A lawyer says that the men who challenged Auckland Council's decision to ban controversial Canadian speakers Lauren Southern and Stefan Molyneux were performing a public service and should not be made to pay with nearly $47,000 in court costs.
The High Court found that the council acted properly by cancelling the speaking event at the Bruce Mason Centre in August 2018, but it has now gone to the Court of Appeal.
Yesterday marked two years since hundreds of Aucklanders gathered in Aotea Square to protest giving the pair a platform, citing previous racist and other offensive comments.
Now the case has found itself before three of the country's senior judges after an appeal by Dunedin bookseller Malcolm Moncrief-Spittle and David Cumin, who is described as a prominent member of Auckland's Jewish community.
The Court of Appeal today heard arguments about whether or not the High Court was wrong when it dismissed claims that Auckland Council overstepped the mark when it cancelled the event.
The appellants' lawyer, Jack Hodder QC, told Justices Cooper, Kos and Courtney that the right to freedom of expression was denied when council-controlled Regional Facilities Auckland made a hasty decision to block the speakers.
"We say the issue is whether a council-controlled organisation is exercising public powers when it is managing access to the public assets, i.e. the venues that exist for indoor cultural and political meetings."
Justice Kos asked Hodder how far he was prepared to go to defend the right to freedom of speech and expression.
"We're not quite at the level of a neo-Nazi organisation cheerfully booking the Bruce Mason Centre. But perhaps even then?" Justice Kos said.
"We would say even then, probably," Hodder replied. "Unless those who were organising and performing at the meeting were advocating something unlawful then all the ordinary aspects of these debates come to bear."
He said the assertion that the event was cancelled due to fears for people's safety could not be stacked up.
"It may well be that in the end a valid decision could be made to say that it's impossible to provide security in the Bruce Mason Centre. We simply don't know because they didn't inquire at the time."
Another lawyer for the appellants, Jordan Grimmer, questioned the High Court judge's conclusion that they were acting out of self interest rather than fulfilling the role of public watchdog.
"He also goes on to say that the applicants' conduct constituted something of a crusade against Regional Facilities Auckland. He seems to draw that from the fact that they had injected their self interest into the decision.
"It's fair to say that the appellants resist this characterisation of their motives quite strongly."
As such, Grimmer argued that they should not have been hit with a $46,500 bill for court costs as they were acting in the interests of the public.
Lawyer for the council and Regional Facilities Auckland, Katherine Anderson, argued that the "artists" - as Southern and Molyneux were referred to in contractual documents - could not be said to have been holding a public event, as claimed by the appellants.
"The artists were to be paid a minimum of $60,000 each so in this context it's clearly a paid speaking engagement. It was not an event that was open to the public.
"So the references in the submissions for the appellants to "town hall events" ... are references to events of a very different character."
The hearing will continue tomorrow.