Thompson v Canoe Racing New Zealand Incorporated
[2023] NZHC 1533
•20 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001464
[2023] NZHC 1533
UNDER the Judicial Review Procedure Act 2016 and the Contract and Commercial Law Act 2017 IN THE MATTER OF
an application for judicial review
BETWEEN
ALAN BLAIR THOMPSON
ApplicantAND
CANOE RACING NEW ZEALAND INCORPORATED
Respondent
Hearing: 2 February and 15 May 2023 Counsel:
DM Fraundorfer and JR Curtis for Applicant PW David KC and MJ Clarke for Respondent
Judgment:
20 June 2023
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 20 June 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Holland Beckett Law, Tauranga. Maria Clarke Lawyers, Auckland. PW David KC, Auckland.
THOMPSON v CANOE RACING NEW ZEALAND INCORPORATED [2023] NZHC 1533 [20 June 2023]
Table of Contents
The case [1]
Background [2]
The claim and approach [15]
Did CRNZ have the power to expel Mr Thompson in relation to B and C? [17]
Was Mr Thompson sanctioned by NZCA in relation to C? [31]
Should the board have taken further steps once it received Ms Casey’sfinal reports? [37]
Was there a failure by Ms Casey in relation to C? [38] Should the board have done more in relation to Mr Thompson’s witnesses? [44] Should the board have employed procedures from the 1995 constitution? [56] Assessment of this ground [58]
Did the board otherwise act improperly or unfairly in relation to
Mr Thompson’s expulsion? [61]
Should the board have afforded Mr Thompson 10 working days
before it took further steps in relation to his expulsion? [61]
Did the board breach its undertaking to Mr Thompson about
confidentiality? [66]
Was Mr Thompson’s right to be heard afforded in relation to expulsion? [71]
Other arguments [85]
Was Mr Thompson’s right to be heard afforded in relation to suspension? [86]
Did CRNZ breach contract? [93]
Summary of conclusions [100]
Remedy [101]
Result [102]
Costs [104]
The case
[1] Canoe Racing New Zealand Incorporated1 suspended, then expelled, Alan Thompson from its membership. CRNZ concluded Mr Thompson acted in a manner unbecoming of a member or prejudicial to the objects or interests of CRNZ, and brought CRNZ into disrepute, by lewd misconduct in 1991, 1998, and 2014. Mr Thompson seeks judicial review of these decisions. He also sues CRNZ for breach of contract. The most important issue is whether CRNZ had the power to expel Mr Thompson for misconduct in 1991 and 1998; those incidents preceded his membership and CRNZ’s existence.
1 CRNZ.
Background
[2] What follows is a précis only; further background is given throughout the judgment.
[3] CRNZ was incorporated 15 January 1999 and is the national body responsible for canoe racing. CRNZ’s predecessor was the New Zealand Canoeing Association.2 The transition between organisations, and whether an intermediate body also existed, appears lost to history. Mr Thompson says in the early 1990s, NZCA became the New Zealand Canoeing Federation, and only in 1999 did CRNZ become the “leading organisation”. Janet Shearer, the chairperson of CRNZ, says records, including a “1995 constitution document”,3 imply CRNZ existed in unincorporated form from as early as 12 April 1995.
[4] Mr Thompson became a member of CRNZ (with its incorporation) 15 January 1999. In 2012, he was made a life member of CRNZ in recognition of his services to canoe racing, including two Olympic gold medals in that sport.4
[5] On 20 September 2020, Ms Shearer and other members of CRNZ’s board,5 held a Zoom call with canoe racers to discuss recent publicity concerning an “athlete welfare crisis” within CRNZ. During the call, the first complainant, A, expressed frustration Mr Thompson had contributed to the adverse publicity, as she said it was well known his behaviour had been “so bad for so long”. A said Mr Thompson said something unacceptable to her in 2014.
[6] Two days later, A complained formally to CRNZ. A said when she was part of the New Zealand under-23-years canoe-racing team in the Czech Republic, Mr Thompson said to her, in front of young male canoers, “If I were your age I would have you on your back in the bed with your legs over your head”.
2 NZCA.
3 The 1995 constitution.
4 Mr Thompson won both at Los Angeles in 1984.
5 The board.
[7] On 25 September 2020, the board informed Mr Thompson of A’s complaint. On 29 September 2020, the board told Mr Thompson it had suspended his membership pending determination of the complaint.
[8] On 5 October 2020, the second complainant, B, contacted CRNZ. B said in 1998 or 1999, at Hamilton, she gave Mr Thompson money for a race entrance fee, and apologised her payment was late. B said Mr Thompson replied, “I think we can forgive that [B], as long as you give the convenor of selectors a titty fuck”. B said she “had just turned 20”. B also referred to a third complainant, C. B said she had encouraged C to contact CRNZ.
[9] C did so the next day. C said in 1991, she went to Europe as the only female member of the New Zealand canoe team. C was then about 24 years old. C said one night before a race, she went to Mr Thompson’s adjoining room and asked him to be quiet. C said Mr Thompson, who was in bed, pulled back the covers, said to her, “Get a load of this [C]”, and showed his penis. C said NZCA’s culture was “horrendous”, and this was largely set by Mr Thompson. C said she complained formally to NZCA when she returned, but the complaint “went nowhere”. C then retired from canoe racing.
[10] On 2 November 2020, the board informed Mr Thompson of the complaints from B and C.
[11] Victoria Casey KC was appointed to investigate the three complaints. She ultimately found all established.
[12] On 22 December 2021, CRNZ held a special meeting to determine whether Mr Thompson should be expelled given he had:
a) … acted in a manner unbecoming of a Member or prejudicial to the objects and interests of CRNZ (or the sport of canoe racing in New Zealand), and/or brought the sport of canoe racing into disrepute by making inappropriate sexualised remarks to female athletes while acting in the capacity as a CRNZ Selector and Manager; and
b) … brought CRNZ and/or the sport of Canoe Racing into disrepute by indecently exposing himself to a NZ representative female athlete while on tour in Europe in a capacity as the athlete’s coach.
[13] Eleven members voted for expulsion, three against. So, Mr Thompson was expelled.
[14]On 26 August 2022, Mr Thompson filed this claim.
The claim and approach
[15] The claim is by way of judicial review and contract. The latter recognises a member of an incorporated society has enforceable contractual rights.6 The former attracts restraint.7 Typical circumstances of judicial review involve:8
… denial of access to membership, the exercise of a disciplinary power, the deprival of a licence or other economic concession, the alleged misapplication of a society’s constitution in a manner that offends natural justice or an alleged error of law in the application of a society’s constitution where the body concerned has a public or quasi-public function.
[16] The claim is extensive. The statement of claim comprises 141 paragraphs, with suites of particulars,9 and the submissions on Mr Thompson’s behalf total almost 80 pages.10 I focus on the most important points; represented litigants should be judicious in their selection of arguments. Doing so, 11 questions arise:
(a)Did CRNZ have the power to expel Mr Thompson in relation to B and C?
(b)Was Mr Thompson sanctioned by NZCA in relation to C?
(c)Was there a failure by Ms Casey in relation to C?
(d)Should the board have done more in relation to Mr Thompson’s witnesses?
6 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA) at [11].
7 At [5].
8 Tamaki v Māori Women’s Welfare League Inc [2011] NZAR 605 at [43].
9 Second amended statement of claim dated 12 March 2023.
10 Submissions dated 20 January and 9 May 2023.
(e)Should the board have employed procedures from the 1995 constitution?
(f)Did the board otherwise act improperly or unfairly in relation to Mr Thompson’s expulsion?
(g)Should the board have afforded Mr Thompson 10 working days before it took further steps in relation to his expulsion?
(h)Did the board breach its undertaking to Mr Thompson about confidentiality?
(i)Was Mr Thompson’s right to be heard afforded in relation to expulsion?
(j)Was Mr Thompson’s right to be heard afforded in relation to suspension?
(k)Did CRNZ breach contract?
Did CRNZ have the power to expel Mr Thompson in relation to B and C?
[17] It is common ground this turns on CRNZ’s constitution.11 To elaborate, incorporated societies are governed by legislation12 and must have a constitution.13 Two constitutions of CRNZ were identified: one registered 15 June 2018, and a second dated 1 March 2020. The parties agree the two constitutions are identical in relation to the matters before the Court, but that the 2018 constitution “was the governing constitution at all material times” as the 2020 constitution has not been registered.14 I, therefore, refer to the 2018 constitution as simply, the constitution.15
11 It is also common ground case law is not determinative. The two closest cases, Harding v Institution of Professional Engineers New Zealand Inc [2014] NZHC 2251 and Reay v Attorney-General [2019] NZCA 475, involved members who resigned before disciplinary proceedings were determined.
12 Incorporated Societies Act 1908; and Incorporated Societies Act 2022.
13 Incorporated Societies Act 1908, s 6; and Incorporated Societies Act 2022, s 25.
14 Incorporated Societies Act 1908, s 21.
15 CRNZ does not argue B’s complaint was governed by the 1995 constitution, which, as observed, is a document identified in support of the possibility CRNZ existed, unincorporated, from 12 April 1995.
[18]The relevant rules of the constitution provide:
2.Objects
2.1The objects of Canoe Racing NZ are to:
a.Be the national body in New Zealand to promote, develop, enhance and protect Canoe Racing mainly as amateur sports for the recreation and entertainment of the general public in New Zealand;
…
g. Seek and promote the membership of Canoe Racing NZ;
…
l.Encourage and promote Canoe Racing as an activity that promotes the health and safety of all participants, respects the principles of fair play and is free from doping;
…
q.Promote mutual trust and confidence between Canoe Racing NZ and its Members and at all times to act on behalf of, and in the interests of, their members and the promotion and development of Canoe Racing in New Zealand.
3.Powers and Responsibilities
3.1Powers: Canoe Racing NZ has the power, subject to this Constitution, to do the following:
…
c.Determine its membership including withdrawing, suspending or terminating Members;
…
3.2Responsibilities: As the guardians of Canoe Racing in New Zealand, Canoe Racing NZ is responsible for leading, promoting, developing, enhancing and protecting Canoe Racing in New Zealand …
9.Member Entitlements and Obligations
9.1Obligations: Members acknowledge and agree that:
a.This Constitution constitutes a contract between each of them and Canoe Racing NZ and they are bound by this Constitution and the Regulations;
b.They shall comply with and observe this Constitution and the Regulations, and any resolution of the Board;
…
f.They are entitled to all the rights, benefits, advantages, and privileges conferred by this Constitution; and
…
10.Termination of membership
10.1Resignation: A member Club may resign its membership of Canoe Racing NZ by giving one (1) month’s notice in writing to the Board. Upon the expiration of the notice period and provided the Member Club has paid all arrears of membership fees due and payable by the Member, the Member shall cease to be a Member.
10.2Default in Fees: A member shall have its membership of Canoe Racing NZ terminated if any fees (including membership fees) or other payments to Canoe Racing NZ are due and outstanding. Before such termination can occur the Board must give the Member written notice specifying the payment(s) due and demanding payment by a due date, being not less than seven (7) days from the date of the demand. If payment is not made by the due date, membership shall be suspended pending payment. If such suspension continues for a further ninety (90) days, the Member shall have their membership automatically terminated on the expiry of such period.
10.3Discipline: If the Board considers a Member has:
a.Breached, failed, refused or neglected to comply with a provision of this Constitution, the Regulations or any other resolution or determination of the Board or any duly authorised committee of the Board; or
b.Acted in a manner unbecoming of a Member or prejudicial to the objects or the interests of Canoe Racing NZ and/or Canoe Racing in New Zealand; or
c.Brought Canoe Racing NZ, or any other Member or the sport of Canoe Racing into disrepute;
it may, after consideration and in addition to Rule 9.4:
(i)refer the matter to the Judicial Committee for investigation or determination (unless a Regulation specifies otherwise), and that Committee may impose any sanction including suspension or termination of
membership of Canoe Racing NZ as specified in the Regulations; or
(ii)may make its own enquiries, (including appointing a person independent of the Board to undertake such enquiries and provide a recommendation to the Board), and impose any sanction that it has authority to impose under this Constitution or any Regulation.
10.4Suspension: If the Board considers a Member has or may have engaged in one or more of the circumstances in Rule [10.3]a–c inclusive, and it believes it is in the best interests of Canoe Racing NZ to do so, it may suspend the Member pending determination of the matter by the Judicial Committee or the Board. Before invoking any such suspension, the Member shall be given notice of the alleged circumstances in Rule 9.3a, b and c, the proposed suspension and the right to be heard.
10.5If a Member is suspended from membership of Canoe Racing NZ, the Member concerned shall:
a.Not be entitled to attend, speak at or vote at a General Meeting;
b.Not be entitled to continue to hold office in any position within Canoe Racing NZ, or a Member Club; and
c.Not be entitled to any other privileges or benefits to which it/they would otherwise be entitled including participation in any regattas, activity, vent, function or meeting of Canoe Racing NZ or a Member;
until such time as the Judicial Committee or Board determine the matter or the Delegates at a General Meeting expel the Member.
10.6Expulsion: The Delegates at a General Meeting may expel a Member if the Judicial Committee or Board makes a recommendation to do so, and a motion to that effect is notified in accordance with this Constitution. The motion for expulsion must be adopted by Special Resolution and shall not be voted on until the Member concerned has been given the right to be heard.
10.7Termination by Member Club: Any Club Member that resigns or has membership of their Member Club terminated in accordance with the rules of the Member Club, shall upon such resignation or termination taking effect, automatically cease to be a Member of Canoe Racing NZ.
10.8Effect of Termination: A Member who or that ceases to be a Member of Canoe Racing NZ shall forfeit all rights in and claims upon Canoe Racing NZ and its property and shall not use any property of Canoe Racing NZ including its Intellectual Property.
…
[19] Mr Thompson was expelled for breaching rule 10.3(b) in relation to A and B, and for breaching rule 10.3(c) in relation to C. Mr Thompson contends his expulsion was invalid in relation to B and C because those breaches pre-date CRNZ’s existence and, necessarily, his membership with CRNZ. During the hearing, Mr Fraundorfer on behalf of Mr Thompson ventilated a closely related argument: any breach had to be committed while Mr Thompson was a member of CRNZ. Mr Fraundorfer says rule 10.3 is “plain on its face” that the member must have been a member when they committed the breach; antecedent breaches do not qualify.
[20] On behalf of CRNZ, Mr David KC contends it had the power to expel Mr Thompson in relation to B and C, and rules 10.3(b) and 10.3(c) are not confined, facially or otherwise, to breaches committed during membership.
[21]I make seven points.
[22] First, the reference to “a Member” in the opening line of rule 10.3 is neutral on the issue. The reference acknowledges logic, not more, as termination of membership obviously requires the person be a member.
[23] Second, rules 10.3(b) and 10.3(c) are not temporally qualified on their face. Neither contains an apparent limitation as to time. The same is true of the constitution more generally, it contains no limitation period in relation to disciplinary action or termination of membership.
[24] Third, the high point for Mr Thompson concerns the first limb of rule 10.3(b): “Acted in a manner unbecoming of a Member”. It could be taken to mean the unbecoming act must occur while the person was a member. The interpretation is available—and not strained. However, this is not what the limb says; it does not refer expressly to an act during membership. Furthermore, if this is what the first limb is directed at, it might have been clearer to say, “Acted in an unbecoming manner while a member …”.
[25] Fourth, even if the first limb is confined to unbecoming action while the person was a member, this is not determinative as the second limb of rule 10.3(b) is not so
qualified: “or prejudicial to the objects or the interests of [CRNZ] and/or Canoe Racing in New Zealand”. As will be apparent, the second limb begins with the term “or”, which is disjunctive. So, rule 10.3(b) contains two distinct limbs, and the second requires only that the member has acted in a manner prejudicial to the objects or interests of CRNZ and/or canoe racing in New Zealand. Unlike the first limb, the second does not connote the act must occur during membership.
[26] Fifth, rule 10.3(c) comprises yet another distinct limb in relation to disciplinary action, and nothing in it suggests the behaviour must occur during membership.
[27] Sixth, Mr Fraundorfer’s argument is inconsistent with the objects of CRNZ, especially those captured by rules 2.1(a), 2.1(g), 2.1(l), and 2.1(q), in that it would preclude termination of membership for all antecedent behaviour, no matter how scandalous or serious, and no matter how injurious to CRNZ, its members, or the sport of canoe racing more generally. For the same reason, the argument is also inconsistent with rule 3.2, which places the responsibility on CRNZ as “guardian of Canoe Racing in New Zealand”, “for leading, promoting, developing, enhancing and protecting” the sport.
[28] Perhaps anticipating these concerns, Mr Fraundorfer contends membership may be terminated by combination of rules 3.1(c) and 10.6, without reference to rule 10.3. Mr Fraundorfer says if the board considered a member was, for example, not “fit and proper”, it could recommend their expulsion, and that recommendation would be subject to adoption by special resolution. On this approach, rule 10.6 is independent of the earlier rules comprising rule 10, hence a breach of rule 10.3 would not be a prerequisite to termination of membership.
[29]The argument attracts difficulty:
(a)The constitution does not provide for termination when a member is not “fit and proper”, so termination on this or an analogous basis would have to be implied. But, as Kós J observed in Tamaki v Māori Women’s Welfare League Inc, “the law generally insists that a power to suspend, expel or otherwise discipline membership of a society be express, rather
than merely implied”.16 This recognises an “untrammelled, implied power to discipline members is a dangerous device”.17
(b)The argument offends the principle identified by Kós J in another way too, in that it presupposes a freestanding ability to terminate membership, that is, without reference to any criteria in the constitution.
(c)Suspension, a lesser penalty than expulsion, is available only when there has been a breach or possible breach of rule 10.3(a), 10.3(b), or 10.3(c).
(d)Rule 10.6 envisages earlier investigation by the Judicial Committee or board, in turn linking to rules 10.3 and 10.4, which require a breach of rule 10.3(a), 10.3(b), or 10.3(c).
[30] Seventh, there is no conceptual difficulty with disqualifying behaviour preceding membership (even CRNZ’s existence). Membership is contractual in nature, which is to say, it arises by agreement. It is always open to member and organisation to agree disqualifying behaviour may precede membership. That, of course, must be apparent from the terms of the contract, in this case, the constitution. For the reasons explained, I consider it is.
Was Mr Thompson sanctioned by NZCA in relation to C?
[31] C made a timely complaint (in 1991) to NZCA concerning the Mr Thompson’s behaviour during the European competition. For this reason, Ms Casey was instructed by the board to:
…make inquiries as to whether a complaint made by [C] into the same incident was investigated in or around 1991, whether any process was undertaken and the outcome of the process (if any), and whether as a result of my findings, this investigation should continue.
16 Tamaki v Māori Women’s Welfare League Inc, above n 8, at [58(b)].
17 At [58(b)].
[32] C told Ms Casey if something official happened in consequence of her complaint to NZCA, she was not involved. C said Mr Thompson faced unrelated allegations arising from the same trip, which were not of a sexual nature. Mr Thompson told Ms Casey that C’s complaint was not upheld by NZCA, rather, there was no finding either way. Mr Thompson said the unrelated allegations, for example, drinking and swearing while on tour, resulted in him losing his coaching position for one year. Shortly thereafter, Mr Thompson resigned as NZCA’s Commodore in frustration at this outcome.
[33] Ms Casey explored this issue at length, and with witnesses beyond C and Mr Thompson. Ms Casey concluded C “did lodge a complaint about this incident in or around 1991 but that there was no proper investigative process followed in response and the complaint was not resolved” by NZCA.
[34] Mr Fraundorfer contends it is now arguable Mr Thompson was sanctioned by NZCA in relation to C, so there is a possibility C’s complaint to CRNZ was barred by the doctrines of issue estoppel, res judicata, or both. Mr Fraundorfer relies on two documents not before Ms Casey, the President’s 1992 annual report to NZCA, and a report of the same year by the Acting Commodore. Mr Thompson obtained both documents after Ms Casey completed her final reports, but before Mr Thompson’s membership was terminated. Mr Fraundorfer says the board should have halted the process when these documents became available, and its failure to do so was unfair to Mr Thompson, or procedurally improper.
[35] The President’s report refers to “a difficult year”, and later, to the European tour. About it, the report says:
The Flatwater Team to Europe late in 1991 generated a degree of dissension of such an extent that a majority of the team submitted written complaints regarding the Team Coach and Team Manager. Some of the allegations were considered serious enough to require consideration by the NZCA Executive. The result of the meeting, at which Ian Ferguson was asked to attend as team representative, was the decision of the Executive to declare the team coach and manager ineligible for selection to the 1992 Olympic team. The record of this meeting is contained in the minutes circulated to all clubs. The Racing Commodore, Alan Thompson, subsequently resigned.
Following a newspaper article in which I quoted the Executive’s decision, and in which Alan Thompson was quoted verbatim, I received a solicitor’s letter
on behalf of the Team Manager threatening me personally with legal action for defamation. I took legal advice and replied that I would not withdraw and would vigorously defend any action against me. The matter rests there. The NZCA Executive voted to reimburse me my legal costs at a subsequent meeting.
[36] The “minutes circulated to all clubs” are not in evidence and presumably, lost. The reference to some allegations being “serious enough to require consideration by the NZCA Executive” does not, regrettably, identify what those allegations were. Consequently, the President’s report adds nothing material to the position identified by Ms Casey. That being so, it cannot have been wrong for CRNZ to continue the disciplinary process against Mr Thompson. The same is true in relation to the report of the Acting Commodore, for, beyond a Delphic reference to “fire-fighting”, the report is silent on C’s complaint.
Should the board have taken further steps once it received Ms Casey’s final reports?
[37] Ms Casey prepared an interim report and a final report in relation to each complainant, hence a total of six reports. Mr Thompson’s pleadings do not impeach the reports, at least directly. Rather, they contend the final reports contain shortcomings, such that it was procedurally improper or unfair for the board to have acted on the reports by seeking termination of membership without first doing more. Multiple grounds are pursued. Again, I focus on the most significant.
Was there a failure by Ms Casey in relation to C?
[38] Terms of reference in relation to each complainant were recorded in separate documents. Mr Fraundorfer says the terms of reference in relation to C required Ms Casey to address what constitution existed at the time of the alleged behaviour— 1991—but Ms Casey did not do so.
[39]The terms of reference in relation to C say:
Introduction
An allegation has been made by [C] against Alan Thompson, Member of Canoe Racing New Zealand (CRNZ). The allegation is that
a.on tour as a coach of the New Zealand kayaking team in 1991, Mr Thompson exposed his penis to [C].
The circumstances that give rise to this allegation are outlined in a written complaint and a preliminary statement made to the Sport NZ Independent Complaints Mechanism (ICM) by [C], which are attached to these Terms of Reference.
Mr Thompson has stated the allegation was investigated in or after 1991 when
[C] made a formal complaint. [C] stated she made a formal complaint but does not recall there being an outcome of her complaint. No record of any process has been located.
An independent investigation is to be carried out into the allegation and whether this has already been formally investigated by the relevant organisation at the time the complaint was made in or around 1991. The findings of the investigation will be reported to Jan Shearer, Chair of the CRNZ Board. The investigation is to be completed by Victoria Casey QC.
Objective / Approach
The objective of this investigation is to:
a.Complete a thorough, independent investigation, identifying and reviewing the circumstances that arose and laid the basis for the complaint.
b.Provide an unbiased review of the findings and a written report to the decision maker.
c.Ensure fairness to the parties is observed throughout the investigation.
d.Assess the findings of the investigation against the behaviour as described in the CRNZ Constitution.
e.Recommendations to address any findings may be made, excluding any recommendation of disciplinary action.
Scope
The scope of the investigation is to cover the circumstances of the complaint, the actions complained of and any other relevant factors. The allegations about Mr Thompson made by other people which CRNZ is already aware of are specifically excluded as irrelevant factors and must not be taken into account. If during the course of the investigation, other allegations of a similar nature arise, the investigator will confer with the ICM regarding expanding the Terms of Reference. Mr Thompson will be consulted before any change to the Terms of Reference is made.
The investigator is also required to make enquiries into whether a complaint made by [C] was investigated in or around 1991, the process conducted in respect of any complaint made by [C], whether any process undertaken concerned the same allegation the outcome of the process (if any) and, if any
investigation or process was undertaken into the allegation in or around 1991, whether this investigation should continue.
The investigator is to be provided with all relevant documentation related to the allegations under investigation.
The investigator is to provide and undertake a fair, independent, and thorough investigation process, complying with the requirements of natural justice.
Mr Thompson will be given the opportunity to nominate potential witnesses. The investigator determines who is relevant to the investigation. Other interviews (for example, with witnesses) are to be undertaken at the discretion of the investigator. The investigator is to interview all participants independently.
Conflict of interest
No conflict of interest is declared by the investigator. However, if at any stage of the investigation a conflict of interest arises, this will be brought to the attention of the decision maker as soon as practicable.
...
[40] The only aspect of the terms of reference that potentially supports Mr Fraundorfer’s contention is paragraph (d) under the heading “Objective/Approach”: “Assess the findings of the investigation against the behaviour as described in the CRNZ Constitution”. However, the same paragraph appears in the terms of reference in relation to both A and B. Indeed, the three complainants’ terms of reference are almost identical. This suggests paragraph (d) in relation to C’s terms of reference did not require anything additional of Ms Casey concerning the constitutional position.
[41] Ms Casey’s reports in relation to C support this view. Ms Casey’s final report ends this way:
It is not within the scope of my terms of reference to express a view on any disciplinary response, or what the implications of this finding should be with regard to Mr Thompson’s current position and future with the sport. I note that the fact that this incident occurred 30 years ago, and under the aegis of the NZCA, before CRNZ was formed, poses some complex issues.
I have however been invited to make any other recommendations that I consider appropriate. While there may be debate about what powers CRNZ can exercise in relation to Mr Thompson, by initiating this investigation CRNZ has established itself as the successor to the responsibilities of NZCA in relation to [C].
NZCA failed to respond appropriately to this complaint at the time, and this significantly aggravated and perpetuated the harm caused to [C]. It will be a positive step for the current organisation to recognise and address this, and I recommend that at the very least a formal apology be offered, and consideration be given to what further steps could be taken to help address the harm so caused.
[42] Ms Casey’s draft report was in similar terms. Mr Thompson was given the draft report and commented on it. While Mr Thompson questioned CRNZ’s jurisdiction in his response, he did not assert Ms Casey had failed to comply with the terms of reference in relation to the constitutional position. Mr Thompson was legally represented throughout the process and his response ends by directing questions to his lawyers. So, there is little prospect the failure to raise the point represents lay oversight. All this implies Ms Casey was not required by the terms of reference to address what constitution existed in 1991.
[43] Finally on this issue, it is not clear how the alleged omission could constitute reviewable error in any event, for Mr Thompson now accepts the complaints were governed by the 2018 constitution, or as I have called it, the constitution, albeit beyond the purview of rule 10.3.18
Should the board have done more in relation to Mr Thompson’s witnesses?
[44] B said a few weeks after the incident, she told another canoer, P, about it. B said she thought P’s partner, M, was present at that time. Ms Casey interviewed both P and M. P said she did not recall B ventilating a complaint. M said he had “zero memory” of B doing so. M clarified what he meant by this: M said he was not saying B had not complained; rather, he was saying he had “zero memory” of any such complaint.
[45] M expressed concern about the fairness of Ms Casey’s investigation. Mr Fraundorfer says the board should have at least “paused” when it received Ms Casey’s report in relation to B because of the possibility that concern was valid.
18 Submissions on behalf of Mr Thompson dated 20 January 2023 at [2.6].
[46] Ms Casey addressed this point in her final report. During her interview of M, Ms Casey asked whether he had spoken to Mr Thompson about B’s complaint. M said he had done so approximately four months earlier. However, it later became apparent M and Mr Thompson had in fact spoken “only days” before M’s interview. Ms Casey recorded this in her draft report; so too unfavourable comment on M’s credibility. Ms Casey provided that section of her draft report to M. M responded that he had contacted Mr Thompson (days before the interview) as Ms Casey was “looking to prove a thesis rather than assess the facts”, and because he believed Mr Thompson “deserved to be aware of the slanted nature of the investigation”. However, as Ms Casey observed in her final report, that explanation was “clearly wrong” because at that stage of the investigation, she had done no more than contact M to arrange a suitable time to interview him.
[47] Two things follow. First, M’s alleged concern about fairness was voiced in anticipation of an adverse credibility determination by Ms Casey. Second, the chronology contradicted M’s concern. Again, Ms Casey and M had not even met at that point.
[48] The next issue concerns F. A said when Mr Thompson made the remark to her about putting her on her back in the Czech Republic, F was present. Ms Casey interviewed F. F’s evidence, and Ms Casey’s assessment of it, follow:
I spoke to [F] over the phone. He said he had no memory of hearing Mr Thompson make a sexualised comment to [A], even as a joke. He also said that he’d never heard Mr Thompson make a sexualised joke to any athlete. He said that he didn’t hear a comment like that and he thinks he would remember if he had, but he has no memory of it. I asked him whether it was possible that [A] could have heard something in a different way than he might have. His response was that she could have, saying “I am not sure, sorry. I don’t really know how she hears things.”
I asked him later in the interview whether when he said: “not that I can remember” did he mean he couldn’t remember a sexualised comment being made, or he did remember and it didn’t happen. His response was that “I do remember and it didn’t happen.”
I asked [F] at the start of the interview whether he’d heard about this complaint or spoken about this complaint with anyone else, other than Tom Ashley from CRNZ who had contacted him at my request to arrange for me to have his contact details. His initial reply was that he had first heard about the complaint from [A]’s brother later in 2020 and then talked to his own family about it. I then asked him directly if he’d spoken to Mr Thompson about it, and he
disclosed he had, but said that this was in the context of another conversation, also late in the year, where he [F] had called Alan about something else, just to catch up, and “it had come up”.
Mr Thompson’s evidence was however quite different. In his interview he said that on the day he received the complaint from CRNZ in early October last year he called [F] and at least two other athletes. He said he called them because he was trying to work out who was on that 2014 team. His purpose for doing so is unclear, and my inference is that he wanted to identify and potentially speak to team members as they were potential witnesses of the alleged incident.
Given Mr Thompson’s irate description of his views of the complaint even in his interview with me (that it was ‘bullshit’) it seems unlikely that he refrained from expressing similar views to [F] and the others that he contacted that day, and in his interview he talked about their response to the complaint in general terms. My view is that Mr Thompson contacted these athletes to confer with them about the complaint and I infer that he was seeking (expressly or by implication) support from them.
[F]’s failure to disclose this call from Mr Thompson in response to my direct question leads me to place limited weight on [F]’s evidence.
[F] was offered the opportunity to comment on this section of my draft report. He chose to do so through an unsigned statement provided by Mr Thompson’s lawyers. I had a number of concerns with that statement which I raised with Mr Thompson’s lawyers, who responded on behalf of [F] and Mr Thompson. The statement contains obvious errors. It appears to have been prepared at least in part by Mr Thompson’s lawyers, and agreed to by [F] without particular regard to its accuracy.
[F] says in his written statement that when he spoke to me in April 2021 and told me that he’d first heard about the complaint from [A]’s brother late in 2020, and that the only time he’d talked to Mr Thompson about it was also around that time where ‘it had come up’ in the context of a call about something else, he had forgotten about Mr Thompson’s call to him in October 2020 telling him about the complaint. I note that [F] had been provided with the transcript of my interview with him, and given the opportunity to correct any errors or provide further comment, so his failure to remember appears to have extended to through that process as well.
Even on the most favourable reading of this evidence, [F] either has a poor memory when it comes to matters that might be adverse to Mr Thompson, and/or does not exercise any particular care in the accuracy of his evidence. I remain of the view that [F]’s evidence should be given limited weight.
[49] Mr Fraundorfer says Ms Casey’s approach to F’s evidence is indicative of conflicts that occurred between Ms Casey and Mr Thompson’s witnesses, and the board should therefore have been wary the complete factual canvas was not before it.
[50] This submission does not really go anywhere. Mr Fraundorfer does not argue Ms Casey was not entitled to make factual determinations, including ones adverse to Mr Thompson or his witnesses. Nor does Mr Fraundorfer identify any error, as such, with Ms Casey’s approach. The submission comes close to an allegation of bias, but this is not pleaded. I, therefore, move to the next argument.
[51] A made other allegations about Mr Thompson, including that on the same trip to the Czech Republic, he joked about watching pornography with junior male canoers. I call these the other allegations. On 14 April 2021, Mr Thompson gave Ms Casey a list of 20 witnesses. Five were offered as character witnesses or referees, and nine as potentially rebutting the other allegations. The remaining six witnesses were identified as being part of the Czech Republic trip, including F, whose evidence I discussed earlier.
[52] Ms Casey did not interview the witnesses offered by Mr Thompson, other than F. Mr Fraundorfer contends this was unfair to Mr Thompson because:
(a)The other five Czech Republic witnesses might have had information relevant to A’s complaint.
(b)The nine concerning the other allegations might have had information relevant to the other allegations.
Mr Fraundorfer contends the board should not have acted on the reports, without first making factual inquiries of these witnesses.
[53]Ms Casey explained her position in relation to (a) in her final report:
Mr Thompson in his response to my draft report raises a process complaint, challenging my decision not to interview other possible witnesses. He claims that [A] during her interview with me named a number of persons who were “either present during the 2014 tour or who she alleges to have told about the incident”.
[A] in her interview referred to athletes that were on the trip but she could not recall who was in the room at the time of the alleged incident, other than [F], and possibly [someone else identified by A]. She was also clear that she didn’t talk to anyone on the tour about this incident. The first person she says she discussed the incident with was [redacted], some four years later. Other
people she spoke to were in more recent discussions, in the lead up to her decision to raise a formal complaint.
Once I had completed my interviews with [A] and [redacted], I did not consider it necessary to talk to others on the 2014 tour, who may or may not have been present in the room at the time of Mr Thompson’s alleged comment to [A], may or may not have overheard it, and may or may not have been contacted by Mr Thompson in October 2020. Absence of recollection would not establish that the incident had not happened. Nor at that stage did I consider it necessary to look for further evidence to corroborate that it had happened (and evidence of more recent discussions in the lead up to this complaint would not have been useful for that purpose in any event).
Mr Thompson provided further witness statements from three of the athletes on the 2014 trip (one unnamed) who each stated that they had not heard him make a comment of a sexual nature to a female athlete during the 2014 trip. Those statements do not take matters any further: they may not have been in the room at the time, or may not have heard the alleged comment.
Mr Thompson in his response to the draft report also referred to a conversation he says took place between his lawyers and another female athlete on the tour, who refused to provide a statements but told his lawyers that she had “nothing to say as the allegations are false”. Mr Thompson requested me to make contact with this person and obtain a statement. I have not done so, for three reasons. First, this person is apparently clear that they do not want to participate, and I have no powers to compel them. Second, [A]’s evidence was that she did not recall the other female athletes being in the room, and she is clear she did not talk to them about it afterward. This person is therefore unlikely to be able to give relevant evidence as to the facts of what happened at the time. Third, the reported statement that an athlete on the 2014 tour considers that the complaint is false is not helpful: unless this witness was standing by [A]’s side for every moment of every day on the tour, she cannot possibly know that this incident did not happen.
[54]Ms Casey also explained her position in relation to (b) in her final report:
Mr Thompson also challenged [A]’s credibility on the basis that other allegations she made in her written statement were also untrue. A number of these allegations were hearsay and [A] did not claim to know herself what the correct position was. I did not consider that any of them provided reliable support for her core allegation, and have not given them any weight in my assessment.
However, I also do not consider that they detract from [A]’s credibility. The experience and understanding of the culture of a group on tour may well differ between Mr Thompson, a senior male leader in his 50s, and [A], a young woman travelling with little support in a reasonably male dominated environment.
The specific allegation relating to pornography was carefully expressed: [A] said that Mr Thompson joked about watching porn with the young male athletes, but she did not know if he actually did. In my interview with Mr Thompson it became clear that male athletes may well have been accessing pornography, although Mr Thompson was clear that: (a) what they did was
their business; and (b) there was an agreed protocol that neither he nor any of the other managers would be party to that sort of conduct. [A]’s impression is not too far removed from even these limited concessions, and when these are considered in the context of the language that I have found Mr Thompson used to [A], joking about pornography would not be beyond the realm of possibility.
The specific claim about Mr Thompson telling [A] that his nickname (‘hose’) referred to the size of his penis was firmly denied. Mr Thompson said he would remember if she had asked him what his nickname meant, because hardly anyone ever did. He also explained that the nickname started as rhyming slang about the size of his nose, probably expanded to ‘hose nose’ because of his hayfever when he was young. That of course does not rule out the possibility that Mr Thompson gave a different and more offensive answer to [A], had she asked. His main response at our interview was that even if he had given this sort of answer he would not in fact have used the word penis, as that was not a word he used to refer to that part of his anatomy.
I asked [A] whether she was sure that Mr Thompson had used the word “penis”. She explained that the word was actually used by someone else: when she asked Mr Thompson what his nickname meant she says he smirked and said “wouldn’t you like to know” and that it was another athlete standing behind her (she cannot recall who) who joked that it referred to the size of his penis.
[A] also referred to being told by a young woman from the Poverty Bay club where Mr Thompson coaches that his behaviour is still concerning and is consistent with her experience in 2014. Mr Thompson provided references and suggested witnesses that I could speak to about the culture of this club, but he also accepted that the woman identified may well have been complaining about the club, describing that as ‘tittle tattle from [an] athlete that would do anything to get in a team’. Whether or not there are any issues in the Poverty Bay club is not within the scope of my investigation and I express no view on that either way. However, the point is that [A]’s credibility is not affected here: she describes only what she is told by someone that Mr Thompson appears to acknowledge might have been making such complaints.
To reiterate: my investigation is not about whether pornography was being watched on the tour or joked about, the meaning of Mr Thompson’s nickname, nor the culture of the Poverty Bay club. I make no findings on those matters. I have considered them solely in the context of Mr Thompson’s argument that [A]’s statements on these matters show that she is not credible, and support his position that she is deliberately fabricating her complaint against him. I do not find that to be the case.
[55] These reasons speak for themselves. It was open to the board to adopt them, without further action.
Should the board have employed procedures from the 1995 constitution?
[56] The 1995 constitution outlined different disciplinary procedures to those under the constitution governing the complaints. Under the 1995 constitution, disciplinary hearings involved oral evidence, including on behalf of a defendant. Mr Fraundorfer contends CRNZ should have utilised these procedures in relation to the complaints, or at least considered doing so, as they were more advantageous to Mr Thompson than those under the constitution.
[57] This submission cannot be reconciled with Mr Thompson’s acknowledgment the complaints were governed by the constitution.19 That being so, CRNZ was obliged to determine the complaints in accordance with it rather than the 1995 constitution.
Assessment of this ground
[58] As will be recalled, the overarching contention is that the final reports contain shortcomings, such that it was procedurally improper or unfair for the board to have acted on them without doing more. Again, I am unpersuaded this is so. Ms Casey was instructed to investigate the complaints. She did so. Ms Casey interviewed the complainants, Mr Thompson, and other material witnesses. Ms Casey released her draft reports for comment. Mr Thompson commented (extensively) on these. Ms Casey’s final reports contained unequivocal factual determinations that Mr Thompson had engaged in the conduct complained of, and reasons for those determinations. Mr Thompson may disagree with the determinations, but that does not constitute a basis for intervention. In short, the board was entitled to act on Ms Casey’s reports. For completeness, I add two observations.
[59] First, Ms Casey investigated each complaint independently of the others. She did not rely on what the Evidence Act 2006 calls “propensity evidence” or associated reasoning. Ms Casey did not do so because the board and Mr Thompson agreed each complaint should be investigated independently. It was open to the parties to agree this approach. Nothing, however, in the constitution required it.
19 Submissions on behalf of Mr Thompson dated 20 January 2023 at [2.6].
[60] Second, Mr Thompson does not argue expulsion in relation to the complaints of B and C constitutes a retrospective penalty in contravention of s 26 of the New Zealand Bill of Rights Act 1990. He is right not to do so as s 26 is concerned with criminal penalties, not those arising in a disciplinary setting.20
Did the board otherwise act improperly or unfairly in relation to Mr Thompson’s expulsion?
Should the board have afforded Mr Thompson 10 working days before it took further steps in relation to his expulsion?
[61] On 1 October 2021, Ms Casey gave the parties her final reports in relation to A and B. That in relation to C remained outstanding. Mr Thompson asked the board for 10 working days from the provision of the final report in relation to C before the board took further steps in relation to his expulsion. The board did not accord the request. On 22 November 2021, it gave notice it would seek Mr Thompson’s expulsion at a special meeting on 22 December 2021, based on the complaints of A and B. On 24 November 2021, Ms Casey gave the parties her final report in relation to C. On 29 November 2021, the board amended its 22 November notice to encompass C’s complaint as well.
[62] Mr Fraundorfer contends the board acted unfairly in not providing Mr Thompson the time he sought, and by “tacking on” C’s complaint to the existing notice.
[63] Rule 10.6 of the constitution, which I discussed earlier, is also relevant here. I set it out again:
Expulsion: The Delegates at a General Meeting may expel a Member if the Judicial Committee or Board makes a recommendation to do so, and a motion to that effect is notified in accordance with this Constitution. The motion for expulsion must be adopted by Special Resolution and shall not be voted on until the Member concerned has been given the right to be heard.
[64] As will be apparent from rule 10.6, Mr Thompson had a right to be heard before the vote in relation to the special resolution concerning his expulsion. However,
20 Z v Dentals Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.
Mr Thompson did not have a right to be heard earlier. More particularly, Mr Thompson did not have a right to be heard by the board before it recommended expulsion. That being so, the real question is whether Mr Thompson had adequate time to prepare between 22 November and 22 December 2021 in relation to A and B, and between 29 November and 22 December 2021 in relation to C.21
[65] Mr Fraundorfer did not identify any material prejudice in relation to these timeframes, and the pleadings do not articulate any. The timeframes do not appear unreasonable on their face. I, therefore, am unpersuaded of unfairness.
Did the board breach its undertaking to Mr Thompson about confidentiality?
[66] As will be recalled, the board suspended Mr Thompson 29 September 2020 following A’s complaint. The board told Mr Thompson it was “conscious” of his right to privacy, so too A’s right. The board said it would “keep this matter confidential during the course of the investigation”. It asked Mr Thompson to do likewise. The board gave the same undertakings in relation to B and C once it received their complaints. When the board gave notice on 22 November 2021 of its intention to seek Mr Thompson’s expulsion, it also issued this press release:
Media Statement – Canoe Racing New Zealand 22 November 2021
In October 2020, CRNZ received complaints alleging that a CRNZ member, Alan Thompson, had made inappropriate sexualised remarks to female athletes. One incident was alleged to have occurred in 1998, and the other in 2014. One of the incidents occurred overseas on a CRNZ tour, and the other at a competition in NZ. CRNZ will not disclose further details of the conduct at this time out of consideration for the privacy of the complainants.
On receipt of the complaints, CRNZ appointed Ms Victoria Casey QC as independent investigator via the SportNZ Independent Complaints Mechanism (which has now been superseded by the SRCMS). The CRNZ Board suspended Mr Thompson’s CRNZ membership pending resolution of the independent investigations. Mr Thompson denied (and continues to deny) that either incident occurred.
Both investigations concluded in October 2021. Ms Casey QC found that the alleged conduct occurred, and that the conduct was unbecoming of a CRNZ
21 Mr Fraundorfer does not contend the amendment of the notice (by adding C) contravened the notice provisions of the constitution.
member, and contrary to CRNZ’s goals. The CRNZ Board accepts Ms Casey QC’s findings.
Based on Ms Casey QC’s determinations, the CRNZ Board resolved to seek Mr Thompson’s expulsion from the CRNZ membership. In making this decision, the Board especially considered the following factors:
·The nature of the remarks, including their intent, the context and those present.
·The impact of the conduct on the female athletes.
·Mr Thompson’s continued denial of the conduct and lack of remorse.
·Ensuring a safe environment for all athletes who participate in canoe racing and CRNZ activities, both in NZ and in CRNZ’s care when on tour overseas.
·CRNZ does not condone or accept demeaning and/or sexually aggressive behaviour, particularly from those in positions of authority and/or power.
The CRNZ Constitution sets out that a member may be expelled only by Special Resolution of Members at General Meeting. As such, the Board has requested the CEO to call a Special General Meeting for 22 December 2021.
The result of the SGM voting will be made available on 23 December 2021 to the public and media.
On conclusion of this process CRNZ will be available for comment. The welfare and confidentiality of the complainants is of the highest priority for CRNZ. As is continuing our commitment to ensuring a culture where inappropriate behaviour can be addressed in a secure and confidential manner and the appropriate process can be followed.
[67] Ms Shearer, the chairperson of CRNZ, says the board took this step as it believed “Mr Thompson’s expulsion would be leaked to the media quickly”.
[68] Mr Fraundorfer contends the board breached its undertakings about confidentiality by issuing the release, and in any event, acted unfairly in doing so.
[69] The board’s undertakings concerned “the course of the investigation” in relation to A, B and C. Plainly, the investigations in relation to A and B had ended by 1 October 2021, when Ms Casey issued her final report in relation to those complainants. That being so, the 22 November press release did not breach the undertakings in relation to those complainants.
[70] As to unfairness, publicity could conceivably generate pressure being placed on members, particularly member clubs, to vote in favour of Mr Thompson’s
expulsion.22 However, that outcome could also reflect the nature and gravity of Mr Thompson’s behaviour. Furthermore, Mr Thompson’s suspension had attracted publicity, and it was rational to expect more.23 Importantly, the board’s press release contained: (a) no more information than that in the 22 November notice; and (b) nothing inaccurate. For these reasons, I am not persuaded of unfairness by virtue of the press release.
Was Mr Thompson’s right to be heard afforded in relation to expulsion?
[71] The special meeting to determine expulsion was held 22 December 2021, at 7 pm, by Zoom. Events leading to the meeting are also relevant. On the morning of 13 December 2021, the board offered Mr Thompson the opportunity to provide a letter to members as part of a proposed information pack, provided it did not defame the complainants, contain further evidence in respect of the complaints, or conflate them “with what Mr Thompson describes as his ‘ongoing dispute’ with CRNZ”. Mr Thompson’s lawyers contested these conditions.
[72] On 15 December 2021, the board gave members the information pack, which included Ms Casey’s final reports and a short statement by each complainant about the effects of Mr Thompson’s behaviour.24 The pack contained nothing from Mr Thompson, as he had not provided the board anything.
[73] On 21 December 2021, Mr Thompson gave members an eight-page submission directed at why he should not be expelled.25 That afternoon, Mr Thompson’s lawyers asked the board to confirm they were “not invited to attend the [special meeting] or speak on his behalf”.
[74] Absent a response, they asked again at 5.07 pm, 22 December 2021. The board replied three minutes later, saying his lawyers may attend but not address the meeting.26
22 Some members are individuals; others are clubs.
23 There is an evidential contest as to how the media came to know of Mr Thompson’s suspension. It is not necessary to resolve this.
24 Their details were redacted.
25 The submission challenged the legality and fairness of the process; it did not constitute a plea in mitigation.
26 The lawyers chose not to attend.
[75] Speakers at the meeting were asked to confine their addresses to three minutes, except for Mr Thompson, who was given a maximum of 30 minutes. Speakers were also asked to remain on point by these remarks in the information pack:
Scope of discussion:
The SGM can only consider the business presented to it on the agenda, which is to consider the expulsion of Mr Thompson on the basis of the CRNZ’s Board recommendation following an independent investigation of Mr Thompson’s conduct. The independent investigation found that Mr Thompson’s conduct is prejudicial to the objects or the interests of Canoe Racing in New Zealand and/or brings the sport of Canoe Racing into disrepute. The Clubs are asked to decide whether to accept the Board’s recommendation to expel Mr Thompson under Rule 10.6 of the CRNZ constitution.
Please restrict all comments accordingly.
Speakers who comment on matters outside this limited scope will be asked to stop and / or put on mute by the Chair.
All speakers are asked to be respectful and considerate in your comments to all parties involved, and in particular to the complainants.
[76] Mr Thompson contends his right to be heard at the special meeting was not afforded.27 In advancing this contention, Mr Fraundorfer does not argue Mr Thompson was entitled to have his lawyers speak at that meeting, presumably because the constitution regulated who may address meetings. Rather, Mr Fraundorfer invites attention to the surrounding circumstances, including what he describes as the board’s “control” of information by provision of the pack on 15 December 2021, and its restriction of speaking time to 30 minutes. Mr Fraundorfer says these limitations meant Mr Thompson had no true opportunity to be heard in relation to expulsion before members voted on that.
[77] Unsurprisingly, no formula exists for determining whether someone’s right to be heard has been afforded. This may reflect the elasticity inherent to the right; what it requires is a function of time, place, and circumstance.28 With this in mind, I make six points.
27 Under rule 10.6 of the constitution.
28 Vandervis v Dunedin City Council [2022] NZCA 219 at [38]–[39].
[78] First, while it is not wrong to describe the board as “controlling” the information to members, a more neutral expression would be that the board “supervised” the information to members. The latter better captures what occurred, as the board had obligations beyond those to Mr Thompson, including the complainants. Those obligations were squarely engaged because Mr Thompson had expressed strong views about the veracity of the complaints. For example, he had described A’s complaint as “bullshit”. Nothing suggested Mr Thompson’s position had changed in relation to the complaints.
[79] Second, as recorded in the notice, the board accepted Ms Casey’s factual determinations, and by virtue of them, concluded Mr Thompson acted in a manner unbecoming of a member, or prejudicial to the objects or interests of CRNZ, and brought CRNZ into disrepute. In terms of the constitution, the board had, pursuant to rule 10.3(c)(ii), made “its own enquiries” (through Ms Casey), and was seeking to “impose any sanction” by expulsion.29 So, and importantly, the inquiry was penalty, not liability.
[80] Third, the board provided Mr Thompson an opportunity to include material in the information pack germane to penalty. When that opportunity passed, Mr Thompson provided a submission to members addressing process, including contentions the complaints had not been established, and penalty.
[81] Fourth, a 30-minute speaking restriction would be difficult to reconcile with the right were the inquiry liability. But, as observed, that was not the inquiry. That Mr Thompson may, for example, have wanted more time at the meeting to challenge process or liability, is, therefore, beside the point.
[82] Fifth, the board’s restrictions on comments, as to which see [75], were to insist on no more than relevance given its earlier determination of liability.
[83] Sixth, no technical, legal issue arose that would have benefited representation at the special meeting.
29 Emphasis added.
[84] For these reasons, I am not persuaded Mr Thompson was not afforded his right to be heard in relation to expulsion.
Other arguments
[85] Mr Fraundorfer offered other process arguments ultimately directed at expulsion. There is nothing in these. However, as will become apparent, I reach a different conclusion about Mr Thompson’s right to be heard on suspension.
Was Mr Thompson’s right to be heard afforded in relation to suspension?
[86] Rule 10.4 of the constitution gave Mr Thompson the right to be heard on suspension.
[87] On Friday, 25 September 2020, at 1.33 pm, the board informed Mr Thompson of A’s complaint and that it was proposing to suspend him pending determination of that complaint. The board asked Mr Thompson to respond by 5 pm the next day. Mr Thompson’s lawyers replied Friday evening, describing the timeframe as “entirely unreasonable”. They asked for more information and thereafter, seven days to respond.
[88] The evidence is not clear whether the board decided to suspend Mr Thompson on Sunday, 27 September, or Monday, 28 September. Whatever the position, on Tuesday, 29 September 2020, the board told Mr Thompson it had suspended his membership in light of A’s complaint.
[89] Mr David contends the timeframe for Mr Thompson’s response was not unreasonable because the complaint was serious and Mr Thompson and A would otherwise be attending a regatta beginning 10 October 2020, Mr Thompson as a coach.
[90] These factors warranted a prompt response from Mr Thompson in relation to suspension; plainly, that had to be resolved before the regatta.30 However, they cannot
30 Unless perhaps Mr Thompson undertook not to attend.
justify CRNZ’s requirement for a response within approximately 27 hours, particularly as:
(a)There is no evidence Mr Thompson had earlier knowledge of A’s complaint. It follows he had to digest both it and the prospect of suspension.
(b)The timeframe began on a Friday afternoon and ended the next day— a Saturday.
(c)Obtaining meaningful legal advice in these circumstances was likely to be very difficult.
[91] That being so, and as Mr Thompson was not given any other opportunity to be heard in relation to suspension, that right was not afforded.
[92] This is not to conclude Mr Thompson needed a full seven days to respond, as his lawyers sought. Nor is it to conclude Mr Thompson needed “full disclosure … including supporting witness statements” in relation to the complaint, as his lawyers also sought. Again, it is to conclude Mr Thompson’s right to be heard was not afforded given the circumstances emphasised at [90], and the absence of any other opportunity to be heard before the decision was made to suspend him.
Did CRNZ breach contract?
[93] Mr Thompson’s pleadings advance a contractual claim based on the same grounds as those animating his claim for judicial review. Given my conclusions, only one issue arises: by not affording Mr Thompson’s right to be heard on suspension, did CRNZ breach contract?
[94]Mr Fraundorfer says, yes. He notes rule 2.1(o) of the constitution provides:
Act in good faith and loyalty with its Members to ensure the maintenance and enhancement of Canoe Racing in New Zealand including its standards, quality and its reputation for the collective and mutual benefit of Canoe Racing NZ and its Members.
[95] Mr Fraundorfer says it follows CRNZ had a contractual obligation of good faith to Mr Thompson, and it breached this obligation by not affording his right to be heard on suspension. Mr Fraundorfer contends an absence of good faith may be inferred from surrounding circumstances, including this email from Ms Shearer to other members of the board on the morning of Friday, 25 September 2020:
Morning
After further consultation including legal advice from Russell McVeagh, Sport NZ and ICM, the below and attached are the advised next steps.
The recommendation proposed to the Board is as follows:
·The Board considers suspending Mr Thompson under clause 10.4 pending investigation of this complaint (the Board before deciding to suspend, consults with Mr Thompson and reviews his feedback – can be perfunctory);
·We appoint the SportNZ Independent Complaints Mechanism as the investigator (SportNZ has agreed to support this – the Complaints Mechanism is run by Steph Dyhrberg who has indicated she is willing to take this matter);
·The ToR of the delegation to the ICM could be to investigate the facts and report their findings to the CRNZ Board;
·The Board acts on the findings of the ICM under clause 10.
Please let me know if you firstly have any questions and secondly if you are in agreement with this complaint being sent to Alan Thompson. We will need to listen to his feedback and then decide on whether to suspend him from CRNZ – suggested this is a reasonable quick turnaround for Alan (48 hours).
If the Board agrees, this can be sent today. Thanks
Jan
[96] Mr Fraundorfer places weight on Ms Shearer’s use of the term “perfunctory” in apparent reference to the right to be heard and the board’s consideration of suspension.
[97] I assume, without deciding, rule 2.1(o) has the effect contended for, and make five points.31
31 The rule is arguably more subtle than posited, in that the good faith obligation appears to be qualified to “the maintenance and enhancement of Canoe Racing in New Zealand …”.
[98] First, that the process could be “perfunctory” is, in context, also consistent with it being uncomplicated and swift.32 The fact of the pending regatta supports that view. Second, it is clear from Ms Shearer’s email and other board correspondence that CRNZ took legal advice before suspending Mr Thompson. Third, it is equally clear from surrounding correspondence CRNZ took that advice seriously. Fourth, the same correspondence also exhibits genuine concern on the part of the board about the gravity of A’s complaint, and that rather than any animus appears to have motivated the board to move swiftly. Fifth, there is nothing unusual or untoward in the fact CRNZ and Mr Thompson engaged in a procedural arm-wrestle. That they disagreed sharply about process does not imply an absence of good faith on CRNZ’s part.
[99] For these reasons, I am not satisfied CRNZ failed to act in good faith in relation to Mr Thompson’s suspension (despite my conclusion Mr Thompson’s right to be heard was not afforded).
Summary of conclusions
[100] CRNZ had the power to expel Mr Thompson in relation to B and C. Mr Thompson was not sanctioned by NZCA in relation to C in 1991. The board was not required to take further steps once it received Ms Casey’s final reports; it was open to the board to act on those reports. The board did not otherwise act improperly or unfairly in relation to Mr Thompson’s expulsion. However, Mr Thompson’s right to be heard on suspension was not afforded. No breach of contract is established.
Remedy
[101] Mr Thompson and CRNZ agreed before the hearing this judgment should address liability only, not remedy.33 I respect that. However, given my conclusions, it may be remedy can be agreed, most obviously, a declaration CRNZ did not afford Mr Thompson’s right to be heard on suspension. Failing agreement, the parties may file memoranda according to the timetable below, identifying what further steps they envisage.
32 Neither party sought cross-examination of any witness.
33 Joint memorandum of 20 October 2022 at [2].
Result
[102] The judicial review claim succeeds, and is upheld, to the extent CRNZ did not afford Mr Thompson’s right to be heard on suspension. Every other aspect of the judicial review claim fails and is dismissed.
[103]Every aspect of the contract claim fails and is dismissed.
Costs
[104] This may be a case in which costs should lie where they fall given the breadth of Mr Thompson’s claims. Failing agreement, the parties may file memoranda of not more than 12 pages each, including as to remedy:
(a)On or before 15 August 2023 on behalf of Mr Thompson.
(b)On or before 29 August 2023 on behalf of CRNZ.
……………………………..
Downs J
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