowe, David Director and Shareholder, Axiomatic Pule, Justin Ticketmaster Rickham, Emily Ellerslie Events Centre Saunders, Kat Senior Communications and Marketing Adviser, Regional Facilities Auckland Suh, Angela Member of the public that complained Town, Stephen Chief Executive Officer, Auckland Council
Chronology:
Date Time Event Common Bundle 13.06.18 – Initial phone call between Axiomatic CB1 Tab 3 p 73 [31]. and Regional Facilities Auckland. CB1 Tab 12 p 427–428 [10]–[15]. 13.06.18 3.23pm Axiomatic sent Ms Pafalani an email CB1 Tab 3 p 74 [35] and which included the presentation/show Tab 4 p 99–100. name as “STEFAN MOLYNEUX & LAUREN SOUTHERN LIVE: AN AXIOMATIC EVENT”. 15.06.18 11.15am Ms Pafalani sends Axiomatic a licence CB1 Tab 3 p 74 [36] and agreement to hire the Bruce Mason Tab 4 p 103–105 and Centre on 3 August 2018. 110–138.
CB1 Tab 12 p 429 [17].
44
Date Time Event Common Bundle 15.06.18 12.41pm Axiomatic returns executed agreement CB1 Tab 3 p 74–75 [37] and pays a deposit of $1,000 NZD + and Tab 4 p 139 to 148. GST. 18.06.18 – Mr Crighton (Chief Operating Officer, CB1 Tab 9 p 238 [13] Regional Facilities Auckland) reviews and Tab 10 p 264–291. and countersigns the contract for Regional Facilities. 27.06.18 11.17am Ms Pafalani emails Axiomatic asking if CB1 Tab 3 p 75 [39] and it has completed a “Tour Risk Tab 4 p 164. Assessment” and sends through the template, asking for it to be returned ASAP. 29.06.18 – Tickets for the Event go on sale. CB1 Tab 9 p 238 [14].
Mr Moncrief-Spittle purchases a CB1 Tab 1 p 7 [30]–[31]. $771.23 (including booking fee) ticket. 03.07.18 – Mr Crighton starts to research the CB1 Tab 9 p 238–239 Speakers online after receiving a [15]–[19]. complaint from Andrew McGechan (member of the public). 05.07.18 9.27am Mr Crighton sees another complaint on CB1 Tab 9 p 240 [20]. Twitter and determines it would be prudent to flag the Event to the security team. 05.07.18 9.30am Mr Crighton flags that they will be CB1 Tab 9 p 240 [20]– having a “controversial event” to Dean [21] and Tab 10 p 300– Kidd (Head of Security, Auckland Live). 304. 05.07.18 10.02am Ms Pafalani forwards Mr Crighton a CB1 Tab 9 p 240–241 copy of Ticketmaster’s Twitter feed [25] and Tab 10 p 316– with complaints about the Event. 320.
These were mainly about the Speakers’ views. 05.07.18 11.05am Auckland Live receives a complaint CB1 Tab 9 p 240 [23] from Hope Kennedy-Smith (member of and Tab 10 p 308–309. the public) about the Speakers and their views. 05.07.18 11.18am Meredith McGrath (Communications CB1 Tab 9 p 240 [23] Adviser, Auckland Live) forwards and Tab 10 p 308–309. Ms Kennedy-Smith’s complaint to Mr Crighton. 05.07.18 11.37am Dean Kidd responds to Mr Crighton’s CB1 Tab 9 p 240 [21] email saying he will gather intelligence and Tab 10 p 303. and advise findings, risk rating and mitigation strategies. 05.07.18 11.52am Justin Pule (Ticketmaster) emails CB1 Tab 10 p 319. Mr Crighton about complaints received about the Speakers’ views and notes they might need some extra security. 05.07.18 2.54pm Auckland Live receives a complaint CB1 Tab 9 p 240 [24]. from Angela Suh (member of the
45
Date Time Event Common Bundle public) about speakers’ views by telephone. 05.07.18 3:24pm Will Edmonds (Communications CB1 Tab 8 p 222 [5] and Adviser, Mayor’s Office) emails p 227. Michael Burgess (Director of Communications and External Relations, Mayor’s Office) a link to the event and notes he expects there to be some form of protest / petition. 05.07.18 3.27pm Ms McGrath forwards Facebook CB1 Tab 9 p 240–241 complaint about speakers’ views to [25] and Tab 10 p 312. Mr Macrae, Mr Brewer and Ms Haldane. 05.07.18 Context Mr Crighton forms the view the CB1 Tab 9 p 241 [26]. indicates complaints “were not out of the around ordinary for an event that involved this time. political discussions, but that it was prudent to find out more about the tour.” 05.07.18 Context Mr Crighton learns Australian venue CB1 Tab 9 p 241–242 indicates details will not be made publicly [26]–[30]. around available until 24 hours before the this time. event and becomes concerned “that there was more to this than just the odd public complaint”. 05.07.18 Context Mr Macrae first becomes aware of the CB2 Tab 7 p 497 [41]. indicates issues in relation to the event, around following briefing with Mr Crighton and this time. Ms Pafalani. 05.07.18 5.11pm Ms McGrath emails Mr Macrae CB2 Tab 8 p 525–526 advising him of Facebook complaints and asking how she should respond. 05.07.18 5.48pm Ms McGrath copies Mr Macrae in on CB2 Tab 8 p 527–528. email advising Change.Org petition has gone live to cancel the Event, saying “freedom of speech” will not “cut it” as a defence. 05.07.18 7:09pm Mr Macrae advises Ms McGrath not to CB2 Tab 8 p 523. respond to Facebook concerns about the Event, saying he wants to keep it “low key”. 05.07.18 8.10pm Valerie Morse (Auckland Peace Action) CB2 Tab 8 p 529. complains about the Event by email, referring to the Speakers as “fascists” and asks Mr Macrae to cancel the Event. 05.07.18 8.13pm Ms McGrath forwards the complaint CB2 Tab 8 p 529. from Valerie Morse (Auckland Peace Action) to Mr Macrae, Mr Crighton and others. 05.07.18 8.48pm Valerie Morse (Auckland Peace Action) CB2 Tab 8 p 531. complains to Cr Casey (Auckland
46
Date Time Event Common Bundle Council) by email, asking for support to get the Event cancelled and saying they “do not want people like this in our communities”. 05.07.18 9.21pm Cr Casey forwards the Auckland Peace CB2 Tab 8 p 530. Action complaint to the Auckland Council CEO, Stephen Town, noting she is “really concerned by the comment that ‘the purpose of their visit to New Zealand is to encourage racist violence and hatred, and to support the collective organising of fascists’.”
She also refers to reputational risks. 05.07.18 9.42pm Gillian Lolesi (member of public) CB1 Tab 11 p 375–377. complains to the Mayor, Phil Goff, about the Event by email, referring to the Speakers as “nasty racists”. 06.07.18 8.24am Paul Brewer forwards Mr Macrae a CB2 Tab 8 p 532–533. query from Todd Niall (Stuff) about the Event and organises to talk later this morning. 06.07.19 8.41am Mr Niall emails Mr Burgess asking for CB1 Tab 8 p 229. the Mayor’s opinion on the Event. 06.07.18 8.43am Auckland Council CEO’s personal CB2 Tab 8 p 530–531 assistant forwards the email from Cr Casey to Mr Macrae and asks him to investigate Cr Casey’s concerns. 06.07.18 8.59am Ropu Erueti (Correspondence CB1 Tab 7 p 211. Coordinator, Mayor’s Office) forwards the Lolesi complaint to Mr Brewer and asks them to respond on the Mayor’s behalf. 06.07.18 9.02am Mr Brewer forwards Mr Macrae the CB2 Tab 8 p 534–536. email from the Mayor’s Office regarding the Lolesi complaint. 06.07.18 9.02am Press release from Auckland Peace CB1 Tab 10 p 336. Action about blockading the Event. 06.07.18 9.19am Mr Macrae sends “briefing articles”, CB2 Tab 7 p 498 [49] touching on the Speakers’ views, to and Tab 8 p 537–543. Ms McGrath, Mr Brewer, Mr Crighton and others. 06.07.18 About Internal RFA meeting to discuss CB2 Tab 7 p 498–501 9:15am / situation with Mr Macrae, Mr Brewer, [50]–[65]. 9:30am Mr Crighton and Ms McGrath.
Mr Macrae formed the “preliminary view” that it would be best to cancel the Event but says he wanted to reflect more following this meeting. Although he accepts the others “would have come away from that discussion
47
Date Time Event Common Bundle thinking it was highly likely I would decide to cancel the contract for safety/security reasons”. 06.07.18 9.49am Cr Casey sends link about the Speakers CB2 Tab 8 p 556. potentially getting banned from entering NZ to Mr Town (CEO, Auckland Council) and asks whether the Council “can be proactive here”. 06.07.18 9:51am Mr Town’s personal assistant forwards CB2 Tab 8 p 556. Cr Casey’s email to Mr Macrae. 06.07.18 10.06am Mr Brewer tells Mr Burgess (Mayoral CB1 Tab 7 p 207–208 Office), who called him, that they are [11]. probably moving towards cancelling the event because of security concerns CB1 Tab 8 p 223 [11].
Mr Burgess says from the discussion his understanding was that in all likelihood the contract would be rescinded on the basis of security concerns. 06.07.18 After call Mr Burgess meets with the Mayor and CB1 Tab 8 p 224 [17]. with Mr his team to discuss potential tweets; Brewer. Mayor asks his staff to obtain more information about the Speakers. 06.07.18 10.10am Kat Saunders (Senior Communications CB2 Tab 8 p 557–560. and Marketing Advisor, RFA) sends Mr Macrae articles about Auckland Peace Action wanting to blockade the Event. 06.07.18 No later Mr Macrae decides to cancel the Event. CB2 Tab 7 p 502 [70]. than 11am. 06.07.18 About Mr Burgess calls Mr Brewer asking for CB1 Tab 8 p 224 [19]– 11.25am an update. [20].
Mr Brewer confirms the decision to cancel the Event on health and safety grounds but said they had to follow “the letter of the law” in relation to the contract. And says he needs time to advise the promoter. 06.07.18 12.30pm Mr Burgess texts Mr Brewer saying that CB1 Tab 7 p 214. the Mayor wants to express his opinion publicly. 06.07.18 About Ms Pafalani calls Axiomatic requesting CB1 Tab 3 p 76 [43]. 1:10pm a call in one hour between Axiomatic and Regional Facilities Auckland. CB 1 Tab 12 p 430 [30]– [31]. 06.07.18 1:45pm Mr Burgess texts Mr Brewer saying the CB1 Tab 7 p 214. Mayor is getting “itchy twitter fingers”.
48
Date Time Event Common Bundle Mr Brewer asked Mr Burgess to wait because there were “big legal issues at stake”. 06.07.18 2.13pm The Mayor tweets: CB1 Tab 2 p 53.
“[Auckland Council] venues shouldn’t be used to stir up ethnic or religious tensions. Views that divide rather than unite are repugnant and I have made my views on this very clear. Lauren Southern and Stefan Molyneux will not be speaking at any Council venues.” 06.07.18 About Regional Facilities Auckland informs CB2 Tab 4 p 363–367. 2.15pm Axiomatic on phone call of its decision to cancel the Event. 06.07.18 After Mr Pellowe learns of the Mayor’s first CB1 Tab 3 p 79 [61]. 2.15pm tweet. call. 06.07.18 2:41pm Mr Brewer emails Mr Burgess setting CB1 Tab 7 p 216. out statement that Mr Macrae has prepared about the cancellation. 06.07.18 2.43pm Regional Facilities advises the media CB2 Tab 7 p 507 [93] the Event was cancelled for security and Tab 8 p 582. concerns. 06.07.18 2:45pm Mr Burgess replies to Mr Brewer CB1 Tab 7 p 216. suggesting that a line citing security concerns be removed from the statement. 06.07.18 3:08pm The Mayor tweets again: CB1 Tab 2 p 55.
“Let me be very clear, the right to free speech does not mean the right to be provided with an @AklCouncil platform for that speech.” 06.07.18 3:49pm Mr Kidd emails a Police contact about CB1 Tab 10 p 306. risks with the Event and asks to discuss the Event with Police. 06.07.18 3:56pm Mr Brewer emails the Regional CB1 Tab 7 p 218–219. Facilities board advising the Event has been cancelled. 06.07.18 7.02pm Auckland Live tweets that the Event CB1 Tab 11 p 407. has been cancelled:
“Cancellation: Stefan Molyneux and Lauren Southern Live at Bruce Mason Centre.”
“For all further enquiries, please contact Axiomatic Events.” 06.07.18 7.35pm Mr Kidd emails his Police contact again CB1 Tab 10 p 305. telling him the Event has now been cancelled.
49
Date Time Event Common Bundle 06.07.18 10.57pm Mr Moncrief-Spittle emails Auckland CB2 Tab 3 p 301–302. Live objecting to the cancellation, says
“The biggest disappointment though is not being able to attend the event itself.” Since – Axiomatic contacts more than CB1 Tab 3 p 84–85 [97], 06.07.18 6 alternative venues in Auckland. None [99], [102] and [104]. agree to host the Event. 09.07.18 4.27pm Mr Macrae emails Mr Edmonds CB2 Tab 3 p 305. regarding contractual grounds for cancellation. 10.07.18 8.25am Mayor Goff is interviewed on Radio CB1 Tab 2 p 57–58. New Zealand’s Morning Report.
During the interview he said he made the decision to ban Mr Molyneux and Ms Southern from Council venues. 10.07.18 9.35am Ms Pafalani and Mr Crighton call CB2 Tab 4 p 368–371. Mr Pellowe to discuss refund of deposit and more.
They (1) discussed refunding the NZD1,000 + GST deposit; (2) said that they will send the cancellation letter; (3) asked Axiomatic to reply to the cancellation letter if it agrees with its terms; (4) offered to pay compensation to Axiomatic. 10.07.18 – RFA sends cancellation letter to CB1 Tab 3 [67] and Axiomatic. Tab 4 p 176.
“3. Since the time the Agreement was entered into, RFA has become aware of information that has led us to the conclusion the Event cannot be hosted at an RFA venue without posing an unacceptable risk to the security and safety of the presenters, RFA staff, contractors, and patrons attending the Event.”
“4. Accordingly, RFA is not comfortable allowing the Event to proceed at an RFA venue. An update to this effect has been published on our website, and ticket sales via the Ticketmaster website have been suspended.” 11.07.18 11.10am Ms Pafalani calls Mr Pellowe to follow CB2 Tab 4 p 372–373. up on the cancellation letter. 11.07.18 – Mayor Goff writes to a member of the CB2 Tab 3 p 309–310. public regarding the Event.
50
Date Time Event Common Bundle “Auckland Live made the decision to cancel the event at the Bruce Mason Centre. Auckland Live’s Director Robbie Macrae has publicly stated that security concerns around the health and safety of the presenters, staff and patrons led to the event's cancellation.”
“They were also able to cancel the booking under provisions in the booking contract stipulating that events must not harm or bring into disrepute the reputation of Auckland Live or Auckland Council.”
“Auckland Live discussed with the promoter the issue of security and safely delivering the event at the Bruce Mason Centre given the escalation of polarised views and security concerns for the presenters, patrons and staff. Following consultation with Auckland Live lawyers, an assessment was that the costs of security, police and road closures would be significant. There would also be an effect on surrounding businesses and restaurants in Takapuna.” 12.07.18 9.40am Mr Crighton calls Mr Pellowe. CB2 Tab 4 p 374–380.
Mr Crighton called to (1) again offer compensation to Axiomatic; (2) discuss whether to refund ticket holders; (3) discuss possible alternative, private, venues.
Agreed on 15 August as date to discuss other costs Axiomatic may recover. 12.07.18 10.56am Mr Crighton sends Mr Pellowe a follow- CB1 Tab 10 p 342–344. up email after call, confirming 15 August as date for discussing specific costs.
Mr Pellowe replied by email at 1.37pm saying “please proceed with refunding patrons and deposit”. 12.07.18 11.09am Mr Pellowe calls Mr Crighton. This CB2 Tab 4 p 381–384. time to discuss: (1) communications with ticket holders; (2) alternative venues. 12.07.18 1.24pm Trusts Arena tells Mr Pellowe they will CB2 Tab 5 p 449. have to talk to the Board, and that they
51
Date Time Event Common Bundle have a reporting line to RFA “that may pose an obstacle”. 16.07.18 7.13am Emily Rickham (Ellerslie Events Centre) CB1 Tab 3 p 85 [106]– emails Mr Pellowe to say the Ellerslie [107] and Tab 4 p 177. Events Centre is not able to provide a venue to Axiomatic.
“I have spoken to management and unfortunately at this time we will not be able to hold your event.” 16.07.18 7.37am Trusts Arena tells Mr Pellowe they are CB2 Tab 5 p 448. really struggling to make the Event work. 16.07.18 – Young Conservatives North Queensland CB1 Tab 3 p 71 [16]– hold a ‘Free Speech Forum’ in Cairns [17]. featuring Ms Southern, which proceeds peacefully. 20.07.18 – Molyneux/Southern speaking event in CB2 Tab 4 p 320–322 Melbourne with significant protests. [5] and [7]–[14].
22.07.18 – Molyneux/Southern speaking event in CB2 Tab 4 p 320–322 Perth with some protests but nothing [5] and [15]–[16]. like in Melbourne. 24.07.18 Molyneux/Southern speaking event in CB2 Tab 4 p 320–323 Adelaide with a minor protest. [5] and [17]–[19]. 28.07.18 – Molyneux/Southern speaking event in CB2 Tab 4 p 320–323 Sydney with a small number of [5] and [20]–[22]. protestors. 29.07.18 – Molyneux/Southern speaking event in CB2 Tab 4 p 320–323 Brisbane with noisy protests. [5] and [23]–[24]. 30.07.18 – Mr Pellowe speaks to Inspector from CB2 Tab 4 p 324 [27]. NZ Police about the Event. – – Axiomatic secures the PowerStation CB2 Tab 4 p 323 [25]. venue in Auckland for the Event to occur on the planned date. 01.08.18 – First date that Mr Molyneux and CB1 Tab 3 p 84 [95]. Ms Southern are available to speak in Auckland. 03.08.18 – PowerStation cancels the Event within CB2 Tab 4 p 324 [29]– hours of its start time. [30].
Event does not proceed. 06.08.18 – Last date that Mr Molyneux and CB1 Tab 3 p 84 [95]. Ms Southern were available to speak in Auckland.
52