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, Wellington
6140
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: 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, 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 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.

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 Kaiapois 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 released

recommending 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

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 any
incident"

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.

21.

The NZFS have not finalised 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.
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 Defendant;

22.

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.

23.

Declare that the 1977 rules were not in effect at the time of the
alleged offending, therefore cannot be employed and the
accusations had been dealt with in a previous investigation which
had come to a conclusion, subsequently draft findings are unlawful
accordingly.

24.

That 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.

Second Cause Of Action - Unlawful Statutory appointment against the

First and Second Defendant;
25.

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

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 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 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
Nallys 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:-

(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 Right
to Justice, s 14 Freedom of speech, Crown Entities Act 2004 against the
First Defendant;
38.

At the time of Mosbys 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 and
wanted 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. 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.

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 prior

to 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 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.

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

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 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.

54.

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.

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 appliance
was at a school visit.

11

62.

53 (e) Mosbys 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.

Mosbys 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, Mosbys 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 to

letter 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 of
Conduct.

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 and
discharge, immediate suspension, claims the Plaintiff placed his

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.

The Plaintiff claim against the First Defendant;

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 Mosbys actions as decision maker are unlawful

74.

Mosbys actions are in breach of the State Service Code of Conduct,

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

75.

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.

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 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;

13

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.
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 Mosbys 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

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;

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 Mosbys decision to discharge the Plaintiff is upheld.

The Plaintiff claim against the First Defendant;

86.

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

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 hasnt been taken into account, one would have to ask
if 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

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 of
criminal 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 decisionmakers giving wrong, arbitrary or inconsistent decisions.

98.

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.

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)

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 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,

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 Ministers office re: claims of an unlawful
conversion of or use of a fire truck.

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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,

107.

(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,

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.

The Plaintiff claim against the First Defendant;

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 54
and 56

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(a) 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
(b) The Crown Entities Act 2004 s 56
Duty to act with reasonable care, diligence, and skill
A member of a statutory entity must, when acting as a
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
s54
Duty to act with honesty and integrity

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

member, act with honesty and integrity
113.

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.

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 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:
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 of
SFF Cairns after unlawful discharge

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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: