REPORT OF THE LEGAL SERVICES MANAGER

1. WHEEL CLAMPING

CHRISTCHURCH PUBLIC HOSPITAL

At its meeting on 13 December 1995, the Council resolved : "1. That the Legal Services Manager prepare a full opinion for the Council Meeting on 28 February 1996 on the merits of the Council applying to the High Court for an order against Canterbury Health Limited to restrain it from using wheel clamps on land controlled by that company.

2. That the Council meet further with Canterbury Health Limited to discuss practical alternatives to wheel clamping and alternative parking arrangements, including the previously proposed parking building."

Attached to this report is a joint opinion prepared by Mr J G Fogarty QC and the writer (blue paper). The opinion concludes that the Council has a reasonable chance of succeeding in any application to the High Court to restrain Canterbury Health Limited from using wheel clamping at the Public Hospital.

The opinion also recommends that any application to the Court should also include actions brought by, for example, two motorists whose vehicles have been clamped. The Court will then have a definite set of facts on which to base any judgment. There are no grounds for the Council to apply to the Court for an interim injunction to restrain Canterbury Health Limited from wheel clamping and so it will be some months before a judgment is available from the Court. Since the Council meeting on 14 December 1995, an English Court of Appeal decision dealing with wheel clamping on private land has come to our attention. There the English Court of Appeal has held that clamping is lawful provided adequate notice is given and reasonable fees are charged for the clamping. It will be noted that this decision is addressed in our opinion and we have concluded that the situation regarding the Public Hospital, particularly as it is a public facility, is sufficiently different so that the law applying to hospital carparking would be different from a private car park. This is on the understanding that New Zealand Courts would in any event agree with the English Court of Appeal decision. English Court of Appeal decisions are not binding on New Zealand Courts although they are of persuasive value. If the Council was minded to take legal action then the following recommendation could be adopted. Recommendation: 1. That the Christchurch City Council instruct the Legal Services Manager and Mr J G Fogarty QC to initiate legal action against Canterbury Health Limited to restrain it from wheel clamping motor vehicles at Christchurch Public Hospital.

2. That the Christchurch City Council meet the legal costs of two motorists being joined as parties in the proceedings brought by the Council.

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