Malcolm Bruce Moncrief-Spittle v Regional Facilities Auckland Ltd

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 05 December 2022
• Neutral Citation: [2022] NZSC 138
• Docket Number: SC 57/2021
• Court: Supreme Court

Between

Malcolm Bruce Moncrief-Spittle

First Appellant

David Cumin

Second Appellant

and

Regional Facilities Auckland Limited

First Respondent

Auckland Council

Second Respondent

[2022] NZSC 138

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 57/2021

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

Bill of Rights, Judicial Review — appeal against decision declining the appellant's application for judicial review of a decision of the respondent to cancel a presentation by two controversial speakers described as “alt-right” commentators — freedom of expression — freedom to receive information — New Zealand Bill of Rights Act 1990

Counsel:

J E Hodder KC, P A Joseph and J A Tocher for Appellants

K Anderson, A S Butler KC and K E F Morrison for Respondents

J S Hancock for Human Rights Commission as Intervener

The appeal was dismissed.

• A The appeal is dismissed.

• B Leave to adduce the affidavit of 18 February 2022 of David Cumin is declined.

• C Costs are reserved.

JUDGMENT OF THE COURT

REASONS

(Given by Ellen France J)

Table of Contents

	Para No.
The appeal	[1]
Narrative of events	[7]
The statutory framework	[15]
The judgments below	[28]
High Court	[28]
Court of Appeal	[31]
Does the Bill of Rights apply to RFAL's decision?	[36]
The Bill of Rights	[36]
The s 3(b) test	[38]
Application to the present facts	[50]
The rights engaged	[61]
The nature of the obligation to protect freedom of expression	[67]
Implications for RFAL	[73]
Was the Court of Appeal correct to conclude RFAL's decision was consistent with the Bill of Rights?	[75]
The approach in the Court of Appeal	[75]
Submissions	[78]
Our view on the role of the Court	[81]
The s 5 test	[87]
A role for the heckler's veto?	[93]
Conclusion on s 5	[101]
Is the decision amenable to judicial review?	[105]
Our approach	[108]
Was the decision to cancel unreasonable?	[114]
The weight to be given to freedom of expression in the decision-making process	[115]
The process followed by RFAL	[122]
New evidence	[132]
Result	[136]
Costs	[138]

The appeal

1 This appeal concerns the way in which freedom of expression affects the decision of the first respondent, Regional Facilities Auckland Ltd (RFAL), to cancel a contract for hire of the Bruce Mason Centre in Takapuna. The Centre is one of Auckland Council's venues which is managed by RFAL. An Australian promoter, Axiomatic Media Pty Ltd (Axiomatic), had hired the Bruce Mason Centre for presentations by two speakers, Stefan Molyneux and Lauren Southern. The speakers have been described as “alt-right” commentators. Complaints were made about the event and the contract for hire was cancelled by RFAL because of concerns about health and safety risks arising from anticipated protests against the event.

2 The decision to cancel the contract was challenged by the appellants, Malcolm Moncrief-Spittle and David Cumin. Mr Moncrief-Spittle had bought a ticket for the event and was disappointed when it was cancelled. Dr Cumin is an Auckland ratepayer and a member of the Auckland Jewish community. His concern is that his community's use of Council facilities could be adversely affected in the future by threats from those wanting to disrupt such events.

3 The appellants sought judicial review of the decision to cancel. They argued, first, that RFAL had acted irrationally, perversely and arbitrarily. In concluding that there was an unacceptable security risk, they said that RFAL did not obtain and have regard to relevant information including the views of the police, Axiomatic's security resources, and the ways that Australian venues (at which Mr Molyneux and Ms Southern had spoken) managed risks to security and safety. It was also alleged that if RFAL had obtained and had regard to all relevant information, it could not rationally have concluded that the event posed an unacceptable security risk justifying cancellation. Second, the appellants pleaded a failure to act consistently with rights guaranteed under the New Zealand Bill of Rights Act 1990 (the Bill of Rights), including the right to freedom of expression.

4 The High Court dismissed the appellants' claim. 1 The appellants' appeal to the Court of Appeal was unsuccessful. 2 Although the outcome was the same in both Courts, the Courts adopted different reasoning. The High Court found that RFAL's decision to cancel the contract was not amenable to judicial review and that the Bill of Rights did not apply. The Court of Appeal said that the decision was amenable to judicial review and that the Bill of Rights applied. But the claim failed because the decision to cancel was reasonable both in administrative law terms and under the Bill of Rights.

5 It is convenient to deal with the latter, the Bill of Rights claim, first as the approach to that claim provides a necessary framework for resolution of the appeal. The issues arising on the appeal accordingly are as follows:

• (a) Does the Bill of Rights apply?

• (b) If the Bill of Rights is applicable, was the decision to cancel a breach of protected rights?

• (c) Is the decision by RFAL to cancel the contract amenable to judicial review and, if so, what are the available grounds of review?

• (d) If the decision is reviewable, was the decision to cancel unreasonable and how is freedom of expression taken into account in that assessment?

6 We discuss each of these issues in turn after first setting out the factual and legal context.

Narrative of events

7 On 13 June 2018 Axiomatic contacted Auckland Live, the operational division of RFAL responsible for venues used for live performances, about hiring a venue for two speakers in early August 2018. Of the two venues and the available dates, Axiomatic chose the Bruce Mason Centre and the event was pencilled in for 3 August 2018. 3 When asked for more information about the event, in an email of 13 June 2018 Axiomatic told RFAL that the speakers were Stefan Molyneux and Lauren Southern.

8 RFAL gave Axiomatic its standard form venue hire agreement on 15 June 2018. The venue hire fee was $5, 000 or 12.5 per cent net of box office takings, whichever was the greater. The agreement required Axiomatic to provide a written health and safety plan for the event and the venue addressing hazards to RFAL's reasonable satisfaction. This was to be provided at least 10 days in advance of the

event. Axiomatic completed and returned the agreement. It was countersigned by RFAL on 18 June 2018. 4

9 Tickets went on sale shortly after, on 29 June 2018. At the same time Axiomatic publicised the event's date and venue. Tickets were priced at between $79 (for a general admission) and $749 each (including dinner with the two speakers). Mr Moncrief-Spittle purchased the event plus dinner package. Within a short period of time, RFAL began to receive complaints from members of the public. Social media commentary included the launch of a petition seeking the cancellation of the event.

10 RFAL decided it needed to know more about the matter. To put the need for further information in context, Axiomatic had not indicated at the time of making its booking that there were security issues that would need to be addressed and paid for (based on its experience holding the same event in Australia which had necessitated special security arrangements). 5 Further, in the 13 June 2018 email, the two speakers had been described as “a renowned philosopher and author” and “a documentary filmmaker and best-selling author”. There is no explanation of why Axiomatic did not tell RFAL about the potential for security issues and why it was proceeding on a different basis in New Zealand than had been considered necessary in Australia. As a result of the absence of information, it was not until inquiries were made following the receipt of the first series of complaints that RFAL found out that for the Australian leg of the speakers' tour, ticketholders had only been told of the venue 24 hours before the scheduled event.

11 On 5 July 2018 a representative of Auckland Peace Action 6 asked the Council directly for the event to be cancelled. On the morning of the next day, Auckland Peace Action issued a press release announcing its intention to confront the speakers in the streets and blockade entry to the Centre. The director of Auckland Live,

Robin (Robbie) Macrae, had previous experience with a protest blockade in 2016 at the Viaduct Events Centre involving Auckland Peace Action

12 RFAL management met to discuss the issue. As the Court of Appeal noted: 7

There was particular concern over the fact that the Bruce Mason Centre was located on the corner of two busy roads in Takapuna which were surrounded by local businesses and restaurants. This would make crowd and traffic control, and separating attending patrons from protestors while preserving public access to other businesses, difficult. There was a high degree of risk to safety if the Centre had to be evacuated. There was concern at the cost of additional security measures. No bond or guarantee had been obtained from Axiomatic to cover such expenses.

13 Later in the morning of 6 July 2018, Mr Macrae decided to cancel the event. The Court of Appeal summarised his evidence as to how he reached that decision as follows: 8

He identified the competing demands as being the right to protest in a safe environment, Auckland Peace Action's reputation for blocking events it disagreed with and the potential for disruption and violence. Mr Macrae said that he did not want to risk being in breach of his health and safety obligations with the potential for prosecution in that regard, nor to be responsible for anyone being harmed at the event.

14 ...