Gibson v New Zealand Land Search and Rescue Dogs Incorporated Hc Wn

JurisdictionNew Zealand
JudgeCollins J
Judgment Date12 June 2012
Neutral Citation[2012] NZHC 1320
Docket NumberCIV-2011-485-000913
CourtHigh Court
Date12 June 2012

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

Between
Robert Gibson
Plaintiff
and
New Zealand Land Search and Rescue Dogs Incorporated
Defendant

[2012] NZHC 1320

CIV-2011-485-000913

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application to judicially review a decision of the defendant expelling the plaintiff from its organisation — claim for damages for breach of contract (constitution) and distress and anxiety — defendant was a voluntary organisation — plaintiff instrumental in its establishment — expelled after altercations with other members — plaintiff not informed of allegations against him — previous events taken into consideration — the majority of committee members who heard plaintiff's appeal had made initial expulsion decision — whether general damages were available for mental distress for breach of contract — whether principles of natural justice had been breached.

Appearances:

A C Beck for Plaintiff

S W Rollo for Defendant

RESERVED JUDGMENT OF Collins J

Introduction
1

The plaintiff (Mr Gibson) seeks to judicially review a decision of New Zealand Land Search and Rescue Dogs Incorporated (SAR Dogs) expelling him from its organisation. The decision by SAR Dogs to expel Mr Gibson arose primarily from events that occurred at an evaluation camp held in late August 2010. Mr Gibson seeks to have the decision to expel him quashed by this Court. Mr Gibson also pleads a parallel claim alleging breach of contract over the way he was expelled by SAR Dogs. He seeks damages under that cause of action.

Background
2

SAR Dogs is a voluntary organisation. Its members provide rescue services in both alpine and wilderness environments. The focus of this proceeding is upon search and rescue dogs and their handlers who perform in alpine terrain.

3

The dogs and handlers who perform search and rescue services in alpine regions operate in particularly challenging conditions. The danger they face is inherent in the fact that they are often looking for persons buried by avalanches or who are lost in particularly harsh physical environments. In addition to the challenges of physical terrain, members of the alpine SAR Dogs service are often called upon to perform in unforgiving weather conditions.

4

Those who volunteer to provide search and rescue services are selfless and highly committed people who have usually had extensive experience as mountaineers and/or back country skiers and/or as alpine guides. They maintain their skills through regular training and assessment programmes.

5

Because they are operating in life threatening conditions those who become members of SAR Dogs have to develop very close bonds of trust with each other. They appreciate that their lives may be placed at risk by the decisions and actions of their colleagues. Members of SAR Dogs need to be very sure that those who undertake a search and rescue operation are completely dependable and are willing to function as part of a team.

6

Mr Gibson was instrumental in the establishment of SAR Dogs in New Zealand in 1988. He played a significant role in setting up the protocols for the training, assessment and development of SAR Dog handlers.

7

Mr Gibson has always believed in the importance of providing proper training for the handlers and dogs of those who wish to be members of SAR Dogs. For this reason he was responsible for many training programmes and instructor courses.

Witnesses
8

During the hearing before me Mr Gibson and four members of SAR Dogs gave evidence. Leave was not sought for witnesses to be cross-examined in relation to the judicial review proceeding, instead witnesses gave their evidence in the usual way and were cross-examined in relation to the claim in contract.

9

I was particularly impressed by the witnesses called to give evidence on behalf of SAR Dogs. They were all inherently honest people determined to be objective and to be as fair and reasonable as possible when commenting about Mr Gibson's behaviour that led to disciplinary action being taken against him. The sense of frustration and sadness borne by SAR Dog members towards Mr Gibson was typified by the evidence of Mr Hunter. He prefixed his evidence by explaining:

Mr Gibson and I worked together as young men and he is responsible for me embarking on a 25 year long career as a ski patroller, manager and dog handler. He was always an inspiration to me and he, in turn, credits me with saving his life after a climbing accident. This is a history that is hard to ignore and which makes it very sad for me to see how things have panned out. I credit Mr Gibson with shaping the future of avalanche search and rescue dogs in New Zealand literally out of thin air. Sadly, though, through his actions he has drawn his involvement to a close.

10

In contrast, Mr Gibson was not a good witness when he appeared before me. I have endeavoured to make every allowance I can for the fact that Mr Gibson would have been out of his “comfort zone” when giving evidence. However, having observed the way he gave his evidence it was easy to see why his former colleagues at SAR Dogs had run out of patience with him. At times his reluctance to answer straightforward questions bordered upon petulance. He frequently exhibited disdain for those who questioned him. For example, during the course of cross-examination Mr Rollo (counsel for SAR Dogs) put to Mr Gibson that Senior Sergeant Edmonds' email of complaint (the terms of which are set out in [16]) indicated how seriously the police took the events that led to the complaint against Mr Gibson. That question (or variations of it) was put on many occasions to Mr Gibson. In the end he failed to answer the question. In doing so Mr Gibson often took issue with the question. The transcript only partially conveys how reluctant Mr Gibson was to acknowledge anything that did not suit him.

11

There were some conflicts in the evidence presented by Mr Gibson and the witnesses called by SAR Dogs. I have resolved those conflicts by accepting the evidence of the defendant's witnesses. I have done so for the following reasons:

  • (1) The evidence of each of the witnesses called by SAR Dogs that I have accepted was verified by at least one other witness. There was no suggestion those witnesses had collaborated.

  • (2) This was a case in which it was possible to resolve factual disputes by assessing the credibility of witnesses through the way they conducted themselves in the witness box. Without exception the witnesses called by the defendant gave their evidence in a straightforward and objective manner. They made concessions even when those concessions harmed the defendant's case. However, Mr Gibson was less objective and appeared to be recasting events in a way that suited his purposes.

August 2010 assessment camp
12

SAR Dogs organised an avalanche training and assessment camp from 27 to 30 August 2010. The camp was held at the Wairau Snow Farm on the eastern side of the Cardrona Valley. The AGM of SAR Dogs was also held during the course of this camp.

13

Mr Gibson, Mr Hunter and Mr McDonald were SAR Dogs assessors at the camp. The New Zealand Police participated in the camp. The senior police officer present was Senior Sergeant Edmonds. Mr Hunter and Mr McDonald appeared to have been appointed assessors for this event by the management committee of SAR Dogs. Mr Gibson appears to have assumed the role of being an assessor by virtue of his long experience with SAR Dogs. [14] It became apparent that deep-seated issues quickly came to the fore during the course of the camp. It is not necessary to try and pinpoint the precise cause of those issues. Suffice to say that it quickly became apparent that Mr Gibson was far from happy with a number of his colleagues. They in turn were plainly far from satisfied with Mr Gibson's attitude and behaviour.

15

Mr Hunter, Mr McDonald, Mr Gunn and Mr Watson from SAR Dogs described in detail the events which unfolded during the course of the camp. Mr Watson, who is a former police officer, was at the time the Secretary of SAR Dogs and played a pivotal role in the events which unfolded. The key evidence which emerged from the SAR Dog members present at the camp and which I have concluded is accurate, can be distilled to the following points:

  • (1) On Saturday 28 August Mr Gibson, Mr Hunter and Mr McDonald undertook assessments of dogs and their handlers. On occasions Mr Gibson wanted to unilaterally fail participants without reference to other assessors contrary to the protocols that had been established for conducting assessments.

  • (2) After the day's activities Mr Gibson and others consumed alcohol.

  • (3) SAR Dogs AGM commenced at approximately 7.30pm that evening. Mr Gibson was described as behaving in an “appalling” manner during the AGM. Mr Watson said Mr Gibson was “heckling” and “interrupting quite inappropriately”. I have concluded these were accurate descriptions of Mr Gibson's behaviour.

  • (4) After the AGM had finished Mr Watson and Mr McDonald were in a discussion when they were joined by Mr Gibson. Mr Hunter joined the group soon thereafter. Mr Watson firmly but fairly questioned Mr Gibson about his behaviour. Mr Gibson responded in what was described as being a hostile manner and acted inappropriately towards Mr Hunter. Those present tried to explain to Mr Gibson that he had to behave in a collegial way and that “if he couldn't be part of the team there was no place for him”.

  • (5) Soon thereafter Mr Gibson decided to leave the camp. It was snowing heavily and he had been drinking. Mr Gibson left the camp at approximately 11.00pm. He drove down the unsealed Wairau Snow Farm Road. From there he drove to his home in Cromwell.

The complaint
16

Before the camp...

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