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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 Respondent
Judgment:
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
[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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jackson v Te Rangi [2014] NZHC 2918
Case
[2014] NZHC 2918
Decision Date
CaseChat Overview and Summary
William Jackson brought judicial review proceedings against the decision of the first respondents to appoint Tony Kake as a mataawaka representative to the Independent Māori Statutory Board established under the Local (Auckland Council) Act 2009. Mr Jackson was an unsuccessful candidate in the same selection process. The first respondents were the members of the selection body established to appoint the mataawaka representatives. The application raises questions about whether the first respondents complied with the legal requirements mandating how a decision to appoint new mataawaka representatives to the Board is to be made. The selection body decided on the appointment by secret ballot. This style of decision-making does not lend itself to revealing if the decision-makers have taken the mandatory relevant considerations into account. Clause 6(2) of the Act imposes two imperatives on the selection body regarding the views of mataawaka: (a) the adoption of a process that requires the views of mataawaka to be taken into account; and (b) the actual taking into account of those views. The secret polling process used by the selection body does not meet the requirements of cl 6(2). Further, 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. 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. The findings made by Justice Duffy 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. 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. Justice Duffy rejected the first respondents’ arguments. 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. 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 Justice Duffy found that Mr Jackson had established this aspect of his ground of review based on illegality. The first respondents sought to adduce additional evidence relevant to compliance with cl 6(2). Mr Jackson opposed 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. Justice Duffy found that the first respondents’ application to adduce further evidence was procedurally and substantially flawed. They had neither outlined the proposed evidence, nor had 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 told against granting leave under s 98. Accordingly, Justice Duffy dismissed the first respondents’ application for leave to admit further evidence. 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. In addition to the flaws in the decision that Mr Jackson has established, Justice Duffy was 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. Justice Duffy was satisfied, therefore, that in the present case, all reasons pointed to the granting of relief. 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. The decision is to be made again by the selection body in accordance with the law as Justice Duffy had found it to be.