In the District Court of New Zealand

Christchurch Registry
No: CIV-2016-009-000433
Under the New Zealand Bill of Rights
Act 1990, Fire Service Act 1975,
Protected Disclosures Act 2000,
Human Rights Act 1993, 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, Wellington
6140
First Defendant

And

Fire Service Commission

Level 12, 80 The Terrace. PO Box
2133, Wellington 6140
Second Defendant

Statement of Claim - Amended

Filed by:
Brent A Cairns
65a Cass Street
Kaiapoi 7630.
Ph:
(03) 327-0066
Email: brent@brentcairns.com

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 spread

geographically throughout NZ. The NZFS is responsible for the day
to day Management and Operations. The Chief Executive employs
on behalf of the Commission approximately 2,270 staff 1720
firefighters, 80 Communication Centre operators, 285 regional
management and support staff and 234 National Headquarters and
specialist staff.

Second Defendant;
7.

The New Zealand Fire Service Commission is a Crown Entity and

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 and Second Defendants;
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 the
main to a serious false accusation made against the Plaintiff and a
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.

The Plaintiff made the complaint to AM Berry as it is he who the

CFO reports too. The NZFS Chief Executive appointed the CFO
pursuant Fire Service Act 1975 sec 27. It is the Fire Region
Managers role to establish if any disciplinary action should follow.

10.

Fire Region Manager (FRM) Brendan Nally sponsored the

investigation, appointing paid employees of the Fire Service, Acting
Assistant Area Manager (AAAM) Michael Balmer and Jeremy
Wheeler NZFS Human Resources Consultant to conduct the
investigation.

11.

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.

12.

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)

13.

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 Kaiapois case (abridged)

14.

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)

15.

In late March 2014, a Draft Report was released

recommending inter alia, the Plaintiff be discharged from the
Kaiapoi Volunteer Fire Brigade utilising rule 14.2 of the
1977 KVFB rules.

16.

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
shall signify in writing his acceptance of the conditions of
service.

17.

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

the 1977 rules, as at the time of joining the rules had been
superseded by the model rules of association 2008.

18.

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.

19.

(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.

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 any
incident"

20.

The accusations within the draft report were dealt with in a previous
investigation which it was agreed in writing that no disciplinary
action was to be taken.

21.

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 are null and void as the provision within
the old rules did not exist in the new rules.

22.

Once it was pointed out to the NZFS they had used out of date
rules, thus not having the authority to discipline the Plaintiff. The
NZFS were unable to finalise the report, none the less the draft
report makes an inherently strong conclusion in proposing the
discharge of the Plaintiff from the Kaiapoi Volunteer Fire Brigade.

23.

10th April 2014, Plaintiff responds to Nally's release of the draft

report inter alia,
(a)
(b)
(c)
(d)

I do not recognise the outcome of the draft report.

I do not recognise the validity of the use of Brigade
Rules 1977.
I do not recognise your authority to adjudicate.
I reserve the right to appeal.

The Plaintiff claim against the First and Second Defendants;

24.

Declare the process adopted by the investigation team did not accord
with the principles of natural justice and the draft findings are
unlawful accordingly.
(a) not being privy to the disclosure of relevant material so that one
could be aware of allegations against the Plaintiff.
(b) not being given an opportunity to be heard.
(c) not given sufficient notice of an impending decision nor notice of
adverse findings against the affected party which would affect the
Plaintiffs interests and the Plaintiff generally.

25.

Declare the NZFS investigators had mistakenly attempted to use the

1977 rules to discharge the Plaintiff. Rules that had been superseded
in 2008 and were not in effect at the time of the alleged offending.

26.

Declare the accusations within the Draft Report had been dealt with
previously in an investigation that had run its course. Any attempt to

raise again the same accusations would amount to double jeopardy

therefore unlawful accordingly.
27.

Declare the NZFS had no lawful authority to attempt to discipline or

discharge the Plaintiff a member of the Kaiapoi Volunteer Fire
Brigade.

Second Cause Of Action - Unlawful Statutory appointment against the

First and Second Defendant;
28.

28th May 2014, Plaintiff laid a complaint with the NZFS Chief
Executive Paul Baxter about the draft report and the conduct of
employees of the Fire Service FRM Nally and AM Berry during the
investigations.

29.

26th 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.

30.

The covering letter to the Plaintiff from the Director, Office of the
Chief Executive emphasises this is a new and independent
investigation and that disciplinary action, which may include
discharge from the KVFB may result.

31.

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.

32.

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

33.

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.

34.

35.

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

between FRM Nally and 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 cant 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
didnt say that I would get rid of them, I said that is
the recommendation thats on the table and thats the
way I am going to go..it was always my intention to
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 oddsI didn't want
the fire service dragged through the courtsbut that
looks inevitable now.

(f)

The remarks above will be dealt with below in

sections 119 and 138

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

Nallys comments.
36.

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

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

37.

FRM Nally appoints Brad Mosby as the Acting CFO (ACFO) of

Kaiapoi Volunteer Fire Brigade pursuant to Fire Service Act
1975;
s 27 Document:
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.

38.

Kaiapoi Volunteer Fire Brigade (KVFB) 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:(a) The Commission shall appoint to be such officers such members
of the Brigade as it thinks fit.

39.

Pursuant the Charities Act 2005 a charity has a Duty to notify

changes
sec 40 (c)
a change in the officers of the charitable entity, whether as
the result of an officer ceasing to hold office or the
appointment of a new officer, or both:

40.

The KFVB to comply with the Charities Act 2005 must ensure that
it sends or delivers to the chief executive notice of any of the
following changes:
sec 40 (2) (d)
be sent or delivered to the chief executive within 3 months of
the later of
(i) the effective date of the change; of he effective date of the
change; or
(ii) the charitable entity first becoming aware of the change.

41.

The KVFB are not in breach of the Charities Act 2005 as the
appointment of Mosby was unlawful as it did not comply with the
Agreement of Service.

The Plaintiff claim against the First and Second Defendants;

42.

The Plaintiff chose to not be involved in the Gallaway

investigation as apart from the CFO of KVFB the NZFS have no
lawful authority to discipline or discharge a member of the KVFB.
Declare the Director had no lawful authority to threaten to discipline
or discharge the Plaintiff.

43.

Declare that a member of the NZFS can be appointed to a district,

however to be appointed to KVFB Volunteer brigade the
provisions within the Agreement of Service of that Volunteer
Brigade shall apply.

44.

Declare the KVFB is a registered charity. Registered on the 30th

June 2008, with a registration number of CC28876. A registered
charity is bound inter alia by the Charities Act 2005.

45.

Declare that Mosby was not at the time of his appointment a

member of the KVFB.

46.

Declare the KVFB 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.

47.

Declare the NZFS have acted ultra vires by appointing Mosby to the
Role of Acting Chief Fire Officer of the Kaiapoi Volunteer Fire
Brigade.

48.

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 Right
to Justice, s 14 Freedom of speech, Breach of State Service Code of
Conduct against the First and Second Defendants;
49.

At the time of Mosbys appointment the Plaintiff was organising

brigade training nights along with organising community events. He
took on these tasks as the Training Officer had stood down from the
duties.

50.

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 and
wanted contacts within the NZFS to liase with. Nally responds that
all communications are to be directed through Mosby.

51.

On or about 11th Sept 2014, some seven weeks later Plaintiff phones
Mosby for a response to his requests. Mosbys 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.

52.

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 .

53.

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

Mosby to the points raised in the email. Despite the request for
follow up with a plan to supply smoke alarms and provide home
safety checks, to contact St John re training, collection of trailer for
fair day and change risk plans for the school in question.

54.

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.

55.

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.

56.

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.

57.

The Plaintiff contacted Southern Communications immediately prior

to the event to inform them about the event and the status of the
appliance, which is standard practise for Kaiapoi Volunteer Fire

10

Brigade. The Plaintiff communicated that the appliance was being

used for a Waimak Council event and school activity.
58.

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.

59.

Mosby had prior knowledge of the event as he had contacted

Southern communications earlier in the day. Mosby arrived partway
through the event, insisting the appliance be made immediately
available and return to the station. The Plaintiff was 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 Mosbys email
was part of the group emails, the Plaintiff would ensure that he
would keep Mosby more informed in the future.

60.

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

members containing a letter of thanks from the council.

61.

12th September Mosby sends a letter to the Plaintiff claiming a

possible breach of model rules of association, claiming unauthorised
use of a fire appliance, claiming the Plaintiff had told Southern
Communications that he was using the appliance for a school visit.

62.

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.

63.

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.

64.

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

11

to be a council requested event. At one point Mosby admits

that he knew it wasnt 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.
65.

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

Chief Executive Baxter in relation to Mosbys 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 Plaintiffs complaint
has no merit.

66.

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.

67.

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.
(a) The letter inter alia includes an email from CFO Delis
confirming the processes the Plaintiff followed were brigade
policy for some years.
(b) 24th November 2014, Chen Palmer on behalf of SSO
Roberts 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

12

promote goodwill between the New Zealand Fire Service

and the local Kaiapoi community.
68.

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 and Second Defendants;

69.

Mosby laid the complaint against the Plaintiff, Mosby investigated

his own complaint and then adjudicated the complaint. The outcome
of the complaint/investigation is not important as the process was
unlawful.

70.

Declare that the principles of natural justice concern procedural

fairness and ensure a fair decision is reached by an objective
decision maker have been breached by Mosbys actions.

71.

Declare that Mosby was biased and should not have been the
decision maker.

72.

Declare 64 (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 appliance was at a school visit.

73.

Declare 64 (e) Mosbys actions are in breach of the State Servants

Code of Conduct Once an agency has been notified in writing by
the Commissioner that the code applies to it, the agency, including
its employees, contractors and secondees engaged in relation to a
function, duty or power of the agency, is legally required to comply.
The legal obligation applies whether or not the code of conduct is
mentioned in the terms and conditions of employment agreements.

74.

Declare Mosbys actions are in breach of the State Service Code of

Conduct, inter alia We must be fair, impartial, responsible and
trustworthy

75.

Declare that Mosby by communicating prior to the event with

Southern Communications knew where the appliance was. Any
assertion that the community would be placed at risk is false, as the
crew would be able to respond from the event.

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

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

13

76.

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, Mosbys attempt to set the Plaintiff
up, unethical bullying behaviour and who will be next.

77.

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.

78.

2nd December 2014, letter from Plaintiff to Mosby, response to

letter dated 11th November 2014, concerns relating to
correspondence to the brigade undermining the CFO

79.

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.

80.

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 of Conduct.

81.

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.

82.

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

between Mosby and the Plaintiff, inter alia threats to suspend and
discharge, immediate suspension, claims the Plaintiff placed his
situation in the public eye by putting a posting on Facebook, issues
surrounding freedom of speech and the like.

83.

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.

The Plaintiff claim against the First and Second Defendants;

84.

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.

14

85.

Declare Mosbys actions as decision maker are unlawful, 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.

86.

Declare Mosbys actions are in breach of the State Service Code of

Conduct, inter alia We must be fair, impartial, responsible and
trustworthy

87.

Mosbys findings state inter alia:

(a) I am satisfied that the Freedom of Expression provisions
in 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.

88.

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 reasonable
limits 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;
or
(b) decline to apply any provision of the enactment
by reason only that the provision is inconsistent with any
pro- vision of this Bill of Rights.

89.

Declare any interference with the Plaintiffs (87, 88) rights would be
unlawful. Declare the KVF Brigade rules would not fall into the
category of an enactment. The Bill of Rights legislation do apply to
the the KVF Brigade rules. Where Mosby seeks to prohibit, regulate,
or restrict the dissemination or expression or opinion or information.

15
90.

Declare Mosbys actions are in breach of the State Servants Code

of Conduct Once an agency has been notified in writing by the
Commissioner that the code applies to it, the agency, including its
employees, contractors and secondees engaged in relation to a
function, duty or power of the agency, is legally required to comply.
The legal obligation applies whether or not the code of conduct is
mentioned in the terms and conditions of employment agreements.

Fifth Cause Of Action - New Zealand Bill of Rights Act 1990, s 27 Right
to Justice against the First and Second Defendants;
91.

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.

92.

28th January 2015 UFBA appoints CFO Alan Burgess of the

Ashburton Volunteer Fire Brigade to consider the appeal.

93.

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.

94.

29th January 2015, Mosby emailing UFBA stating he will call CFO
Burgess the following day.

95.

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.

96.

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;
(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.

16

97.

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.

98.

14th April 2015, CFO Alan Burgess delivers his decision, that
Acting CFO Mosbys decision to discharge the Plaintiff is upheld.

The Plaintiff claim against the First and Second Defendants;

99.

Within the appeal document under the heading of disclosure:

(a) For this particular allegation, the primary document that
has governed and referenced for this review is:
Rules of the Kaiapoi Volunteer Fire Brigade

100.

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 hasnt been taken into account, one would have to ask
if the appeal process is flawed.

101.

Under the heading Document History Reviewed - Appeal process.

The firm of Goldstein Ryder, Christchurch were appointed
by the UFBA.

102.

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
UFBA. Therefore the statement appointing Goldstein Ryder is
misleading or false.

103.

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.

104.

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

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

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were given to Mosby, documents provided by Mosby should have

been released to the Plaintiff.
105.

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.

106.

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.

107.

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 of
criminal proceedings).

108.

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).

109.

Finally, providing reasons is the best protection against decisionmakers giving wrong, arbitrary or inconsistent decisions.

110.

On or about the 22nd of March the NZFS stopped access to the

internal 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.

111.

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.

Sixth Cause Of Action - Nonfeasance against the Second Defendant

112.

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

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(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;
113.

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.

114.

Nonfeasance is the failure to act where action is requiredwilfully

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,

State Services Code of Conduct, False Accusation Against the First and
Second Defendants;
115.

Documents released to the Plaintiff from Minister of Internal Affairs

Office email from the NZFS, document 13 Advice from the
Commission to the Ministers office re: claims of an unlawful
conversion of or use of a fire truck.

116.

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

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117.

25th September 2014, Jayne Beggs forwards the above email onto
Elliot Steel Senior Private Secretary to Hon Peter Dunne Minister of
Internal Affairs

118.

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,

119.

(a)

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)

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)

Cairns; Significant trust and confidence concerns have

been raised about Cairns,

(34) 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.

The Plaintiff claim against the First and Second Defendants;

120.

Declare the statement as defamatory unlawful conversion of a

fire truck, a statement in email made by the Director, Office of the
NZFS Chief Executive.

121.

Declare 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.

122.

Declare that the Ministerial briefings are in breach of the State

Servants Code of Conduct Once an agency has been notified in
writing by the Commissioner that the code applies to it, the agency,
including its employees, contractors and secondees engaged in
relation to a function, duty or power of the agency, is legally
required to comply. The legal obligation applies whether or not the
code of conduct is mentioned in the terms and conditions of

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employment agreements.
123.

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.

124.

Declare the Directors 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. 118 (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. By breaching the State Servants code of
conduct the Director has acted unlawfully.

125.

(34) 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.

126.

FRM Nally actions are in breach of the State Servants Code of

Conduct Once an agency has been notified in writing by the
Commissioner that the code applies to it, the agency, including its
employees, contractors and secondees engaged in relation to a
function, duty or power of the agency, is legally required to comply.
The legal obligation applies whether or not the code of conduct is
mentioned in the terms and conditions of employment agreements.

127.

Declare as a result of the publication of the above statements, The

Plaintiffs reputation has been seriously damaged and he has
suffered considerable distress, lose of trust and credibility.

128.

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.

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129.

Declare the Director has breached the principles of public service

cabinet manual, relating to providing advice to Ministers which
must be honest, impartial and comprehensive.

Eighth Cause of Action: breach of Protected Disclosures Act 2000 and

Human Rights Act 1993 against the First and Second Defendants;
130.

31st March 2014 Plaintiff emailed FRM Nally in relation to the

findings within the draft report, questioning its lawfulness, breaches
of natural justice, breaches of the Bill of Rights Act.

131.

2nd April 2014 the Plaintiff wrote to the Minister of Internal

Affairs Hon Peter Dunne, inter alia prima facia case of unlawful
behaviour.

132.

28th May 2014 the Plaintiff wrote to the Fire Service Chief
Executive Paul Baxter, inter alia alleged breaches of New Zealand
law, breaches of NZFS policy.

133.

5th October 2014 the Plaintiff wrote to NZFS Chief Executive Paul
Baxter in relation to unlawful behaviour in relation to alleged
breaches of States Services Code of Conduct.

134.

3rd December 2014 the Plaintiff wrote to NZFS Chief Executive

Paul Baxter inter alia; false allegations, abuse of power, breach of
standards of integrity and conduct, interfering with freedom of
speech.

135.

9th December 2014 the Plaintiff wrote to the State Service

Commissioner Iain Rennie inter alia allegations of breaches natural
justice, false allegations, unethical, unfair, unprofessional conduct.

136.

19th December 2014, Plaintiff writes a complaint to Chair of the

Fire Service Commission, Wyatt Creech.

The Plaintiff claim against the First and Second Defendants;

137.

Declare the Galloway investigation (30) was in part conducted to

victimise the Plaintiff as NZFS did not have the authority to
discipline or discharge a member of the KVFB as threatened in the
covering letter.

138.

Declare the audio recordings (34) between CFO Delis and FRM
Nally where they conspire to discharge the Plaintiff as
victimisation.

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139.

Declare FRM Nally by personally making the appointment

of Mosby as Acting CFO was his opportunity to victimise the
Plaintiff for laying a complaint against him.

140.

Declare that FRM Nally choosing to ignore CFO Deliss

recommendation of the Acting CFOs role to be filled by SSO
Roberts, despite Roberts being qualified, would negate the
opportunity for him to victimise the Plaintiff via Mosby

141.

Declare Mosby failing to respond to email communications (51, 52,

53, 62) was to victimise the Plaintiff.

142.

Declare that Mosby (61, 77) failing to follow lawful processes

during investigations as victimisation.

143.

Declare Mosbys action of discharging the Plaintiff (83) as

victimisation.

Summary:
144.

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. The NZFS failed to protect the Plaintiff,
pursuant to the Protected Disclosures Act.

145.

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 doesnt have the luxury of a Union, or the
Employment Relations Act too act for and or protect him. Feeling
the legislative protections are minimal for a volunteer, hence why he
is representing himself.

Wherefore the Plaintiff claims:

Damages:
146.

The Plaintiff herein sues the First and Second Defendant for
unlawful discharge from the KVFB; humiliation, degradation and
malicious persecution. As it was the NZFS that appointed Mosby.

147.

We ask the court to declare the discharge from the Kaiapoi Volunteer
Fire Brigade to be unlawful.

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148.

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

Volunteer Fire Brigade.

149.

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 of
SFF Cairns after unlawful discharge

150.

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

of his discharge.

151.

The unlawful discharge be struck from the Plaintiffs NZFS

Personnel file.

152.

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

action to be paid by the First 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: 9th May 2016