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Judicial review decision a miscarriage of justice

Media release

5 May 2011

Judicial review decision a miscarriage of justice

A judicial review decision by the High Court is a miscarriage of justice, claims environmentalist Bruce Stuart-Menteath who had costs awarded against him following his bid to have a 31 March 2010 decision by the then Registrar of Private Investigators and Security Guards (PISG), Gary Harrison, quashed.

Provision Security Ltd (PSL), the second defendant in the judicial review proceedings, has filed bankruptcy proceedings against Stuart-Menteath as a means of enforcing payment of the costs.

Harrison’s 31 March 2010 decision concerned a complaint Stuart-Menteath made about PSL’s operations on Department of Conservation land at Mt Augustus, West Coast, in 2007. Prior to the hearing in February 2010 Stuart-Menteath requested that Harrison disqualify himself because he had made comments that indicated that he had formed negative opinions on the merits of the complaint before the matter had been heard at the hearing, and therefore he had revealed he was not impartial. Harrison refused, and whilst he subsequently found at the February 2010 hearing that Stuart-Menteath’s complaint had some merit, he nevertheless dismissed it.

The impartiality of judges and other judicial officers like the Registrar PISG is a cornerstone of our justice system. The Guidelines for Judicial Conduct state that, “Impartiality must exist both as a matter of fact and as a matter of reasonable appearance” and that “The appearance of impartiality is measured by the standard of a reasonable, fairminded, and informed person.” Stuart-Menteath maintains that in this case neither requirement has been properly applied and that Harrison’s 31 March 2010 decision displays errors and irrational reasoning consistent with earlier indications that he was biased, but Justice French in her 5 November 2010 judicial review decision did not agree. Regardless, Stuart-Menteath maintains that the dismissal of his complaint resulted from Harrison’s bias and that French J has failed to see the elephant in the room.

Evidence for Stuart-Menteath’s allegation of bias includes a 2008 letter that Harrison wrote to the Minister of Justice in response to a complaint Stuart-Menteath made to the Minister after his complaint about PSL was initially dismissed at a hearing on 21 February 2008. On that occasion Stuart-Menteath failed to appear essentially because Harrison gave him only two and a half hours notice that the hearing had been brought forward. That decision was subsequently found to be illegal and quashed by judicial review in July 2009.

In his letter to the Minister, Harrison made numerous irrelevant, false and highly misleading allegations that painted a disparaging picture of Stuart-Menteath and his complaint about PSL. He stated that he rejected “...entirely the scurrilous assertions of the complainant, and maintain that the foregoing account confirms that at all times the necessary legal principles, relevant to a contested hearing, were applied.”

And yet he failed to even discuss the key issues that resulted in the successful 2009 judicial review, notably his failure to provide Stuart-Menteath with the required notice for the hearing or an opportunity to reply to PSL’s submission on costs. Given Harrison’s nearly 40 years of legal experience, including being founding director and CEO of prominent law firm Shortland Chambers, it defies credibility that he could honestly make such a statement.

In particular Harrison stated in his letter, in reference to Stuart-Menteath’s complaint and his failure to appear at the 2008 hearing, “Where, as here, a complainant fails to appear without any apparent justification, or a complainant or objection is entirely devoid of merit, then generally speaking I will award costs.”

The objective test for bias that the courts are obliged to apply is from the perspective of the hypothetical fair-minded lay observer and whether they might reasonably conclude that there was a real possibility that an adjudicator might not bring an impartial mind to a hearing. However, Stuart-Menteath maintains that the test that French J actually applied was a test from the perspective of an academic in law engaged in grammatical hair splitting. Also, it is clear from her reasoning that French J merely adopted at face value the same false and misleading allegations that Harrison had made to the Minister, which portrayed Stuart-Menteath as a deceitful complainant with ulterior motives.

Unfortunately, before a proper investigation into Harrison’s conduct was able to be conducted he effectively resigned by choosing not to put his name forward for a renewal of his term as Registrar PISG.

Stuart-Menteath believes that French J also erred in her interpretation of Section 46 of the Private Investigators and Security Guards Act and the application of the concept of vicarious liability. At the 2010 hearing PSL admitted that it was responsible for failing to issue its security guards with their certificates of approval, which they were obliged to carry and present on demand. Nevertheless, Harrison refused to find the company liable for the omission. In her decision French J supported Harrison’s decision by stating that there was no room for expression of vicarious liability under s46.

The hearing of this matter will be held in the High Court at Dunedin on Monday 9 May 2011. The public are welcome to attend.

End

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