Ng�ti Paoa Trust Board v The Panel Convener
[2023] NZHC 1328
•30 May 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-760
[2023] NZHC 1328
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
a decision on a panel appointment under the COVID-19 Recovery (Fast Track Consenting) Act 2022
BETWEEN
THE NGĀTI PAOA TRUST BOARD
Applicant
AND
THE PANEL CONVENER
Respondent
Hearing: 27 February 2023 Counsel:
J Long and P Roycroft for Applicant
K B Bell and E J Cameron for Respondent
Judgment:
30 May 2023
JUDGMENT OF CHURCHMAN J
Introduction
[1] The Ngāti Paoa Trust Board (the Board) has applied to review a decision (the Decision) by Judge Newhook as the panel convener (the Convener) for the Botanic Riverhead Panel (the Panel) under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the Act).1 The Convener refused to appoint Mr James Gardner-Hopkins a member of the Panel, following his nomination for that purpose by the Board.
1 Record of a Decision on a panel appointment under COVID-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) [the Decision].
THE NGĀTI PAOA TRUST BOARD v THE PANEL CONVENER [2023] NZHC 1328 [30 May 2023]
[2] The Board alleges error of law and breach of te Tiriti o Waitangi and/or tikanga Māori. The Board says that the Convener unlawfully exercised his discretion, took into account irrelevant considerations and acted inconsistently with te Tiriti o Waitangi and/or tikanga Māori. The Board seeks a declaration that the Convener’s decision was unlawful, the decision to be quashed, and costs.
[3] The Crown opposes the Board’s application for review, saying that in declining to appoint Mr Gardner-Hopkins as a member of the Panel the Convener acted in accordance with the Act and the principles of te Tiriti o Waitangi.
[4] For the reasons I set out below, I have reached the conclusion that the Board’s application should be allowed.
Background
The Act
[5] The Act was passed against the backdrop of the COVID-19 pandemic, and ceases to have force as of 8 July 2023.2 Its purpose is to:3
… urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources.
[6] In achieving the purpose of the Act, all persons performing functions and exercising powers under the Act are required to act in a manner that is consistent with the principles of the Treaty of Waitangi (the Treaty) and Treaty settlements.4 Further, persons performing functions and exercising powers under the Act must:
(a)take all practicable steps to use timely, efficient, consistent, and cost- effective processes that are proportionate to the functions, duties, or powers being performed or exercised;5 and
2 COVID-19 Recovery (Fast-track Consenting) Act 2020 [FTCA], s 3(1).
3 Section 4.
4 Section 6.
5 Section 10(1).
(b)comply with a duty to act promptly in circumstances where no time limit has been set for the performance or exercise of a function, power, duty, or requirement under the Act.6
[7] A failure to comply with those requirements, however, does not of itself invalidate the performance of a function or duty or the exercise of a power under the Act.7
[8] To achieve the purpose of the Act, the Act provides a “fast-track” consenting process for resource consent applications that are referred by the Minister to an “expert consenting panel”.8 An “expert consenting panel” is a panel appointed under sch 5 of the Act to determine a consent application or notice of requirement for a listed project or a referred project, replacing the role of local authorities as consenting authorities for particular fast-track projects.9 Schedule 6 of the Act provides the rules relating to how an expert consenting panel is to consider applications for resource consents either for listed or referred projects.
[9] Schedule 5 of the Act sets out provisions relating to the appointment of expert consenting panels. The purpose of expert consenting panels is to ensure that decisions are made on:10
(a)one or more consent applications for a listed project or a referred project; and
(b)one or more notices of requirement for designations or to alter a designation for a listed project or a referred project.
6 Section 10(2).
7 Section 10(3).
8 See s 16. In relation to a project any part of which would occur in the coastal marine area, referrals are required to be made by the Minister for the Environment and the Minister of Conservation jointly, whereas projects that have no part occurring in the coastal marine area may be referred by the Minister for the Environment alone. The coastal marine area is defined by s 2(1) of the Resource Management Act 1991.
9 Section 7(1) definition of “expert consenting panel”.
10 Schedule 5 cl 1(1).
[10] Any decisions made are required to be in accordance with the provisions of the Act.11 Decisions that can be made by an expert consenting panel include the issuing of certificates of compliance in relation to listed and/or referred projects.12
[11] The Minister is required to appoint a current or former (including retired) Environment Court Judge to be the panel convener for the purposes of the Act.13 The role of the panel convener is to appoint panel members.14 Up to four persons may be appointed to be members of an expert consenting panel, and the panel membership must include one person nominated by the relevant local authorities, and one person nominated by the relevant iwi authorities.15 The panel membership cannot include more than one person nominated either by the local authority or iwi authority, unless that is considered to be warranted or required by the panel convener.16 If a local authority or an iwi authority does not make a nomination, the panel convener must appoint a person with the appropriate skills and experience to be a member of the panel, in accordance with cl 7.17
[12] The panel convener may appoint a Judge or retired Judge to be the chairperson of a panel (including themselves if they are a Judge or retired Judge), or, if the circumstances require it, a suitably qualified lawyer with experience in resource management law.18 The chairperson has the casting vote in situations of impasse.19
[13]The members of a panel must, collectively, have:20
(a)the knowledge, skills, and expertise relevant to resource management issues;
(b)the technical expertise relevant to the project; and
11 Schedule 5 cl 1(2).
12 Schedule 5 cl 1(3).
13 Schedule 5 cl 2(1).
14 Schedule 5 cl 2(5).
15 Schedule 5 cls 3(1) and (2). The person nominated by a local authority does not need to be an elected member of the local authority: see sch 5, cl 3(3).
16 Schedule 5 cls 3(4) and 3(6).
17 Schedule 5 cl 3(5).
18 Schedule 5 cl 4(1)–(3).
19 Schedule 5 cl 4(4).
20 Schedule 5 cl 7(1).
(c)expertise in tikanga Māori and mātauranga Māori.
[14] Generally, panel members must also be accredited under s 39A of the Resource Management Act 1991.21 Further, a person is not ineligible for appointment as a panel member by reason only that the person is a member of a particular iwi or hapū (including an iwi or hapū that is represented by an iwi authority that must be invited by the panel to comment on the application).22
[15] The panel convener may also remove any person appointed to a panel for “just cause”,23 but must do so in accordance with the principles of natural justice and “a proper consideration of the matter”.24 Just cause “includes misconduct, inability to perform the functions of office, neglect of duty, and breach of duty (depending on the seriousness of the breach)”.25
The Board
[16] The Board is a charitable trust incorporated under the Charitable Trusts Act 1957, and is the mandated entity for Ngāti Paoa Treaty settlement purposes.26 It was established on 20 November 2004. It is also a recognised iwi authority for the purposes of the Act. Ngāti Paoa’s traditional land holdings were on Waiheke Island. In its report on the Waiheke Island Claim, the Waitangi Tribunal described Waiheke as “once the northern sentinel of that tribe guarding the seaways to their mainland villages on the west coast of the Hauraki Gulf.”27
[17] Ngāti Paoa have relatively recently entered into a deed of settlement with the Crown, the summary of which records:28
Ngāti Paoa is an iwi of approximately 3,500 members (according to 2013 Census figures). The area of interest of Ngāti Paoa stretches along the western shores of the Hauraki Gulf and the eastern suburbs of Auckland, from
21 Schedule 5 cl 7(2). This requirement is subject to an exception in sch 5 cl 7(3).
22 Schedule 5 cl 7(4).
23 Schedule 5 cl 9(1).
24 Schedule 5 cl 9(2).
25 Schedule 5 cl 9(3).
26 See Re Ngāti Paoa Whānau Trust (2009) 141 Waikato MB 271.
27 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report of the Waitangi Tribunal on the Waiheke Island Claim (Wai 10, 1987).
28 Te Kāwanatanga o Aotearoa | New Zealand Government “Ngāti Paoa Deed of Settlement summary” < Aroha to Warkworth. It comprises islands in the Tāmaki Strait (including Waiheke and Ponui islands) and reaches across to the Coromandel Peninsula over Manaia and Kaimarama.
Ngāti Paoa is one of the iwi of Ngā Mana Whenua o Tāmaki Makaurau (the Tāmaki Collective). It is also a member of the Pare Hauraki and the Marutūāhu Iwi collectives. Ngāti Paoa has received collective redress from the Tāmaki Collective Redress Deed and will receive collective redress through the Pare Hauraki Collective Redress Deed. It is also intended Ngāti Paoa will receive redress through the Marutūāhu Iwi Collective Redress Deed (yet to be initialled by Ngāti Paoa).
…
On 29 June 2011, the Crown recognised the mandate of the Ngāti Paoa Trust Board, to be represented by two negotiators, to negotiate a comprehensive settlement of the historical te Tiriti o Waitangi / Treaty of Waitangi claims of Ngāti Paoa with the Crown.
Mr Gardner-Hopkins
[18] Because of the nature of the Board’s application, it is necessary to recount some of Mr Gardner-Hopkins’ background. Mr Gardner-Hopkins was formerly a partner in the law firm Russell McVeagh. He was the manager of the firm’s Environmental Planning and Natural Resources Team in Wellington.
[19] On 24 June 2021, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Mr Gardner-Hopkins guilty of six charges of misconduct.29 Five involved intimate non-consensual touching of four different young women who had been employed as summer clerks at the firm during December 2015. The sixth involved consensual sexual activity with a fifth young woman, also a summer clerk working at the firm during December 2015. In its penalty decision delivered on 13 January 2022, the Tribunal censured Mr Gardner-Hopkins and suspended him from practice for two years from 7 February 2022.30
[20] Both the Standards Committee and Mr Gardner-Hopkins appealed the penalty decision. On appeal, a full High Court, made up of Venning, Ellis and Hinton JJ,
29 National Standards Committee No 1 v Gardner-Hopkins [2021] NZLCDT 21, LCDT 022/20.
30 National Standards Committee No 1 v Gardner-Hopkins [2022] NZLCDT 2, LCDT 022/20 [Tribunal penalty decision].
increased Mr Gardner-Hopkins’ suspension to a period of three years from 7 February 2022.31 In doing so, the Court stated:32
… we consider that the Tribunal was correct to find that strike-off was not required. However, we consider the Tribunal did fall into error in accepting as mitigating factors the financial and professional consequences to Mr Gardner-Hopkins, and further in placing this case as less serious than Daniels or Horsley. Taken in context and overall, Mr Gardner-Hopkins’ misconduct and sexual exploitation of the young women warranted the most serious response available short of strike-off, so that a suspension of three years was required.
[21] Venning and Ellis JJ then addressed an application by Mr Gardner-Hopkins for leave to appeal the High Court decision, which was declined.33 Accordingly, Mr Gardner-Hopkin’s suspension from practice remains in effect, and is due to expire on 7 February 2025.
[22] More recently, the Ngā Hapū o Ngā Moutere Trust sought an order pursuant to s 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 allowing Mr Gardner- Hopkins to represent them in the Environment Court, notwithstanding his suspension from practice. In a judgment of 31 May 2022, the Environment Court addressed the issue of whether a person suspended from legal practice can still appear before the Court by relying on a general right of representation under s 275 of the Resource Management Act 1991, and an exception to the restrictions under ss 21 and 24 of the Lawyers and Conveyancers Act 2006 relating to representation of others in reserved areas of legal work.34 That was not an issue addressed fully by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in its decisions concerning Mr Gardner-Hopkins.
[23] The Chief Environment Court Judge, in concluding that Mr Gardner-Hopkins could not represent the Ngā Hapū o Ngā Moutere Trust as a general representative under s 275 of the Resource Management Act, stated that:35
31 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] NZHC 1709 [HC decision].
32 At [112].
33 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] NZHC 2350.
34 Port of Tauranga Ltd v Bay of Plenty Regional Council [2022] NZEnvC 92 at [6].
35 At [32].
… allowing Mr Gardner-Hopkins to be the representative of and advocate for the Trust before the Court would be in conflict with the interests of justice to a degree that outweighs the potential restriction on the interests of the Trust in their choice of counsel.
[24]Key in the Judge’s considerations was that:36
[26] The existence of the Tribunal’s order suspending Mr Gardner- Hopkins from practice is a key difference between his position and that of any person who is not subject to such an order. If Mr Gardner-Hopkins were to appear before the Court on behalf of others, then given his previous work people would likely regard his role as rather different from that of the usual s 275 representative and might ask what recognition and effect the Court was giving to the Tribunal’s order. Those people would include not only the other parties to the proceedings, the media and the public generally, but also the complainants whose interests have been the subject of the Tribunal’s decisions and the basis for its order. In light of that, the Tribunal’s order must be a relevant consideration when assessing whether the general right under s 275 of the RMA to represent other persons in proceedings before the Court is an exception to or otherwise displaces the order made by the Tribunal.
[27] The Environment Court should, on the bases of upholding the rule of law and of judicial comity, always try to ensure that all relevant legal rights and obligations, including any penalty imposed by another court or tribunal of competent jurisdiction, are recognised and given effect as far as possible within its own jurisdiction. A penalty should be considered in the context in which it was imposed. This will normally include consideration of the victims or complainants of the misconduct that has been penalised. In this case, in terms of the decision of the Tribunal on penalty, it extends to include the effect on the reputation of the legal profession. Those considerations point against granting the Trust’s application and in support of refusing to allow Mr Gardner-Hopkins to act as an advocate for or otherwise represent the Trust at the hearing of these proceedings.
[25]Accordingly, Ngā Hapū o Ngā Moutere Trust’s application was refused.
The Board’s nomination of Mr Gardner-Hopkins
[26] The resource consent application in question is the “Botanic Riverhead” resource consent application, a project which involves the construction of a retirement village and associated facilities, including a childcare centre and café, at 1092 Coatesville-Riverhead Highway, Riverhead, Auckland (the Riverhead Consent). This is a semi-residential area in north-west Auckland, and also an area with which Ngāti Paoa has a strong direct connection.
36 At [26]–[27].
[27] The Riverhead Consent was an application referred to the fast-track process by the Minister. As part of the panel appointment process nominations were requested from 14 relevant iwi authorities (including the applicant, the Ngāti Paoa Trust Board). On 26 July 2020, the Board received a letter from the Convener seeking a nomination for a person’s appointment to the panel for the Riverhead consent by 9 August 2022. Mr David Roebeck, Principal Officer of the Board, discussed the Convener’s request with Mr Gardner-Hopkins, who indicated that he was available and willing to accept the nomination, and that he had no conflicts of interest.
[28] On 5 August 2022, Mr Roebeck, on behalf of the Board, sent the Convener a letter nominating Mr Gardner-Hopkins as the Board’s nominee for appointment to the panel for the Riverhead Consent. That letter noted Mr Gardner-Hopkins’:
(a)20 plus years’ experience in resource management matters;
(b)accreditation under s 39A of the Resource Management Act;
(c)experience with other fast-track applications; and
(d)previous appellate-level experience, including acting for the Board before the Māori Appellate Court.
[29] On 23 August 2022, the Board received a reply from the Convener, seeking an alternative nomination on the basis that Mr Gardner-Hopkins did not appear to have the requisite skills and expertise for appointment to the panel, namely expertise in tikanga Māori and mātauranga Māori. The Board disagreed with this assessment, given Mr Gardner-Hopkins’ “long history [of] acting for tangata whenua”.37 The Board therefore replied to the Convener on 24 August 2022, seeking to explain their view as to why they considered that Mr Gardner-Hopkins had the relevant expertise in tikanga Māori and mātauranga Māori. The Board asked the Convener to reconsider.
[30] On 9 September 2022, the Convener sent a further letter to the Board and Mr Gardner-Hopkins. That letter recorded:
37 Affidavit of Mr David Roebeck, 16 November 2022, at [27].
… The Convenor accepts that the Trust Board may, exercising their tino rangatiratanga, express a view that their nominee has sufficient expertise and experience of Ngati Paoa tikanga and matauranga (which it has done) but given that the Board’s power is to nominate, and the Convenor’s power is to accept or refuse a nomination, he might need more evidence that the nominee is broadly recognised in the Māori world in the relevant region as being able to offer advice to enable the panel to meet its obligations under s 6 FTCA. That might entail the Convenor seeking the view of the other iwi authorities who were approached for nominations.
However, before embarking on such a course which might or might not assist a determination by the Convenor, he requires input or assistance from Mr Gardner-Hopkins and if it sees fit, the Trust Board, on a matter which is troubling him. The matter requires to be raised having regard [to] the principles in clause 9 of Schedule 5 FTCA.
Bearing in mind that a nomination is just that, not an appointment, and that appointment rests with the Convenor who also has the powers in clause 9, he records that the matter that troubles him is that which was the subject of a decision of the Chief Judge of the Environment Court in Port of Tauranga Limited v Bay of Plenty Regional Council and others [2022] NZEnvC 92.
The Convenor has a preliminary and tentative view that there may be parallels between the findings in paragraphs [26] and [27] of that decision and the current circumstance, where relevant wording from clause 9 may be “misconduct” or “inability to perform the functions of office”. The Convenor wonders whether he, similar to the Judge in that case, should be alert to what people might ask about any apparent non-recognition by the Convenor of the Order of the LCA Tribunal, including by complainants in that proceeding, the public and the media. Clause 2 Schedule 5 FTCA requires a (described) judicial officer to be Convenor, which is of course the case here.
Noting the terms of clause 9(2) Schedule 5, if you wish to engage on this matter, the Convenor asks that you do so with expedition, because of course the applicant for consents is likely to be anxious while determination is as yet unable to commence. It has the right to expect prompt determination as a key part of the scheme of this legislation.
[31]The Board replied again on 15 September 2022, stating that:
(a)for the Board, the primary focus was on the lawfulness of any appointment, in the sense of it not being prohibited in any way, and that being a potentially differentiating factor from the matter in issue in the Port of Tauranga Ltd case;
(b)that cl 9 of sch 5 related to removal, rather than appointment;
(c)that cls 3(2) and 3(4) appeared to provide a mandatory requirement, subject possibly to expertise and/or expertise in tikanga and mātauranga
Māori, that a nomination by an iwi authority must be appointed in the Panel if there are no other nominations by any other iwi authority;
(d)if there were to be jurisdiction to pre-emptively remove a panel member by refusing to appoint them, then any power must be exercised in a manner that has the decision-making process under the Act at the forefront; and
(e)the focus should firstly be on whether Mr Gardner-Hopkins is otherwise an appropriate panel member, given his relevant expertise and experience, and secondly whether there was any material risk of future misconduct by him, given the time since his previous misconduct.
[32] The Board’s letter was accompanied by a short letter from Mr Gardner- Hopkins, which recorded:
(a)his advice had been that there was nothing in the Lawyers and Conveyancers Act which would prohibit his appointment as a panel member;
(b)to the extent there may have been media attention from his appointment, he had “weathered the media storm” for many years by that point, and did not consider that it would compromise his ability to “perform the functions of office” and contribute as a panel member;
(c)he was humbled by the regard that the Board held him in, including its view of his experience and expertise in tikanga and mātauranga Māori, and ongoing support for his nomination;
(d)he did not wish to disrespect the mana of the Board and its efforts or position by rejecting its nomination of him; and
(e)it would be a privilege to serve as the Board’s nominated panel member, if that was the result of the nomination process, and he would do so to the best of his abilities.
The decision declining to appoint Mr Gardner-Hopkins
[33] On 21 September 2022, the Convener provided the Board with a decision regarding its nomination of Mr Gardner-Hopkins (the Decision).38 The Decision noted that the Board was the only iwi authority of those iwi authorities invited to make a nomination in respect of the Riverhead Consent to do so, and that Mr Gardner-
Hopkins was of Niuean, not Māori descent.39
[34] The Convener sought legal advice on three questions prior to making his decision, which were:40
(a)Can the panel convener decide not to appoint a person nominated by a relevant iwi authority, in circumstances where there is only one iwi nominee, and if so, on what basis?
(b)In considering whether to appoint Mr Gardner-Hopkins, can the panel convener discern guidance from the recent Environment Court decision (albeit that decision concerned provision of legal or advocacy services rather than the performance of a quasi-judicial role)?
(c)In choosing whether to appoint a person to a panel, can the panel convener consider matters that would be relevant to removing a panel member under cl 9 of sch 5?
[35] The Convener noted that the advice he received provided that it was open to a panel convener to decide not to appoint a person as a panel member, including the sole nominee of a relevant iwi authority, on reasonable grounds.41 He then stated:
[13] The panel convener’s discretion is established by the Act’s words, read in context and in light of the legislative purpose. That the discretion is exercised by a judicial officer is an important safeguard provided in the Act, reflecting the importance of the public having confidence in the processes and decisions of expert consenting panels (and of the panel convener).
38 The Decision, above n 1.
39 At [2]–[3].
40 At [9].
41 At [12].
[14] The ground for deciding not to appoint a person extend beyond matters of technical expertise and encompass broader matters relevant to the person’s performance of the functions of office. They can include matters going to personal character and integrity, including the fact of and circumstances surrounding Mr Gardner-Hopkins’ suspension from legal practice.
[36] The Convener considered that the Environment Court’s decision in Port of Tauranga Ltd v Bay of Plenty Regional Council was relevant in a limited fashion to his consideration of Mr Gardner-Hopkin’s nomination, as well as the principles of judicial comity, and the fact of Mr Gardner-Hopkins’ suspension.42 The Convener was also of the view that the considerations and/or grounds for dismissal of a panel member contained in cl 9 of sch 5 were relevant considerations in the appointment of panel members.43 Despite this, he accepted that there was no basis in the Act or its schedules to allow him to pre-emptively remove Mr Gardner-Hopkins by refusing to appoint him.44
[37]The Convener then expressed his conclusion in the following terms:
[21] I have come to the conclusion that acting reasonably and in good faith, I may also take into account other considerations than a person’s ability to perform the functions of office, because those extend to other factors relevant to participants and the broader public having confidence in the consenting process and the outcome, as well as in the decisions of the panel [convener] concerning the appointment of panel members.
[22] This includes that a person’s character and integrity is relevant to whether that person can perform the functions of office, and can be confidently perceived by parties and the public generally to be able to offer that.
[23] Because of the matters quoted from the High Court decision above, my conclusions in the immediately preceding paragraphs, and to a degree in the context of judicial comity with the decisions of the Tribunal, the High Court and the Environment Court cited above, I have decided to decline the appointment of James Gardner-Hopkins nominated by [the Trust] for this decision-making panel.
[38] Following his decision, the Convener appointed a different person to the panel for the Riverhead Consent and the Panel’s consideration of the resource consent proceeded.
42 At [15].
43 At [16].
44 At [17].
The Board’s claim
[39] As noted, the Board relies on three grounds of review in their application. These are:
(a)the Convener made an unlawful decision, as he had no discretion to refuse to accept a nomination of a relevant iwi authority where:
(i)there were no other nominations by any other iwi authority;
(ii)overall, the Panel would collectively have the requisite knowledge, skills, and expertise relevant to resource management issues, the technical expertise relevant to the project, and expertise in tikanga Māori and mātauranga Māori; and
(iii)the nominee was accredited under s 39A of the Resource Management Act.
(b)the Convener had improper material regard to the Environment Court’s decision in Port of Tauranga Ltd v Bay of Plenty Regional Council, as:
(i)that case was wrongly decided; and
(ii)the principle of judicial comity was irrelevant to the Decision, given that panel membership does not involve or require “legal work” of a nature that is reserved to lawyers under the Lawyers and Conveyancers Act.
(c)the Convener, in making the Decision:
(i)failed to have regard to te Tiriti principles, including the principle of tino rangatiratanga;
(ii)acted inconsistently with the te Tiriti principle of tino rangatiratanga and the Board’s mana to nominate its own qualified candidate by rejecting its nomination based on his own view of the nominee’s character and integrity, rather than applying the statutory requirements and/or relying on the Board’s assessment of these matters, in accordance with its tikanga;
(iii)acted inconsistently with the te Tiriti principle of partnership represented by the requirement of a panel member being nominated by a relevant iwi authority;
(iv)acted inconsistently with the principle of informed decision- making by failing to give the Board advance notice of the purported requirement that nominees can be rejected based on the Convener’s own view of the nominee’s character and integrity, rather than the character and integrity as assessed by the Board; and
(v)damaged the mana of the Board by rejecting the applicant’s nominee at a very late stage, resulting in the Board losing the opportunity to have its own nominee as a member of the Riverhead Consent panel.
The positions of the parties
The Board
[40] As to the first ground of review, counsel for the Board, Mr Long, submits that the Convener purported to exercise a discretion that is not supported by the statutory scheme, and submits that the Convener could not refuse to appoint a sole nominee of a relevant iwi authority. Mr Long submits that the statutory scheme supports the conclusion that where there is a sole iwi nominee, the nomination must result in an appointment, and that the Convener erred in law in vetoing a relevant iwi authority’s nominee in circumstances where there were no other iwi nominees.
[41] As to the second ground of review, Mr Long submits that even if the Convener did have a power or discretion to refuse a relevant iwi authority’s nomination based on an “inability to perform the functions of office”, the exercise of that power in these circumstances and for the reasons given was based on an error of law in taking into account irrelevant considerations. He says specifically that Mr Gardner-Hopkins’ suspension and the reasoning and a requirement for “judicial comity” with the Port of Tauranga decision were not lawful justifications to refuse Mr Gardner-Hopkins appointment. He says that neither reason suggested that Mr Gardner-Hopkins was unable to perform the functions of this office, and that in relying on these to decline Mr Gardner-Hopkins’ nomination, the Convener took into account irrelevant considerations and so erred in law.
[42] As to the third ground of review, Mr Long says that the Decision was unlawful on the basis the Convener did not act consistently with the principles of partnership, tino rangatiratanga, mana, representation, kaitiakitanga, and active protection. He submits that s 6 of the Act is a strong direction by Parliament of what is required of decision-makers under the Act. Decision-makers must act in a way consistent with the principles of the Treaty of Waitangi both procedurally and substantively. Mr Long also submits that tikanga principles are incorporated indirectly into the Act via s 6, and that therefore observance of tikanga principles by persons performing functions or exercising powers under the Act is therefore required. He submits that when making the Decision, the Convener did not actively turn his mind to s 6, identify the relevant Treaty or tikanga principles, or comply with his Treaty obligations, and therefore breached s 6.
The Crown
[43] As to the first ground of review, counsel for the Crown submits the Convener has an implied ancillary power, supported by the statutory scheme and purpose of the Act, to consider circumstances beyond the requirements in sch 5 cl 7 in determining a nominee’s eligibility. Counsel says the exercise of the implied ancillary power in this case was reasonable and the Decision was accordingly lawful.
[44] As to the second ground of review, counsel for the Crown submits that matters relating to the nominee’s suspension were relevant to the exercise of the implied ancillary power available to the Convener, and that by considering these in making the Decision, the Convener did not take into account irrelevant considerations.
[45] As to the third ground of review, counsel for the Crown submits that the scope of the Treaty obligations is shaped by the statutory and factual context, and that when assessed against this context, the Convener did act consistently with s 6 of the Act.
Analysis
Error of law in unlawful exercise of discretion
[46] As noted, in respect of the first ground of review, the applicant submits that the Convener erred in law in purporting to exercise an unwarranted discretion that is not supported by the statutory scheme. The applicant says the Convener could not refuse to appoint a sole nominee of a relevant iwi authority.
[47] Mr Long for the Board submits that the statutory scheme supports the conclusion that where there is a sole iwi nominee, the nomination must result in an appointment. He says that the language used to describe the appointment of the relevant iwi nominee to the panel is mandatory, namely that the “membership of a panel must include … 1 person nominated by the relevant iwi authorities”.45 He submits there is nothing in the relevant provisions which suggests the Convener has a discretion over who the panel member from a sole relevant iwi authority should be.
[48] Mr Long submits there are only two specific sets of circumstances in which the Convener has a discretion to appoint someone other than a relevant iwi authority’s nomination, which are:
(a)when the relevant iwi authorities nominate more than one person for appointment as a panel member; or
45 FTCA, sch 5 cl 3(2)(b).
(b)where the appointment of the relevant iwi authority’s nomination would result in the requirements for the collective qualifications of the panel under cl 7 not being satisfied.
[49] Counsel says that if an individual nominee does not have the accreditation specified in cl 7(2), the Convener retains an express discretion to nonetheless appoint that person if they satisfy one of the other requirements in cl 7(1). He submits that since Mr Gardner-Hopkins is accredited in those terms, whether he has sufficient expertise in tikanga and mātauranga Māori should not affect his nomination. Rather, it would be the Convener’s responsibility to ensure that one of the other members filled the collective gap in expertise. Indeed, cl 3(6)(e) even permits the Convener to appoint additional members (above the usual maximum of four) to accommodate this collective knowledge requirement if necessary.
[50] Counsel for the respondent, however, submits that any appointment to a panel is subject to a nominee meeting eligibility criteria. Counsel submits that the eligibility criteria for a nominee is not limited to what is expressed in cl 7, and that the Convener was entitled to reject Mr Gardner-Hopkins on the basis that he was not suitable for appointment under the Convener’s implied ancillary powers. In particular, counsel submits that the statutory context in this case supports an ancillary power for the Convener to have discretion to decline the appointment of a nominee for broader concerns than simply those express criteria contained in cl 7, namely concerns based on their capacity to hold office.
[51] Randerson J summarised the principle of implied ancillary powers in R v Aspinall where he said:46
(a)a person upon whom statutory powers are conferred and duties imposed also enjoys implied ancillary powers which are reasonably and properly incidental to carrying out the statutory functions;
(b)any such powers must be exercised bona fide for the purposes of the statute; and
46 R v Aspinall HC Auckland CRI-2005-004-019057, 11 August 2006.
(c)the principle may be excluded as a matter of construction of the statute in question, in particular, for instance, if such an implied ancillary power would be contrary to the legislative scheme.
[52] I now turn to consider whether the statutory context supports an implied ancillary power for the Convener to have discretion to decline the appointment of an iwi nominee for concerns beyond the express criteria in cl 7 in a situation where only one iwi nominee has been put forward.
[53] The purpose of an expert consenting panel is to ensure that decisions are made on one or more consent applications for a listed project or a referred project, and one or more notices of requirement for designations or to alter a designation for a listed project or a referred project, in accordance with the provisions of the Act. A panel is administrative and quasi-judicial in nature and its practical purpose is to replace both the consenting authority and the Environment Court roles to provide a fast-track resource consent process.
[54] Pursuant to cl 7, in order to be eligible for appointment as a panel member, a nominee must be accredited under s 39A of the RMA or satisfy the Convener they have a requisite expertise under cl 7(1).47
[55] A panel must consist of at least three members, and the Act prescribes that this must include one local authority nominee and one iwi nominee. I accept, however, as counsel for the respondent points out, that cl 3(5) contemplates that there may be an occasion where no iwi nominee is appointed, in which case the Convener must appoint an appropriate person to the panel, having regard to the other requirements under the Act. These requirements include, in particular, that any such appointment must ensure that a panel has, collectively, expertise relevant to resource management issues and in tikanga and mātauranga Māori, as set out in cl 7(1)(a)–(c). Clause 3(5) expressly envisages that such a panel with the statutorily required collective expertise may be constituted without the appointment of an iwi nominee.
47 FTCA, sch 5 cl 7(2)–(3).
[56] Clause 3 of sch 5 provides that the Convener may appoint up to four persons to determine applications, including one person nominated by the relevant local authorities, and one person nominated by the relevant iwi authorities. Clause 3 is expressly subject to cl 7, which imposes requirements regarding the qualifications of individual panel members and the collective knowledge and experience of the panel. The eligibility requirements in cl 7 are prescriptive. The Act clearly prescribes that in order to be eligible for appointment, a nominee must be accredited under s 39A of the RMA or satisfy the Convener they have a requisite expertise under cl 7(1). Together, the members of the panel must have the requisite expertise under cl 7(1).48 There are no further eligibility criteria necessary for appointment as an expert panel member. As discussed in [12] above, the situation is different in relation to appointment as the Chairperson of a Panel who is expressly required to be a lawyer, Judge or retired Judge.
[57] I consider the statutory context in this case supports such an ancillary power for the Convener to have discretion to decline the appointment of a nominee as a panel member for concerns other than the express criteria contained in cl 7, even where there is only one iwi nominee.
[58] Although the criteria in cl 7 are necessary conditions for appointment to a panel, it must be the case that the Convener retains a discretion not to appoint a particular person to a panel for factors outside of the prescriptive requirements.
[59] I consider this is an implied ancillary power under the statutory framework as it must be “reasonably and properly incidental” to the Convener carrying out the appointment process under the Act to reject a nominee on the basis that the nominee is not suitable for appointment for some reason. The reason may differ from case to case, but I envisage such a reason may include, for example, a person’s unavailability at the time the panel is sitting, a conflict of interest, or on account of their capacity to hold office.
[60] To take the first two examples, if an individual is nominated for appointment, but is unavailable at the time the panel is scheduled to meet or has a clear conflict of
48 Schedule 5 cl 7(1).
interest,49 it cannot be the case that the Convener has no discretion but to accept that person’s nomination and appoint them to a panel which they clearly should not be on. Indeed, if the Convener had no discretion but to appoint such a nominee, the Convener would likely then be obliged to remove the person from the panel under cl 9 for “just cause”, which includes “inability to perform the functions of office”, as would clearly be the case. Such a process would go against the very purpose and nature of the fast- track process and regime. Such an outcome was clearly never intended and cannot be what is provided for by the statutory regime.
[61] Similarly, it must be the case that the Convener has an implied discretion to decline an individual’s nomination if it is clear they are unable to hold office.
[62] In Clark v Vanstone, Gray J described a person’s capacity to hold an office as having two aspects:50
… The conduct of the person concerned might be such that it affects directly the person’s ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the person, or the organisation, for whose benefit the functions of the office are performed …
[63] In either case, Gray J commented, “the danger is that the office itself will be brought into disrepute as a result of the conduct of its holder.”51
[64] I accept that it is reasonably and properly incidental for the Convener carrying out the statutory appointment process to reject a nominee if there is a real risk the panel or wider consenting process would be “brought into disrepute” as a result of the conduct of one of its members and the nominee is therefore unable to hold office in the terms in Clark v Vanstone. The level of risk in any particular case will be a matter of judgement for a convener, and, if necessary, a court on appeal. However, such a power to decline to appoint a member in appropriate cases does exist.
49 This is so notwithstanding that cl 7(4) expressly provides that a person is not ineligible for appointment as a panel member by reason only that the person is a member of a particular iwi or hapū, including one represented by an iwi authority invited by the panel to comment on the application.
50 Clark v Vanstone [2004] FCA 1105, (2004) 211 ALR 412 at [85]. The case concerned removal from office, but the comments as to a person’s capacity to hold office remain apposite.
51 At [85].
[65] I accept that a project referred by the Minister to an expert consenting panel will often be one of public significance and/or public interest and that there should therefore be public confidence in the process and outcomes generated by the appointment process under the Act. It would be inconsistent with the purpose of the Act if a convener lacked discretion to decline a nomination even in situations involving clear evidence that a nominee would bring the panel, process and outcomes of the fast-track consenting process into disrepute and therefore lacked capacity to hold office in the terms described in Clark v Vanstone. Such an outcome would be contrary to the purpose, function and public nature of the consenting panel process.
[66] Clause 7 provides a baseline for appointment to a panel, below which appointment to a given panel is not possible. However, the fact a nominee meets the requirements for appointment does not guarantee their appointment. As noted, a panel may consist of up to four persons, which number may be exceeded “if warranted by, or required to accommodate” matters listed in cl 3(6), including the particular circumstances of a district or region, the number of applications to be considered, or the collective knowledge and experience needed under cl 7(1). A panel is not comprised of every nominated individual who meets the requirements of cl 7. Rather, it is the very function of the Convener’s role that they are responsible for the selection and appointment of the members of a panel among eligible candidates,52 including, in situations where more than one person is nominated by the relevant local or iwi authorities, which local or iwi authority nominee is to be appointed.53
[67] It is no different in circumstances where there is only one person nominated by a relevant iwi authority. I accept that cl 3(2) provides in strong terms that a panel “must include” one person nominated by the relevant iwi authorities. However, as noted, cl 3(5) expressly and clearly contemplates that a panel may be duly constituted without an iwi nominee in certain circumstances, as long as the requirements of cl 7 are met. The Act thus allows for the constitution of a panel without an iwi nominee.
[68] A situation can readily be envisaged where there is only one iwi nominee and their nomination is nevertheless declined under the express provisions of the Act. That
52 Schedule 5 cl 2(5).
53 Schedule 5 cl 3(4).
will be the situation where the sole iwi nominee is in fact ineligible for appointment due to failure to meet the requirements of cl 7 (namely s 39 of the RMA accreditation or satisfaction of expertise under cl 7(1)).
[69] Thus, under the express provisions of the Act, the statutory process already allows for situations where a sole iwi nominee may not be appointed. It is no departure from the statutory scheme to acknowledge that there may be situations arising outside of the express wording of the Act where such an outcome may also occur.
[70] Accordingly, I consider the Convener was entitled under the statutory scheme to decline Mr Gardner-Hopkins’ nomination for concerns beyond the express criteria in cl 7. I am satisfied such a discretion is “reasonably and properly incidental” to the Convener carrying out his statutory functions of appointing members to a panel.
[71] I therefore do not consider that the Convener erred in law in purporting to exercise an unwarranted discretion that is not supported by the statutory scheme. I have found that the statutory scheme supports an implied ancillary power for a convener in carrying out the appointment process under the Act to exercise discretion and decline to appoint a sole nominee of a relevant iwi authority in appropriate cases.
Error of law in taking into account irrelevant considerations
[72] The second ground of review challenges the Convener’s decision to refuse Mr Gardner-Hopkins’ appointment to the Panel on the basis of an error of law in taking into account irrelevant considerations, namely the events surrounding his suspension from legal practice.
[73] Specifically, Mr Long submits that Mr Gardner-Hopkins’ suspension and the reasoning and a requirement for “judicial comity” with the Port of Tauranga decision were not lawful justifications to refuse Mr Gardner-Hopkins’ appointment. He says that neither reason suggested that Mr Gardner-Hopkins was unable to perform the functions of this office.
[74] In respect of Mr Gardner-Hopkins’ suspension, Mr Long says that the concerns regarding Mr Gardner-Hopkins’ character are not of the nature that they should be
relevant to a refusal to appoint, particularly as his suspension from legal practice was not intended to bar him from seeking work other than as a lawyer. He says that the suspension decision was not intended to prevent other persons such as the Board from using Mr Gardner-Hopkins’ considerable expertise other than as a lawyer, including as a nominee for panel membership. He submits there is no basis for a conclusion that the Act requires a similar standard of professional conduct as required by the Lawyers and Conveyancers Act.
[75] Mr Long submits that the Port of Tauranga decision was wrongly decided. He says that s 275 of the Resource Management Act provides a specific “exception” to the requirement that lawyers represent parties, allowed under s 27(1)(b)(i) of the Lawyers and Conveyancers Act. He says the Chief Environment Court Judge’s view that the principle of judicial comity and the need to give effect to penalties and orders given in other jurisdictions meant the Environment Court should refuse to permit Mr Gardner-Hopkins to appear resulted in an unwarranted expansion to Mr Gardner- Hopkins’ penalty. He says that the Convener should not have relied upon that view and the principle of judicial comity, as the role of a panel member does not ordinarily require legal qualifications. He says that to the extent judicial comity could ever be a relevant concept, it should not be used as a basis for expanding and extending the penalty to which Mr Gardner-Hopkins is subject, to the detriment of the Board.
[76] I now turn to consider whether the Convener erred in reaching his decision to decline Mr Gardner-Hopkins’ nomination, in particular by taking into account irrelevant considerations.
[77] The Convener accepted that Mr Gardner-Hopkins was able to carry out the technical requirements of the office, that he had knowledge and experience in resource management matters, and that he was also accredited under the RMA. His eligibility in terms of the cl 7 requirements for appointment to the panel is therefore not in dispute. However, as noted, the matter which the Convener had earlier described as “troubling him”, and which ultimately led the Convener to decline Mr Gardner- Hopkins’ nomination to the Panel, was that Mr Gardner-Hopkins is currently suspended from legal practice for serious misconduct.
[78]The Convener expressed his conclusions in the following way:54
[21] I have come to the conclusion that acting reasonably and in good faith, I may also take into account other considerations than a person’s ability to perform the functions of office, because those extend to other factors relevant to participants and the broader public having confidence in the consenting process and the outcome, as well as in the decisions of the panel [convener] concerning the appointment of panel members.
[22] This includes that a person’s character and integrity is relevant to whether that person can perform the functions of office, and can be confidently perceived by parties and the public generally to be able to offer that.
[23] Because of the matters quoted from the High Court decision above, my conclusions in the immediately preceding paragraphs, and to a degree in the context of judicial comity with the decisions of the Tribunal, the High Court and the Environment Court cited above, I have decided to decline the appointment of James Gardner-Hopkins nominated by [the Trust] for this decision-making panel.
[79] The respondent submits that the Convener was right to decline Mr Gardner- Hopkins’ nomination on these grounds. The respondent says Mr Gardner-Hopkins’ suspension from legal practice was relevant to his capacity to carry out the office, and that it was reasonable for the Convener to reach the decision he did.
[80] I accept that the panel is a public body with administrative and quasi-judicial functions and powers. However, the role and function of membership on a panel as an expert panel member is fundamentally different from that of a lawyer. As noted above, the purpose of an expert consenting panel is to ensure that decisions are made on one or more consent applications for a listed project or a referred project, and one or more notices of requirement for designations or to alter a designation for a listed project or a referred project, in accordance with the provisions of the Act.
[81] Membership on a panel is materially different from undertaking legal practice. In particular, the role as a panel member does not involve advocacy in the way that legal practice does. There is no requirement that a nominee be qualified or practising as a lawyer in order to be eligible for appointment as a panel member and carry out the functions of the role. A panel member does not act as a lawyer in carrying out the duties of panel membership.
54 The Decision, above n 1.
[82] Mr Gardner-Hopkins’ suspension from legal practice was not intended to prevent him from seeking work other than as a lawyer. I note in this regard the following comments of the Disciplinary Tribunal from the Tribunal’s penalty decision:55
[43] In evidence Mr Gardner-Hopkins confirmed that there were professional roles within the Resource Management area which he could undertake without the need for a practising certificate. He had also made preliminary inquiries with a recruitment consultant. It would be surprising if a man of his talents could not obtain gainful employment were he to be prohibited from practising law …
[83] As the Environment Court noted in the Port of Tauranga decision, there was no further discussion in that decision of the “professional roles” that were referred to. However, I accept that the suspension was not intended to prevent other persons such as the Trust from utilising Mr Gardner-Hopkins’ experience in fields other than acting as a lawyer or in an advocacy role that closely resembled the role of a lawyer.
[84] I do not accept the applicant’s submission that the Port of Tauranga decision was wrongly decided. That case involved an application by Mr Gardner-Hopkins to appear in Environment Court proceedings as a representative for Ngā Hapū o Ngā Moutere Trust. The Environment Court considered that:56
…given [Mr Gardner-Hopkins’] previous work people would likely regard his role as rather different from that of the usual s 275 representative and might ask what recognition and effect the Court was giving to the Tribunal’s order.
[85] As the Environment Court noted, such people would include not only the parties to the proceedings, the media and the public generally, but also the complainants whose interests were the subject of the Tribunal’s decisions and order.57
[86] The Environment Court therefore declined Mr Gardner-Hopkins’ application on the basis that:58
… allowing Mr Gardner-Hopkins to be the representative of and advocate for the [Ngā Hapū o Ngā Moutere Trust] before the Court would be in conflict
55 Tribunal penalty decision, above n 30.
56 Port of Tauranga Ltd, above n 34, at [26].
57 At [26].
58 At [32].
with the interests of justice to a degree that outweighs the potential restriction on the interests of the Trust in their choice of counsel.
[87] There is no doubt that was the correct decision on the facts then before the Court. However, it is distinguishable from the present situation. The application in the Port of Tauranga decision, if it had been successful, would have involved Mr Gardner-Hopkins appearing before a Court and acting as an advocate for, or otherwise representing, a party at Court hearings. This is different from acting as an expert panel member determining resource consent applications on their merits. I am satisfied the Port of Tauranga decision does not preclude the appointment of Mr Gardner-Hopkins to roles which do not involve fundamental incidents of legal practice such as representation and advocacy.
[88] In reaching this conclusion, I do not disagree with any of the reasoning in the decision in Port of Tauranga. I have found that the role of being a panel member is different to the role of being an advocate in a Court and is the type of work in the resource management area that the Disciplinary Tribunal expressly anticipated that Mr Gardner-Hopkins may be able to undertake during the period that he was disqualified from practising law. Judicial comity did not therefore require the Convener to decline Mr Gardner-Hopkins’ nomination, and the Convener erred to the extent he made his decision on the basis of the need for judicial comity.
[89] Turning to considerations of Mr Gardner-Hopkins’ character and integrity, I accept that given the role of the panel as a quasi-judicial body making publicly important decisions, confidence and perception of the panel (including its members) are potentially important. However, I do not consider that Mr Gardner-Hopkins’ suspension from legal practice (and the reasons for it) was a factor which should have been material in the Convener’s decision declining his nomination, as it clearly was.
[90] Where the Disciplinary Tribunal has specifically acknowledged that Mr Gardner-Hopkins might be able to undertake some work in the resource management area notwithstanding his lack of a practising certificate, they have accepted that such roles are fundamentally different to the roles of lawyer.
[91] I consider that to prevent Mr Gardner-Hopkins from assuming roles outside those performed in a legal capacity on the basis solely of his suspension from such practice would be to punish him again for the same misconduct, which has already been fully dealt with in his suspension from legal practice, and in fact cut across the finality of the Tribunal and High Court decisions and orders.
[92] As the High Court found, in the six years between the misconduct and its decision, Mr Gardner-Hopkins had taken and continued to take steps to address the underlying issues which led to his misconduct.59 Because of the therapeutic interventions in which he had engaged (and in which he would continue to engage) and his changed life circumstances (both personal and professional), the Court found the risk he might engage in similar conduct in the future had considerably diminished.60 As the Court stated:61
The evidence satisfies us that (with professional assistance) Mr Gardner- Hopkins does now realise the extent of his misconduct and he has developed and is continuing to develop strategies to ensure that it does not happen again.
[93] The respondent says Mr Gardner-Hopkins’ suspension from legal practice is a key difference between his position and the position of any person who is not subject to such an order of suspension, and that as the Environment Court noted in the Port of Tauranga decision, there were accordant perception and reputational issues. However, as the applicant points out, the focus in considering a nominee’s suitability for appointment to professional roles is a forward-looking exercise. This was reinforced by the High Court in its decision, stating that the penalty must “reflect the seriousness of the past behaviour and conduct”, but “the focus is forward looking”.62
[94] I consider that the Convener erred to the extent that he focused on past events and misconduct rather than the nominee’s ability to perform the role without bringing the panel into disrepute. Given the public censure in the form of the suspension from legal practice, the interventions in which the nominee had subsequently engaged, and the fact Mr Gardner-Hopkins has been held to account for his actions in receiving the
59 HC decision, above n 31, at [109].
60 At [105].
61 At [109].
62 At [49], [74]–[75] and [102], referring to New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [38] and [54(c)].
maximum suspension from legal practice (short of being struck off), the risk of Mr Gardner-Hopkins bringing the panel into disrepute in the eyes of someone fully informed of the detail of the Tribunal decision is not a matter that justified the Convener’s decision.
[95] Accordingly, I consider the Convener erred in declining Mr Gardner-Hopkins’ nomination to the panel on the grounds stated. While the Convener was correct to note that he was entitled to take other considerations into account in determining whether to appoint Mr Gardner-Hopkins to the Panel, nothing in the Tribunal, High Court or Environment Court decisions required him to decline Mr Gardner-Hopkins’ nomination, nor indeed gave any good grounds to do so.
[96] This ground of review has been made out. The Decision was accordingly unlawful and it is quashed.
Breach of te Tiriti o Waitangi principles and tikanga Māori
[97] Given my conclusions as to the second ground of review, in finding that the Convener erred in declining Mr Gardner-Hopkins’ nomination on the grounds stated in his decision, it is therefore unnecessary for me to address the third ground of review, breach of Treaty principles and tikanga Māori.
Conclusion and relief
[98] I have found the first ground of review not to have been made out. I am satisfied that the Convener was entitled under the statutory scheme to decline Mr Gardner-Hopkins’ nomination for concerns beyond the express criteria in cl 7 as an implied ancillary power to the statutory process.
[99] I have found the second ground of review to have been made out, namely that the Convener erred in declining Mr Gardner-Hopkins’ nomination to the Panel in taking into account irrelevant considerations, namely the fact that he had been disciplined by the Disciplinary Tribunal and suspended from legal practice. I make a declaration that the Decision was unlawful and quash it.
[100]It was not necessary for me to consider the third ground of review.
Result
[101] The application for judicial review is successful under the second ground of review. I make a declaration as outlined at [99] above and quash the Decision of the Panel Convener.
Costs
[102] My preliminary view is that, although the applicant has been successful, many of the grounds upon which the case was advanced have not been upheld. Accordingly, it would be appropriate for costs to lie where they fall. However, if the applicant wishes to pursue a costs application, it should file a memorandum within 14 days of the date of this decision. The respondent shall file any reply within 14 days of receipt of the applicant’s memorandum and I will deal with the issue on the papers. Counsels’ costs memoranda are not to exceed three pages in length.
Churchman J
Solicitors:
Duncan King Law, Auckland for Applicant Crown Law, Wellington for Respondent
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