Jackson v Te Rangi
[2014] NZHC 2918
•21 November 2014
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-004604 [2014] NZHC 2918
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
a decision under Clause 6 of Schedule 2 of the Local (Auckland Council) Act 2009
BETWEEN
WILLIAM WAKATERE JACKSON Applicant
AND
TAME TE RANGI; DAVID TAIPARI; THOMAS DE THIERRY;
MICHAEL BAKER; JOHN LINSTEAD; TED NGATAKI; GARY THOMPSON; TERRENCE LESLIE HOHNECK;
TE WARENA TAUA; NICOLA MACDONALD; LIANNE NGAMANE;
WILLIAM PETERS; KAREN WILSON; JOSIE SMITH; NAIDA GLAVISH; GRANT PAKIHANA HAWKE; and HAYDEN EDMONDS
First Respondents
Respondents continued over
Hearing: 24 February and 2 May 2014 Counsel:
D E Wackrow, T K T A R Williams and
I F F Peters for the Applicant
D G Randal and L Bazalo for the First Respondents
T L Hovell for the Second and Third Respondents
D N Soper for the Fourth RespondentJudgment:
21 November 2014
JUDGMENT OF DUFFY J
Judgment re-released and re-distributed on 24 November 2014
This judgment was delivered by Justice Duffy on 2014 at am/pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
JACKSON v TE RANGI and ORS [2014] NZHC 2918 [21 November 2014]
THE INDEPENDENT MAORI STATUTORY BOARD
Second Respondent
TONY KAKE Third Respondent
MINISTER OF MAORI AFFAIRS Fourth Respondent
Solicitors: Wackrow Williams and Davies Limited, Auckland
Buddle Findlay, Wellington
Atkins Holm Majurey, AucklandCrown Law, Wellington
[1] One of the features of the Local Government (Auckland Council) Act 2009 (“the Act”) is the provision it makes in Part 7 for the establishment of a board (“the Board”) to assist the Auckland Council to promote cultural, economic, environmental, and social issues of significance for mana whenua groups and mataawaka of Tamaki Makaurau. Mataawaka are Māori who live in Auckland and are not in a mana whenua group, as defined in the Act. The Board is composed of nine persons: two of whom are mataawaka representatives; and seven are mana whenua group representatives. The process by which they are appointed to the Board is set out in the Act.
[2] The applicant, William Jackson, is someone who was an unsuccessful candidate for appointment as a mataawaka representative to the Board. The first respondents are the members of the selection body responsible for choosing the new mataawaka appointments to the Board. Those persons appointed were John Tamihere and Tony Kake. Mr Jackson seeks judicial review of the first respondents’ decision appointing the third respondent, Tony Kake, to the Board in preference to Mr Jackson. No challenge has been brought against the appointment of Mr Tamihere.
[3] The judicial review proceeding raises questions about whether the first respondent has complied with the legal requirements mandating how a decision to appoint new mataawaka representatives to the Board is to be made.
[4] Some time after the conclusion of the defended hearing of the judicial review, the first respondents applied for leave to adduce additional evidence regarding the process that they followed to decide the appointment of Mr Kake. I propose to deal with this application at the same time as I determine the judicial review.
The judicial review
[5] The Act provides for the appointment of a board to promote issues of significance for mana whenua groups and mataawaka of Tamaki Makaurau. The appointment is to be done by a selection body.
[6] The selection body is established from the first meeting of the persons chosen as mana whenua group representatives: see cl 2 and cl 4 of Schedule 2 of the Act. No issue is taken about the appointment of the first respondents to the selection body. Its sole function is to appoint members to the Board. Once this function is performed, it ceases to exist.
[7] Clause 2(4) provides that in appointing members to the Board, the selection body must be guided only by the Board’s purpose, functions, and powers. It is not subject to directions from Auckland Council or those associated with it. The selection body may seek advice from any source that it considers appropriate.
[8] The Act expressly provides in s 82 that the Board is a body corporate that is separate from, and independent of the Auckland Council and the mana whenua groups represented by the selection body. The Board is also separate from the Board’s members and the selection body. Current membership of the Board runs for the period from 1 November 2013 to 31 October 2016.
[9] The Act says nothing about whether the selection body is a body corporate. Nor does the scheme and purpose of the Act that would suggest by implication that the body corporate status for the selection body was intended. Given its limited purpose and short duration, Parliament may not have seen any need to make the selection body a body corporate. I am satisfied, therefore, that the selection body is an unincorporated body of persons.
[10] Clause 6 of Schedule 2 provides the process for the selection body to choose mataawaka representatives for the Board. This provision sets out the few mandatory requirements that the Act imposes on the selection body (emphasis added):
6 Selection body chooses mataawaka representatives for board
(1) The selection body must choose the board's 2 mataawaka representatives.
(2) The selection body must choose the mataawaka representatives by following a process that, at a minimum,—
(a) includes public notification of the process that the body proposes to use for choosing the representatives; and
(b) provides an opportunity for nominations to be received; and
(c) requires the body to take into account the views of mataawaka when choosing the representatives.
(3) The selection body must apply clause 5 when choosing the 2 mataawaka representatives (emphasis added).
[11] The focus of the judicial review is on cl 6(2)(c). In short, Mr Jackson contends that the first respondents failed to comply with cl 6(2)(c) when making the decision to appoint Mr Kake. This is the foundation for his argument that the impugned decision is flawed in administrative law terms. The grounds of review being: illegality; omitting relevant considerations or considering irrelevant considerations; and irrationality/unreasonableness.
[12] The scope of the statement of claim is relevant to the application to adduce additional evidence as the first respondents argue that one of the attacks on the impugned decision was unexpected owing to the statement of claim not giving them notice or sufficient notice. I propose, therefore, to set out the relevant parts of the statement of claim in some detail.
[13] The grounds of Mr Jackson’s challenge are:
Ground One - Illegality
30.It was a mandatory requirement imposed in clause 6(2)(c) of Schedule 2 that “the body” (the First Respondents) “take into account the views of Mataawaka when choosing the representatives”.
31.There was no and/or no sufficient evidence or material to demonstrate the views of Mataawaka in respect of the Third Respondent as a candidate.
32. There was ample evidence or material to demonstrate the views of
Mataawaka in respect of the Applicant as a candidate.
33.The First Respondents were required in their deliberations to act as a “body”. Among other things, that requires joint consideration including discussion of the mandatory consideration of the views of Mataawaka in respect of the various candidates. The procedure adopted by the First Respondents on 15 August 2013 did not involve the consideration necessary as a body.
Ground Two – Omitting relevant considerations or considering irrelevant considerations
Particulars
34.Faced with the matters referred to in paragraphs 28-32 the First Respondents in purporting to appoint the Third Respondent omitted a relevant consideration namely taking into account the views of Mataawaka and/or took into account irrelevant considerations because there was no and/or sufficient proper evidence or foundation for this purported Decision.
Ground Three – Irrationality/unreasonableness
35.Faced with the matters referred to in paragraphs 28-34 of the Statement of Claim the First Respondents purporting to appoint the Third Respondent acted in a manner which was irrational or unreasonable because this was unsupported by sufficient reliable supporting evidence in their consideration of what the First Respondents were bound to take into account in making the purported decision.
Facts
[14] The evidence from the opposing sides reveals a common view on the circumstances relevant to the impugned decision. In short, the first respondents decided on who should be the two mataawaka representatives to the Board by a secret ballot.
[15] On its face, this style of decision-making does not lend itself to revealing if the decision-makers have taken mandatory relevant considerations into account.
[16] Before the members of the selection body exercised their vote, there was no formal discussion about the respective merits of the candidates, and in particular there was no formal group discussion about the views of mataawaka in relation to those candidates.
[17] Thus, there is no evidential foundation from which the inference might be drawn that the process that was followed was one that led to the views of mataawaka being taken into account, or that those views actually were taken into account.
[18] Further, the first respondents have not provided evidence from all of their numbers. Consequently, it is not possible to know if each individual member of the
selection body accordingly took the views of mataawaka into account when voting on his or her chosen candidates. This last issue is responsible for the first respondents’ application to adduce further evidence.
[19] Against the above background, Mr Jackson contends that there is no evidence that the selection body complied with the mandatory requirement in cl 6(2)(c) when making the decision to appoint Mr Kake as a mataawaka representative.
[20] The form that the decision to appoint the mataawaka representatives took means that no reasons, or outline of the decision-making process are available. Nor is there any comprehensive contemporaneous record of the steps taken in this decision-making process. This has meant that for the Court to gain an understanding of how the selection body’s decision was reached, there has to be some reliance on testimony from those who were present on the day, as well as inferential conclusions drawn from the contemporary material that is available.
[21] Two of the deponents who gave evidence for Mr Jackson were members of the selection body. Five of the deponents who gave evidence for the first respondents were members of the selection body. These witnesses have direct first-hand knowledge of the selection body’s decision-making process for the appointment of the mataawaka representatives. In addition, two of the first respondents’ deponents were persons who provided secretarial and executive support to the selection body. In this role, they also gained first-hand knowledge of the decision-making process that the selection body followed. However, there were
11 other selection body members; they have not provided any affidavit evidence.
[22] The evidence covers three topics: (a) the process that was followed in selecting Mr Kake as one of the mataawaka representatives; (b) whether the process allowed the members of the selection body sufficient time to reach a properly formed view to choose a mataawaka representative; and (c) whether there was sufficient, or indeed any information available to the members of the selection body about the views of mataawaka in relation to Mr Kake.
The selection process
[23] The absence of evidence from all the members of the selection body means that as matters stand, the Court has no direct evidence on whether each member of the selection body took the mandatory relevant consideration into account, let alone whether the members of the selection body as a group did so.
[24] In order to see if there is some evidence from which it can be inferred that the members of the selection body, as a group or each individually, took the mandatory relevant consideration into account, I propose to consider the available evidence. This shows that there are two relevant timeframes: July 2013 and August 2013.
[25] On 4 July 2013, there was a meeting to approve the processes for selecting members of the Board. Whilst this was the stated purpose of the meeting, I have found no record that suggests that the process that was actually followed when the decision was made on 15 August 2013 was one that was decided at the 4 July 2013 meeting. The Minutes of this meeting record that the Chairman and 16 members of the selection body attended this meeting.
[26] There is no doubt that advice about possible decision-making processes was made available for the 4 July 2013 meeting. The selection body received secretarial and executive assistance from two persons, Joy Hames and Luella Linaker, each of whom have provided evidence for the first respondents. Ms Hames described the material that she prepared and provided to the selection body at the 4 July 2013 meeting. The material comprised:
(a) A draft agenda headed “Draft Agenda for Your Consideration” which
comprised:
(i) Appoint Chairperson;
(ii) Presentation – Iwi selection body tasks; (iii) Reports for decisions:
1. Approach to meetings
2. Mana whenua selection process
3. Mataawaka selection process;
4. Resources;
5. Meeting timetable;
6. General business
(b)A folder of other relevant information comprising: (i) An agenda;
(ii)Proposed timetable for the selection body process from 12 July through to 16-17 August 2013;
(iii)Correspondence from the Auckland Council outlining the support it was providing for the selection body meeting;
(iv) Copies of ss 81 to 89 and Schedule 2 of the Act;
(v)A legal opinion from Atkins Holm Joseph Majurey in relation to the requirements for appointments to the Board;
(vi) Iwi member payment schedule and IRD form;
(vii)Te Puni Kokiri information sheet about the role and function of the Board; and
(viii) Refill pad.
[27] In relation to the selection of mataawaka board members, Ms Hames included in the draft agenda an item that informed the selection body that they were “required to take into account the views of mataawaka when choosing the representatives”.
[28] Material regarding the selection process for mataawaka representatives of the
Board included an advice paper setting out the selection process and informing the
selection body that there were two decisions to be made in relation to selecting the two mataawaka representatives: the first being the process for seeking nominations; the second being the process for selecting the representatives. The advice paper set out options and provided information on the processes adopted in 2010 as a guide for decision-making.
[29] Relevant to this proceeding are the advised options for appointing the mataawaka representatives. The advice paper referred to legal advice received by the 2010 selection body that described the legislation guiding the selection process as being “generally empowering rather than prescriptive”. The selection body was advised that it could largely determine its own processes and criteria for appointing members to the Board, subject to certain minimum requirements set out in the Act. However, it was recommended that the elements of the process were recorded in the decision-making. The selection body was advised that this advice was equally applicable in 2013, and supported the principle of transparent decision-making. The advice paper then set out three options for decision-making:
(a) Option 1:
The iwi selection body deliberating in private to appoint the preferred candidate to the Board. In making the final appointments, the selection body would provide a brief explanation of the preferred nominees’ attributes.
(b) Option 2:
Short-listing nominees. The selection body would short-list up to five nominees and include a brief explanation of applicants’ attributes in the decision. Contact would then be made with the short-listed nominees to attend an interview/make a presentation to the selection body. When interview/presentations were completed, the selection body would deliberate in private to appoint the preferred candidates to the Board.
(c) Option 3 was a variation on either option 1 or option 2, but included the provision of a “hui-a-iwi” after selection is made for information purposes.
[30] The advice paper also identified matters applicable to any selection approach. The advice was to the effect that in 2010, the selection body had decided that it would be helpful to adopt criteria to guide the selection process. The criteria agreed in 2010 were then set out. The selection body was advised that the criteria needed to be found across the Board as a whole, and so it was not necessary for an individual Board member to meet all of the criteria. The selection body was also invited to consider whether, now that the purpose and functions of the Board were better understood, the criteria used in 2010 best reflected the needs of Board membership, or whether they needed to be redrafted. The advice paper referred to the nomination process and noted that it might be appropriate to have something formal indicating the level of support from mataawaka, or an iwi authority making the nomination.
[31] The above information was provided to the selection body at the beginning of the 4 July 2013 meeting. Ms Hames deposes that at the meeting, the selection body discussed the selection process for the appointment of mataawaka representatives. At this meeting, Ms Hames gave a power point presentation, which included a slide on the selection process for mataawaka representatives. This included a statement that there was a need “to build an opportunity for mataawaka to provide their views”.
[32] Ms Hames deposes that with the power point presentation, she explained the statutory requirement to take the views of mataawaka into account, and she explained that it was important to consider this both when the selection body was considering the process to be followed in seeking nominations, and also when the members of the selection body made their ultimate selection decision. As part of the explanation, she drew their attention to the legal advice provided by Atkins Holm Joseph Majurey. That advice confirmed the requirement to ensure the views of mataawaka were taken into account, and it went on to explain what the phrase “take into account” means and requires. Ms Hames says there was also discussion about the setting of additional criteria by the selection body to guide the selection process.
These criteria were set out in the reports attached to the draft agenda. The Minutes of the 4 July 2014 meeting record the selection body making the following decisions:
(a) To approve the additional criteria to guide the selection process;
(b)To appoint Ms Linaker and Ms Hames to act as executive support to organise the nomination process for mataawaka representatives; and
(c) To adopt the 2010 process for selection of the two mataawaka representatives on the Board, including the timeframe and process for checking candidates that was adopted in 2010.
[33] The additional criteria approved by the selection body on 4 July 2013 were: (a) Knowledge and expertise in Te Reo, Tikanga and Matauranga;
(b)Knowledge of the geographic and socio political make-up of the whole Tamaki Makaurau area;
(c) Knowledge and expertise in areas relevant to local Government (e.g. resource management, public policy, planning, transport, finance, etcetera);
(d)Strong networks and established relationships with mana whenua in local and central Government spheres; and
(e) Acknowledged as a leader within their own community.
[34] Ms Hames deposes that the additional criteria were adopted to ensure that persons appointed to the Board had adequate qualifications and qualities to enable the Board to achieve its statutory purpose. The criteria set in 2013 were the same as those used in 2010.
[35] The Minutes of the 4 July 2013 meeting record that the selection body agreed that the method of decision-making would be by majority of those present and
voting. The Minutes also record that the selection body decided to adopt “the 2010 process for the selection of the two mataawaka representatives … and includes the timeframe and process set out at paragraph 26 of this report”. The report, which was attached to Ms Hames’ affidavit, at [26] set out the timeframe and process for “approving mataawaka appointments”. Nothing is said in [26] of that report about the use of a secret ballot to select the chosen candidates.
[36] On 12 July 2013, an invitation seeking nominations for mataawaka representatives to be appointed to the Board for the current term was publicly notified; nominations closed on 2 August 2013. Eight persons were nominated for the two places. The nominees included Mr Jackson and Mr Kake. With his nomination application, Mr Jackson included a curriculum vitae and letters of support from nine different mataawaka groups in Auckland. Mr Kake provided no supporting evidence from mataawaka with his nomination form. Whilst the public notice calling for nominations also called for views of mataawaka on who should represent them, no such views were received. Ms Linaker confirmed in her evidence that “views of mataawaka were only provided as supporting material by nominees”.
[37] The meeting to decide the appointment of the mataawaka representatives took place on 15 August 2013. Before that date, Ms Hames and Ms Linaker worked on the agenda for the meeting. A copy of the agenda was emailed to members of the selection body on 13 August 2013 (“the August agenda”). This agenda included an outline of the mana whenua selection process and the mataawaka selection process. Regarding the latter, there was reference to the eight nominees. A table was attached to the August agenda summarising information provided by each nominee. The August agenda went on to record that as the information was extensive in some cases, it was not being provided to the selection body members through email, and that hard copies of the detailed information would be available at the meeting for review.
[38] Two broad approaches for selecting mataawaka representatives were outlined in the August agenda:
This involved setting up a smaller group to develop a short-list of nominations. This group would adjourn for “(say) 1 hour” to allow the group to short-list up to “say” four of the nominees. The selection body would then reconvene, and after discussion about the attributes of each of the short-listed people, there would be a poll of each member as to which two candidates he or she supported;
(b) Option 2:
This involved following the process in option one but without a separate short-listing step. Instead, the selection body would have a general discussion regarding each candidate. There was to be a show of hands to see which of the candidates had any support from selection body members. A more detailed discussion was then to be held about each of those candidates who have had some indication of support from selection body members. Then there was to be a poll of each member as to which two nominees he or she supported.
[39] The August agenda stated that whilst a poll was not a requirement of the final selection process, it was a recommended approach as it provided structure to a decision being made about more than one person by a large group. Polling forms were prepared, but it was noted that it was also open to the selection body for the polling process to be either open or closed:
(a) Open polling was described as involving each member being asked in turn whom he or she supported. Executive support would record the answer of each member, and then announce the result immediately after polling.
(b)Closed polling was described as involving each member receiving the polling form and indicating his or her choices in confidence, the forms being collected and results collated by executive support without knowing which member had made which selection.
[40] Option two as outlined in the August agenda is somewhat different from any of the options that were outlined in the advice paper for the 4 July 2013 meeting.
[41] The August agenda reiterated the additional criteria for selecting the mataawaka representatives that were outlined in the July advice paper. Once again, the selection body was advised that the criteria needed to be found across the Board as a whole and it was not necessary for any individual Board member to meet all of the criteria. The August agenda went on to advise that the summary table was prepared with the proposed criteria in mind and to provide information on the support that there was for each candidate from mataawaka. It was then emphasised in the August agenda that this was important because the selection body was required by the Act to take into account the views of mataawaka when choosing the representatives. There was also a reference in the August agenda to correspondence (attached to the August agenda) from one of the nominees, John Tamihere, that expressly referred to the legal requirement for the selection body to take views of mataawaka into account.
[42] The meeting of 15 August 2013 covered more than just the appointment of mataawaka representatives. The selection body was also required to choose the mana whenua representatives for the Board. The meeting commenced at 10.30 am. The items for consideration were:
(a) Appoint chairperson;
(b) Presentation – mana whenua selection body key tasks; (c) Reports for decision
1.Agenda prepared by executive support; approved by chairperson;
2. Decisions made by majority present and voting;
3. Meeting dates and time decided either by “Manua
Whenua Selection Body or called by Chair”;
4. Minutes;
(ii) Mana whenua selection process; (iii) Mataawaka selection process;
(iv) Resourcing the mana whenua selection body; (v) Meeting timetable;
(d) General business.
[43] The Minutes of the 15 August 2013 meeting do not record the time at which the selection body turned its attention to choosing the mataawaka representatives. However, it is clear from Ms Linaker’s evidence that this topic must have been first considered at about 12.15 pm. The Minutes do record that the selection body approved an approach to selection of mataawaka representatives that involved following option two in the advice paper: being a decision made by the group as a whole without a separate short listing process. The process for reaching a decision on the two appointments was to be by “closed polling”.
[44] It is worth noting that the process that was actually followed by the selection body to appoint mataawaka representatives did not follow that suggested by “option two” in the August agenda, despite the Minutes of the 15 August 2013 meeting recording that the selection body had approved option two. The “option two” that was outlined in the August agenda involved: (a) the selection body having a “general discussion” regarding each candidate; (b) the selection body giving a show of hands for the candidates having support of the selection body
members; (c) more detailed discussion about each of those nominees who had some indication of support from the show of hands; (d) selection by polling each member of the selection body as to which two candidates he or she supported. The Minutes of the 15 August 2013 meeting record no formal discussion of the type that was envisaged in option two in the August agenda.
[45] Ms Linaker deposes that at approximately 12.15 pm, she distributed seven sets of each nominee’s full nomination material. Nothing is said about why there were seven such sets. Present that day were the Chairman and 17 members of the selection body. That only seven sets of material were distributed suggests that each member did not receive his or her own set of this material.
[46] Then, the chairperson, Mr Te Rangi, took the members of the selection body through the recommendations in the agenda, item 4C, which contained the two options for choosing mataawaka representatives. Ms Linaker deposes that after the members had decided to use closed polling, Mr Te Rangi asked them if they wished to discuss the nominees or information about the nominees. She deposes that there was a discussion and that “members did not think it necessary to discuss, as a group, each of the nominees”. She deposes that Mr Te Rangi then advised the members of the selection body to take time over the lunch break to look at the full documentation before voting. Then the meeting adjourned at 12.30 pm for 30 minutes.
[47] It is hard to be sure what happened next. Ms Linaker deposes that:
During the lunch break Helen Atkins … and I kept a running tally of the number of polling forms we received to ensure we received all 18 forms. I informed the Chair when we had received all 18 polling forms after the Chair recommenced the meeting at around 1 pm.
This suggests to me that some persons voted during the lunch break. Once all 18 votes were received, Ms Linaker and Ms Atkins tallied the voting. The result was announced. Ms Linaker says that the meeting closed “with a karakia at 1.15 pm”.
[48] Mr Te Rangi’s evidence supports the account that Ms Linaker has provided.
Mr Te Rangi deposes that he offered to have a group discussion of the individual
candidates, but the consensus view was that no group discussion about individual candidates was needed. Mr Te Rangi deposes that he:
… directed the members to place their votes in a polling box that Ms Linaker
kept in her possession when the meeting recommenced after lunch.
Mr Te Rangi deposes that he advised the members of the selection body to:
… take their time to review the summary table and full information and use the 30 minute lunch break to evaluate the material and if they wished to discuss nominees with other members.
[49] Mr Te Rangi deposes that during the lunch break he discussed the mataawaka candidates with other selection body members.
[50] Mr Te Rangi estimates that there was a 45 to 50 minute time period between the time the agenda item on the appointment of mataawaka representatives commenced until when the meeting reconvened after lunch. He deposes that when the meeting reconvened, Ms Linaker “informed me that there were 18 forms in the polling box”. Mr Te Rangi says that he then confirmed with those present that they all had voted. They confirmed this was so. He then closed the voting and the votes were tallied. In his evidence, Mr Te Rangi confirms that in making his decision, he took into account the views of mataawaka based on his previous knowledge, discussions with other members of the selection body, supporting documentation and information supplied by the mataawaka candidates.
[51] The accounts given by Ms Linaker and Mr Te Rangi suggest that voting may have occurred during the lunch break, with voting completed at the time the meeting reconvened after lunch. This view of events is consistent with the evidence of Ted Ngataki, who was one of the selection body members and who has given evidence for the first respondents. He deposes that he voted before the meeting reconvened after lunch.
[52] Mr Ngataki deposes that he received full material about each candidate from Ms Linaker near to the lunch break because he remembered reading the material over lunch. He says that during the 30 minute lunch break, members of the selection body had an opportunity to discuss the material about the respective mataawaka
candidates with other members of the selection panel. He says that he took this opportunity with another member of the selection body. Mr Ngataki’s evidence is that he took into account the views of mataawaka when making his decision. The information he relied upon was the supplied material, his own knowledge of mataawaka views and his discussion with “a colleague” during the lunch break.
[53] Debra Ngamane, who was a member of the selection body and who has given evidence for the first respondents, gives an account of the decision-making process that is much the same as that given by Mr Te Rangi and Mr Ngataki. Ms Ngamane describes how she received the full documentation at the meeting and during the lunch break she remained in the meeting room to go through that documentation. She says that she reviewed it thoroughly and talked with other selection body members; then she voted. She says that after she voted, she then had lunch just minutes before the meeting reconvened. Thus, it appears that she voted during the lunch break.
[54] Nicola MacDonald was a member of the selection body, and has given evidence for the first respondents. She deposes that she voted when the meeting reconvened after lunch. She deposes that prior to voting, over the lunch break she discussed the material provided to her with other selection body members, both during the meeting and during the lunch break. She expressly confirms that in making her decision on the candidate selection, she specifically considered material supplied by each mataawaka nominee. She also took into account the criteria agreed by the selection body on 4 July 2013.
[55] Hemi Matenga Rau is a member of the selection body and has given evidence for the first respondents. He specifically confirms that in making his decision, he considered material supplied by each mataawaka nominee. His account of the voting process is in line with that given by the other witnesses for the first respondents.
[56] Two members of the selection body have given evidence for Mr Jackson. They are Terrence Hohneck and Te Warena Taua. Their evidence is consistent with that of the first respondents.
[57] In his affidavit, Mr Hohneck describes being at the meeting on 15 August
2013 and being provided with “another application package”, which included curricula vitae and supporting documents from the mataawaka candidates. I understand this to be a reference to the material that Ms Hames distributed at the
15 August 2013 meeting. Mr Hohneck deposes that the members of the selection body had approximately “20 minutes to read the applications” from the mataawaka candidates. He confirms that the selection body members decided on a secret ballot as the means for choosing the mataawaka representatives. His evidence also confirms that there was no formal group discussion during the course of the meeting about the respective mataawaka candidates, their strengths, weaknesses and qualities. Mr Hohneck also deposes that there was no direction or specific verbal advice provided to members of the selection body about the appropriate criteria to apply when voting. He does report, however, that in at least two places in the written material that was provided to the selection body members, there was emphasis on the importance that was to be attributed to mataawaka support. Mr Hohneck confirms that the chairperson announced that matters were open for discussion before the polling, but none of the selection body members sought such discussion.
[58] Mr Taua’s evidence is also consistent with that of the other deponents. Mr Taua confirms that the members of the selection body were provided with information packages provided by the mataawaka candidates, which the selection body members had approximately 20 minutes to read. Mr Taua confirms that there was no discussion as a group about the mataawaka candidates, and he deposes there was no further guidance provided to the selection body regarding appropriate criteria to consider when voting. He confirms that the chairperson offered the selection body the opportunity of a discussion before voting, but this was not taken up.
[59] In his reply affidavit, Mr Taua referred to evidence from Ms Hames regarding the additional criteria that were adopted by the selection body in 2010, and which were also in the reports attached to the agenda for the 15 August 2013 meeting. Mr Taua deposes that there was no full discussion as a group of what each criterion meant, nor of how each nominee satisfied each criterion. He deposes that the closest the members of the selection body came to that was the table summary prepared by Ms Linaker.
[60] Mr Taua’s evidence confirms that neither of the selection options suggested in the agenda was followed by the selection body, despite the resolution on that day to adopt “option two” for selecting mataawaka candidates. Mr Taua does accept that there may have been discussions about the candidates and their applications during the lunch break. However, his evidence reveals that he was not a participant in those discussions.
[61] Similarly, in his reply affidavit, Mr Hohneck confirms the evidence of Mr Taua that the selection body did not utilise “option two” as set out in the agenda paper for the 15 August 2013 meeting. Nor was there any formal group discussion regarding the use of the additional criteria that were outlined in the August agenda paper.
[62] Mr Hohneck confirms Mr Taua’s account that there were no formal group discussions before the selection body voted. Further, Mr Hohneck deposes that he did not participate in any of the informal or external discussions that may have occurred between other members of the selection body.
Time to make decision
[63] There is a difference between the evidence supporting Mr Jackson and that supporting the first respondents on the topic of whether the selection body members had sufficient time to assess the information relating to the mataawaka candidates.
[64] Ultimately, whether sufficient time was made available or not is a legal issue for the Court to determine. The evidence regarding the decision-making process that was followed on 15 August 2013 is helpful here as it provides relevant circumstantial evidence from which the Court can draw inferences regarding this topic.
[65] The evidence from the members of the selection body is also relevant as it outlines whether a particular member of the selection body felt that he or she was sufficiently informed to make a decision.
[66] Mr Hohneck deposes that he feels the process that was followed on
15 August 2013 was “a bit rushed”. He believes that the selection body should have been given more time. However, he does not say clearly whether he felt that on the day, and if so, he offers no explanation for not bringing his concerns to the chairperson’s attention.
[67] On the other hand, Mr Ngataki deposes that he believes he had sufficient time to assess the information provided to him and to make a decision on for whom he wanted to vote. He is someone who received copies of some of this material beforehand when it was emailed to him on 13 August 2013, and he read it over the period 13 to 14 August 2013.
[68] Similarly, the chairperson, Mr Te Rangi, deposes that he also received email copies of information that was sent on 13 August 2013, and he read this material in the days before the 15 August meeting. He deposes that he found the summary of the information relating to the mataawaka candidates helpful in giving him a useful and informative picture of each candidate.
[69] Mr Rau deposes that he received the emailed material that was sent out on
13 August 2013. He deposes that he read this material and the material that was distributed at the 15 August 2013 meeting. He does not say whether he read the emailed material before the 15 August 2013 meeting or at this meeting. He makes no comment whether he considered that he had sufficient time or not.
[70] Ms MacDonald deposes that she received the material that was emailed on
13 August 2013, and that she read this material over 13 and 14 August 2013. She also deposes to reading the material that was distributed on 15 August 2013 and to believing that she had sufficient information to make an informed decision on the selection of mataawaka representatives.
[71] Ms Ngamane deposes that she received the emailed material on 13 August
2013 and went through this material that night. She deposes that the summary table prepared by Ms Linaker gave her a good general understanding of each candidate. She deposes that before the meeting on 15 August 2013 she spoke with other
persons, though this was in respect of their knowledge of good governance practice and their experience in the wider Māori community. She believes that at the meeting on 15 August 2013, she had enough time to enable her to make an informed selection from the candidates.
Was sufficient information available?
[72] Mr Jackson’s argument here is that Mr Kake provided no evidence of mataawaka support along with his nomination form. Mr Jackson contrasts this with the weight of mataawaka support that he provided with his nomination form. Other candidates also provided supporting material from mataawaka as a means of informing the selection body of the views of mataawaka in relation to their candidacy.
[73] Mr Kake’s nomination form records that he was nominated by four persons: two of those persons were from Te Ora o Manukau; one was from Whaitiaki; and the other was from Papakura Māori Events. The nominators were required to be mataawaka. However, there is nothing on the nomination form to inform the reader as to whether the nominators were mataawaka acting in their personal capacities or on behalf of a mataawaka collective with which they were affiliated. On one view, therefore, the nominators could be said to represent the views of mataawaka in relation to Mr Kake’s appointment to the Board, but on another view they could not. On the latter view, they could be no more than the personal expression of the views of the nominators.
[74] Mr Kake has sworn an affidavit to which he has attached a letter from Te Ora o Manukau dated 19 November 2013. The letter confirms that the nomination of Mr Kake by the two nominators who are affiliated with Te Ora o Manukau was done on behalf of Te Ora o Manukau and not by them personally. This means that the nomination form actually could be read to indicate implicitly the views of this mataawaka collective in relation to Mr Kake. However, that understanding is not readily apparent from the nomination form alone, which is what was before the selection body. Mr Kake deposes that one of his other nominators also represented the views of a mataawaka collective. However, that is
not readily apparent from the nomination form; nor has it been confirmed by evidence from this nominator.
[75] There was no formal group discussion, so it is not as if mataawaka support for Mr Kake became known to selection body members through this medium.
[76] The first respondents contend that the members of the selection body would have had their own knowledge of the views of mataawaka in relation to each candidate for the mataawaka appointments. However, there is no evidence to this effect from each and every member of the selection body. Nor does the evidence from the persons who have provided affidavits go so far as to establish that each member of the selection body had his or her personal knowledge of the relevant views of mataawaka.
Analysis
[77] A concise and comprehensive statement of the underlying objective of judicial review is to be found at [39] of Akaroa Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933, [2012] NZRMA 343 by Whata J:
… an underlying objective of judicial review is to maintain the rule of law, reflecting judicial commitment to the principles of legality and substantive fairness. This calls for careful scrutiny of the [decision-maker’s] exercise of discretion so as to ensure that it was exercised lawfully, while at the same time recognising that legality also demands that this Court must not usurp the [decision-maker’s] statutory authority.
[78] It is common ground that cl 6(2)(c) imposes few, but nonetheless some mandatory requirements. At the hearing, the parties proceeded on the basis that cl 6(2)(c) required the selection body to take into account the views of mataawaka. However, I consider that cl 6(2)(c) is more nuanced than that. Clause 6(2) stipulates that “the selection body must choose the mataawaka representatives by following a process that at a minimum” satisfies the requirements of (a) to (c) of the subsection, the last one of which being the requirement for the selection body to take into account the views of mataawaka. Thus cl 6(2) imposes two imperatives on the selection body regarding the views of mataawaka: (a) the adoption of a process that
requires the views of mataawaka be taken into account; and (b) the actual taking into account of those views.
[79] The form of cl 6(2) reveals an intent on the part of Parliament to ensure that whatever form of decision-making process the selection body might adopt, it would be one that necessarily led to the selection body taking the views of mataawaka into account. This is not to say that Parliament intended to depart from the well settled general principle that a requirement to take something into account is no more than an obligation to consider it, but having done so being free to discard it; and therefore under no obligation to act in accordance with it: see Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213 (HC) at [72]. But what the form of cl 6(2) does indicate is that when it comes to the appointment of mataawaka representatives, Parliament wanted to make doubly sure that the views of mataawaka were taken into account. Therefore, it would not be enough if the selection body simply took the views of mataawaka into account: they also needed to be seen so to do.
[80] It may be that when each selection body member came to exercise their secret vote, each member actually did take account of the views of mataawaka, but that cannot be known from the secret ballot process. This type of process just as readily would have allowed a member to exercise his or her vote with complete disregard for the views of mataawaka. In the event of this happening, no one would ever know. I am satisfied, therefore, that the secret polling process used by the selection body does not meet the requirements of cl 6(2).
Grounds of review
[81] Mr Jackson challenges the decision to appoint Mr Kake on the grounds of illegality, failure to take account of relevant considerations and unreasonableness. There are four allegations relating to illegality. Two of the allegations relate solely to illegality: These are the allegations that the requirement to take the views of mataawaka into account was mandatory ([30] of the statement of claim); and the selection body members were required to act collectively when they made their decisions on whom to appoint ([33] of the statement of claim). The allegation in
[31] of the statement of claim that there was insufficient information on the views of mataawaka in relation to Mr Kake is an allegation that is more relevant to the second ground of review. The allegation in [32] of the statement of claim is an allegation that is relevant to the last ground of review as it suggests that faced with the amount of information in favour of appointing Mr Jackson to the Board, the decision to appoint Mr Kake instead was unreasonable.
[82] The core of Mr Jackson’s case is that in a number of ways the appointment process led to the selection body failing to take into account the views of mataawaka. The first respondents accept that they were required to take the views of mataawaka into account. The core of their defence is that they have satisfied this obligation. I propose to focus on who is right. This involves addressing part of the illegality grounds and the failure to take account of relevant considerations together.
Were the views of mataawaka taken into account?
[83] The first respondents argue that Schedule 2 of the Act gives the selection body a broad discretion to set and apply its own processes and criteria for its task. That is true insofar as Schedule 2 does not stipulate one particular process. Nonetheless, the language of cl 6(2) imposes some constraints on the selection body when it comes to its decision-making process, and the first respondents have recognised this by their concession regarding the mandatory requirement to take the views of mataawaka into account.
[84] The first respondents argue further that a requirement to take something into account only requires the decision-maker to consider it, and to weigh it along with other relevant factors, the weight to be attached to it being within the decision- maker’s discretion. This argument is correct, but I do not understand Mr Jackson to be arguing differently. He accepts this general understanding of the law regarding a requirement to take relevant considerations into account. His arguments are that: (a) the paucity of information regarding the views of mataawaka in relation to Mr Kake’s candidacy means that the selection body could not and, therefore, did not adequately discharge the mandatory obligation; (b) the time allocated to the decision-making process on 15 August 2013 was insufficient to enable the members
of the selection body to take account of the information on the views of mataawaka that was available to them; and (c) there is no evidence to establish the views of mataawaka were taken into account.
[85] The first respondents argue that the Act does not preclude the selection body from taking account of the views of the nominators of the candidates as a valid expression of the views of mataawaka. The nomination form required the nominators to be mataawaka. So the fact that four persons nominated Mr Kake is evidence of mataawaka support for his appointment. The first respondents acknowledge that the nomination process is provided for in cl 6(2)(b), whereas the requirement for the views of mataawaka to be taken into account is in cl 6(2)(c). Nonetheless, they contend that information that is relevant to cl 6(2)(b) can also be relevant to cl 6(2)(c).
[86] The first respondents further argue that views of mataawaka about a candidate are not the only valid views. Here the first respondents contend that the requirement in cl 6(2)(c) is not limited to taking into account the views of mataawaka in relation to particular candidates. Instead, they argue that the views of mataawaka can be more broadly based than that. This may be so, but it overlooks the fact that in the present case when the selection body called for the views of mataawaka, all that they received were those views as they related to support given for a particular candidate. Nothing else was forthcoming. And when it came to Mr Kake, the only views of mataawaka that were provided to the selection body were the nominations that he received from four individuals who fit the description of mataawaka. Unlike the other candidates, Mr Kake provided no letters or other information in support of his candidacy that was ostensibly from mataawaka collectives. In addition, those four persons said nothing about Mr Kake in terms of their views on his suitability to be a mataawaka representative. The best that can be known is that they were prepared to nominate him for this role.
[87] Regarding the level of personal knowledge that each member of the selection body may have held about the views of mataawaka, this was not shared among the selection body at any formal group discussion. Nor is there evidence on the level of knowledge on this topic of each member of the selection body. The biggest problem
here is that the decision-making process was not transparent. Apart from those members of the selection body who have deposed that they took the views of mataawaka into account, no one knows what the other members of the selection body did.
[88] Mr Jackson points to the information that was available to the selection body members and argues that there is nothing, or nothing sufficient to reveal the views of mataawaka when it comes to Mr Kake. He relies on this information in two ways. First, he contends that there was not enough to inform the selection body of the views of mataawaka regarding Mr Kake. In this regard, he says that there was only the nomination form, and for the selection body to read that four persons who are mataawaka had nominated Mr Kake for appointment was not enough to inform the selection body of the views of mataawaka in relation to Mr Kake. Secondly, this insufficiency constitutes circumstantial evidence from which the Court can infer that the selection body did not take the views of mataawaka into account when it came to Mr Kake. This is the best that Mr Jackson can do. Through discovery and the Local Government Official Information and Meetings Act 1987 he would have the means to find out the information that was available to the selection body. But he is not privy to the considerations, if any, that the members of the selection body did take into account, and their process reveals nothing in this regard.
[89] Mr Jackson’s argument relies on the principle that if a relevant factor is to be considered, the decision-maker is under a duty to be sufficiently informed on it insofar as it appears to be necessary from the statute: see McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31]; and see Akaroa Marine Protection Society at [63]. There is a related principle that there will be a failure to take into account a relevant factor where the decision-maker has no information on it: see Tamaki Reserve Protection Trust Inc v Minister of Conservation HC Auckland CP600/97, 12 March 1999.
[90] There is a countervailing principle that where those with an interest have an opportunity to present their views, the decision-maker should be able to rely on interested parties to adduce information in support of their respective positions: see Akaroa Marine Protection Society at [63]. Though this principle is more applicable
to a case where the complaining party has some measure of control over the information supplied to the decision-maker but later contends the information is inadequate to support the decision.
[91] I am satisfied that the evidence of mataawaka views that was available to the selection body in relation to Mr Kake’s appointment amounted to no more than the fact that four persons who are mataawaka had nominated him for appointment. There was nothing on the nomination form to show that those persons were acting on behalf of the mataawaka collectives with which they are affiliated. There is no evidence to establish that this is how the members of the selection body would have viewed them. The first respondent argues that I should view the nominators as representatives of their respective mataawaka collectives. But without an evidential foundation to support that submission, I am not prepared to accept it.
[92] The responsibility for the inadequacy of the information on the views of mataawaka in relation to Mr Kake rests largely with Mr Kake. He was given ample opportunity to provide evidence of mataawaka views regarding his candidacy. Every other candidate but Mr Kake and one other provided some evidence of mataawaka views on their candidacy.
[93] I consider that the selection body, having called publicly for nominations and for expressions of views from mataawaka, was entitled to work with the information that it received. Therefore, the selection body could have noted the absence of mataawaka support for Mr Kake, but decided nonetheless that other factors favoured appointing him. However, there is no evidence that this actually happened. The selection body could have enhanced the information that it had received with contributions from those members who had personal knowledge of mataawaka views regarding the candidates, including Mr Kake. However, there is no evidence that this actually happened. When I examine the affidavit evidence for the first respondents, I note that apart from Mr Te Rangi, who in a general way refers to having knowledge of Mr Kake, none of the other deponents expressly refers to having any personal knowledge of mataawaka views regarding Mr Kake. Nor is there evidence that Mr Te Rangi shared his knowledge of Mr Kake with the other members of the selection body.
[94] I am satisfied that the level of information on mataawaka views regarding Mr Kake was inadequate. It could not enable the selection body to discharge its obligation under cl 6(2)(c). It follows that the selection body did not take the views of mataawaka into account when it came to the appointment of Mr Kake. This finding makes it unnecessary to determine the other grounds of review. Nonetheless, I will do so.
Was the mandatory consideration taken into account?
[95] Regarding the ground of review of failure to take into account the views of mataawaka, the first respondents argue that they were well aware of this obligation; adequate relevant information was available to them; and this information was taken into account.
[96] The material that was provided for the 4 July 2013 and 15 August 2013 meetings provided ample advice on the need for the members of the selection body to take the views of mataawaka into account. Therefore, there is no doubt that the members of the selection body were well informed of their obligation to take the views of mataawaka into account. Though I note that no one appears to have informed them that cl 6(2) went further than this and, in addition, they were required to follow a process that required them to take those views into account. However, the fact they were advised that they must take the views of mataawaka into account does not establish that they did so. Similarly, the availability of information regarding the views of mataawaka cannot be directly equated with proof that the available information was in fact taken into account. I have already found that this information was inadequate in relation to Mr Kake.
[97] Knowledge of the extent, if any, to which the selection body members may have taken account of the views of mataawaka rests with the first respondents. In Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 at [74], the Court of Appeal referred to the principle that when it comes to mandatory relevant considerations, it is for the decision-maker to show that they were taken into account:
[74] The submission that it did, like EBOP [the Bay of Plenty Regional Council]’s argument that the consideration of community views is to be given “in the course of the decision-making process” and work in the various stages may overlap, fails to meet the problem that it was for EBOP to show it had carried out its statutory obligation. [Citing Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at [13] per Lord Bingham: “I think it salutary to bear in mind Lord Mansfield’s aphorism in Blatch v Archer (1774) 1 Cowp 63, 65, quoted with approval by the Supreme Court of Canada in Snell v Farrell [1990] 2 SCR 311, 328: “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted””.]. No document and no other evidence was adduced to show it had in the course of its decision-making process in relation to the matter of siting the head office, given consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter:
(a) at the stage at which the problems and objectives related to the matter are defined:
(b) at the stage at which the options that may be reasonably practicable options of achieving an objective are identified:
[75] That is the simple end of the matter.
[98] In the present case, in paragraph 34 of the statement of claim, Mr Jackson pleads that the first respondents failed to take into account the views of mataawaka because there was no, or no sufficient proper evidence or foundation for this purported decision. The evidence of what occurred on 15 August 2013 shows that there was no proper evidence or foundation in terms of compliance with cl 6(2) for the decision to appoint Mr Kake. There is nothing else that Mr Jackson could point to but the paucity of information regarding the views of mataawaka in relation to Mr Kake. Once Mr Jackson did this, the evidential burden shifted to the first respondents in terms of [74] in Whakatane District Council to establish that in some way not apparent from the available record of the decision-making process, the selection body did take the views of mataawaka into account. There is evidence from Messrs Te Rangi, Ngataki and Rau, as well as Ms MacDonald that they did take the views of mataawaka into account when they each made a decision on whom to appoint. But their evidence is all that there is on this topic. As the decision was made by secret polling without formal discussion, those persons cannot speak for the other first respondents who have not provided evidence.
[99] It follows that there is no evidence that each member of the selection body took account of the mandatory relevant considerations, let alone that the selection body did so as a group. This is enough to establish this ground of review.
Did the selection body members have sufficient time to make a decision?
[100] The appointment process on 15 August 2013 was not sufficient for the members of the selection body to apprise themselves fully of the information that was provided to them. It seems that there was between 15 minutes before lunch and no more than 15 minutes after lunch for the members to take in the material they had received and attempt to apply it to their task. Those who read the material that was sent to them in advance of the meeting would have been in a better position than others. But even then there is the fact that the advance material was not comprehensive, and when it came to the views of mataawaka, it contained no more than a summary of the views of mataawaka that had accompanied the candidates’ applications. There is another aspect to this. It is quite possible that the tightness of this timeframe actually precluded some, if not all members of the selection body from realising that they did not have all the necessary information to reach a decision that met the requirements of cl 6(2).
[101] This finding goes to establish the illegality ground of review in [33] of the statement of claim, and the failure to take account of relevant considerations ground in [34] of that document. The mandatory obligation cannot be discharged if there was insufficient time available.
Failure to act as a body
[102] Mr Jackson also contends as part of his illegality ground of review that the members of the selection body were required to act as a body when it came to the appointment of mataawaka representatives. The first respondents reject the argument that the statutory scheme required a particular collaborative approach, and further argue that in any event, in fact they did act collectively as a body.
[103] As to their first argument, the first respondents contend that the choice of a secret polling process was legal. They argue that s 89(1) of the Act, which provides that the selection body is established when it meets for the first time, constitutes them a “body” so anything that they do is done as a body. They also argue that the powers given to them under the Act are so broad that they can decide the process they are to follow for the appointment of mataawaka representatives, and that polling is a common way of making decisions for many administrative bodies.
[104] The first respondents overlook the particular requirement of cl 6(2), which stipulates that the selection body must follow a process that requires the “body” to take account of mataawaka views. I read this as requiring the members to act jointly. So the empowering provisions of the Act are not as broad as the first respondents assert. There are similarities between the decision-making power in this case and that in Whakatane District Council where at [20] the decision-making power under the Local Government Act 2002 was described as:
… although wide powers were conferred they were given subject to elaborate conditions.
With cl 6(2), the constraining conditions may not be elaborate, but they do exist.
[105] The purpose and policy of Schedule 2 and particularly cl 6 reveals an aim to ensure that the Board has the benefit of mataawaka input, and the intent to achieve this aim through the collective wisdom of the persons appointed to the selection body. This was implicitly recognised in the advice paper and agenda prepared for the 4 July 2013 and 15 August 2013 meetings. The suggested options for choosing the mataawaka representatives and the suggested optional criteria all point to a recognition and expectation on the part of those involved that the decision to appoint mataawaka representatives would be a joint decision with transparent reasoning that was sufficient to show that the views of mataawaka had been taken into account. Instead, the only available inference to draw from what occurred is that each member severally decided who to appoint as a mataawaka representative; and the considerations for doing so cannot be seen. Secret polling, especially without any formal group discussion beforehand, leaves no room for a Court to conclude that the outcome represents a decision of the selection body as a whole that accords with the
requirements of cl 6(2). It follows that I reject the first respondents’ arguments. I find that Mr Jackson has established this aspect of his ground of review based on illegality.
Unreasonableness
[106] This ground of review relies upon the paucity of evidence on the views of mataawaka regarding Mr Kake’s candidacy to establish that the decision to appoint Mr Kake was unreasonable. Thus, there is an overlap with the other grounds of review. The findings that I have made on those grounds of review apply here as well. Given the mandatory requirements of cl 6(2) and the established failure to comply with those requirements, I consider that there is no purpose in proceeding further with this ground of review.
[107] However, I observe that cl 2(4) requires the selection body to be guided by the Board’s purpose, functions and powers. This requirement applies to the appointment of all persons to the Board: mana whenua and mataawaka representatives. The advice papers for the meetings of 4 July 2013 and 15 August
2013 attempted to meet this requirement with the suggested other factors that the members of the selection body were recommended to take into account. The process that was followed for the appointment of mataawaka representatives does not reveal if they were guided by the factors set out in cl 2(4).
[108] The overall impression that the Court is left with is that there is insufficient evidence to show that the selection body discharged its obligations under either cl 6(2) or cl 2(4). A decision to appoint a mataawaka representative that failed in those ways could be said to be unreasonable. This is relevant when it comes to considering the discretionary aspect of the relief that Mr Jackson seeks.
Admission of additional evidence
[109] The first respondents seek to adduce further evidence relevant to compliance with cl 6(2). Mr Jackson opposes their application. The admission of evidence after the close of a party’s case is now governed by s 98 of the Evidence Act 2006.
[110] The relevant subsections of s 98 provide:
98 Further evidence after closure of case
(1) In any proceeding, a party may not offer further evidence after closing that party's case, except with the permission of the Judge.
(2) In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both.
…
(5) The Judge may grant permission under subsection (1), -
(a) if there is a jury, at any time until the jury retires to consider its verdict:
(b) in any other proceeding, at any time until judgment is delivered.
…
[111] In Lindsay v Nobel Investments Ltd [2014] NZHC 799, Associate Judge Osborne at [122] endorsed a passage from McGechan on Procedure (online looseleaf ed, Brookers) at [HR10.10.07], which draws from case law pre-dating the Evidence Act. However, he then went on to say at [123]:
There is a risk in this area of overlooking the principle, as articulated by the Supreme Court that “resort is not to be had to the common law when statute covers the ground”: BNZ Investments Ltd v Commissioner of Inland Revenue [2008] 2 NZLR 709 at [71].
This led Associate Judge Osborne to the view that:
[125] The starting point under s 98 is therefore that the evidence is not to be offered without my permission. Subsections (2) and (5) then permit discretionary departure from that starting point, but only where unfairness cannot be remedied by an adjournment or a costs award.
[126] That discretion must be exercised by reference to the purposes of the
Evidence Act as contained in s 6, which relevantly provide:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
…
(c) promoting fairness to parties and witnesses; and
…
(e) avoiding unjustifiable expense and delay; and
…
[127] Here, for the most part, the Evidence Act covers the ground. While pre-Act case law may assist in highlighting matters that may be relevant to the exercise of the discretion, the provisions of the Act itself are the paramount consideration. …
[112] I agree with Associate Judge Osborne’s approach. Though I note that the discretion in s 98 is broad; and the considerations expressed in s 98 and the purpose in s 6 of the Evidence Act articulate general notions that also underlay the common law tests for admission of further evidence after a party has closed its case. So, when it comes to the application of the statutory provisions in a particular case, the common law principles for admission of this type of evidence still provide helpful guidance; particularly at a time when there is a paucity of case law under s 98.
[113] A helpful summary of the relevant common law principles can be found in
Equiticorp Industries Group Ltd (in stat man) v Hawkins [1996] 2 NZLR 82 (HC) at
85:
1The discretion should be exercised sparingly once the cases on both sides have closed and leave should only be given in exceptional circumstances;
2Only if the failure to call evidence at the proper time is adequately explained should the discretion be exercised;
3The justice of the case must require the admission of the additional evidence …;
4Leave will be refused if the … evidence would have been available had due diligence been exercised;
5 If the party is taken by surprise, leave will be more readily granted;
and
6The distinction between a failure to tender evidence, and an election not to, can be important.
[114] The first respondents contend that when they were preparing their defence, they did not realise they needed to adduce evidence to show that each member of the selection body had considered the views of mataawaka. They point to the statement of claim and argue that it focuses on the paucity of evidence on the views of mataawaka in relation to Mr Kake. This argument fits with the principles that leave should be granted to adduce further evidence when the applicant party has been taken by surprise and so, for this reason, the justice of the case requires the admission of further evidence.
[115] However, the first respondents’ submissions filed for the judicial review hearing note as a footnote on page 2 that:
The statement of claim only implies that the decision was unlawful because the Selection Body did not take those views into account; rather the claim is that there was no or insufficient evidence before the Selection Body to demonstrate the views of Mataawaka in respect of Mr Kake.
This statement in the first respondents’ submissions reveals that by this time they were alive to the presence of an implicit allegation that the members of the selection body failed to take account of the views of mataawaka when it came to the appointment of Mr Kake. Despite this knowledge, they took no steps at that time to seek leave to adduce further evidence.
[116] Ordinarily, an allegation that a decision-maker has failed to take into account a relevant consideration is expressly pleaded without adding anything more. However, ordinarily, some reasons for the decision, as well as an outline of the process followed are provided, in which case anyone wanting to challenge such a decision can examine it to see if any mandatory requirements were met. Here that was not possible. It seems to me that Mr Jackson has focused on whatever flaws in the decision-making process were apparent to him without speculating as to the existence of other flaws. However, the overall effect of [31] to [34] of the statement of claim was enough to put the first respondents on notice that their compliance with cl 6(2) was in issue. The first respondents apparently realised this much before the hearing, hence the acknowledgement in their submissions.
[117] Moreover, paragraph 34 of the statement of claim appears to me to be broader than the first respondents contend. The allegation goes beyond an allegation that there is no evidence, or insufficient evidence of mataawaka views in relation to Mr Kake. This paragraph also pleads that there was no “sufficient proper evidence or foundation” for the decision to appoint Mr Kake. The alleged absence of a proper foundation for this decision can be understood as a complaint that the decision was poorly constructed as a result of the decision-makers’ failure to work through all the relevant and requisite stages (as required by cl 6(2)) before reaching their conclusion. Read in this way, paragraph 34 of the statement of claim is an accurate and express reflection of the case that Mr Jackson has mounted against the first respondents.
[118] Accordingly, for the above reasons, the first respondents cannot establish that they had no, or insufficient notice that failure to take account of a relevant consideration was part of Mr Jackson’s case against them. These conclusions also mean that evidence covering this topic would have been available from the outset, had the first respondents exercised due diligence.
[119] There are additional problems with the first respondents’ application to
adduce further evidence.
[120] First, the likely nature of the further evidence is a ground for refusing its admission. In judicial review, there is a preference for contemporary material over ex post facto accounts by decision-makers: see Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 48 where Richardson J referred to the lack of contemporary evidence to show the considerations that were made by the District Council:
Numerous affidavits were filed in these proceedings containing on McKenzie’s part explanations as to considerations in the minds of the council. It is more helpful to focus on the minutes of meetings and other contemporary documentation. This is not only because they are less subject to the risk of inaccuracy and rationalisation after the event, but also because Mr Scott, the Mayor of the district, agreed in cross-examination that:
(i) the principal discussions leading to the decisions were at council meetings;
(ii) the minutes correctly recorded the discussions; and
(iii) important matters discussed were recorded in the minutes.
[121] In the present case, there was no cross-examination of the first respondents. This is not to be critical of Mr Jackson. Cross-examination in judicial review proceedings is now strongly discouraged: see [1] of Geary v Psychologists Board [2009] NZSC 67, (2009) 19 PRNZ 415. It is not possible, therefore, to know what the answers of the selection body members would have been to the type of questions that were put to the Mayor of the Mackenzie District Council. However, the first criticism regarding risk of inadequacy and rationalisation after the event is just as applicable to the present case as it was in Mackenzie District Council. A recent application of this criticism can be seen in Hanna v Whanganui District Council [2013] NZHC 1360, [2013] 17 ELRNZ 314 at [14] where Williams J rejected the affidavit evidence of council officers, and expanded on the reasons underlying the notification and consent decisions that were the subject of the judicial review:
In my view, it is inappropriate to give any real weight to this evidence. The decision must stand or fall on its own terms as written at the time. That, in my view, is both sound public law and sound resource management practice. The whole point of the principle that those exercising statutory discretions must give proper written reasons is so that those reasons can be tested on appeal or judicial review if necessary. This leads to transparent and accountable exercises of public power by public officials.
[122] Here, any affidavit account from those members of the selection body who had not provided evidence earlier on the extent to which the views of mataawaka were taken into account would be given more than a year after the decision was made. The lateness of the account increases the risk of inaccuracy and rationalisation after the event; thus placing the reliability and credibility of the deponents in doubt. It is hard to see how such evidence could be strong and reliable, all of which goes against its admission.
[123] Moreover, in addition to the reservation expressed in judicial review cases about the use of ex post facto rationalisation in affidavit evidence, similar reservations have been expressed when it comes to evidence sought to be admitted by a party who has closed its case. In Equiticorp Industries Group Ltd (in statutory management) v Hawkins [1996] 2 NZLR 82 (HC), Smellie J took the view that in the
context of an application to call further evidence after the case was closed, evidence comprising ex post facto rationalisation would not be admitted under any circumstances. Whilst the decision is prior to the Evidence Act, there is nothing to suggest that the same reasoning cannot apply to applications under s 98.
[124] The risk factors associated with the lateness of such testimony, coupled with the secret polling might then be enough, if the further evidence were to be admitted, to warrant allowing cross-examination on it. As was recognised in Wilson v White [2005] 1 NZLR 189 (CA) at [25], when there is potential for prejudice if evidence is not tested by cross-examination, the rule of practice against cross-examination in judicial review will give way. Wilson v White was a case where much turned on the credibility of a deponent and it was for this reason that the Court of Appeal permitted cross-examination.
[125] In the present case, if the Court permitted further evidence from members of the selection body who have not given evidence already: the lateness of their evidence; the potential for rationalisation after the event; and the fact that any account of what they had done in secret would necessarily be unsubstantiated seems to me to provide good grounds for permitting cross-examination of their evidence. However, that would prolong any re-opened hearing. The hearing earlier this year would be at risk of becoming no more than a dress rehearsal for the first respondents’ defence. At this late stage the prospect of cross-examination would be another factor against allowing the admission of further evidence.
[126] The second problem is that the application for leave to adduce further evidence was not made until after the substantial hearing had closed. Whether the first respondents had adduced sufficient evidence on their consideration of the views of mataawaka was first raised with them in the course of the hearing. They could have sought leave at that time to adduce further evidence, but they did not. I consider that delay is a relevant factor when it comes to the question of whether to grant leave under s 98. The greater the delay, the more difficult it becomes in terms of s 98(2) to remedy the unfairness to the other party by an award of costs. Here, an adjournment is out of the question as the hearing has closed. Parties are entitled not
to be troubled by having the substantial hearing of their cases re-opened by those who have delayed seeking this indulgence from the Court.
[127] The third problem is that the application is procedurally flawed as it is not supported by affidavit evidence. The first respondents first sought to adduce further evidence in a memorandum filed in Court. They were directed by the Court to make a formal application supported by affidavit evidence. Their failure to file affidavit evidence means that there is no evidence that explains why they overlooked filing the relevant evidence before the hearing, or at the very least why they took no such action after the omission was drawn to their attention during the hearing.
[128] In Equiticorp, Smellie J found that the party seeking to adduce further evidence after it had closed its case was required to provide the Court with an adequate explanation for the oversight. In this regard, he found that an explanation from the bar was not enough and that the party should adduce affidavit evidence to explain the oversight. This approach is consistent with other examples where a party seeks an indulgence from the Court. Although they relate to another context (namely extensions of time for taking steps), the comments of the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8 (PC) at 12 on the need for the party seeking an indulgence from the Court to provide some evidential explanation for how it has come to be in this situation are equally applicable to the present circumstances. Section 98 has not changed anything here.
[129] Further, there are no draft affidavits to show the Court the nature of the evidence that the first respondents seek to adduce. Usually when leave is required to file further evidence, a draft account of the proposed evidence is before the Court. This allows the Court to evaluate the cogency and materiality of the proposed evidence. Here, the Court is being asked to grant leave for the filing of further evidence without seeing that evidence, and, therefore, without being able to assess its cogency, materiality, the impact the new evidence will have on other parties, and on the management of the case. Regarding the latter, the Court needs to be able to assess whether the admission of the further evidence will require further hearing time for Mr Jackson to be given the opportunity to deal with the further evidence; either in terms of seeking leave to cross-examine on it, and/or to adduce rebuttal
evidence. In short, it is not acceptable for the first respondents to refer in a general fashion in submissions to the type of evidence they seek leave to adduce and then to leave it to the Court to infer its character and effect on the case.
[130] This is a case where the first respondents had sufficient notice of the case that Mr Jackson brought against them. Their defence went part way towards showing that some members of the selection body had taken the views of mataawaka into account, but this was not far enough. They now belatedly attempt to rectify their oversight some time after the hearing has ended. However, their attempt is procedurally and substantially flawed. They have neither outlined the proposed evidence, nor have they properly explained why it was not called earlier. Further, the impression to be gained from their submissions is that they seek to adduce the type of evidence that is of little weight in judicial review proceedings, thus it is not cogent evidence. These matters all tell against granting leave under s 98.
[131] The first respondents have identified no factors peculiar to their case that weigh in favour of granting them leave to adduce the further evidence. An adverse finding against the first respondents will result in the decision to appoint Mr Kake being reconsidered. The same outcome may result, only this time it will be after a decision that properly accords with cl 6(2). Thus, there is little real prejudice for them, or for Mr Kake if I refuse to allow them to file further evidence. The interests of justice weigh strongly in favour of having the selection process of a mataawaka representative carried out lawfully. On the other hand, to re-open the case and admit further evidence from the first respondents would be prejudicial to Mr Jackson. He would be faced with the prospect of having to contradict the further evidence. This could entail legal argument and perhaps an application to cross-examine on the further evidence, with all that this would entail if the application were to be successful. At this late stage, an award of costs would not be enough to mitigate this prejudice.
[132] It follows that the application for leave to admit further evidence is dismissed.
Discretion
[133] Relief in judicial review is discretionary. However, when it comes to an established failure to comply with mandatory requirements in primary legislation, which is the case here, the usual approach is to set the decision aside and refer it back to the decision-maker with a direction that the decision is to be made again in accordance with the law as this Court has found it to be.
[134] In Barker v Queenstown Lakes District Council [2007] NZRMA 103 (HC) at [55]-[56], Fogarty J referred to the concept of the gravity of the error in terms of whether that could justify a refusal to grant relief. He cited the judgment of Somers J in Hill v Wellington Transport District Licensing Authority [1984] 2 NZLR
314 (CA) in which it was said that whether relief will be refused would depend on the gravity of the error in the context and circumstances of the case. Fogarty J expanded on this when he referred to the concept of “the gravity of the error” as having two dimensions. First, it was to be measured against the statutory provision being exercised by the decision-maker under review. Consideration in that regard was to be paid not only to the “text of that power, but to its purpose”. The second dimension of this concept was to examine the consequence of the error on private interests, that is on the persons who are directly or indirectly affected by the error.
[135] When I apply that approach to the present case, it seems to me that the need to follow a process that requires the views of mataawaka to be properly taken into account is pivotal, both in terms of the text of cl 6(2) and the purpose of that clause. Further, the consequences of a failure to do so is that the aim and intent of cl 6(2) is undermined, and decisions affecting residents of Auckland City will not have the input of a Board that has properly appointed mataawaka representatives. It seems to me the gravity of the error in this case goes to the very heart of the Board’s ability to perform its statutory purpose and functions.
[136] I consider that the comments of Whata J in Akaroa Marine Protection Society regarding the need for the maintenance of the rule of law to be relevant here. In that case, Whata J stated at [70]:
The Court of Appeal [in Reece v Firth [2011] NZCA 668, [2012] 1 NZLR
408] referred to an article by Gerard McCoy “Public Law Potpourri”.
Mr McCoy refers to cases where relief was refused, it appears primarily on the basis that no injustice would arise from such refusal. I can readily accept that the absence of an injustice would provide a sound basis for declining relief. However, an underlying premise of judicial review, as I have said, is a maintenance of the rule of law and it is the role of this Court to see that it is maintained.
[137] Here, relief will have a practical outcome as it will require the decision to be made again. This will provide the opportunity for a process to be followed that requires the views of mataawaka to be taken into account, as well as allowing for the selection body to receive adequate information, have adequate time to consider this information, and to make a decision as a body. As was found by the Court of Appeal in Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39]:
But a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have a practical value then it ought to be granted.
[138] In Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR
139 at [60], the Court of Appeal reiterated this view, stating that:
[T]here must be extremely strong reasons to decline to grant relief.
[139] In addition to the flaws in the decision that Mr Jackson has established I am satisfied that the decision did not follow the type of process that cl 6(2) mandates. Nor did the process take account of the factors in cl 2(4). The appointment process was badly flawed. I am satisfied, therefore, that in the present case, all reasons point to the granting of relief.
[140] It follows that Mr Jackson is successful in his judicial review of the decision to appoint Mr Kake as a mataawaka representative. That decision is set aside.
[141] Mr Jackson argues that under Schedule 2, the selection body ceases to exist once it has appointed mataawaka representatives: see cl 2(5) of Schedule 2. Further, cl 8(4) imposes a specific timeframe for appointing members to the Board, which has now expired. Mr Jackson argues that for these reasons, the appointment of a second mataawaka representative should now be made by the Minister exercising the
power in cl 2(6) of Schedule 2. That clause allows the Minister to appoint members of the Board as if the Minister were the selection body, if the selection body is unable to perform its function. However, the Minister opposes this course of action on the basis that this proceeding is no different from other judicial review proceedings where a decision that is found to be flawed is sent back to the decision- maker for reconsideration.
[142] Section 4(5B) of the Judicature Amendment Act 1972 enables a decision that has been found to be fatally flawed in administrative law terms to be made again. I agree with the views of the Minister in this regard. I accept his argument that s 4(5B) of the Judicature Amendment Act provides an overriding authority to a decision-maker “to reconsider and determine the matter in accordance with the Court’s direction notwithstanding anything in any other enactment”: see Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA) at 449. Further, the expiry of time limits does not prevent such reconsideration: see Chesterfields Pre- School Limited v Commissioner of Inland Revenue [2007] 23 NZTC 21,125 at [157]. Nor do time limitations like that in cl 8(4) of Schedule 2, as these can be extended through s 4(5B) of the Judicature Amendment Act: see Vector Ltd v Commerce Commission HC Wellington CIV-2011-485-536, 26 September 2011 at [153]. I am satisfied that there is no legal impediment to the selection body reconsidering the appointment of a mataawaka representative.
[143] The Minister also argues that under Schedule 2, the selection body continues to exist for the entire term of the relevant election; and that it only ceases to exist when a new selection body is appointed by the Minister. The argument is based upon an interpretation of Schedule 2 that sees it giving the selection body an ongoing existence beyond the appointment process under cl 6 to 8 of Schedule 2. In view of the findings that I have reached on the effect of s 4(5B) of the Judicature Amendment Act, there is no need for me to reach a view on the Minister’s alternative argument.
[144] Part of Mr Jackson’s argument involved a focus on the greater mataawaka support that was given to his candidacy than was given to Mr Kake’s candidacy. I have not commented on that because it seems to me that this goes more to the merits
of the decision than the process that was followed. Ultimately, it is a question for the selection body, who is, or is not appointed a mataawaka representative. Provided a proper decision-making process is followed, the fact there may be a heavy weight of support for one candidate and minimal support for another candidate does not necessarily lead to a conclusion in favour of the candidate with the weightier support.
[145] I also note that in the course of the hearing, the first respondents raised an argument that insofar as there may be flaws in the decision-making process that appointed Mr Kake, those could also be applied to the decision to appoint Mr Tamihere a mataawaka representative. Mr Tamihere is not a party to the proceeding, though I note that he did file an affidavit in support of Mr Jackson’s case. To this extent, therefore, I can infer that he has some knowledge of this proceeding and the arguments that were being advanced by Mr Jackson. Because the proceeding has not involved Mr Tamihere as a party, I have confined my comments to the arguments that have been raised in respect of Mr Kake’s appointment.
[146] There is no set process that the selection body must follow in appointing a mataawaka representative. However, the chosen process must require the body as a whole to take into account the views of mataawaka. One way of achieving this would be to ensure that the account of those views is visible to outside observers: see [79] of this decision.
Result
[147] The application for judicial review is allowed. The decision appointing
Mr Kake a mataawaka representative is set aside.
[148] The decision is to be made again by the selection body in accordance with the law as I have found it to be.
Duffy J
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