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I have been involved in a dispute with a council-operated…

I have been involved in...
I have been involved in a dispute with a council-operated public facility, and have been trying to obtain official information relating to that dispute. Finally, after several months of refusing to provide the official information, Council’s Chief Executive apparently decided that it had no option but to do so. Included with the response, in an apparently vindictive action, was a notice to trespass me from the premises of the organisation with which I have the dispute. No reason was given for the trespass notice, and the Chief Executive did not respond to a LGOIMA section 22 request for a statement of reason in respect of it.
I am looking for basic information at this stage in order to help me to make a decision about how (or indeed whether) to proceed. My questions are:1. Under what (if any) circumstances would the Chief Executive’s issuance of the trespass notice be considered to be criminal (bearing in mind that it appears to have been a punitive action applied resentfully in reaction to being forced to perform a statutory duty in respect of my statutory right)?2. (There are broader circumstances pertaining to the underlying dispute which are injurious to me, however) Assuming that no reasonable grounds existed to do so, was the Chief Executive’s issuance of the trespass notice an act of misfeasance, and if so:(a) Is it a tort?; and if so
(b) Would the Chief Executive be personally liable or would Council be liable?
(c) Generally, would an award of exemplary damages be likely/unlikely, and if so what might be a realistic amount?
(d) What (ballpark) might I realistically expect to be liable for in legal fees if I pursued litigation?Thank you in advance.
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Answered in 12 minutes by:
3/14/2018
Chris The Lawyer
Category: New Zealand Law
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There is no specific way to challenge a trespass notice under the Trespass Act except by defending a prosecution for breaching the act. I dont expect you are keen to do that because that would involve a police complaint and a court case in the criminal court.

Any occupier of premises is entitled to issue a trespass notice and that is not a criminal act.

I will post more shortly

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Customer reply replied 4 months ago
Thank you, Chris

The procedure for issuing a trespass notice is very simple, and is just a notice. As long as the person is authorised to give the notice, and a chief executive of a local body would be authorised, that is all which is needed to make the notice legal.

So the issue of the notice does not require any reasons, and therefore cannot be an act of misfeasance.

In a situation like this I would be inclined to make a complaint to the ombudsman because it is an arbitrary exercise of powers by the chief executive, which potentially interferes with your ability to access the organisation.

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Customer reply replied 4 months ago
Thanks for that, Chris. For clarity (and I don’t want to take more of your time so a simple yes/no/not certain clarification is fine), and whilst recognising your advice that "the issue of the notice does not require any reasons":When consideration is given to the fact the facility is public (and I am therefore entitled to access it), and assuming that in that context no reasonable grounds for issuing the notice existed (i.e. it was issued for purely malicious reasons), in your view could the act of issuing the notice be reasonably described as "a public officer abusing his or her office and causing damage to another person" (the damage being prevention of access to the facility)?

There are cases where a trespass notice has been held unenforceable where the property is accessible to the public. A local authority office will have a public counter where members of the public can come and go, but this would not be the same as a public space or public park. I think the motives of the CEO in issuing the notice are questionable. I think it is more likely that the issue of the notice could be questioned on judicial review, but that is a High Court procedure which would cost a very substantial amount. The grounds for the review would be the issue of the notice was a disproportionate response. The ombudsman have a similar jurisdiction, and does not cost you anything. If the review or the ombudsman investigation showed that this was malicious and unnecessary, then there are cases about malfeasance in public office. I am not sure that the issue of the notice as a badtempered response would quite get you there

Chris The Lawyer
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Customer reply replied 4 months ago
Thank you. Your response was far more detailed than necessary, but very much appreciated. It remains my intention to complain to the Ombudsman, however my concern (possibly mistakenly) is that any determination by the Ombudsman in respect of the matter is advisory only, not enforceable, and that consequently the matter will remain a discretionary one for Council.
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