Barron v Clutha District Council
[2020] NZHC 52
•31 January 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2018-412-000089
[2020] NZHC 52
BETWEEN KEVIN WILLIAM BARRON
Plaintiff
AND
CLUTHA DISTRICT COUNCIL
Respondent
Hearing: 31 July 2019 by AVL Appearances:
G A Paine and M Taylor-Cyphers for the Plaintiff D Tobin for the Respondent
Judgment:
31 January 2020
JUDGMENT OF HINTON J
This judgment was delivered by me on 31 January 2020 at 4;30 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
G A Paine Barrister Ltd, Dunedin
Marie Taylor-Cyphers, Barrister, Dunedin Dean Tobin, Barrister, Dunedin O’Sullivan & Associates, Wellington Sumpter Moore, Milton
BARRON v CLUTHA DISTRICT COUNCIL [2020] NZHC 52 [31 January 2020]
Introduction
[1] Mr Barron was removed as leader and member of a working group (“the working group”) set up by the Clutha District Council (“the Council”). The working group had been tasked with providing the Council with advice on options for the future of the Balclutha War Memorial Hall (“the Hall”). Mr Barron seeks judicial review of the Council’s decision to remove him.
Background
[2] A considerable number of affidavits and affidavits in reply have been filed by members of the Council and working group. Some of those involved hold strong views as to the Hall’s future and how the working group should operate. The deponents have devoted considerable energy to setting out their view of the relevant facts. Several disputes emerge. It is unnecessary for me to resolve those. I have endeavoured however to set out the competing accounts below.
[3] One point of agreement between all involved is that the Hall is of high importance in the Balclutha community. The evidence on this point of Ms Rachel Jenkinson, a councillor from 2016 until 2019, was unchallenged. She explains that the Hall is an important asset of the community. It holds deep significance as a recognition of the sacrifices made by district service people in the Second World War. It is also of almost daily use by a number of community groups, including sporting, theatrical, and charitable organisations and is used as a gathering place for events such as funerals. The evidence of Ms Alison Ludemann, who has been a councillor for the Balclutha Ward since 2016, is that it functions as the town hall of Balclutha. Suffice to say the Hall and its future is a matter of considerable interest in Balclutha and the wider Clutha District.
[4] However, the Hall is run-down and in need of refurbishment. In December 2016 the Council began looking at options available to it and in April 2017 it obtained a scoping and feasibility report in respect of potential redevelopment. This noted strong community support for redevelopment of the facility as part of a wider potential redevelopment of community spaces in Balclutha known as the “Our Place” scheme,
which the Council had initiated in 2015. The redevelopment of the Hall was identified by the Council as the second-highest priority within the wider “Our Place” scheme.
[5] The report encouraged the Council to ensure the project was community-led, with motivated stakeholders and members of the community involved from an early stage. In his evidence, Mr Cadogan, who has been the Clutha District Mayor since 2010 deposes that the Council has struggled to get “critical mass in support of community projects” in the past. His evidence is that in early 2017 Council staff recommended that working groups be set up to look at the future of major community spaces, including the Hall.
[6] Mr Cadogan says the Council’s expectation was that a working group would identify the needs and interests of current and potential Hall users, still respecting its nature as a war memorial, and then make recommendations by way of a community plan on what should be done with it. These recommendations could have ranged from demolition and rebuild through to minimal refurbishment. The Council would receive this plan, then decide whether to adopt it. His view was that it was essential that the group be collaborative in approach; identifying and balancing the potentially competing interests of different groups within the community. This was to be done in a transparent, legitimate and support-building manner.
[7] Mr Barron is a business manager who was born and raised in Balclutha. He intends to retire there, having bought a house in the town in 2011. He has a record of involvement with community groups in the town. He took an interest in the potential redevelopment of the Hall. He sent a submission to the Council on its plans for the District, including a submission regarding the Hall. The Council invited him to speak to his submission, which he did in March 2017.
[8] There is some dispute as to how Mr Barron came to be appointed as leader of the working group. Mr Barron maintains that he was “courted” by the Council in respect of leading the project based on the strength of his submission. He says he “shoulder tapped” a “managing team” for the project. He then forwarded a list of these people together with proposals for how the project should be run to the Council on 10 August 2017. Mr Cadogan, on the other hand, says that Mr Barron “actively
promoted himself as the leader of the working group and vigorously sought that appointment.” He accepts, however, that this is a matter of opinion. Ultimately, nothing turns on this, though it foreshadows the events that have resulted in these proceedings.
[9] Mr Cadogan says he held reservations regarding Mr Barron’s apparent desire to adopt what he terms a “purely business-focused” approach to the running of the working group. He felt Mr Barron’s proposed approach was not likely to serve the Council’s goal of building wide-reaching support for the project in the community, being insufficiently “collaborative.” For his part, Mr Barron says his structure “did not find favour with the Mayor who wanted a public meeting to seek volunteers from the community to put their names forward to be part of the co-ordinating team”. Mr Barron says, “I acknowledged the politics around the Council’s approach and made a decision to run with it”, despite his “misgivings” about this structure.
[10] Mr Cadogan met with Mr Barron on 1 September 2017 to outline his view of the Council’s expectations for the working group, should Mr Barron be chosen as leader. Mr Cadogan’s intention, he deposes, was to make it clear that it would be unacceptable to the Council for Mr Barron to “pick and choose” who was to be on the working group, and that anybody who attended the public meeting would be welcome to serve on the group. He also deposes that he told Mr Barron that the “working group was to be the public’s conduit to Council”, who would make the final decision on redevelopment. He says he emphasised that “at the end of the day” the future of the Hall as a valuable and important community asset “would not be [Mr Barron’s] decision.” His impression was that, by the end of the meeting, he had secured Mr Barron’s “agreement albeit probably grudging agreement that, if selected, he would move forward in an inclusive consultative manner.”
[11] While Mr Barron does not entirely agree with Mr Cadogan’s account it does strike me as the overall thrust of the evidence and submissions.
[12] The public meeting for interested members of the community was held at the Hall on 4 September 2017. After an introduction by the Mayor and the Chief
Executive of the Council, Mr Steve Hill, Mr Barron gave a presentation outlining aspects of the proposed project planning process.
[13] At a closed meeting on 21 September 2017 the Council endorsed the appointment of Mr Barron as leader of the working group and resolved that all those who applied for membership of the group should be appointed as members. The Council also resolved:
That additions or deletions from the coordinating group other than leadership changes and excluding the elected members do not need to be referred back for Council approval.
[14] The “elected members” referred to in this resolution were the Balclutha Ward councillors, Mr Ken Payne, Ms Ludemann, Ms Jenkinson, and Mr Sutherland. Mr Cadogan was also a member of the working group ex officio as Mayor but had signalled he would not take a day-to-day role.
[15] As part of his desire to control the composition and processes of the working group, Mr Barron had not wanted any councillors as members. Mr Cadogan’s view was that the inclusion of councillors on the group was appropriate as, ultimately, the group was meant only to be a “conduit” to Council for the community’s views, and to ensure that wider “community sensibilities” were considered.
[16] On 22 September 2017 the Council wrote to Mr Barron acknowledging his interest in the project, endorsing him as leader of the group, and advising that:
(a)the Council had resolved to appoint the four Balclutha Ward Councillors to the working group, who were likely to divide themselves between the Hall group and another working group proceeding simultaneously;
(b)Mr Cadogan had excused himself from active involvement, but would be welcome at any working group meeting he wished to attend;
(c)working group membership could change without the Council’s approval, but Council approval was required for a change of leadership of the working group; and
(d)there were “trigger points” at which decisions were required from the Council for work to progress; namely for the completion of the business case or where any Council funds beyond existing budgets were proposed to be expended, but that, otherwise, the Council’s intention was “to let [Mr Barron] get on with managing and progressing the project.”
[17] It was clear that the role of the working group was to solicit feedback and options from the community for subsequent consideration and determination by the Council.
[18] The evidence available indicates there was no constitution, mission statement, or similar protocol provided to govern the working group’s affairs. The working group had no legal personality or identity.
[19] Mr Barron remained at odds with the Council’s aspirations for the working group as a consultative body. On 19 October 2017 he wrote to Mr Ken Payne, a councillor, saying “there is no committee as such, but a team of people that will have various job tasks to undertake in the project” and “if you see your role as being a conduit…”. It was clear he remained opposed to councillor membership of the group. In an email to Mr Payne, he expressed concern that the councillors would present a “conflict of interest factor” if they were members of the “community lead project” and said he would be seeking “clarification” on this point and described his preferred structure as having been “overridden.”
[20] Between 18 November 2017 and 15 February 2018, there were no meetings of the working group (which was comprised of some 14 members) as a whole. There was a meeting for training purposes only on 18 November 2017. Mr Barron’s preferred method of managing the group was to set up informal sub-groups and allocate members to them. These sub-groups would then confer electronically through
Mr Barron as the “central contact.” According to Mr Timothy Blackler, who was a member of the working group, this approach was based on a consensus decision taken by the group at its meeting of 18 November 2017 because of its unwieldy size. Ms Jenkinson’s evidence is that, in her view, this amounted to Mr Barron’s “compartmentalising” the group’s functions; allowing him to confer with more supportive members at the expense of other members’ opportunity to participate.
[21] Because of these concerns, Ms Jenkinson and the other councillors involved with the working group met with Mr Barron at the Council’s offices on 21 February 2018. Also present were Mr Cadogan and Mr Hill. Ms Jenkinson’s evidence is that Mr Barron was told the working group as a whole should regularly meet to discuss and agree upon what was to happen next, and that the group should take minutes so that there was a proper record of all decision-making. The effect, Ms Jenkinson says, was to clearly convey to Mr Barron that his conduct of the working group’s affairs until that point was unacceptable to the Council. This is the evidence from the four councillors involved, who agree that Mr Barron was told that transparency was important, and that his preferred method of acting as a hub between the sub-groups was not acceptable.
[22] I accept this evidence. Mr Barron’s evidence on this point does not adequately refute the councillors’ account. He says the purpose of the 21 February 2018 meeting was to address “a concern of the elected members that the [working group as a whole] did not know how the project was progressing”. He says the outcome was an agreement that the whole group would meet monthly from that point onwards but otherwise he is silent. No minutes were taken of the 21 February meeting, apparently (according to Ms Ludemann) to the dissatisfaction of those present, who resolved that minutes should be taken in future. Mr Barron took and circulated some notes which did not contain reference to any decision to take minutes in the future
[23] The first substantive meeting of the working group was held on 26 March 2018. According to Mr Barron, at that meeting Ms Ludemann suggested setting up a legal entity, such as a charitable trust, as a vehicle for the Hall redevelopment project going forward. He says he met with Ms Ludemann the following day to further discuss this idea and that she encouraged him to contact Ms Mosely, the author of the March 2017
report to Council, to invite her to join the working group. As it was, Ms Mosely was not interested in joining the group, but agreed to speak to the working group at its next meeting. It seems Mr Barron also requested funding to set up a trust.
[24] The second meeting of the working group was on 7 May 2018. Ms Jenkinson’s evidence suggests she had no knowledge of Ms Mosely’s potential involvement until that meeting. Her evidence is that Mr Barron introduced Ms Mosely as a local consultant whom he had asked to join the working group to assist in the establishment of a charitable trust. Ms Jenkinson further says that this was the first occasion on which she had learnt that Mr Barron had approached the Council to request funding to pay Ms Mosely to set up a trust. For her part, Ms Ludemann says she had always thought that Ms Mosely would be a good addition to the group but agrees with Ms Jenkinson’s view that Mr Barron had acted unilaterally and without consulting the group both in approaching Ms Mosely and in approaching the Council for funding.
[25] The 7 May 2018 meeting became heated. The affidavit evidence describes events as having been “far less pleasant than the March meeting”. One witness says it featured “unprofessional” conduct from those opposed to Mr Barron’s actions. Whatever the case, Mr Barron left the room and those remaining discussed whether he should continue as leader. Ms Jenkinson’s evidence is that there was not a clear majority in favour of removing Mr Barron, and so he was invited to return. It seems that after he returned the group unanimously endorsed his leadership. There is a minute to that effect. Ms Jenkinson says this apparent co-operation was because of a perceived need to heal divisions within the group.
[26] On Ms Jenkinson’s account, when Mr Barron returned to the meeting, he was belligerent. Mr Barron’s reply affidavit does not specifically address that allegation. Suffice to say, he blames the councillor members of the working group for any “toxicity.”
[27] Ms Ludemann contacted Mr Cadogan following the working group’s meeting on 7 May 2018. His evidence is that she told him that the “relationships within the working group had become toxic”, the group having divided between those supportive of Mr Barron and those opposed. Mr Cadogan’s recollection is that he heard, and had
earlier heard, similar comments from two of the other councillors, but that the remaining councillor (Ms Sutherland) was more sympathetic to Mr Barron. Mr Cadogan met with Mr Hill and, having discussed the situation, determined that Mr Barron’s role should be discussed by the Council.
[28] On 15 May 2018, Mr Cadogan requisitioned an extraordinary meeting of the Council, from which the public was to be excluded.
[29] The Council meeting was held on 31 May 2018. The minutes of the meeting record that nine members of the Council voted in favour of removing Mr Barron as leader and member of the working group, with one (Ms Sutherland) opposed. Mayor Cadogan declared a conflict of interest and took no part in discussion or voting. Another councillor, Mr Payne, was appointed as leader of the working group. The Council also resolved, by the same margin, to require the working groups to produce minutes of all meetings. All councillors assented to telling Mr Barron the reasons for his removal. The minutes recorded that these were lack of communication, lack of transparency, and concern over decision making processes. The Council noted a possible issue of natural justice and indicated that the Chief Executive would seek legal advice before notifying Mr Barron of the decision.
[30] Mr Hill gave Mr Barron notice of the Council’s decision, using the phrasing contained in the minutes, by email dated 1 June 2018. To this, he added that:
In listing these reasons Council highlighted that in their view a non-inclusive approach had contributed to concerns in those areas, that actions had to be more transparent, and decision-making processes needed to be robust and inclusive.
Pleadings
[31] This proceeding was filed in October 2018. Mr Barron’s statement of claim pleads breach of duty of care by failure to consult and seeks declarations that his removal as a leader and member of the working group was unlawful and that he should be reinstated as both.
[32] The affidavit evidence was filed between September 2018 and the end of February 2019.
[33] The plaintiff then filed submissions which argued failure to consult, but not on the basis of breach of duty of care as pleaded; rather as a ground for judicial review. Entirely new grounds were raised, also in terms of judicial review, of bias and pre- determination. The matter proceeded as if it were an application for judicial review.
[34] The new grounds were not the subject of evidence, at least from the Council, as the submissions in which they were raised followed filing of affidavits. This was clearly to the Council’s prejudice.
Reviewability
[35] The first question on an application for judicial review is whether the impeached decision of the body in question is amenable to judicial review. The Council argues that this decision is not.
[36] The source of power, in other words where the authorisation to make the challenged decision was located, was but is no longer determinative of this question.1 Rather, this first question in turn raises two subsidiary questions. These are, first, whether the decision involves the exercise of public power, and, secondly whether the subject matter of the decision means it is not suitable for judicial review or put alternatively is non-justiciable.2
[37] Turning to address the first question, it is useful to consider the statutory context of the decision.
[38] The Council is a territorial authority governed and continued in existence by the Local Government Act 2002 (“the Act”). It is a body corporate that has full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction for the purposes of performing its role. It has full rights, powers, and
1 As was first recognised in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL), Lord Diplock in his speech (at 418) accepting that an exercise of the royal prerogative affecting a person’s private rights or legitimate expectations is as amenable to review as an exercise of statutory power affecting those same interests. This was adopted in Burt v Attorney-General [1992] 3 NZLR 672 (CA) at 678 and 681. The amenability to review of decisions taken pursuant to other non-statutory powers was accepted in Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683.
2 Wilson v White [2005] 1 NZLR 189 (CA) at [21], approved Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89] per Elias CJ and Arnold J.
privileges to do the same,3 subject to its acting consistently with statute and general law, and the requirement to exercise its powers for the benefit of its district.4
[39] The Act provides for a territorial authority to establish and otherwise operate or govern a range of bodies, including local boards, community boards, and council- controlled organisations (“CCOs”).5 A working group is not such an entity. Mr Paine suggests that the group could be a CCO, but a CCO has either the form of a company6 or entity.7 The working group does not fulfil the definition of an entity,8 and plainly is not a company. The working group, likely purposefully, lacked legal identity or form.
[40] Clause 30 of Sch 7 to the Act gives the Council the power to appoint committees. The working group does not fall within this definition either, as the definition of “committee” is concerned with “subordinate decision-making bodies”. As is clearly established on the evidence, no decision-making powers were delegated to the working group.
[41] There is no express statutory authority or procedure for the establishment of bodies like the working group. The working group was set up by the Council as an ad hoc advisory body not having the features of any of the subsidiary groups the Council is expressly authorised to establish. It was set up without a constitution, and on a totally informal basis. In terms of the Act, the working group’s establishment, and modification, is best understood as the Council’s utilising its statutory grant of general competence to do those things it saw as best discharging its statutory functions and duties (pursuant to s 6 of the Act).
[42] An alternative view is that the Council was using the working group mechanism to discharge its obligations to consult with the community as part of decision-making about the future use of the Hall, pursuant to Part 6 of the Act.
3 Local Government Act 2002, s 12(1)-(2).
4 Sections 12(3)-(4).
5 Sections 5, 6(1), and 49.
6 Section 6(1)(a).
7 Section 6(1)(b).
8 Section 6(2).
[43] However, I do not consider that Part 6 is engaged. Part 6 is concerned with requirements for the evaluation of alternative options, and engagement and consultation with the community, in local body decision-making.9
[44] In establishing the working group, the Council was not engaged in a process of decision-making about the future use and development of the Hall. The terms of reference, a term I use loosely, provided to Mr Barron at the time of his appointment made it clear the working group could only advise the Council. Any advice it gave the Council would be a mere expression of opinion. The working group was not itself exercising a power of decision.
[45] The working group exercise was, in effect, a prelude to the Council’s decision- making process on the issue (in terms of the wording of Part 6). That is both the “objective” interpretation arising from the Council’s behaviour and contemporaneous documentation such as is available, and also the “subjective” view arising from Mayor Cadogan and the other councillors’ evidence. Indeed, the Council’s position in submission is that the primary purpose of the working group was to generate support for the proposed redevelopment effort. This is a primarily ‘political’ object; though one consistent with the terms of the Act. The Council had not embarked on making a final decision, that is, committing itself to a course of action, in respect of the issue.
Indeed, I consider it clear in terms of the Act that it could not have done so.10
[46] In terms of the statutory scheme the establishment of the working group is better viewed as an exercise of the Council’s discretion (available to any body corporate) as to how to conduct its affairs pursuant to s 6, rather than as an application of its decision-making powers and obligations under Part 6.
[47] It is against this statutory context that the reviewability of the decision must be assessed. I note that, even if I am wrong on the Part 6 point, in either case it is clear
9 See ss 76-82 of the Act.
10 For the future, the Council may need to consider, if it intends to rely solely or substantially on the group’s ultimate recommendations, whether that would sufficiently comply with its obligations to consult with the public. That, however, is another matter.
that Parliament intended local authorities to have significant discretion as to how they discharge these powers.11
[48] Mr Tobin, for the Council, submits that the discretion afforded to local authorities reflects their democratic legitimacy. The decision as to the leadership and membership of the working group is, he says, a matter of policy and political judgment for the locally elected representatives on Council.12 In particular, Mr Tobin continues, whether Mr Barron was leading the working group in a manner likely to generate community support is a matter for political not legal judgment by the elected representatives entrusted with running the Council. He suggests the possibility, as a result, that the Council was essentially dealing ‘privately’ with Mr Barron and the other working group volunteers, and thus this decision lacked the ‘public nature’ required for it to be reviewable.
[49] There is some force in this submission. A potential analogy is suggested by Mr Tobin’s submission that Mr Barron and the working group were merely volunteer advisors to the Council; whose advice the Council was free to accept or ignore as it saw fit. A further analogy would be to the position of a private professional person who approaches the Council to offer their services free of charge, whose offer is initially accepted but they are then told their services are no longer required. That individual would, clearly, have no recourse to judicial review as against the local authority. Their redress, if any, would come from their appeal to the electors at the next local body elections.
[50] The working group members’ roles were voluntary and unpaid. In appointing, and indeed, removing members from the working group, the Council was not exercising a statutory power of decision as to individual rights or liabilities.13 As I have explained above, it is clear that the Council was, in appointing and then removing Mr Barron as leader and member of the working group, not engaged in decision-
11 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at
[33] and [54].
12 Counsel referring to Wellington City Council v Woolworth New Zealand Ltd (No 2) [1996] 3 NZLR 537 (CA). Those comments were made primarily in relation to rating decisions. As to other types of decisions, see generally Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397 and 413-414.
13 Judicial Review Procedure Act 2016, ss 4 and 5.
making as such. It was essentially dealing privately with several private individuals to solicit their advice. There is some analogy, at least in terms of the need for public law intervention, with private commercial-type dealing.
[51] However, while certain ‘private’ decisions made by public bodies, especially contracting and commercial decisions, may not be subject to the public law controls imposed by reviewability,14 private decisions that have a “substantial public interest component”15 may be subject to review. The present case engages considerably less of a substantial public interest component than did cases such as Ririnui. But also this was not commercial dealing, and in contrast to the state-owned enterprises and district health boards in Mercury Energy and Lab Tests,16 local authorities are neither primarily commercial entities nor entities required to operate in the market place. While they are required to act “in accordance with sound business practices” and to “ensure prudent stewardship”17 in manging their assets, they have a range of other statutory objectives and obligations.18
[52] Furthermore, the Council’s ‘political’ purpose of support-building in the community falls within the wider purpose of the Act of enabling “democratic local decision-making and action by, and on behalf of, communities”,19 and remains subject to its controls and provisions. Additionally, the Council is required to act, in all its activities, in furtherance of the purposes of local government and the role of local authorities in advancing that purpose.20
[53] Weighing these factors, I have concluded that there was a “public” aspect to the Council’s decision-making here, but at a very low level. The working group was informally established but was of public significance in the statutory and community context in which the Council operates because the future of the Hall is important to
14 Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385 (PC); Lab Tests Auckland v Auckland District Health Board [2009] 1 NZLR 776 (CA) at [56]-[59].
15 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 per Elias CJ and Arnold J (Glazebrook and O’Regan JJ separately concurring) at [71].
16 State Owned Enterprises Act 1986, s 4.
17 Local Government Act 2002, s 14(1)(f).
18 See generally Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397 and 413-414;
Carter Holt Harvey Ltd v North Shore City Council [2006] 2 NZLR 787 (HC).
19 Local Government Act 2002, s 10(1)(a).
20 Sections 10-14.
the community and to the provision of core services.21 This imparts the decision to remove Mr Barron with a sufficient “public nature” to be amenable to review it may otherwise have lacked.
[54] Turning to the other question, justiciability, the matter is plainly justiciable. Cases in which concerns of justiciability have arisen involved matters of substantial policy content, such as, for example, the allocation of national resources,22 and issues of national defence.23 Such decisions are generally not an appropriate subject of general review.24 This is because the Court is being asked a question on judicial review that “it has no legal yardstick”25 to resolve. Here, the terms of s 6 itself provide a yardstick. Even if the correct view is instead that this is was an exercise of the Council’s power and discretion under Part 6 of the Act, a yardstick would remain available in terms of the relevant provisions of the Act identified above.
[55] For the above reasons, I have arrived, albeit by a narrow margin, at the view that this decision is amenable to judicial review.
Approach on Review
[56] The marginal nature of this case in terms of reviewability informs the intensity and scope of review that can properly be applied. The Council’s considerable (though of course not unfettered) discretion under the relevant statutory scheme suggests comparatively limited observance of the requirements of procedural fairness may be enough to avoid review being granted.
[57] Parliament’s clear intention to award the Council with a reasonably unfettered discretion in respect of community engagement and decision-making processes, as befits the Council’s democratically elected and accountable nature,26 is not, for the
21 Section 11A(e).
22 Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 641 (PC) at 655–656.
23 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [22]–[28].
24 At [24]-[28].
25 Osborne v Worksafe New Zealand [2017] NZCA 11 at [52], citing Hamilton City Council v Waikato Electricity Authority [1994] 1 NZLR 741 (HC) at 757 and Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [27].
26 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397 and 413-414. See also Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120] per McGrath and Blanchard JJ: “The content of the right to natural justice … is always contextual. The question is
above reasons, directly relevant. Nonetheless, it reinforces the autonomy afforded to local authorities, including under s 6, and the need to adopt a deferential approach to review in areas not governed by prescriptive statutory criteria.
[58] Also, there is the fact that the decision to remove Mr Barron as a leader and member of the group does not impact to any ascertainable extent on Mr Barron’s individual rights or liabilities. The only conceivable ‘right’ or ‘privilege’ that was taken from Mr Barron is proximity to tendering the working group’s findings to the Council. That is of no legally recognisable value or benefit to Mr Barron. The working group can only advise the Council, and the Council is free to, and in fact must, accept or depart from that advice in its discretion. All that the establishment of the working group and Mr Barron’s appointment as its leader did was to give him a privileged position in presenting his views on the matter of the Hall to the Council. Even now that he has been removed, he is still as able as any other member of the affected community to communicate his views to the working group and/or the Council when the Council comes to make a final decision.
[59] Similarly, while practically speaking the decision to remove may well affect Mr Barron’s reputation in the community, the decision was not of a scandalous nature, and did not involve any suggestion of moral obliquity. Nothing in the material before me suggests Mr Barron, or anybody else involved, has acted corruptly or in bad faith. The present conflict is the result of opposed but genuinely held views as to the best procedure for operation of the working group. It also appears to be at least in part the result of Mr Barron’s not actually accepting, whether rightly or wrongly, the basis on which he was appointed, which was clearly communicated to him at least three times before he was removed.
[60] The extremely limited impact on Mr Barron’s substantive rights suggests that the Council was entitled to deal with his status as leader and member of the working group in a summary manner.27 This reinforces the conclusion that the appropriate approach on review is a deferential one.
what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.”
27 R v Home Secretary (ex parte Doody) [1994] 1 AC 531, [1993] 3 All ER 92 (HL) at 106; Auckland Boxing Association Inc v New Zealand Boxing Association Inc [2001] NZAR 847 (HC); Ali v
Grounds of Review
[61] Having established that this matter is amenable to review, and the appropriate approach on review, I turn to consider whether review should issue.
[62] The grounds for judicial review relied on by Mr Barron are well-established, being (differently, as noted, to the pleading), that there has been a breach of natural justice arising from a failure to consult and also as a result of bias and pre- determination.28
Failure to Consult (Failure to Grant a Hearing)
[63] Mr Barron pleaded breach of duty of care by failing to consult, but his counsel’s argument relies on a breach of natural justice owing to a failure to consult. This presumably is referring to a duty to consult with Mr Barron, not with anyone else, before removing him from the working group.
[64] Cases referring to failures to consult refer to circumstances in which a decision- maker has purported to make a decision without first consulting the applicant, either doing so:
(a)in breach of statutory obligations;29 or
(b)contrary to a reasonably held expectation stemming from the impact of the decision on the individual,30 the decision-maker’s past practice,31 or a past promise or representation.32
Deportation Review Tribunal [1997] NZAR 208 (HC) at 220, approved Q v Attorney-General
[2011] NZAR 625 (CA).
28 Seaton v Minister for Land Information [2013] NZSC 42, [2013] 3 NZLR 157; Daganayasi v Minster of Immigration [1980] 2 NZLR 130 (CA); Ridge v Baldwin [1964] AC 40 (HL) at 79; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (EWCA); Webster v Auckland Harbour Board [1983] NZLR 646 (CA) at 652; Roncarelli v Duplessis [1959] SCR 121 (SCC) at [90]; Hamilton City Council v Waikato Electricity Authority [1995] 1 NZLR 741 (HC); Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZAR 138 (HC) at [59]; Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.
29 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [313] per Arnold and Ellen France JJ.
30 Nicholls v Health and Disability Commissioner [1997] NZAR 351 (HC) at 370.
31 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [313] and [317] per Arnold and Ellen France JJ.
32 At [313].
[65] The present circumstances differ from previous cases in which failure to consult has been raised. A hypothetical illustrates the difference - say the Council had proceeded to make a final decision about the development and use of the Hall without first consulting with members of the community who often use the Hall, and whose future use of the Hall would be precluded by the decision taken. Those individuals would likely, all things being equal, readily obtain review of that decision because of failure to consult in breach of statutory obligation, and likely also because the decision was taken in breach of a legitimately held expectation they would be consulted, given the impact of the decision on them. As this example, and the case law illustrates, an argument of failure to consult is most appropriate where an applicant is a member of a class within the community on whom the consequences of a decision most heavily fall,33 or who otherwise, because of their past dealings with the decision-maker, could reasonably expect to have been consulted.34
[66] Here, instead, the decision-maker has directly considered the status of one individual. This is more like and more conventionally considered in light of cases in which review has been sought of decisions determining individual rights or interests in regard to which the individual affected has not been given the opportunity to be heard and, subject to the below considerations, to meaningfully engage with the case against them.35 These, I imagine, were most likely the natural justice concerns to which the Council adverted in the minutes recording its decision to dismiss Mr Barron from the working group.
[67] Review is not available in such a case such as this on the ground of either failure to grant a hearing or failure to consult. While, obviously, the Council’s decision impacted on Mr Barron, as discussed above, it did not, in reality, impact on him in the sense of affecting his individual rights or liabilities. Accordingly, I do not consider that the right to afford a hearing is engaged in the present circumstance. Approaching
33 See Anning v Minister of Education HC Wellington CP122/00, 26 April 2002 at [153]; Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC) at [270]; Gallagher v Attorney-General HC Wellington CP402/88, 28 July 1988 at 21-22.
34 New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [187] and [190]-[191].
35 Furnell v Whangerai High Schools Board [1973] 2 NZLR 705 (PC) at 720; Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1 (CA) at 28; Ngati Apa Ki Te Waiponamu Trust v Attorney-General [2004] 1 NZLR 562 (CA) at [18].
this in terms of a failure to consult, the outcome is the same. Under the statutory scheme, the Council has considerable discretion and no statutory obligation to Mr Barron in terms of how it conducts the appointment and management of an informal working group of this sort.
[68] Additionally, I do not consider there was any legitimate expectation on the part of Mr Barron to be consulted. There was no promise of consultation, nor any evidence of past practice to establish that expectation, nor in fact any statement in evidence from Mr Barron that he expected to be consulted. The existence of such a practice is a sine qua non of a legitimately held expectation based on past practice.36
[69] Mr Barron contends that there is a third situation in which a duty to consult can arise, which is based on general fairness; even where there is no duty arising from the relevant statutes and no legitimate expectation. Counsel relies on Walsh v Pharmaceutical Management Agency.37 I do not consider Walsh is authority for that broad proposition. I note that there are other cases in which unfairness generally has been suggested as providing a ground for review. That was formally rejected by Cooke P in Thames Valley. The Judge noted that: 38
One situation justifying intervention for unfairness might be where the procedure and the decision of an administrative body … were in combination so questionable as to impel the conclusion that, in the words of Lord Donaldson of Lymington … “something had gone wrong of a nature and degree that required the intervention of the court . . .". The merit of the substantive unfairness ground is that it allows a measure of flexibility enabling redress for misuses of administrative authority which might otherwise go unchecked.
[70] While not precluding the future development of such a ground as part of the continued evolution of the judicial function, Cooke P further noted that:39
It never has it been suggested that the mere opinion of a Judge that a decision is unfair will justify holding it invalid. Nor is that ever likely to be suggested. The functions of exercising administrative discretion and judicially reviewing its exercise are fundamentally different. The line is not always easy to draw, but it has to be drawn.
36 XY v Attorney-General [2016] NZHC 1196, [2016] NZAR 875 at [52].
37 Walsh v Pharmaceutical Management Agency [2010] NZAR 101 (HC) at [163].
38 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 (CA) at 652- 653, referring to R (ex parte Guinness PLC) v Panel on Take-Overs and Mergers [1990] 1 QB 146 (EWCA) at 160.
39 At 653.
[71] In any case, as Cooke P said, the argument in favour of such a development is strongest where it is necessary to give special weight to human and civil rights.40 That is not a concern here. Mr Barron was a pure volunteer.
[72]To conclude, there was no duty to consult or to grant a hearing in this case.
Bias and Pre-Determination
[73] These grounds are really the ‘duty to consult’ argument put under different guises. It is clear from Mr Barron’s submission that for both arguments he relies essentially on the “failure of the defendant to consult with [him], to even notify him of what was going on and to act in a fair way with him.”
[74] Both arguments fail for the reason that the Council was not acting judicially or quasi-judicially in determining whether Mr Barron should remain on the committee, and the councillors are not to be held to the standards of judicial officers.41 Substantially what has occurred is that the majority of the Council were of a particular view as to how the working group should proceed. They were entitled to hold that view as a matter properly within the Council’s discretion as a democratically accountable body. I accept, having reviewed their evidence, that they considered their preferred approach to be the one most consistent with the Council’s democratic quality. That view was explained to Mr Barron at the start, again when meetings were not being held as envisaged, and then acted on when it was clear those concerns were not being engaged with by Mr Barron. The Councillors were not required to set aside this view in determining Mr Barron’s future with the group.
[75] In essence, Mr Barron’s submission is that he ought to have been given at least one further opportunity to persuade the councillors of the correctness of his substantive approach to the redevelopment of the Hall. That is not a basis for judicial review.
[76]For the above reasons, I find against Mr Barron on both remaining grounds.
40 At 653.
41 See generally Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC) at [105]; and Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474 at [130] and [131].
Result
[77] In my view, the Council’s decision to remove Mr Barron from the working group was justiciable. However, Mr Barron has not established any ground on which the decision should be reviewed. His application for judicial review, such as it is, is dismissed.
[78] If the Council is seeking costs and they cannot be agreed, I reserve leave to file submissions within three weeks from the date of this judgment, with Mr Barron having two weeks to respond. Each party’s submissions as to costs are not to exceed six pages in length, excluding any supporting material such as invoices.
Hinton J
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