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Security watchdogs' decisions shown to be flawed

Security watchdogs' decisions shown to be flawed

5 August 2009

In the High Court at Christchurch recently Fogarty J issued a stinging criticism of the decisions of the Registrar of Private Investigators and Security Guards, Gary Harrison, during a judicial review of Harrison's dismissal of a complaint by Bruce Stuart-Menteath.

Stuart-Menteath had originally complained about the conduct of employees of Provision Security Ltd in 2007 and Harrison had accepted that his was a valid complaint. Indeed, before the hearing scheduled for 22 February 2008, Provision Security had actually produced evidential statements that confirmed the complaint on a number of points.

However, Harrison relied on a note he had inserted in the notice of hearing he issued to Stuart-Menteath, which advised that the hearing may be brought forward. He subsequently gave Stuart-Menteath only two and a half hours notice that the hearing had been brought forward to the day before the notified hearing date. As a consequence Stuart-Menteath could not attend. Harrison refused to accept that his failure to attend was genuine and dismissed his complaint then awarded $1500 costs to Provision Security, who subsequently sought to bankrupt Stuart-Menteath when he refused to pay.

The High Court considered whether Harrison had properly applied the PISG Act, in particular where it stated that a minimum of 14 days' notice of a hearing was necessary. Stuart-Menteath maintained that Harrison had acted illegally by failing to provide him with the required notice and that even if that was not so, he had acted contrary to the principles of natural justice by failing to consult about the changes to the hearing date; by altering the order of his witnesses and by failing to apply his discretion consistently with regard to Provision Security's failure to serve its memorandum of costs.

Neither Harrison nor Provision Security filed statements of defence in the High Court action, preferring to abide by the decision of the Court. The Solicitor-General appointed Crown Counsel Peter Gunn as amicus (friend of the court) who acted as a neutral party to provide legal advice to the Court. But neither Fogarty J nor Gunn could find anything in favour of Harrison's decisions on Stuart-Menteath's Provision Security complaint. Fogarty J summed the situation up when he stated that "The Registrar's position was really dead in the water."

Fogarty J also pointed out that it was Harrison who gave leave for the complaint to be brought, that he was aware that it was bona fide and not vexatious and that in such circumstances it was not appropriate for an authority to dismiss a matter for non attendance, particularly when it was strongly founded.

In his 29 July 2009 decision Fogarty J referred to the clear wording of the PISG Act and concluded that...

"In my view it is quite clear that the Registrar had no power to dismiss the complaint on 21 February. [and] I am satisfied that the Registrar was not treating the applicant fairly and reasonably... [and] Accordingly the outcome of this case is that the plaintiff's complaint still stands. The Registrar will need to set a new time and place for the hearing of the complaint."

Harrison's decision to award costs to Provision Security was also quashed.

Since 1996 Harrison has been solely responsible for administering the Private Investigator's and Security Guards Act 1974. He has been tasked to ensure that operating licences and certificates of approval to be private investigators or security guards are issued only to those applicants who are deemed fit and proper to hold a licence. He plays an important part in ensuring that the process is robust by conducting hearings into complaints brought by members of the public.

Given his failure to apply basic legal principles to hearing procedure or to properly apply legislation that was clear to a layperson like Mr Stuart-Menteath, questions must now be asked as to whether Mr Harrison is a fit and proper person to hold such an important public office.


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