Woods v Kapiti Coast District Council

[2014] NZHC 1661

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-008047 [2014] NZHC 1661

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review and an application for declaration
BETWEEN	MICHAEL JOHN WOODS Plaintiff
AND	KAPITI COAST DISTRICT COUNCIL Defendant

Hearing:	14 July 2014
Counsel:	Plaintiff in person Defendant abides the decision of the Court
Judgment:	15 July 2014

JUDGMENT OF COLLINS J

Introduction

[1]      This judgment  explains why I am dismissing Mr Woods’ application for

judicial review.

[2]      The  application  for  judicial  review  alleges  that  Ms  Chapman,  a  former member of the Kapiti Coast District Council (the Council) should not have participated in  a vote taken  on  10  June 2010  in  which  the Council  decided to continue adding fluoride to community water supplies.

[3]      Mr Woods seeks a declaration that Ms Chapman had a conflict of interest when the vote was taken because at the time she was the Deputy Chairperson of the Mid-Central  District  Health  Board  (the  Health  Board)  and  the  Health  Board

supported adding fluoride to water.

WOODS v KAPITI COAST DISTRICT COUNCIL [2014] NZHC 1661 [15 July 2014]

The pleadings

[4]      Mr Woods’ statement of claim was filed on 29 October 2013 and is now

confined to an application for a declaration that:

(1)Ms Chapman had a conflict of interest when she voted to continue supplying fluoride to the community water supplies;

(2)       Ms Chapman should have declared this conflict of interest;  and

(3)       Ms Chapman should not have voted on 10 June 2010.

[5]      The Council has filed a statement of defence in which it pleads that:

(1)       Ms Chapman brought an open mind to the decision made on 10 June

2010 in relation to continuing fluoridation;

(2)Ms Chapman’s position as Deputy Chairperson of the Health Board did not affect her decision-making capacity;

(3)       Ms Chapman did not have any pecuniary interest in the decision; and

(4)       Ms Chapman did not breach the Council’s code of conduct for elected

members by participating in the vote.

[6]      The Council, having filed its statement of defence has now elected to abide

the Court’s decision.

[7]      Ms Chapman was afforded an opportunity to be heard.  She has declined that opportunity.

[8]      Neither Mr Woods or the Council has filed any evidence.  Instead, Mr Woods has filed detailed submissions and supporting documents, including the minutes of the Council for 10 June 2010.

Mr Woods’ case

[9]      On 10 June 2010 the Council considered 129 submissions it had received in relation to the fluoridation of the water supplies for Waikanae, Paraparaumu and Raumati.

[10]     The minutes of the Council show that employees of the Council prepared a report1  which summarised issues and submissions relating to fluoridation of the Council’s community water supplies. The report to the Council also explained issues relating to procedural fairness in relation to pre-determination and bias and that the role of councillors was “… to act on behalf of the whole district and [that they] are both advocates and decision makers”.  The minutes also note Mr Woods addressed the  Council  as  a  member  of  the  public  and  spoke  against  fluoridation  of  the Council’s community water supplies.

[11]     At the meeting Ms Chapman and four councillors voted to continue adding fluoride to the community water supplies.   Five council members voted against continuing the addition of fluoride to community water.  The mayor did not use her casting vote. Therefore the status quo prevailed.

[12]     At the time, Ms Chapman was also the Deputy Chairperson of the Health Board.    Mr  Woods  submits  Ms  Chapman  had  a  conflict  of  interest  when  she supported  the  continuation  of  fluoridation  of  the  Council’s  community  water supplies because of her duties and responsibilities as a member of the Health Board.

[13]     Mr  Woods’  detailed  submissions  on  this  point  can  be  distilled  to  the following key elements:

(1)The Health Board is a party to a Crown Funding Agreement which requires  the  Health  Board  to  support  policies  of  the  Ministry  of Health.

(2)The Ministry of Health has funded a national fluoride information service to  provide  co-ordinated clinical  and  technical  support  and

1      Referred to as an affidavit in the minutes.

advice on water fluoridation to District Health Boards and territorial local authorities.

(3)      The  Health  Board  had  a  responsibility under  the  Crown  Funding

Agreement to promote the use of fluoride in community water.

(4)Ms Chapman, in her capacity as a member of the Health Board, was required to promote water fluoridation.

[14]     Mr Woods submits Ms Chapman had an obligation to identify her conflict of interest and disclose that conflict in a timely and appropriate manner to the Council. Mr Woods maintains that Ms Chapman’s failure to manage her conflict of interest risks undermining public confidence in the Council and had the practical effect of allowing fluoridation to continue to be placed in the Council’s community water supplies.

[15]     Mr Woods also submits I should conclude Ms Chapman had a pre-determined view about the fluoridation of water and a conflict of interest because of an article written by Ms Chapman which was published in the Otaki Mail on 26 November

2013.    That  article  records  Ms  Chapman’s  support  for  water  fluoridation  and describes water fluoridation opponents as “a small group of individuals who decry science”.

Analysis

[16]     There are two key issues raised by this proceeding, namely:

(1)Did Ms Chapman have a conflict of interest when she voted in favour of   continuing   fluoridation   of   the   Council’s   community   water supplies?

If so,

(2)Should  I exercise my discretion to  grant Mr Woods the relief he seeks?

Did Ms Chapman have a conflict of interest?

[17]     A conflict of interest may arise in the public sector where an official’s duties and responsibilities to a public entity could be influenced by other interests or duties that official may have.  There is a potential for a conflict of interest where there is a convergence of an official’s duties and responsibilities to a public body with their personal interests or their duties and responsibilities to another entity or person.

[18]     In the present case there is no suggestion Ms Chapman had a personal interest in  the  decision  she  made  when  she  cast  her  vote  on  10  June  2010.    Instead, Mr Woods has focused upon Ms Chapman’s dual roles as a member of the Council and the Health Board.

[19]   Conflicts of interest that arise through a public official’s conflicting responsibilities  to  a  public  body  and  another  entity  or  person  may  lead  to  the official’s decision being challenged on the basis of apparent bias.2   Although he did not refer to the concept of apparent bias, Mr Woods advanced his case by referring to the reasonable  apprehension  test  which  is  applied  when  deciding  if  a  decision- maker’s decision needs to be set aside because of his or her apparent bias.

[20]     In the present context, the test is whether “… a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”.3

[21]     In the present case, the material placed before me demonstrates:

(1)       The Health Board had a responsibility to promote fluoridation in the

Council’s community water supplies.

(2)       Ms Chapman was an official of the Health Board.

2      Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 148 (Cooke P:

observing that implicitly, conflicts of interest fall under the head of apparent bias).

3      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1

NZLR 35 at [37], [80], [89] and [129].

(3)Ms Chapman and other officials of the Council were very clearly warned about their duties and responsibilities in relation to avoiding bias and conflicts of interest.

[22]     This does not, however, mean that Ms Chapman had a conflict of interest or acted with apparent bias when she voted in favour of continuing the fluoridation of the Council’s community water supplies.  The fact that Ms Chapman was an official of the Health  Board does  not  mean  that  she  must  have failed  to  have put  her obligations and responsibilities to the Health Board aside when she cast her vote on

10 June 2010.

[23]     In  my  assessment,  a  fair-minded  member  of  the  public  knowing  that Ms Chapman had been clearly warned about the need for her to bring an open mind to her decision-making and to discharge her responsibilities to the whole Council would not have reasonably apprehended that Ms Chapman would have ignored this advice.

[24]     The article written by Ms Chapman in the Otaki Mail does not assist Mr Woods’ case.  That article was published three years after the decision in question. The newspaper article does not provide evidence that can be retrospectively applied to impugn the position Ms Chapman took on 10 June 2010.

Should I exercise my discretion to grant Mr Woods relief?

[25]     Even if Mr Woods had surmounted the evidential burden that he faced, I would not have issued a declaration in this case.   I would not have issued a declaration because of the very significant time lapse between the Council voting on

10 June 2010 and Mr Woods’ application for judicial review.

[26]   Applications for judicial review invoke the High Court’s supervisory jurisdiction.   It is well established that delay in seeking relief by way of judicial review is a factor that weighs against the High Court exercising its discretion in

favour of granting relief in judicial review proceedings.4

4      Turner v Allison [1971] NZLR 833 (CA) at 850; Hill v Wellington Transport District Licensing

Authority [1984] 2 NZLR 314 (CA) at 321; Fraser v State Services Commission [1984] 1 NZLR

[27]     I appreciate Mr Woods commenced his application for judicial review after he became aware of similar issues in Hamilton.  That factor, however, would not in itself  have  been  sufficient  to  persuade  me  to  exercise  my  discretion  to  grant Mr Woods’ application.

Conclusion

[28]     For these reasons, Mr Woods’ application for judicial review is dismissed.

[29]     The parties have agreed no costs be awarded.

D B Collins J

Solicitors:

Simpson Grierson, Wellington for Defendant

116 (CA) at 123 and Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [66].