In the Matter Of an application for review under Part I of theJudicature Amendment Act 1972between Robin Charles Adrian Goulden ApplicantAND Wellington City Council Respondent

[2006] NZHC 396

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-1

IN THE MATTER OF     an application for review under Part I of the

Judicature Amendment Act 1972

BETWEEN  ROBIN CHARLES ADRIAN GOULDEN Applicant

AND  WELLINGTON CITY COUNCIL Respondent

Hearing:         8-9 November 2005

Appearances: E W Gartrell and R Robinson for Applicant

C M Stevens and A Holloway for Respondent

Judgment:      21 April 2006

JUDGMENT OF GODDARD J

[1]      This case concerns the process followed by the Wellington City Council in censuring the applicant for an alleged breach of the Council’s Code of Conduct.  The breach in question was his alleged public criticism of a council employee, the Chief Financial Officer, Mr Andrew McKenzie, in an election advertisement the applicant placed in the Cook Strait News published on 20 September 2004.

[2]      The Council’s Code of Conduct provides:

Relationships with Chief Executive and Staff

The effective performance of council … requires a high level of cooperation and mutual respect between elected members and staff.  To ensure that level of cooperation and trust is maintained, elected members will:

recognise  that  the  Chief  Executive  is  the  employer  (on  behalf  of council) of all council employees, and as such only the Chief Executive or  his  or  her  delegated  appointee  may  hire,  dismiss  or  instruct  or censure an employee

GOULDEN V WCC HC WN CIV-2004-485-1  21 April 2006

make themselves aware of the obligations that the council and the Chief Executive have as  employers  and  observe those requirements  at  all times

treat all employees with courtesy and respect (including the avoidance of aggressive, offensive or abusive conduct towards employees) …

not   do   anything   which   compromises,   or   courld   be   seen   as compromising, the impartiality of an employee

avoid publicly criticising any employee in any way, but especially in ways that reflect on the competence and integrity of the employee

raise concerns  about  employees  only  with the Chief Executive,  and concerns about the Chief Executive only with the Mayor or the Performance Review Subcommittee …

[3]      The Code of Conduct also provides for the process to be followed where an alleged breach has occurred:

… Council will be asked to consider and determine whether a breach of the code has occurred and, if so, what consequences for the elected member should arise from that breach.  In completing a report to Council, fairness to all parties involved, and due process, will be respected, including ensuring the member named in the allegation is advised of the allegation and given an opportunity to consider and respond to it before the matter is considered by  council.     Council’s  consideration  of  the  matter  will  comply  with statutory requirements relating to matters such as personal privacy, or confidentiality of information.

The advertisement and its context

[4]      The material extracts of the advertisement read:

Independent Eastern ward councillor Rob Goulden was the surprise last- minute nomination for city mayor when they closed last month.  …

He is standing on a platform of controlling city debt, greater public consultation and a fairer distribution of council spend across the city.

“There’s a lot of confusion in the community about the level of debt.  There was heated debate about it the other night and all the figures seem wrong. (Kerry) Prendergast  and (financial officer  Andrew) McKenzie have now produced  a  different  set  of  figures,  which  puts  debt  at  (currently)  $70 million, with another $55m approved in the Annual Plan.  But the public is concerned about the debt, which is planned to [h]it $360m or $390m by

2013.   The public is also concerned about wasteful spending like on the stock exchange sign – it’s reckless.”

[5]      The applicant says that the advertisement was simply an expression of his opinion about the current situation of confusion in the community over the level of debt incurred by the Council.  He said there had been debate about the issue and the Mayor and the Council’s Chief Financial Officer had each produced different sets of figures.

[6]      He said the context in which he placed the advertisement is important in assessing whether his statements of opinion were critical of the Council’s Chief Financial Officer and that the context was his challenge to the mayoral seat in the

2004 electoral campaign on a platform to “control City Council debt, greater public consultation and a fairer distribution of Council spend across the city”.  He said the advertisement simply reflected his goals as a mayoral candidate to represent ratepayers and, among other responsibilities, to examine Council spending and he referred to the Code of Conduct’s express acknowledgement of a Council member’s entitlement to freely “express a personal view in the media, at any time”.  He said he does not believe that his remarks reflected on the competence and integrity of Mr McKenzie  but  were merely statements of facts  as  he  saw  them as  the  election approached.  He said that, in any case, the issue of Council spending was already in the public arena and in this regard he identified a number of newspaper reports and articles during the period since June.  For instance, in August 2004, Mr McKenzie had been quoted in the Dominion Post stating that forecast figures by the Council’s Finance and Corporate Committee were incorrect.

[7]      Councillor  Shaw,  the  Deputy  Mayor,  who  made  the  complaint  that  the applicant had breached the Code of Conduct by personally criticising Mr McKenzie in the advertisement, acknowledged that during the election campaign the applicant had asserted on many occasions that information on debt levels were being ‘fudged’ and that the Council was being misled in respect of current and projected debt levels. He said that while he believed the applicant was quite wrong in these allegations (the problem being that he had not understood the Council’s accounts and in particular the difference between the City’s gross borrowings and its net debt position and the effect of the Local Government Act 2002 on the use of long-term debt to finance operating expenditure), the appellant was entitled to raise the issues both at Council meetings and in the campaign.

The making of the complaint

[8]      After the advertisement appeared in the Cook Strait News on 20 September

2004 there was an altercation between the applicant, Mr McKenzie and others at a meeting of the Council’s Finance and Corporate Committee on 27 September 2004. The Mayor and Councillor Shaw were present at that meeting.  From their evidence it seems the altercation did not reflect well on the applicant.  However, the applicant afterward laid a complaint against Mr McKenzie with both the Chief Executive and the police.  Councillor Shaw also complained to the Mayor about his behaviour.

[9]      In his letter of complaint, Councillor Shaw alleged a number of breaches of the   Code,   including   the   compounding   of   previous   public   questioning   of Mr McKenzie’s impartiality and competence by the applicant (in a report in the Dominion  Post  on  17  August  2004)  in  his  Cook  Strait  News  advertisement. Councillor  Shaw  asked  that  his  complaint  be  referred  to  the  next  full  Council meeting to be held on 6 October 2004, so that it could be dealt before the conclusion of the current triennium.  His letter of complaint was copied to the applicant and all Council members.   Somewhat unfortunately, excerpts from the letter subsequently found their way into the 21 October 2004 edition of the Dominion Post, although there is no  evidence as to  how this ‘leak’ occurred.   The  applicant  is  however convinced that the letter was released to the press from the Mayor’s office.

[10]     In view of the short time before the election, the Mayor took legal advice as to whether a newly elected Council could consider Councillor Shaw’s complaint after the election had taken place, as there was insufficient time for the applicant to consider the complaint before the last Council meeting was held on 6 October 2004. That same day the Mayor wrote to the applicant by email, setting out once again the detail of Councillor Shaw’s complaint and making it clear that while the Code of Conduct allowed her to decide whether the alleged breaches of the Code should be dealt with by her or referred by her to Council for decision, she had chosen to consult fully with the Chief Executive over that in the interests of objectivity.  She said she did so because she had been present at the meeting at which the unfortunate altercation had occurred and also because she had featured in the applicant’s mayoral advertisement.  The Mayor then went on in her email letter to advise the applicant

about  matters of process and timing and the possible effect  of the  forthcoming election on the disposition of the complaint.  She said:

In his letter, Councillor  Shaw invited  me to refer  the matter  to the full Council meeting of 6 October so the alleged breaches could be dealt with before the conclusion of the current triennium.

The Code states due process must be respected, that there must be fairness to all parties involved and that this includes making sure that the member of the Council involved in the allegations is given an opportunity to respond to them before the matter  is  considered  first  by  me and,  if  I  consider  the allegations sufficiently serious, then by the Council.

I was concerned that you should not be subject to undue haste and pressure to provide a response to the Councillor Shaw’s complaint [sic].   In this respect and as you would appreciate, the timing of Councillor Shaw’s complaint in relation to the conclusion of the triennium raised the matter of whether a new Council in a new triennium could consider a complaint about alleged breaches of the Code taking place in the previous triennium.  If that were possible, you could then be afforded adequate time to respond to the allegations.

I sought a legal opinion on this matter which advised me that a new Council in the new triennium could consider Councillor Shaw’s complaint.  You can seek a copy of that advice from the Chief Executive.

Should you, I or Councillor Shaw be unsuccessful in regaining office, the Chief  Executive  may  consider  [the]  complaint  in  concert  with  the  new Mayor.

Therefore, I require your response in writing to the alleged breaches of the Code of Conduct for elected members of Wellington City Council by 5pm, Friday, 22 October 2004.

Your written response will then be considered by me in concert with the Chief Executive.   If the matter is considered sufficiently serious, it will be referred to the Council.   The Council’s  consideration of the matter  will comply with statutory requirements relating to matters such as personal privacy, or confidentiality of information.  If I, or the Council, consider that the allegation of breaches  is well-founded, you  will be informed of that consideration and any appropriate lawful action, such as censure, that may be applied.

[11]     The applicant’s response was immediate, and in the following vein:

Dear Mayor Prendergast

Thank you for the three copies of the message sent out.

If not already abundantly clear to you I am not circulating this response to Councillors.  I also suggest that you do not either.

To respond to you in any way other than acknowledge I have received your email would be tantamount to continuing down a track that you and the Deputy Mayor have embarked upon.

I also refer this email to my legal representative as I have already informed the Chief Executive I would in relation to any matter arising from this the original incident.

I have sought legal advice and taken it.  I suggest you both do as well.

[12]     The following day the Mayor sent a hard-copy letter, in identical terms to her email of the day before (set out in [10] above) to the applicant.  The letter required him to respond to Councillor Shaw’s complaint by 5pm on 22 October 2004.  The details of the complaint were again advised to the applicant in both letters as follows:

You will read that Councillor Shaw alleges that you breached the provisions of the Code that require Councillors to:

•     Treat all employees with courtesy and respect (including the avoidance of aggressive, offensive or abusive conduct towards employees);

•     Not   to   do   anything   with   compromises,   or   could   be   seen   as compromising, the impartiality of an employee;

•     Avoid publicly criticising any employee in any way, but especially in ways that reflect on the competence and integrity of the employee; and

•   Raise concerns about employees only with the Chief Executive. Councillor Shaw alleges you breached the first provision in your behaviour

towards a Council employee, Andrew McKenzie, during and after a meeting of the Council’s finance and corporate committee.  He alleges you breached the second and third provisions in your comments about Mr McKenzie made to  the  media  and  in  your  advertisement  promoting  your  bid  for  the Wellington mayoralty.   Councillor Shaw alleges you breached the fourth provision by not raising your concerns about Mr McKenzie only with the Chief Executive.

[13]     On 21 October 2004, the applicant left a message on the Mayor’s mobile telephone.  She returned his call later that evening and says that she told him that if the allegations of his breaches of the Code could not be resolved privately then the matter would be dealt with at a Council meeting and that he needed to respond to the allegations in Councillor Shaw’s letter. She said:

I told him that the issue was corrosive for Council and that we could not simply leave it hanging.

[14]     However, the applicant did not respond to the Mayor’s letters of 8 and 9

October 2004 or to her telephone advice of 21 October 2004 urging him to respond to the complaint.   However the Mayor did receive advice, through the Council’s Chief Executive, that the applicant’s legal adviser, Mr Gartrell, was away.   That being so, she wrote again to the applicant on 29 October 2004 extending the deadline for his response to 3 November 2004.  Her letter advised:

As yet, I have not received your response to my letter of 9 October which dealt with allegations from Councillor Shaw that you had breached the Code of Conduct for Elected Members of Wellington City Council in a number of respects.  I invited you to respond by 5pm, Friday, 22 October 2004.

The Chief Executive, Mr Poole, advises me that your legal counsel has been away from his office and you  have not been able to receive appropriate advice.   Therefore, in order to be fair and reasonable and to allow you to access  that  advice,  I  am  prepared  to  extend  the  deadline  of  Friday,

22 October 2004 to 5pm, Wednesday, November 3, 2004.

I trust you find this arrangement satisfactory.   I look forward to receiving your response on or before that time.

[15]     On 30 October 2004 the new Council was sworn in, the elections having taken place.

[16]     On 4  November  2004  Mr  Gartrell wrote to the  Mayor  on  behalf  of the applicant, responding to Councillor Shaw’s allegations.

[17]     In his letter, Mr Gartrell said that he had advised the applicant that the Local Government Act 2002 did not in fact allow for a matter that had arisen during a previous Council’s tenure to be carried forward in the way the Mayor suggested.  He then stated his reasons as to why that was so.  He said that, as the matter was now incapable of being referred to the Council in existence at the time of the alleged breach, the complaint was effectively at an end.  In addition, he referred to a number of other procedural aspects relating to the complaint and also to the unfortunate release of Councillor  Shaw’s  letter of complaint  to  the press.   He queried also whether it was proper for the Mayor to deal with the complaint, as both she and Councillor  Shaw  had  been  present  at  the  Council’s  Finance  and  Corporate Committee  meeting  on 27  September  2004.    He  refuted  the  various  allegations underpinning Councillor Shaw’s complaint whilst making it clear that the applicant

was not retracting  from his position that  the  present  Council had  no  current  or ongoing jurisdiction.  He concluded by advising that he was happy to be involved in a meeting to address all of the issues, particularly as to jurisdiction, and said that he had raised these issues separately with the Council’s Chief Executive.

[18]     The  Mayor  responded  to  Mr  Gartrell’s  letter  on  18  November  2004, addressing the issue of the jurisdiction of the new Council to “complete the process of consideration of an alleged breach of the Code of Conduct that was commenced, but not completed, in the term of the former Council”.  In respect of Mr Gartrell’s concern about her and Councillor Shaw’s involvement in the complaint matter, the Mayor  made it  clear  that  for the very reasons advanced by Mr  Gartrell neither Councillor Shaw nor she had involved themselves in the investigation of the complaint.  That had been left to the Chief Executive.  In relation to the extensions of the deadline for the applicant to respond to Councillor Shaw’s complaint, the Mayor made  it  clear  that  the extensions she had given were to  allow  the  applicant  to “receive appropriate legal advice, an action most people would consider to be eminently fair  and reasonable”.    She addressed the issue of publicity about the complaint and concluded with the advice that the complaint process would continue and as the applicant wished to deal with the matter through Mr Gartrell would he:

… please advise Councillor Goulden that I would like a response in writing to the alleged breaches of the Code of Conduct for  elected  members  of Wellington City Council, as detailed in the Deputy Mayor’s letter of 30

September 2004, by 5pm, Tuesday, 30 November 2004.

[19]     Mr Gartrell responded to the Mayor by letter dated 29 November 2004, but on the issue of jurisdiction only, rather than in response to the complaint.

[20]     On 1 December 2004 the Mayor wrote to Mr Gartrell attaching a copy of the legal opinion the Council had received on the jurisdictional issue and proposing a negotiated resolution, the latter to be facilitated by a private meeting between the applicant and Mr McKenzie in return for which Councillor Shaw would withdraw his  complaint  and  a  brief  public  statement  would  be  released  stating  that  the complaint had been withdrawn, the matter resolved to the satisfaction of all parties and expressing the applicant’s regret for any distress his public pronouncements and

actions may have caused to Mr McKenzie.  In closing the Mayor advised that if the proposed negotiated resolution were not successful then:

Otherwise and with or without Councillor Goulden’s rebuttal,  I have no choice but to proceed with the consideration of the allegations in terms of the process   described   by   the   Code   of   Conduct   for   Elected   Members. Accordingly, unless I have received Councillor Goulden’s acceptance of the proposal in this letter, or his response to the allegations contained in Deputy Mayor Shaw’s letter [of] 27 September, by 5pm, Tuesday 7 December 2004, I will be raising this matter at the Council meeting of 15 December 2004.

[21]     The same day the Mayor wrote a second letter to Mr Gartrell, advising that Mr McKenzie would anticipate an apology from the applicant and a statement that his comments concerning Mr McKenzie had been incorrect and were inappropriate.

[22]     Mr Gartrell assisted in securing the applicant’s attendance on the Mayor to discuss the proposed resolution, but in the event no resolution by way of negotiated settlement was achieved.  The Mayor says that she then told the applicant that the complaint would now be put to the full Council at the meeting on 15 December

2004.  Further that:

Because  there  was  no  prospect  of  resolution  I  recall  that  I  also  told Councillor Goulden at the conclusion, that I wanted confirmation from his lawyer, in writing, that he was aware that Councillor Goulden and I had met, that there was no deal, and that the issue would therefore proceed to the Council on 15 December.  That confirmation was not received.

A reason why it was necessary for the allegation of the breach of the Code to be dealt with by an extraordinary meeting on 15 December was because the notice and agenda requirements for the ordinary meeting of Council to be held on 15 December, could no longer be met (ie by the time Councillor Goulden and I had met on the afternoon of 9  December  the notice and agenda for the meeting had been settled).

[23]   On 13 December 2004 Councillor Shaw wrote to the Mayor formally withdrawing those aspects of his complaint that arose from the applicant’s behaviour at the Finance and Corporate Committee meeting 27 September 2004.  However, the complaint concerning the applicant’s election advertisement in the Cook Strait News remained.   That same day the Mayor wrote to Mr Gartrell, advising him of the situation and that the remaining complaint would be heard at an Extraordinary Meeting  of Council on  15  December  and  outlining  the  process  and  stating  the motions that would be put:   first, in relation to the complaint; and secondly, (if a

breach of the code were found) in relation to disposition.   The proposed motions were stated as follows:

That this Council finds Councillor Goulden has breached the Council’s Code of Conduct for elected members in that his campaign advertisement in the Cook Strait News dated 20 September 2004 contained a public criticism of a Council employee, namely Mr Andrew McKenzie.

That having found Councillor Goulden breached the Council’s Code of Conduct for elected members, this Council hereby censures Councillor Goulden for that breach.

[24]     Both Mr Gartrell and the applicant separately responded by informing the Mayor that Mr Gartrell would not be available for the 15 December Extraordinary Meeting.   The Mayor said this advice from Mr Gartrell was the first  notice the Council had received of his unavailability since her letter to him of 1 December, in which she had concluded by advising that in the event there were no resolution and “with or without  Councillor Goulden’s rebuttal” the  matter would  be put to the Council meeting of 15 December 2004.

[25]     The Mayor wrote again to the applicant the following day, 14 December

2004, to inform him that the Extraordinary Meeting would proceed on 15 December and advising that  he was entitled to obtain alternative legal representation  if he wished.

The Extraordinary Meeting

[26]     The  Extraordinary  Meeting  commenced  on  15  December  2004  with  the Mayor outlining the two steps in the process to be followed:  the first to establish whether there had been a breach of the Code; and the second (if a breach were found)  to  determine  penalty.    She  referred  to  the  natural  justice  considerations implicit in such a disciplinary process and explained that the debate would be preceded by an introduction of the complaint by Councillor Shaw and a response from the applicant.   Following that there would be general debate, at the end of which the applicant would be given the right of reply to any matters raised during the debate.  The vote would then take place.  At that point the applicant raised a point of order and sought an adjournment to enable him to have legal representation, and said

there would be no admission of liability from him.  He also challenged the Mayor’s right to chair the meeting, as he said she was “a protagonist” in the original incident. He also challenged the right of Councillor Shaw to participate in the hearing.

[27]     A newly elected Council member, Councillor Ruben, spoke in support of the adjournment, as he thought natural justice would not be served in the absence of the applicant’s legal counsel and did not see the necessity to “rush this process through”. He also addressed the substance of the complaint, saying that he had read the Cook Strait News advertisement a number of times and had not interpreted it as a slight against Mr McKenzie and did not think many members of the public would do so.

[28]     The application for adjournment was however declined.   Councillor Ruben removed himself from the Council table into the public area of the Council Chamber.

[29]     Councillor Helene Ritchie also supported the application for an adjournment and said she was opposed to the use of the Extraordinary Meeting process for a complaint of this nature.   She had two days earlier issued a press release entitled “Kangaroo Court” in which she publicly set out her views on the matter.  Prior to the substantive debate she moved a motion “that the matter lie upon the table” in an attempt to have the matter disposed of.   Her motion was supported by Councillors Ruben, Pepperell and McKinnon but was lost.

[30]     The first motion was put and carried.  The censure motion was then put and passed by 10 votes to one.  The Mayor voted for the motion.   Councillor Shaw as complainant did not vote.   Councillor Ritchie abstained from voting.   Councillor Pepperell voted against the motion, as he said he believed that the applicant had been denied natural justice.  He said he found it extraordinary that the applicant’s right to speak in opening and in response had been limited to five minutes on each occasion. Councillor Ruben voted for the motion, having (he said) been assured by Councillor Shaw and other Councillors during the tea break that once the motion for censure was passed the matter would be at an end and there would be no sanction against the applicant.

[31]     Following the meeting, the Mayor and Councillor Shaw wrote a letter to the Editor of the Dominion Post which was published on 21 December 2004.  The letter, which stressed the Council’s support of Mr McKenzie as its financial officer, was circulated around the Councillors beforehand for their approval.   In the event, no other Councillors put their names to the letter so it went to the Editor signed by the Mayor and Councillor Shaw.  Councillor Ruben said he felt compelled to also write to the Dominion Post, stating that “it is on the record that we all unhesitatingly support Council’s Chief Financial Officer Andrew McKenzie and other officers as was  demonstrated  in  our  vote  of  censure  so  this  ongoing  action  is  totally unnecessary.  The Mayor and Councillor Shaw had assured me and others that once the Council vote was taken, the matter would end then and there – from their side anyway.  By writing to you they have ensured the matter is ongoing and I question their    motives”.      His   letter   was   published    in   the   Dominion    Post    on

23 December 2004.

The grounds for review

[32]     The applicant  pleads that  as the Council performs a public function it  is subject to the New Zealand Bill of Rights Act 1990 (“NZBORA”).  That statement is undoubtedly correct.      Breaches of s 14 of the Act, which endorses the right to freedom of expression; s 19, which provides for freedom from discrimination; and s 25, which provides for the right to a fair and public hearing by an independent and impartial body, are alleged.

[33]     In addition, illegality is pleaded, arising from the jurisdictional question of whether a newly elected Council, that was not the Council in whose term the alleged breach of the Code of Conduct occurred, could determine the complaint.   In the alternative the applicant pleads that the statement he made in his election advertisement does not infringe the Code of Conduct provisions, in that it is factually correct and the Council’s decision is therefore unsustainable either in fact or law.

[34]     He seeks orders that the Council’s finding that he breached the Council’s

Code of Conduct  by publicly criticising Mr McKenzie in the  Cook  Strait  News

advertisement of 20 September 2004 be quashed, and likewise the consequential censure of him for that breach also be quashed.

[35]     I will deal with each ground of review separately.

Illegality

[36]     As recorded, the applicant’s challenge to the legality of his censure is on the grounds that the Council did not have jurisdiction to debate and vote on Councillor Shaw’s complaint.

[37]     On that point his statement of claim expressly pleads:

That following a triennial general election, all Councillors are discharged upon  coming  into  office  of  the  new  members  and  thus  the  Council comprising the hearing committee was not the Council in whose term the alleged Code of Conduct offence occurred and therefore could not appropriately decide the matter.

[38]     Mr   Gartrell   submitted   that   the   machinery   provisions   of   the   Local Government  Act  2002 are very clear.   He said that  whilst  a Council is  a  body corporate with permanent life, its elected members are not and that s 21 of Schedule

7, which provides for the first meeting of a local authority following the triennial election of members, makes it clear that elected members are to be freshly sworn and that there is no continuity from term to term.

[39]     The Council’s response is that, as a local authority, it is a body corporate with perpetual succession by virtue of s 12 of the Local Government Act 2002, which provides:

A local authority is a body corporate with perpetual succession.

[40]     Mr Stevens submitted that although the words “perpetual succession” have nowhere been judicially interpreted they have a plain meaning.   He referred to the decision in Houghton v Frankson City Council [2000] VCAT 2394, of some interpretative assistance. In that decision the concept of perpetual succession, in the

context of an application to overturn an Australian local authority rating decision, was considered and the Victorian Civil and Administrative Tribunal held:

Once it is accepted the general principles that natural justice may be afforded in most administrative contexts simply by submissions being considered ‘on the papers’ and that councils and like bodies have perpetual succession take over, there is therefore no ground to invalidate this decision based upon the lack of continuity of membership of Council between the meeting of 6 December 1999 and 10 April 2000 … [emphasis added]

[41]     Mr Stevens referred also to Law, Politics, and Local Democracy, Ian Leigh,

2000 (at p 34) where the continuity point was discussed as follows:

The usefulness of corporate status varies according to the context in which it is  found.     For  instance,  where  an  office  may  be  held  by  successive individuals (as the Crown or an ecclesiastical appointment), corporate status provides legal continuity to cover  events such as death,  resignation,  and abdication,  since  a  corporation  never  dies.    In  local  government,  the council endures although the members of the corporation (councillors) can be replaced at the pleasure of the local electorate.  The change in the composition of a council or of political control does    not,  therefore, affect the local authority’s legal obligations, although they may have been entered into under different political control and now inhibit the political freedom of action of the present members of the corporation.   [emphasis added]

[42]     Given the continuing nature of a local authority’s work, with some projects taking many years to complete and requiring a series of decisions along the way, it would be illogical to apply the jurisdictional argument in the manner contended for by Mr Gartrell.  The work of a local authority is very different in nature from the work of central government, so it is not appropriate to draw a parallel there.

[43]     The advice that the Mayor received on the question of jurisdiction was, in my view,  correct.   Both s 12 of the Local Government  Act  and the practicality of perpetuating  a  local authority’s  works  in  progress  indicate that  an  uncompleted proceeding under the Council’s Code of Conduct can be completed following an election.     Obviously,  if  the  Councillor  in  question  were  not  re-elected,  the continuation of a complaint proceeding would be meaningless, as there would be no jurisdiction to censure or to sanction.  However, where the particular Councillor is re-elected, as in the applicant’s case, there is no  legal impediment  to  prevent  a complaint against him being processed to completion.

[44]     A further ground of illegality advanced by Mr Gartrell was that the short notice of the Extraordinary Meeting contravened the Council’s own Standing Orders. The applicant claimed not to have been notified of the Extraordinary Meeting until just over 24 hours before the meeting was held and Mr Gartrell pointed to Standing Order 45, which provides for members to have at  least  three days notice of an Extraordinary Meeting or, if the meeting is called by a resolution, within a lesser period  of  notice  being  not  less  than  24  hours.    There  was  however  no  such resolution.

[45]     This aspect of alleged illegality is not sustainable either on the facts or as a matter of law.  As a matter of law the situation is governed by Standing Orders 46 and 47.  The relevant portions of those Standing Orders provide:

46.If the business to be dealt with requires a meeting to be held at a time earlier than is allowed by the notice requirements specified in Standing Order 45 a meeting may be called by the Mayor …

47.Notice of the time and place of a meeting called under Standing Order 46 and of the matters in respect of which the meeting is being called must be given … by whatever  means is reasonable in the circumstances, to each member of the local authority and to the chief executive  at  least  24  hours  before  the  time  appointed  for  the meeting.

[46]     Thus, as can be seen, Standing Orders 46 and 47 entitled the Mayor to call the Extraordinary Meeting, so long as she communicated advice of the time and place of that meeting at least 24 hours beforehand.  This she did.

[47]     As a matter of fact, it is clear that the applicant was notified two days prior to the meeting and by reasonable means, which was by courier through Democratic Services.  In addition to that courier delivery, Democratic Services sent a follow-up email to all Council members the same day, although apparently the applicant’s email was  returned  because  his  electronic  mailbox  was  full.    However,  as  the applicant  himself  acknowledges  in  his  evidence,  he  did  receive  the  official notification at 12.15pm on 14 December 2004, therefore more than 24 hours prior to the meeting.  Mr Gartrell accepted this was so, as he also received the same notice, but he submitted that it was nevertheless unreasonable for the Mayor to have called the meeting at such short notice, even though she had the right to attenuate the time

under Standing Order 46.   He questioned the imperative for her having chosen to proceed at that time when the complaint concerned a pre-election matter.

[48]     The Mayor’s response, which I accept, was that  after  2½ months of her having attempted to progress the complaint, including granting three extensions to the applicant to respond to the substance of the complaint and attempting an alternative resolution with him, it was more than time to bring the issue to finality. She said the issue was causing ongoing concern, and in some cases real stress, for several Councillors.  Her observation in that regard was supported by the evidence of Councillors Cook and Ahipene-Mercer, who both spoke of the extent to which the issue was affecting the business of the Council and of its generally corrosive effect.

[49]     I am satisfied that on the facts the Mayor’s decision to put Councillor Shaw’s complaint to an Extraordinary Meeting and to attenuate the time for notice of that meeting was an eminently reasonable decision in the circumstances.    Irrefutably it was a decision very much within her province as Mayor, and one that needed to be reached on a balancing of all interests and not only those of the applicant.  As she said:

…  the overall mood of Council was that the year should end with this issue resolved and we could start the New Year afresh.

Unfairness/Breach of natural justice

[50]     I accept Mr Stevens’ submission that the context of the complaint procedure is important in assessing the overall fairness of the complaint process.  As he said, it is vital to recognise the Council’s role and to protect its ability to hold meetings it believes are necessary for the good government of its district and its ability to decide questions  at  those  meetings  by  a  simple  majority  vote  “without  too  quickly importing concepts of administrative law grown from the soil of quite different contexts”.

[51]     The process adopted by the Mayor prior to the Extraordinary Meeting (as detailed above) establishes that the applicant was without doubt treated scrupulously fairly, in terms of notification at the outset of the complaint  and its particulars,

repeated requests over a substantial period of time in writing, orally and through his counsel, for him to respond to the substance of the complaint, and the granting of three extensions of time in which he could do so.  In addition, there was the genuine attempt by the Mayor to resolve the complaint without the necessity of a hearing, which the applicant was clearly encouraged to participate in by Mr Gartrell but was not amenable to.

[52]     The  applicant  had  been  advised  that  the  matter  was to  be  raised  at  the

15  December  2004  Council  meeting  from  at  least  1  December  2004  and  was reminded of it again by the Mayor at his meeting with her on 9 December 2004. Therefore, even in a strictly administrative law context, it is difficult to conceive that a fairer process could have been adopted, in terms of transparency, specificity and notice.

[53]     In terms of the process followed at the Extraordinary Meeting, the applicant referred  in  his  pleading  to  a  failure  by  the  respondent  to  recognise  that  s  25

NZBORA affirms, as a minimum standard of “criminal procedure”, the right to a fair and public hearing by an independent and impartial body.  However, the hearing of Councillor Shaw’s complaint at the Extraordinary Meeting was not a criminal trial and in this regard I endorse Mr Stevens’ submission that:

The transcript of Council’s  extraordinary meeting on 15 December 2004 records Councillor Goulden describing the meeting as a ‘trial’ and others referring  to  him  as  ‘the  accused’.     With  respect  to  all  involved,  the impression of lay people should not be relied on to elevate what occurred beyond a meeting at which Council deliberated upon, and then carried by a clear majority, two ordinary resolutions.

[54]     Notwithstanding,  the  right  to  a  fair  hearing  certainly  applied  to  the determination of the complaint against the applicant at the Extraordinary Meeting on

15 December 2004.   The Council’s own Code of Conduct makes that clear in the guideline set out in para [3] above.

[55]     Turning to the conduct of the meeting itself, I find nothing on the face of the record (in the form of the transcript of the meeting) that  calls into  question the fairness of the process there adopted.   The Mayor commenced by fully explaining the process to be followed.  All of the Councillors were aware of the specifics of the

complaint, having received notification of these in advance, and they were again outlined by Councillor Shaw before the debate began.   The applicant was given a right to respond to the complaint and a further right of reply at the end of the debate. Those Councillors who wished to do so had the right to debate the issue.  The time limit set on the applicant’s right to speak and the right of any Councillor to speak was prescribed by the Council’s own Standing Orders.

[56]     In  finding  that  the  meeting  was  conducted  in  a  fair  and  unexceptional manner,  I  have  not  overlooked  the  unhappiness  expressed  by  some  of  the Councillors present who did not agree with the process adopted or with the denial of an adjournment and who supported Councillor Ritchie’s motion “that the matter lie upon the table”.  Against that however is the reality that these Councillors were not aware  at  the  time  of  the  degree  of  communication  between  the  applicant, Mr Gartrell, the Mayor and the Chief Executive over the 68 day period prior to the hearing.   As Councillor McKinnon said in his affidavit in response to Councillor Ruben’s affidavit, it did however become apparent during the debate on the substantive issue and from a chronology supplied at the hearing that:

… Councillor Goulden had been given several extensions to respond to the allegation which was the subject of the extraordinary meeting, and that he had been given a final warning, including his lawyer being told in writing just over a fortnight earlier, that this matter would be raised at the Council meeting of 15 December 2004 if it wasn’t resolved in the interim.

The Mayor also expressly addressed my concerns in her summing up. Accordingly by the time the substantive motions were put I had determined

that Councillor Goulden had been given sufficient opportunities to deal with the  allegation,  and  he  received  sufficient  notice  that  if  the  allegation remained unresolved it  would be brought  before the full Council  on 15

December 2004.

[57]     It is evident also from the transcript of the hearing that the applicant did not choose to use his allotted speaking time to address the substance of the complaint against him.   As Mr Stevens’ submitted, in the context of the opportunity to be heard, “the law is interested in what opportunity Councillor Goulden had to be heard, not how he chose to exercise it”.  Therefore it was the applicant’s choice whether or not to speak in rebuttal of the complaint at the meeting, in the light of written advice

from the Mayor that the complaint against him would be raised at the meeting with or without rebuttal from him.

[58]     On the question of the right to legal representation, it was for the applicant to arrange alternative legal counsel to represent him at the meeting if he wished to be legally represented  at  the  meeting.    Both  he  and  Mr  Gartrell  had  known  since

1 December 2004 that the complaint would be raised at the meeting on 15 December

2004 and thus there was ample opportunity to brief other counsel.

Reasonableness of the decision

[59]     It is not for the Court to judge the merits of the Council’s decisions that the applicant    (whether    impliedly,    inadvertently    or    otherwise)    had    criticised Mr McKenzie in his Cook Strait News advertisement and that he should be censured for that.  Those were decisions for the Councillors to make, on balance and in light of the spirit and meaning of their own Code of Conduct.  The Code is in the nature of an internal regulatory manual so that whether there has been any transgression of its guidelines is very much a matter for the Council to assess.  On that basis, the Court would not readily intervene in any decision by the Council unless that decision were demonstrably unreasonable.    By unreasonable, I mean unreasonable in the Wednesbury sense, as epithetically described by Richardson P in Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA). At 545, Richardson P said that a decision is Wednesbury unreasonable if that decision:

“… is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it” (quoting Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374, 410); or

“… is so absurd that [the decision-maker] must have taken leave of his senses” (quoting Lord Scarman in Nottingham County Council v Secretary of State for the Environment [1986] AC 240, 247); or

“one outside the limits of reason” (quoting Cooke P in Webster v Auckland

Harbour Board [1987] 2 NZLR 129, 131).

[60]     There is no basis on which to find that the majority vote in favour of censure was Wednesbury unreasonable and no basis on which this Court would intervene in

an essentially political decision unless it were so unreasonable.   The case of Wellington City Council v Woolworths New Zealand Ltd (No 2) is an example of the Court’s reluctance to intervene in a decision that is within the special province of a Council. In that case a rating decision was in issue. The Court held (at 552), per Richardson P:

Rating  is  essentially  a  matter  for  decision  by  elected  representatives following the statutory process and exercising the choices available to them. The breadth and generality of the empowering provisions … make it clear that rating was not intended to be a calculation of benefits and allocation of the incidence of rates by reference to the outcome. …

Rating requires the exercise of political judgment by the elected representatives of the community. The economic, social and political assessments involved are complex. The legislature has chosen not to specify the substantive criteria but rather to leave the overall judgment to be made in the round by the elected representatives. …

[61]     In conclusion, the process at the Extraordinary Meeting was fair (as I have already found), the decision as to whether or not to vote in favour of the motions were decisions open to all Councillors present, and those decisions could not in any sense be regarded as Wednesbury unreasonable.

Prejudice, bias, predetermination

[62]     Under this head of review the applicant contends that the outcome of the Extraordinary Meeting was pre-determined.  In support, Mr Gartrell referred to the way in which the two proposed motions were framed and also voiced concern about the Mayor having presided over the meeting, given her presence at the Finance and Corporate Committee meeting on 27 September 2004 and her featuring in the advertisement.  Further concern was voiced by the applicant arising from discussions that he said he had with Councillors Cook and Ahipene-Mercer prior to the Extraordinary Meeting commencing.  He said that both Councillors had advised him they would be voting  in favour of censure at  the  meeting  and  on this basis  he believes his hearing was prejudged.

[63]     The first aspect of alleged pre-determination can be dealt with shortly.  The motions were clearly framed in a way that is conventional for Council business.  The

Councillors  understood  that,  so  that  although  the  wording  appears  to  beg  the outcome, each Councillor knew that the motions were to be the subject of debate and that each was free to vote for or against the motions as their conscience dictated.

[64]     The second aspect of concern over the Mayor chairing the meeting is not supported by evidence that she was biased in any way as a result of having been present at the Finance and Corporate Committee meeting on 27 September 2004.  In any event, the complaints arising from that meeting had been withdrawn and so were not for determination at the meeting.  Further, the Mayor had distanced herself from the investigation of the complaints and passed that responsibility to the Chief Executive.   Finally, the transcript of the meeting records that the Mayor presided over the meeting in an objective manner and did not seek to advocate any cause.

[65]     In relation to the third aspect, of alleged prejudgment, Councillor Cook made clear in her affidavit that she did not speak with the applicant about the censure issue prior to the Council meeting on 15 December 2004.   She says that any comments that she made prior to that meeting were in emails sent to the Mayor, all Councillors and the Chief Executive prior to the meeting.  The first email she sent was at 3.45pm the day before, and it was supportive of the applicant:

Subject: Alleged breach of Code of Conduct

Dear Kerry

While we will be debating this issue at Council, I wish to express my view that the wording of Councillor Goulden’s advertisement does not appear to me to be a breach.  I have not seen the ad before today.  The ad simply says that two different people produced two different sets of figures.  It does not appear to me to accused Mr McKenzie of any wrongdoing or to criticise him

…

[66]     Councillor   Cook   said   that   later   that   evening   when   she   reread   the advertisement she decided that it was in fact critical of Mr McKenzie.   In consequence,  she sent  a further  email to  the  Mayor,  Councillors  and  the  Chief Executive saying:

Subject: Alleged breach of Code of Conduct

Dear all

Despite having read the advertisement at the centre of the allegations and the report several times this afternoon I have now reread it and find that it in fact does publicly criticise Mr McKenzie.  The words ‘have now’ clearly imply a lack of integrity on the part of Mr McKenzie.  My apologies for my incorrect conclusions earlier today. …

[67]     Councillor  Cook explained that  she  only  sent  the  emails  because  of her concern “about the acrimony a potential censure motion would cause” but she emphatically denied that her conscientious attempts to set out her views prior to the meeting amounted to a prejudgment on how she would vote on the motion to be debated.

[68]     Councillor Ahipene-Mercer, in his affidavit, was equally emphatic in denying any prejudgment on his part.  Given the elucidatory nature of his evidence on that issue and on how he subsequently voted at the meeting, it is helpful to reproduce much of it verbatim.  He said:

I only had two discussions with Councillor Goulden over the alleged breach in advance of the extraordinary Council  meeting  of 15  December  2004. Each of those discussions also involved Councillor McKinnon.   They both took place on the day of, and prior to, the extraordinary meeting of Council on 15 December 2004.  The first discussion was before the ordinary meeting of Council commenced.  (The ordinary meeting of Council also took place on the same evening.)

Councillor McKinnon and I tried to persuade Councillor Goulden that he should admit to the breach, apologise to Mr McKenzie and in exchange we would use our influence to have the complaint withdrawn.

The second meeting was at the ordinary Council meeting’s dinner break and before the business of the alleged breach was considered at the extraordinary meeting.

Councillor  McKinnon  and  I,  together  with  the  Council’s  legal  adviser, Mr Richard Fowler, spoke privately to Councillor Goulden.  We did this in a private space in the ante-Chamber outside of the Council Chamber proper.

Both Councillor McKinnon and I again voiced our concerns to Councillor Goulden that we thought the Code of Conduct breach meeting would be regrettable, not in the best interests of Council and we should endeavour to resolve it in advance.  While the discussion was free ranging, the essence of what we were trying to urge upon Councillor Goulden, and which at one point he agreed to, was that he would in private apologise to Mr McKenzie on the basis that this would be the end of the matter.   In return, we would

facilitate the complaint being withdrawn so that the extraordinary meeting of

Council would not need to proceed.

In our discussions with Councillor Goulden, it was said by myself, by Councillor McKinnon and Mr Fowler, that in our respective views, on the face of the advertisement, Councillor Goulden had breached the Code of Conduct’s requirement to not criticise Council staff members publicly.

Neither  myself nor  Councillor  McKinnon,  however  at  any  stage said  to Councillor Goulden that we were therefore intending to vote in favour of him being censured.  We did not say how we might vote.  I could not do so before hearing the debate in the Chamber.

The whole point of the [sic] our meetings in private, ahead of the extraordinary Council  meeting,  was  because of  our  concerns  about  how divisive this issue could become (as this proceeding has proved).  The issue had become a festering sore and our hope was that the full Council censure debate, let alone vote, could be avoided.   I did not know from those discussions how Councillor McKinnon was going to vote, and he would not have known how I was going to vote.  It is, with respect, therefore incorrect for Councillor Goulden to now assert that I had [a] predetermined position when entering into the meeting.   Councillor Goulden would seem to have interpreted our opinions that he had breached the Code with the conclusion that we would therefore vote in favour of censure.

Our hope that the matter had been resolved prior to the meeting ultimately foundered because Councillor Goulden then said he would only agree to the proposal we were trying to facilitate if his private legal costs up to that point, which he said were $5,000, were paid for by the Council.  At this point both Councillor McKinnon and I realised that there was no prospect of resolving the alleged breach privately and that it would be inevitable that the extraordinary meeting would proceed.

I have seen a copy of the transcript of the Council’s meeting prepared by the Democratic Services Office.   I spoke for less than the three minutes each Councillor was entitled to speak for under our Standing Orders.    In the course of my speech, I included:

… Secondly, I have quietly told Councillor Goulden to his face what I’m now going to say to the rest of this room, and that I do not approve, and do not accept that the matters referred to in the advertisement  are acceptable,  and that  they are inappropriate.  … And to let this matter progress any further, with all the corrosiveness that it will do, not only around this table, but I’d put it, more importantly,  to the officers  and  management  of  this  structure,  is unacceptable.  It has to be sorted out tonight, and there’s going to be no clear winners on this, but we have to have the maturity and the bottle to address this.  And I hope that we do, and I hope we do that as soon as we can.

I did not say that I had told him how I was going to vote.   My concerns about the corrosiveness of this issue have been borne out.

[69]     Likewise, Councillor McKinnon’s evidence in his affidavit, setting out his view of the discussions that took place with the applicant prior to the Extraordinary Meeting and the basis on which he subsequently voted at the meeting:

My own comment to Councillor Goulden included that he had been in error, and using an Army analogy which both Councillor Goulden and I would have understood because of our similar backgrounds, that he should know that he never reprimands subordinates in public.   He should accept this, bring it to a close, and avoid having his name and that of Council dragged through the press.

I confirm in particular that neither Councillor Ahipene-Mercer nor myself said how we intended to vote.  My decision on how to vote would follow the debate, noting the various views expressed in that debate.

That said, it would probably be fair to say that Councillor Goulden could have concluded in our discussions what my likely vote would have been subject  to  the  debate  at  the  meeting.    At  the  meeting,  I  was  the  last Councillor to speak before Councillor Goulden was given his right to reply. I appreciate that the transcript of the meeting commences:

Thank you very much, Madam Mayor

I start by saying that Councillor Goulden knows exactly how I’m going to vote on this, that I’ll vote for censure if that’s the way the whole evenings moves, because I think that what he has done is unacceptable.   I don’t need a code of conduct, in fact I find that almost insulting.  It is common sense that in an employing situation, you don’t ever bring the names of people who are accountable to you  and subordinate to you  into the public arena.    You  do  that privately, and I would say to you now that Counillor Goulden, who I have known for a number of years, realises this as much as I realise it …

My statement at the Council meeting, even at that stage, was qualified with the words “if that’s the way the whole evening moves’.  I repeat, I did not tell Councillor Goulden how I was  going to vote,  nor  was  my  decision prejudged, although I was consistent in what I said to him, both before the meeting and before the Council that you do not criticise employees in public.

[70]     On the basis of the three Councillors’ evidence, there is nothing to suggest they prejudged the complaint.  In any case, as Mr Stevens’ submitted, “the law does not  prohibit  decision-makers  from  beginning  the  deliberative  process  prior  to  a formal hearing or from adopting preliminary views.  Elected members are permitted to hold preliminary views on the complaint, provided they keep an open mind”, citing Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 (at 89).

[71]     Under the earlier heading of the advertisement and its context I set out the applicant’s explanation for the advertisement and its meaning, and his iteration of his right to express himself freely in the media as confirmed in the Code of Conduct.

[72]     In relation to the first, the applicant’s contention that the statements made in his election advertisement did not infringe the Code of Conduct and were factually correct is a matter outside the Court’s purview.  As Mr Gartrell himself submitted, judicial review is concerned with the process of decision making rather than the merits, citing Mercury Energy Ltd v ECNZ  [1994] 2 NZLR 385; [1994] 1 WLR 521 (PC) and Chief Constable North Wales Police v Evans [1982] 1 WLR 155 (HL). The decision in this case was, as I have said, a political epithal one that the Councillors were in the best position to make. As the evidence of Councillors Ahipene-Mercer and McKinnon make clear, their assessment of the accuracy of the applicant’s statements and whether they were critical of Mr McKenzie, were assessments the Councillors were ready and able to make. It is clear also that, when put to the vote, the majority of Councillors were ad idem on the matter.

[73]     In relation to the second point, I observe that the entitlement of a Council member to freely and publicly express an opinion is subject to the limitation that “media comments must observe the other requirements of the Code of Conduct”.  As it is appropriate to regard the Code as a lawfully promulgated set of guidelines or rules,  issued  under  s  48  (and  Schedule  7)  of  the  Local  Government  Act,  this limitation on public criticism of any Council employee in any way can be regarded as a justified and reasonable limit on the entitlement of a Councillor to freely express his or her personal view in the media at any time.

[74]     The application is dismissed.

Costs

[75]     In  accordance  with  the  request  of  the  Council  the  question  of  costs  is reserved.

Solicitors:

E W Gartrell, Barristers and Solicitors, Wellington, for Applicant

Phillips Fox, Wellington, for Respondent

Delivered at 2.15pm on Friday 21 April 2006.