The Phil Goff case – WHY we Must Proceed to Appeal

Editors Note: It is the policy of The BFD not to link to fundraising for organisations unless they have paid for an advertorial article which will be clearly labelled as such. However, The BFD is a champion of Free speech and feels that the Free Speech Coalition is worthy of our audience’s support as they are not doing this for any personal gain but to defend free speech for all New Zealanders.

Below is an update on our appeal to the High Court’s decision last year backing Phil Goff and Auckland Council’s ability to pick and choose who we can hear from and what can be said at Council-owned facilities. Stephen Franks, our lawyer, has written the following summary of events so far.

Since the actual decision, Justice Jagose issued an even worse costs decision — not only ordering costs in favour of the Council, he went so far as to actually say these are not public interest proceedings!

Despite thousands of people like you chipping in to defend free speech, and defeat a politician who de-platforms speakers he doesn’t like, this judge says we’re doing this as a “personal crusade”, out of private interest.

We must not let court precedent state that crowd-funded litigation to protect free speech is “not in the public interest.” We must proceed in this appeal. But Judge Jagose’s decision suddenly makes it more expensive.

Stephen’s summary below is more technical but the point is short: we need to continue with this appeal and we need your financial support to do it.
We cannot thank Stephen and his team enough for the enormous lengths they have gone to for the cause of defending free speech. The vast majority of the legal work his firm has done has been for free.

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“Since the High Court (Justice Jagose) decision against us on 30 September last year, we’ve been pressing on for our appeal to the Court of Appeal. Slow steps are now normal in our court system. We do not yet have a date. One reason is that the judge decided our case was not a public interest case. After argument following the decision, he ordered that we must pay legal costs to Auckland Council and Regional Facilities Auckland (the other side).

You’ll know the courts often decline to apply the usual rule that loser pays, when the loser has brought a case on an issue of principle, especially on principles of general public interest. It is more likely that costs lie where they fall when it is clear the loser parties are not seeking any personal benefit, financial or otherwise. Yet even NIMBY organisations which go to court to block land developments, and lose, only rarely are ordered to pay the developer, who may have suffered huge delay costs on top of their legal expenses. 

Leaving legal costs to lie where they fall is even more likely where the winner is a public authority who can litigate at public expense, unless the losing public interest party has made the case unreasonably or unnecessarily expensive. FSC has been careful to confine the case to key questions. 

So we were optimistic. All those factors were in our favour. Jagose J nevertheless ordered against us, awarding Auckland Council/Regional Facilities Auckland (RFA) nearly $47,500. 
The other side then asked that we post security for costs of the appeal, before we proceed, an additional $7000. In other words, though we do not have to pay the other side the costs ordered by the High Court if we win our appeal, we have to put up in advance the amount we might have to pay for the appeal case, if we lose it.  

We asked the Registrar of the Court of Appeal to exercise a power to waive that requirement, again on a common ground that the appeal is on a public interest issue, by public interest parties.
We will, of course, fund-raise to do whatever is necessary to get to appeal, but we have objected to the costs orders to highlight the important principles at stake.

The Registrar was in a difficult position. Even if she privately thought it is bizarre for our two brave representative applicants to be treated as if they were seeking private benefits instead of standing up for the public and human rights of free speech, she was faced with the very deliberate adverse conclusions of the High Court judge.

He had said that even though RFA is wholly owned and operated by Auckland Council, it does not count as a public body. On that basis public body duties to uphold free speech do not apply. He went on to say that even if he was wrong on RFA’s status, its decision to cancel the event was a private contractual decision which had nothing to do with its public functions. He said that the NZ Bill of Rights Act did not apply and RFA did not have to consider the right to freedom of speech. 

In the costs decision, he said that the application was not brought in the public interest but was brought by two people on a “crusade” to inject their own self-interest into RFA’s decision-making. 
Because of that express statement denying the public interest, we were not surprised by the Registrar’s conclusion that she could not treat our applicants as public interest litigants. She had asked them to provide statements of their personal financial position. Though both were willing because of the importance of the case, and neither are wealthy, FSC believes it would be wrong to continue to seek the waiver on that ground.

We now have a good platform from which to ask the Court of Appeal to make a definitive statement on the public interest character of the issues on appeal. We do not want to win this appeal on a narrow ground. It is very important that the decision clarify the law, so that no Council (or other custodian of public meeting facilities) can cite the Jagose judgment as authority to reserve them on a politically partisan basis. De-platforming is rife. We want this action to ensure that the winning side in local politics can’t ban ratepayers who want to hear hostile or unfashionable views from using ratepayer-funded facilities.

We do not yet have a trial date yet. 

We want the Court of Appeal to confirm that applications to protect free speech are in the public interest. We hope you will continue to help make that happen.
We need you to join with us in supporting our appeal of this unjust and dangerous decision.

Thank you for your support.