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Decision may support illegal acts by security

New precedent may support illegal acts by security and private investigation companies

The High Court has finally released its Judgement on the matter of Stuart-Menteath v Registrar of Private Investigators and Security Guards (Judgement dated 5 November 2010 - CIV 2010-412-000306) and has upheld the Registrar's decision.

It's been a somewhat tedious process, but recall that this was the second judicial review of the second decision of the ex Registrar of Private Investigators and Security Guards (PISG), Gary Harrison, re my 2007 complaint about the conduct of Provision Security Ltd on Mt Augustus. In the first judicial review the High Court found that Harrison had not treated me fairly and reasonably and had made significant errors in law and ordered a re-hearing.

In this latest matter I claimed that Harrison was biased, that he should have disqualified himself from hearing my complaint, that he had breached the principles of natural justice and otherwise made errors in fact and law in his 31 March 2010 decision.

For example, prior to the second substantive hearing I made a complaint about Harrison to the Minister of Justice alleging inability and misbehaviour (The Minister's investigation ceased when Harrison decided not to renew his contract). In his letter of response Harrison made a number of inflammatory and false statements about me and my complaint that indicated that he was not impartial. In one of them he stated, in reference to his earlier dismissal of my complaint about Provision Security, that ...

"I do not often make awards of costs, particularly where there is merit in the complaint or objection, even if not sustained. Where, as here, a complainant fails to appear without any apparent justification, or a complaint or objection is entirely devoid of merit, then generally speaking I will award costs."

Where Harrison states "as here" he is clearly referring to my failure to appear at the 2008 hearing after he gave me only two and a half hours notice and which as a result he awarded costs to Provision Security who sought to bankrupt me, supposedly as a misguided means of enforcing payment.

I maintain that the impartial and intelligent layperson, whose perspective the Court is obliged to adopt, would read that to mean that Harrison was biased because he had formed a negative opinion about my complaint before he had even heard the evidence, but French J states that that comment was not a reference to my complaint “...and is not capable of being interpreted in that light.”

Well... I must have gone to the wrong school.

Similarly she excuses Harrison’s assertion that my complaint to the Minister was “scurrilous” because, she claims, he was responding to allegations “which were extravagant and unwarranted.”

It would have been fair and reasonable if she had applied the same latitude to my complaint, which was, after all, a response to Harrison's 2008 decision that, regardless of his 40 years of work as a lawyer and barrister, as a NZ Law Society Inaugural Litigation Skills instructor, as founding director and CEO of Shortland Chambers Ltd, whose areas of expertise included administrative & constitutional law; tort liability; civil litigation; banking & finance and commercial & contract disputes, and who was counsel assisting the Royal Commissioner in the Erebus air crash inquiry and Registrar for Private Investigators and Security Guards since 1996, contained basic flaws pertaining to law and natural justice that a Laws 101 student could identify with ease.

There is also the matter of vicarious liability (the liability of an employer for the acts of an employee) re the fact that the Provision security guards at the centre of my complaint had failed to produce their Certificates of Approval to me on demand, as required by s46 of the PISG Act. Provision Security's director, Gavin Clark, actually admitted that the security guards did not have their Certificates of Approval on them because he had failed to issue them as required. Section 46 merely identifies who commits the offence, not who is liable, but French J lets them off the hook by stating that there is "...no room for expression of vicarious liability under s46."

It seems that French J has created an obstacle to finding security or private investigation companies guilty of instructing their employees to engage in illegal acts. A worrying precedent in these days of increasing surveillance and intrusions on privacy.

Provision Security are now demanding that I pay them $6,500 costs.

Needless to say I consider French J's Judgement to be an absurdity and am taking advice on whether to appeal the decision.


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