statement of claim cairns vs nzfs and fs commission

8/19/2019 Statement of Claim Cairns vs NZFS and FS Commission

1/21

In the District Court of New Zealand

Christchurch Registry

No:

Under the New Zealand Bill of Rights

Act 1990, Fire Service Act 1975,

Crown Entities Act 2004, Defamation

Act 1992, State Service Code of

Conduct, Kaiapoi Volunteer Fire

Brigade Agreement of Service 1977,

Kaiapoi Volunteer Fire Brigade Model

Rules of Association 2008

In the matter of An application for right to justice.

Between Brent A Cairns

65a Cass Street, Kaiapoi 7630

Artist/photographer.

Plaintiff

And New Zealand Fire Service, National

Headquarters, Level 12, 80 The

Terrace. PO Box 2133, Wellington6140

First Defendant

And Fire Service Commission

Level 12, 80 The Terrace. PO Box

2133, Wellington 6140

Second Defendant

————————————————————————- Statement of Claim

Filed by:

Brent A Cairns

65a Cass Street

Kaiapoi 7630.

Ph: (03) 327-0066

Email: [email protected]

mailto:[email protected]


2/21

1

Parties;

1. The Plaintiff a self employed artist and photographer, joined Kaiapoi

Volunteer Fire Brigade (KVFB) in February 2007.

2. The Plaintiff attended the following New Zealand Fire Service

(NZFS) training programs, Recruit training, Breathing Apparatus,

First Aid, Emergency Response Driver, Qualified fire fighter, Work

at Height, Senior fire fighter, Officer, Chainsaw Operations, Pump

Rescue Tender.

3. The Plaintiff has been at one time or another a member of the KVFB

social, training and management committees.

4. The Plaintiff in service to the brigade was awarded, 5 year service

medal and bar which related to 7 years service, Volunteer medal,

2011 Canterbury Earthquake Citation with a SERVIMUS Star.

5. In 2014 the Plaintiff was awarded a Kiwi Bank Local hero medal for

his volunteer efforts within the community inclusive of the work he

did representing the Kaiapoi Volunteer Fire Brigade.

First Defendant;

6. The New Zealand Fire Service (NZFS) a large organisation spreadgeographically throughout NZ, comprising of five different regions

with around 450 stations and approximately 8,300 Volunteer

Firefighters and 1,699 Career Firefighters spread throughout the

country. Leading integrated fire and emergency services for a safer

New Zealand…

Second Defendant;

7. The New Zealand Fire Service Commission is directly responsible

for the governance of the New Zealand Fire Service and the National Rural Fire Authority.

First Cause Of Action - New Zealand Bill of Rights Act 1990, s 27 Right

to Justice, Double Jeopardy, attempting to apply rules that did not exist

against the First Defendant;

8. 23rd January 2014, the Plaintiff laid a complaint with New Zealand

Fire Service (NZFS) Area Manager (AM) David Berry inter alia,

allegations of misconduct by Kaiapoi Volunteer Fire Brigade Chief

Fire Officer (KVFB CFO) Paul Delis. The allegations related in themain to a serious false accusation made against the Plaintiff and a


3/21

2

procedurally flawed investigation which was conducted by the

KVFB CFO and the NZFS. The result of that investigation, no

disciplinary action would be taken against the Plaintiff.

9. Fire Region Manager (FRM) Brendan Nally sponsored the

investigation, appointing Acting Assistant Area Manager (AAAM)

Michael Balmer and Jeremy Wheeler NZFS Human Resources

Consultant to conduct the investigation.

10. The Plaintiff on the 7th February 2014,was interviewed in relation to

his complaint about the conduct of CFO Delis. At no time during the

investigation or since was the Plaintiff advised of his rights or

advised formally that he was under investigation.

11. 13th March 2014 CFO Delis in email to AAAM Balmer:

“Thanks for the email, I appreciate your work, I have some

more info I would like to be considered for the report along

with what I emailed to Dave (AM Berry) yesterday.

The next sentence was redacted by the NZFS

I have attached a Word Doc with the relevant (redacted)

information.”(abridged)

12. The draft report was reviewed by a number of NZFS staff, amongst

them were the NZFS Deputy National Commander Paul McGill who

commented in email (March 23rd 2014) to Fire Region Manager(FRM) Nally

“ I note the model rules are very dated but I guess they still

apply in Kaiapoi’s case” (abridged)

13. March 23rd 2014, (FRM) Nally replies

“We believe the old model rules apply as they never updated

to the last version and certainly haven't engaged with the last

rounds of modifications. Useful in this case!” (abridged)

14. In late March 2014, a Draft Report was releasedrecommending inter alia, the Plaintiff be discharged from the

Kaiapoi Volunteer Fire Brigade utilising rule 14.2 of the

1977 KVFB rules.

15. Kaiapoi Volunteer Fire Brigade rules of 1977 inter alia:

Brigade Rule 7

Every candidate shall, before enrolment be required to make

himself familiar with these rules, with the terms of the

Service Agreement and with any existing Brigade orders and


4/21

3

shall signify in writing his acceptance of the conditions of

service.

16. There is no evidence of the Plaintiff having signed an acceptance of

the 1977 rules.

17. Brigade Rule 14.2

A member of the brigade guilty of any of the following

offences whilst on Brigade premises, or going to, present at,

or returning from any drill, or any incident, shall be liable to

suspension from duty by the Chief Fire Officer or Officer in

Charge, until the matter is adjudicated on by the Chief Fire

Officer or reported to and adjudicated on by the Area

Commander or higher authority as appropriate.

(a) Being in an intoxicated condition or under the

influence of drugs.

(b) Disobeying any lawful order of his superior officer.

(c) Using abusive or insubordinate language to his

superior officer.

(d) Unseemly or disorderly conduct

(e) Using obscene language.

(f) Being slovenly in habit or dirty in person.

(g) leaving a fire or drill without consent of the officer in

charge.

18. The accusations within the draft report were not covered by the

offences within rule 14.2 provisions (a-g). i.e.“on Brigade

premises, or going to, present at, or returning from any drill, or anyincident"

19. The accusations within the draft report were dealt with in a previous

investigation which lead to no disciplinary action to be taken.

20. On or about the 14th July 2008 the Kaiapoi Volunteer Fire Brigade

ratified new brigade rules. The 1977 rules the NZFS wanted to use

to discharge the Plaintiff null and void as the provision within the

old rules did not exist in the new rules.


5/21


6/21

5

26. 25th June, 2014, NZFS Chief Executive Baxter contracted

Garth Gallaway of Chapmin Tripp Lawyers to conduct an

investigation inter alia, to review the procedural steps taken in the

earlier investigation. On or about 7th November 2014, the Plaintiff

was sent a three page draft report requesting comment. Plaintiff

responds outlining the difficulty in commenting on being provided a

partial report. 16th December 2014, Director, Office of the Chief

Executive sends a covering letter which in the final paragraph states;

“This is obviously of grave concern to the NZFS and is not a

situation that can be allowed to continue, particularly in the

context of a volunteer brigade. I will ask FRM Nally to

address this”

27. 16th December 2014, NZFS Director of the Office of Chief

Executive sends a copy of the seventeen page final report from

Gallaway, summary inter alia,

The process adopted by the investigation team did not accord

with the principles of natural justice and the draft findings

are unlawful accordingly.

28. Sometime after the 28th May 2014, in a telephone conversation with

CFO Delis lasting approximately 20minutes, Conversation goes

inter alia;

(a) Nally says “my hands are tied, I cant do anything, I

have been completely depowered by what they have

done, I can’t do anything, its as simple as that…

(b) Nally says “some wanker in your brigade has made

personal allegations against me to the chair of the

commission”

(c) Nally says “they think they are being fucking smart,so at some point, my hands will be untied, thats all I

can say..”

(d) Delis says “this is quite a different stance from when

we had the meeting, because you just said fuck it we

will get rid of them and I will deal with it and I am

thinking great that will at least move them on and we

can at least get an opportunity” Nally interrupts “I

didn’t say that I would get rid of them, I said that is

the recommendation thats on the table and thats theway I am going to go..it was always my intention to


7/21

6

follow the recommendation that was presented, but it

hasn't worked out that way, because the processes

have been exploited by members in your brigade and

we have ended up where we are at”

(e) In an additional phone call (lasting around 14

minutes) between CFO Delis and FRM Nally, during

the conversation they talk about getting rid two

members of the brigade, one being the Plaintiff. FRM

Nally says something like “I should have come in and

just acted instantly and just bloody let the outfall be

what it was..would have been big odds…I didn't want

the fire service dragged through the courts…but that

looks inevitable now.”

(f) The remarks above will be dealt with below in

sections 107 and 112

29. Partway through the Gallaway Investigation, The Director, Office of

the Chief Executive NZFS Pope changed the Terms of Reference

(TOR) to include (in brief) an allegation that FRM Nally used

intemperate language in a conversation. None of the parties were

advised of the change to the (TOR). Gallaway did not investigate

Nally’s comments.

30. On or around the 26th June 2014, Kaiapoi Volunteer Fire Brigade

Chief Fire Officer (CFO) Delis takes 6 months leave.

31. Brad Mosby is appointed the Acting CFO (ACFO) of

Kaiapoi Volunteer Fire Brigade using Fire Service Act 1975;

s 27 Document, 5, Fire Service Act 1975

Chief Fire Officer and Deputy Fire Officer

The chief executive must appoint a Chief Fire Officer and

Deputy Chief Fire Officer for every Fire District, who must

be either-(a) a member of the Fire Service; or

(b) a member of a volunteer brigade that has

entered into an agreement for service under section 34.

32. Kaiapoi Volunteer Fire Brigade Agreement of Service with the

NZFS, section 2 Appointment of Officers:

(1) The Commission having decided to appoint the Chief Fire

Officer and the Deputy Chief Fire Officer, pursuant to this

agreement, the following provisions shall apply:-


8/21

7

(a) The Commission shall appoint to be such officers such members

of the Brigade as it thinks fit.

The Plaintiff claim against the First and Second Defendant;

33. A member of the NZFS can be appointed to a district, however to be

appointed to a Volunteer brigade the provisions within the

Agreement of Service of that Volunteer Brigade shall apply.

34. Mosby was not at the time of his appointment a member of the

Kaiapoi Volunteer Fire Brigade.

35. The brigade is independently constituted and has an Agreement of

Service with the Fire Service Commission, which defines their

relationship. Individual volunteers are not engaged directly by the

NZFS but by their local brigade.

36. The NZFS have acted ultra vires by appointing Mosby to the Role of

Acting Chief Fire Officer of the Kaiapoi Volunteer Fire Brigade.

37. We ask the court to set aside any decisions made by Mosby

appointed in the role of Acting Chief Fire Officer, as his

appointment was unlawful.

Third Cause of Action - New Zealand Bill of Rights Act 1990, s 27 Rightto Justice, s 14 Freedom of speech, Crown Entities Act 2004 against the

First Defendant;

38. At the time of Mosby’s appointment the Plaintiff was organising

brigade training nights along with organising community events.

39. 25th and 28th July 2014, Plaintiff writes to FRM Nally and M o s b y

in relation to “Cactus” a youth program run by Bluelight and the

Police where he is there representing the KVFB. The organisers

were looking to take the program into other areas of Canterbury andwanted contacts within the NZFS to liase with. Nally responds that

all communications are to be directed through Mosby.

40. On or about 11th Sept 2014, some seven weeks later Plaintiff phones

Mosby for a response to his requests. Mosby’s reaction and the

exchange of emails was taken aback that he should have to respond

to the Plaintiff. The result being Mosby wants to discuss with the

Plaintiff comments and communication channels at the next training

night.


9/21

8

41. 2nd September the Plaintiff emails Mosby and the Officer group

with an update inter alia, training initiatives, with the assistance of

Council the installation of new fire hydrants, reducing fire risk at

Kaiapoi High School, Christmas Fair, Appliance outfitting

suggestions along with suggestions for Fire Safety .

42. The Plaintiff didn't get an acknowledgement or a response from

Mosby to the points raised in the email.

43. On or around the 8th September 2014, Waimakariri Council staff

member requested the Plaintiff to arrange a Fire Appliance for the

11th September 2014, to water 12 small fruit trees that were to be

planted as part of the first food forest in Kaiapoi.

44. The Plaintiff contacted Senior Station Officer Roberts to obtain

permission to use the KVFB 2nd fire appliance, along with advising

Deputy Chief Fire Officer Thomas of the event, along with emailing

Volunteer Brigade Members requesting assistance at the event.

45. 11th September at the tree planting event/ceremony, The Mayor,

Councillors, Community board Chair, a Primary School Principal,

teachers along with some children from two of the local Kaiapoi

primary schools, members of the public and media attended.

46. The Plaintiff contacted Southern Communications immediately priorto the event to inform them about the event and the status of the

appliance, which is standard practise for Kaiapoi Volunteer Fire

Brigade.

47. Southern Communications called requesting the Plaintiff to call

them by mobile phone. He called and was asked to explain again

what the event was, claiming AM Berry wanted to know.

48. Mosby arrived partway through the event, insisting the appliance be

made immediately available and return to the station. The Plaintiffwas interviewed on his own at the station where it was explained to

Mosby that permission for the event was given by an officer as per

the chain of command. Plaintiff went onto apologise thinking that

Mosby’s email was part of the group emails, the Plaintiff would

ensure that he would keep Mosby more informed in the future.

49. 11th September 2014, Plaintiff writes to Mosby and the brigade

members containing a letter of thanks from the council.

50. 12th September Mosby sends a letter to the Plaintiff claiming a possible breach of model rules of association, claiming unauthorised


10/21

9

use of a fire appliance, claiming the Plaintiff had told Southern

Communications that he was using the appliance for a school visit.

51. Mosby claimed that the Plaintiff may have also contravened the

NZFS Policy - FL2-1 Pop Use of NZFS operational vehicles

December 2011. The Plaintiff questioned in email to Mosby on the

18th September, what element of the policy was being contravened,

Mosby failed to respond.

52. 12th September 2014, the Plaintiff contacted Southern

Communications to gain access to audio recordings of the event in

question, to prove what was said, his initial request was denied.

The Plaintiff had to apply in writing through the OIA process.

53. 4th October 2014, Plaintiff receives audio files detailing his

communications, but also communications between Southern

Communications and Mosby, inter alia,

(a) Mosby calls Southern Communication at around 11.25am

prior to the event, asking them to let him know when a

Kaiapoi appliance goes out.

(b) Mosby was told initially the appliance was at a school

visit, however that information was corrected in a later call

to be a council requested event. At one point Mosby admitsthat he knew it wasn’t a school visit.

(c) Mosby is heard to ask multiple times if the Plaintiff is or

could be recorded.

(d) Mosby requested the audio files of the Plaintiff “to be

wrapped in cotton wool” and given to him.

(e) Mosby infers that he will put in place NZFS procedures

and or instructions that didn't exist at the time.

54. 5th October 2014, Plaintiff writes a letter of complaint to NZFS

Chief Executive Baxter in relation to Mosby’s conduct. 13th

October, Director, Office of the Chief Executive Rob Pope (Director

Pope) responds inter alia, that he will await outcome before

considering whether those issues merit any further consideration,

whilst stating he has passed on the complaint letter to Mosby. 11th

December Director Pope responds stating the Plaintiff’s complaint

has no merit.


11/21

10

55. 6th October, Mosby invites Plaintiff to a meeting which is

declined. 7th October 2014, Mosby writes to Plaintiff threatening

to make a decision based on the information he has. 31st October

2014, Mosby sends to Plaintiff a provisional report recommends that

he receive a written warning, requesting the Plaintiff to respond by

the 14th November.

56. 12th November 2014, Plaintiff responds to Mosby regarding

accusations of a possible breach of model rules of association,

claiming unauthorised use of a fire appliance, claiming the Plaintiff

was using the appliance for a school visit. The letter inter alia

includes an email from CFO Delis confirming the processes the

Plaintiff followed were brigade policy for some years. 24th

November 2014, Chen Palmer writes to Mosby, Acting Chief Fire

Officer, Kaiapoi Volunteer Fire Brigade in response to a request for

information regarding the placing of a fire appliance as a "Status

KO" during a community event. The event was watering of trees for

a local school. SSO Roberts responds by saying that the use of the

fire appliance in the circumstances was, to his knowledge, in

accordance with accepted practice for planned community events

which promote goodwill between the New Zealand Fire Service and

the local Kaiapoi community.

57. 28th November 2014 Mosby sent to Plaintiff, Final investigation

report into allegations of unauthorised use of a NZFS resources and breach of policy, stating no disciplinary action will be taken.

The Plaintiff claim against the First Defendant;

58. Whilst the decision at the end of the investigation was “no

disciplinary action would be taken” Mosby laid the complaint

against the Plaintiff in relation to the unauthorised use of a fire

appliance, Mosby investigated his own complaint and then

adjudicated that no disciplinary action would be taken against the

Plaintiff.

59. The principles of natural justice concern procedural fairness and

ensure a fair decision is reached by an objective decision maker.

60. In this case, Mosby was biased and should not have been the

decision maker.

61. 53 (b) Mosby had been told that the event was at request of council,

in email and again when he spoke with Southern Communications,

yet he made the accusation that the Plaintiff had said the appliancewas at a school visit.


12/21

11

62. 53 (e) Mosby’s actions are in breach of The Crown Entities Act

2004

s 54

Duty to act with honesty and integrity

A member of a statutory entity must, when acting as a

member, act with honesty and integrity

63. Mosby’s actions are in breach of the State Service Code of Conduct,

inter alia “ We must be fair, impartial, responsible and trustworthy”

Fourth Cause of Action - New Zealand Bill of Rights Act 1990, s 27

Right to Justice, s 14 Freedom of speech against the first Defendants;

64. 16th September 2014 and the 5th November 2014 the Plaintiff sends

private and confidential emails to only Kaiapoi Volunteer Fire

Brigade members inter alia, allegations that were made by Mosby,

revelations from audios, Mosby’s attempt to set the Plaintiff

up, unethical bullying behaviour and who will be next.

65. 11th November 2014, Mosby sends letter to Plaintiff re undermining

Acting Chief Fire Officer by writing two private and confidential

emails to Kaiapoi Volunteer Fire Brigade Members.

66. 2nd December 2014, letter from Plaintiff to Mosby, response toletter dated 11th November 2014, “concerns relating to

correspondence to the brigade undermining the CFO”

67. 3rd December 2014, Plaintiff writes complaint letter to NZFS

National Commander Paul Baxter inter alia Mosby interfering

with privacy, freedom of speech, bullying and standards of conduct.

68. 9th December 2014, Plaintiff writes to State Services Commissioner

complaining about the New Zealand Fire Service Chief Executive

Baxter alleged breaches of the States Service Code ofConduct.

69. 10th December 2014, Director Pope writes letter to Plaintiff, inter

alia outcome of the process that no disciplinary action will be taken,

will await outcome of investigation before the complaint will be

considered and states that the Plaintiff should reflect on whether this

claim and his other claims have any real validity.

70. A series of emails between 15th December and the 20th December

between Mosby and the Plaintiff, inter alia threats to suspend anddischarge, immediate suspension, claims the Plaintiff placed his


13/21

12

situation in the public eye by putting a posting on Facebook, issues

surrounding freedom of speech and the like.

71. 22nd January 2015, Mosby letter to Plaintiff, final report and

outcome: allegation of undermining the Acting Chief Fire Officer,

with the outcome being inter alia, discharge with immediate affect.


72. Mosby laid the complaint against the Plaintiff in relation to the

allegation of undermining the Acting Chief Fire Officer, Mosby

investigated his own complaint and then adjudicated the Plaintiff

should be discharged from the Kaiapoi Volunteer Fire Brigade.

73. The principles of natural justice concern procedural fairness and

ensure a fair decision is reached by an objective decision maker. In

this case, Mosby was biased and should not have been the decision

maker. Declare Mosby’s actions as decision maker are unlawful

74. Mosby’s actions are in breach of the State Service Code of Conduct,

inter alia “ We must be fair, impartial, responsible and trustworthy”

75. Mosby’s findings state inter alia:

(a) I am satisfied that the Freedom of Expression provisionsin the NZ Bill of Rights Act are not unfettered but are subject

to reasonable limits (s. 5 of that Act). Brigade Rules (sic)

amount to a reasonable limit. A breach of those rules is not

protected (sic) by the NZ Bill of Rights Act.

76. New Zealand Bill of Rights Act 1990

(s, 5) Justified limitations

Subject to section 4, the rights and freedoms contained in

this Bill of Rights may be subject only to such reasonablelimits prescribed by law as can be demonstrably justified in a

free and democratic society.

(s, 4) Other enactments not affected

No court shall, in relation to any enactment (whether passed

or made before or after the commencement of this Bill of

Rights),—

(a) hold any provision of the enactment to be impliedly

repealed or revoked, or to be in any way invalid or

ineffective;


14/21

13

or

(b) decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any

provision of this Bill of Rights.

77. The KVF Brigade rules would not fall into the category of an

enactment. Bill of Rights legislation does apply to the the

KVF Brigade rules. Mosby seeks to prohibit, regulate, or

restrict the dissemination or expression or opinion or

information. Any interference with those rights would be

unlawful.

(a) In addition Mosby’s actions are in breach of The Crown

Entities Act 2004

s 54Duty to act with honesty and integrity



Fifth Cause Of Action - New Zealand Bill of Rights Act 1990, s 27 Right

to Justice against the First Defendant;

78. 22nd February 2015, Plaintiff lodges an appeal with the United Fire

Brigades Association (UFBA) as per the KVFB Model Rules of

Association 2008 sec 7.7 and 7.8.

79. 28th January 2015 UFBA appoints CFO Alan Burgess of the

Ashburton Volunteer Fire Brigade to consider the appeal.

80. 29th January 2015, Mosby emailing UFBA requesting “a copy of the

complaint that was received by the UFBA” . The UFBA refuse to

release the information.

81. 29th January 2015, Mosby emailing UFBA stating he will call CFO

Burgess the following day.

82. 29th January 2015, K Radich, (Barrister at Clifton Chambers,

Karen Radich is described on their website as skilled in all areas of

employment law. Primarily acting for employers and senior

executives) emailed Mosby requesting he get hold of appeal

documents from CFO Burgess.

83. 12th February 2015, Plaintiff writes to CFO Burgess, providing

documents, requesting to meet prior to a decision being made and

appealing the decision to discharge on three grounds;


15/21

14

(a) Is Acting CFO Mosby legally entitled to discharge a

member of a volunteer brigade, which he is not a member of.

(b) Issue of conflict of interest and bias as it relates to how

the investigation was handled.

(c) Whether the punishment of discharge is appropriate.

(d) Requesting a face to face meeting prior to decision.

84. During the investigation, CFO Burgess phoned the Plaintiff more

than once, asking questions inter alia, relating to judicial review,

at one stage he stated that he would be calling the Deputy Chief Fire

Officer Thomas for his views (as he was the highest ranking

member of the brigade) and Burgess stated that based on legal

opinion he has received, Mosby has been appointed lawfully.

85. 14th April 2015, CFO Alan Burgess delivers his decision, that

Acting CFO Mosby’s decision to discharge the Plaintiff is upheld.


86. Within the appeal document under the heading of disclosure:

(a) For this particular allegation, the primary document thathas governed and referenced for this review is:

Rules of the Kaiapoi Volunteer Fire Brigade

87. This brings into question whether the Fire Service Act 1975 and the

Kaiapoi Volunteer Fire Brigades Agreement of Service with the Fire

Service Commission has been taken into account in relation to the

appeal. The legislation and Agreement is a Statutory Appointment

and was used by the NZFS/Commission to appoint Mosby.

Therefore if it hasn’t been taken into account, one would have to askif the appeal process is flawed.

88. Under the heading Document History Reviewed - Appeal process.

The firm of Goldstein Ryder, Christchurch were appointed

by the UFBA.

89. The role that the UFBA has in the appeal process is to appoint a

CFO who will hear the appeal and then for the UFBA to deliver the

outcome. The appeal process is managed by the NZFS and not the


16/21

15

UFBA. Therefore the statement appointing Goldstein Ryder is

misleading or false.

90. Mosby by stating in email once the appointment of CFO Burgess to

hear the appeal made, he was to call him the next day. This is an

attempt to influence and or interfere in the process and the

outcome.

91. (81) Mosby in an email trail is suggested to request documents from

UFBA of the appeal, on balance if documents from the Plaintiff

were given to Mosby, documents provided by Mosby should have

been released to the Plaintiff.

92. CFO Burgess stated in a phone call that he would be calling Kaiapoi

Volunteer Fire Brigade Deputy Chief Fire Officer Ian Thomas. This

did not occur, no call was made by Burgess to Thomas.

93. CFO Burgess in the appeal document failed to provide reasons for

decisions.The Court of Appeal in Lewis v Wilson and Horton Ltd

pointed to three main reasons why the provision of reasons is

desirable.

94. Firstly, providing reasons for decisions is an important aspect of

openness in the administration of justice (which is affirmed by

section 25(a) of the Bill of Rights Act in the context ofcriminal proceedings).

95. Secondly, a failure to give reasons means that the lawfulness of what

has been done cannot be assessed by a court exercising its

supervisory jurisdiction (for example, by way of judicial review).

97. Finally, providing reasons is the best protection against decision-

makers giving wrong, arbitrary or inconsistent decisions.

98. On or about the 22nd of March the NZFS stopped access to theinternal email system to the Plaintiff despite the appeal process to

run its course. Plaintiff emailed and called regarding getting

continued access to email service, however those requests were

ignored.

99. Declare the appeal process is in breach of the Plaintiffs Rights to

Natural Justice. Through disclosure process, failing to provide

reasons for the decisions, failing to take into account legislation

relating to the appointment of Mosby and failing to meet face to face

as requested (83d)


17/21

16

Sixth Cause Of Action - Nonfeasance against the Second Defendant

100. The Fire Service Commission in the event of any dispute, are

responsible inter alia, section 34 (5) of the Fire Service Act 1975:

(5) In the event of any dispute arising between—

(a) the Commission, or any employee or employees of the

Commission; and

(b) any volunteer fire brigade or any volunteer member or

members of any volunteer fire brigade,—

the Commission shall give written notice of the

circumstances of the dispute to the United Fire Brigades’

Association of New Zealand and shall not make any final

decision regarding the settling of the dispute until it has

considered the representations, if any, made by that

Association in the matter within a reasonable time:

The Plaintiff claim against the Second Defendant;

101. Based on the documents obtained from the UFBA, on the balance of

probability the Second Defendant did not give written notice to the

United Fire Brigades Association before any of final decisions were

made, which meant the Association was unable to make any

representations.

The Second Defendant failed to exercise their statutory obligations

in this matter.

102. Nonfeasance is the failure to act where action is required—wilfully

or in neglect. Having an independent body reviewing and making

comment is there in our opinion to provide an unbiased view of

decisions made. The UFBA are there to represent brigades only and

not individual members, however this clause in legislation, is there

in our opinion to stop any breaches of members rights to natural

justice or any other unlawful acts, or unfair decisions. The

Commissions failure to report to the UFBA, has meant the Plaintiffs

right to have a third party review and comment has been denied.

Seventh Cause of action: Publication of material defaming the Plaintiff,

Crown Entities Act 2004, State Services Code of Conduct, False

Accusation Against the First and Second Defendant;

103. Documents released to the Plaintiff from Minister of Internal Affairs

Office email from the NZFS, document 13 “Advice from the

Commission to the Minister’s office re: claims of an “unlawful

conversion of or use of a fire truck”.


18/21

17

104. 24th September 2014, Director, Office of the Chief Executive NZFS

Rob Pope writes to Jayne Beggs, Private - Internal affairs, Office of

the Hon Peter Dunne, Minister for Internal Affairs, an “investigation

commenced last week into the Plaintiffs actions relating to an

apparent unlawful conversion or use of an NZFS fire truck”

105. 25th September 2014, Jayne Beggs forwards the above email onto

Elliot Steel Senior Private Secretary to Hon Peter Dunne Minister of

Internal Affairs

106. 13th January 2015 Director, Office of the Chief Executive Pope

provides to the Minister an update on the current issues at Kaiapoi

Volunteer Fire Brigade. Inter alia,

(a) 4) Gallaway report; the Director failed to provide the

Minister with all the facts “The process adopted by the

investigation team did not accord with the principles of

natural justice and the draft findings are unlawful

accordingly.

(b) 16) Findings; Had Cairns taken the opportunities given to

him to respond to the allegations during September and

October, the actual situation would have been established

much earlier.

(c) 31) Cairns; “Significant trust and confidence concerns have

been raised about Cairns”,

107. 28 above, Phone conversations between CFO Delis and FRM Nally.

From the audio file, part of one of the recordings was played in

the Ministers office during a meeting with NZFS Chief Executive

Baxter, Director Pope and a deputation from the Kaiapoi Volunteer

Fire Brigade.


108. At no time was the Plaintiff accused of “unlawful conversion of a

fire truck”, a statement in email made by the Director, Office of the

NZFS Chief Executive.

109. The misleading and factually incorrect statements within the

Ministerial briefings, which have "a malign influence" have been

used to purposefully defame the Plaintiff a volunteer fire fighter,

along with breaching the Crown Entities Act, specifically section 54and 56


19/21

18

(a) The Crown Entities Act 2004 s 54

Duty to act with honesty and integrity



(b) The Crown Entities Act 2004 s 56

Duty to act with reasonable care, diligence, and skill


member, exercise the care, diligence, and skill that a

reasonable person would exercise in the same circumstances,

taking into account (without limitation)—

(a) the nature of the statutory entity; and

(b) the nature of the action; and

(c) the position of the member and the nature of the

responsibilities undertaken by him or her.

110. 106 (b) The NZFS failed to provide to the Plaintiff the audio

recordings as requested by way of an OIA until 5th October. The

audio files were crucial evidence to enable The Plaintiff to prove

his innocence of any wrong doing, claiming the Plaintiff could have

responded in September, when clearly that could not be the case.

The Plaintiff laid a compliant with the NZFS Chief Executive,

which was responded by Director Pope on the 13th October. Mosby

released a draft investigation report on the 31st October calling for a

response by the 14th November, which the Plaintiff responded too

on the 12th November 2014.

111. 104-106 The Director may claim some form of privilege, however

the statements or omissions above are in breach of the State Services

Code of Conduct, inter alia, treat everyone fairly and with respect,

be professional, impartial, responsible, act lawfully, be honest. 106

(a) One of the Terms of Reference was to establish whether or not

the investigation was conducted in a lawful manner. The Director

chose to report inter alia, the investigators had acted honestly and

with integrity, failing to report that the investigation was unlawful.Therefore the Director has acted unlawfully.

112. 107 above, FRM Nally made defamatory remarks about the

person who laid a complaint against him. At that time the only

person to have laid a complaint from the KVFB is the Plaintiff.

The audio files confirm there was a predetermined plan to discharge

two members (inclusive of the Plaintiff) from the KVFB.

FRM Nally actions are in breach of The Crown Entities Act 2004

s54Duty to act with honesty and integrity


20/21

19



113. As a result of the publication of the above statements, The Plaintiff’s

reputation has been seriously damaged and he has suffered

considerable distress, lose of trust and credibility.

114. The Plaintiff will rely on the above facts and matters to support a

claim for punitive damages pursuant to s28 of the Defamation Act

1992.

Summary:

115. The Plaintiff has attempted to have the NZFS take responsibility for

their unlawful actions. Writing to the Minister of Internal Affairs

Hon Peter Dunne making him aware of the issues has been fruitless

as has communications to the likes of the Fire Service Commission

Chair Wyatt Creech, The State Services Commissioner, United Fire

Brigades Association, Human Rights Commission, Director of

Human Rights Proceedings.

116. The Plaintiff feels he has been left little choice but to take legal

action against the NZFS and the Fire Service Commission. As a

volunteer who doesn’t have the luxury of a Union, or the

Employment Relations Act too act for and or protect him. Feelingthe legislative protections are minimal for a volunteer, hence why he

is representing himself.

Wherefore the Plaintiff claims:

Damages:

117. The Plaintiff herein sues the First Defendant for unlawful discharge

from the KVFB; humiliation, degradation and malicious

persecution.

118. We ask the court to declare the discharge from the Kaiapoi Volunteer

Fire Brigade to be unlawful.

119. The Plaintiff to be reinstated as a full member of the Kaiapoi

Volunteer Fire Brigade.

120. We ask that the court directs the NZFS put aside a sum of $900 for

an advert to be placed in the Christchurch Press inclusive of a photo

advertising “Kaiapoi Volunteer Fire Brigade welcomes the return ofSFF Cairns after unlawful discharge”


21/21

20

121. The Plaintiffs service record and rank to be reinstated as at the time

of his discharge.

122. The unlawful discharge be struck from the Plaintiffs NZFS

Personnel file.

123. Of a punitive nature the amount of $20,000.00 for each cause of

action to be paid by the First Defendant or the Second Defendant

respectively.

This document is filed by the Plaintiff in person. The address for service of

the Plaintiff, Brent A Cairns is 65a Cass Street, Kaiapoi 7630.

Brent A Cairns

Date: