Moncrief-Spittle v Regional Facilities Auckland Ltd

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 30 April 2021
• Neutral Citation: [2021] NZCA 142
• Court: Court of Appeal
• Docket Number: CA531/2019
• Date: 30 April 2021

Between

Malcolm Bruce Moncrief-Spittle

First Appellant

David Cumin

Second Appellant

and

Regional Facilities Auckland Limited

First Respondent

Auckland Council

Second Respondent

[2021] NZCA 142

Court:

Kós P, Cooper and Courtney JJ

CA531/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Judicial Review — appeal against a High Court judgment that held a decision by the first respondent to cancel a venue hire agreement for a controversial speaking event was not reviewable because the first respondent was not exercising a public power and that the protected right to freedom of expression was not engaged — “heckler's veto” — whether a council-controlled organisation has an obligation to facilitate the right to freedom of expression when it hires out a venue for a paid event — whether the Court erred in making the costs order against the appellants — novel argument — New Zealand Bill of Rights Act 1990

Counsel:

J E Hodder QC and J K Grimmer for Appellants

K Anderson, KEF Morrison and O J Towle for Respondents

F M Joychild QC, J S Hancock and E C Vermunt for Human

Rights Commission as Intervener

• A The appeal against the High Court's substantive decision is dismissed.

• B The appeal against the High Court's costs decision is allowed.

• C Costs and disbursements payable in the High Court are reduced by 70 per cent.

• D Counsel may file memoranda as to costs on the appeal within 10 working days from the date of this decision.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Courtney J)

Table of Contents

	Para No
Introduction	[1]
Factual background	[11]
The case in the High Court
The basis for challenge	[19]
The High Court decision	[23]
Issue 1: is the decision to cancel reviewable?
The issues	[29]
The statutory context	[33]
RFAL's status	[45]
Is the decision to cancel reviewable and on what basis?	[51]
Did the decision to cancel have important public	[69]
consequences?
Common callings	[71]
Issue 2: was the decision unlawful by reason of it being irrational, perverse or arbitrary?
The issues	[72]
The events leading up to the decision to cancel	[73]
Was the decision made prematurely and without adequate information?	[88]
Did RFAL fail to follow its to follow the health and safety policy?	[94]
The “heckler's veto”	[97]
Misdirection on the law	[110]
Issue 3: was the cancellation an unreasonable limit on the BORArights engaged?
The BORA rights engaged	[111]
Was the decision to cancel a reasonable limitation on the rights of freedom of expression and peaceful assembly?	[116]
Issue 4: did the appellants have standing to bring the	[128]
proceedings?Issue 5: did the Judge err in making the costs order against the appellants?	[133]
Result	[142]

Introduction

1 In New Zealand the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form, is protected by the New Zealand Bill of Rights Act 1990 (BORA). The question in this appeal is whether a council-controlled organisation (CCO) is under an obligation to facilitate the right to freedom of expression when it hires out a venue for a paid event.

2 Regional Facilities Auckland Ltd (RFAL) is wholly owned by the Auckland Council. It is the trustee of Regional Facilities Auckland, a charitable trust and CCO established as part of the Auckland “super city” merger in 2010 to hold and manage assets previously held by territorial authorities in the Auckland region. One of these assets is the Bruce Mason Centre on Auckland's North Shore.

3 An Australian promoter hired the Bruce Mason Centre to host speakers whose views (unbeknownst to RFAL) had attracted controversy overseas. Once the proposed event became public knowledge, a group opposed to the speakers' views signalled its intention to blockade the theatre to prevent the event proceeding. The venue hire agreement (VHA) was cancelled on the grounds of perceived health and safety risks arising from the anticipated action by the protesters.

4 Mr Moncrief-Spittle had purchased a ticket for the event and was disappointed at its cancellation. Dr Cumin is an Auckland ratepayer and a member of the Auckland Jewish community. He was concerned that his community's future use of Council facilities could be affected by threats from those wanting to disrupt planned events. Mr Moncrief-Spittle and Dr Cumin sought judicial review of the decision to cancel the VHA. They argued that RFAL was under public law obligations to facilitate the right to freedom of expression and, in breach of those obligations, had cancelled the event without being satisfied that there were clear and sufficient public safety grounds for doing so.

5 In the High Court, Jagose J held that RFAL's decision to cancel the VHA was not reviewable because RFAL was not exercising a public power. 1 As a result, nor did the Judge accept that RFAL's decision was made in the performance of any public function or power for the purposes of s 3(b) of BORA and, therefore, the BORA-protected right to freedom of expression was not engaged. The Judge also held that neither Mr Moncrief-Spittle nor Dr Cumin had standing to bring the proceedings.

6 The appellants challenge each of these findings. They say the decision to cancel was (1) reviewable because it was in substance public and was made in the exercise of a public function or power for the purposes of BORA or, alternatively, that it had important public consequences, (2) unlawful because it was unreasonable on orthodox public law principles and (3) an unreasonable limitation on BORA-protected rights. They seek a declaration that RFAL acted unlawfully in cancelling the VHA, in order to secure confirmation that bodies responsible for managing public assets must recognise and facilitate the rights of free speech and association enjoyed by those organising unpopular or controversial events. They say that they have standing by virtue of their differing interests — Mr Moncrief-Spittle in relation to the particular event and Dr Cumin as an Auckland ratepayer, in relation to the future use by his community of public venues.

7 The respondents seek to support the judgment on the grounds that the decision to cancel was (1) not reviewable because its context was essentially commercial rather than public, (2) not unlawful because it was not unreasonable and (3) if BORA was engaged, a reasonable limit on BORA-protected rights. As to standing, the respondents support the judgment only in relation to Dr Cumin; they now acknowledge that Mr Moncrief-Spittle had standing to bring the proceeding.

8 In a separate decision, Jagose J ordered the appellants to pay costs on the basis that the proceedings did not concern matters of public interest. 2 The appellants appeal that decision as well, asserting that the proceeding did raise matters of genuine public interest and that either no costs should have been awarded against them, or the Court

should have significantly reduced the costs payable by the appellants. The respondents support that judgment for the reasons set out in the judgment and on further grounds

9 The Human Rights Commission was granted leave to intervene, which it did on the question whether BORA was engaged.

10 We deal with the issues as follows:

• (a) Issue 1: is the decision to cancel reviewable?

• (b) Issue 2: was the decision to cancel unlawful by reason of it being irrational, perverse or arbitrary?

• (c) Issue 3: was the cancellation an unreasonable limit on the BORA rights engaged?

• (d) Issue 4: did the appellants have standing to bring the proceedings?

• (e) Issue 5: did the Judge err in making the costs order against the appellants?

Factual background

11 RFAL operates through five divisions. One of these is Auckland Live, which is responsible for venues (mostly theatre-style) used for live performances. It books commercial and non-commercial events at its venues, which include the Bruce Mason Centre.

12 In June 2018 Axiomatic Media Pty Ltd (Axiomatic) contacted Auckland Live to inquire about hiring a venue for two speakers in early August 2018. The ASB Waterfront Theatre and the Bruce Mason Centre were both available on the dates being sought and Axiomatic selected the Bruce Mason Theatre for a performance on 3 August 2018. When Auckland Live sought more information about the event, Axiomatic advised that the speakers were Stefan Molyneux and Lauren Southern and described them respectively as “a renowned philosopher and author” and “a documentary filmmaker and best-selling author”.

13 A few days later Auckland Live sent Axiomatic a standard form VHA. The agreement required a hire fee of $5, 000 or 12.5 per cent of net box office takings, whichever was greater. Axiomatic was to provide a written health and safety plan for the event and the venue addressing all hazards to RFAL's reasonable satisfaction at least 10 days in advance of the event. Axiomatic completed and returned the agreement. On 18 June 2018 RFAL countersigned the agreement.

14 There were separate agreements between the promoter and the speakers under which the speakers would be paid AUD 10,000 each plus a share of profit from merchandise sales.

15 Tickets went on sale on 29 June 2018. They were priced at between $79 and $749 each. Axiomatic publicised the date and venue of the event. Within a short time, there were complaints. RFAL learned that the speakers were self-described “alt-right” activists and that for the Australian leg of their tour venues had only been advised to ticketholders 24 hours beforehand. RFAL decided to approach the police for its view regarding any threat the event might pose.

16 On 5 July 2018 a representative of Auckland Peace Action...