IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV 2011-409-001493
BETWEEN
TIMOTHY PETER SIMS HOWE
Plaintiff
AND
AARON VERNON LEE KEOWN
Defendant
Hearing:
30 August 2011
Counsel:
A J Forbes QC and JWA Johnson for Plaintiff
N Till QC and J Cowan for Defendant
Judgment:
2 September 2011
JUDGMENT OF FOGARTY J
Introduction
[1]
In May 2012 the first term of appointment of the CEO of the Christchurch
City Council expires. The defendant is a councillor of the Christchurch City
Council. The Council has advertised the position of Chief Executive. The
incumbent Chief Executive is applying. The defendant supports the retention of the
incumbent. He has said so publicly. The plaintiff, a concerned ratepayer, seeks an
injunction to prevent the defendant participating in the deliberations over the
appointment, on the grounds that he is not impartial. The defendant has not
challenged his standing to do this, as he wants a decision on the merits.
[2]
The application asks this Court to exercise its inherent power to maintain the
rule of law by judicial review of the exercise of government powers. The common
law requires that all public law powers should be exercised for their proper purpose
and fairly. If public powers are being breached, or used unfairly, the High Court may
intervene with the remedy of injunction. A public power cannot be exercised by any
person for private advantage, including to favour or disfavour any person with whom
HOWE V KEOWN HC CHCH CIV 2011-409-001493 [2 September 2011]
the decision-maker has a personal relationship, or financial interest. Where a person
has such a connection, the law assumes, reliably, that there is a material risk that the
decision-maker will exercise the public power for the wrong reason, consciously or
unconsciously, because the decision will be tainted with improper partiality for a
person. If such a decision-maker actually so favours another, she or he is said to be
biased, and if there is a real danger that she or he may so favour another, consciously
or unconsciously, there is a risk of apparent bias. Either way the Court will
intervene.
[3]
The plaintiff relies on three separate actions of the defendant, which counsel
say, taken cumulatively, demonstrate that he has pre-determined the appointment,
which is the first ground of argument; demonstrated apparent bias, which is the
second ground; and breached the statutory code of conduct in that he is not objective
and has demonstrated a real danger of bias in that he might unfairly regard with
favour the application of the incumbent, and with disfavour the application of other
applicants.
[4]
A person can be predetermined upon an outcome without being biased in
favour of any particular person. A person can be biased without being predetermined
as to an outcome. It is dangerous to think of bias and predetermination as synonyms.
My reasoning will distinguish between these two concepts.
[5]
The ultimate issue in this case is whether the defendant so favours the
retention of the Chief Executive that he should either stand aside, or be excluded by
injunction from participating in the Council‟s deliberations.
[6]
I analyse this issue in three parts. First, I will make findings of fact as to the
conduct of the defendant, and the inferences that can be drawn as to the nature of the
favouritism, and whether there are any qualifications to it.
[7]
Second, I will examine the process that Parliament requires the Council to
follow. I will include in that analysis, an examination of the extent to which the law
allows councillors to form a policy favouring the retention of the incumbent Chief
Executive Officer, and when the law requires the Council to advertise the position,
whether or not the Council is dissatisfied with the performance of the CEO, and
whether or not the CEO wants to continue.
[8]
Third, I will take these findings of fact and statute law, and then apply the
common law against predetermination and the common law against bias, to see if the
remedy of injunction should issue.
[9]
I turn to the first part of my analysis examining the conduct of the defendant.
The conduct of the defendant
[10]
The first act relied upon by the plaintiff is a letter that the defendant wrote to
The Press on 18 April 2011. In part of that letter he said:
I would like to make it publicly known that I have become very impressed
with the way our CEO has run this organisation.
Sometimes you have to give credit where credit is due.
Tony Marryatt now has my respect.
Mr Marryatt is the incumbent CEO.
[11]
The second conduct relied upon by the plaintiff took place at a meeting held
by the councillors to which the Council staff and the public were excluded. It is said
to have been around about 25 May. At this meeting the defendant asked each of the
other councillors if he or she supported the incumbent Chief Executive.
[12]
The third conduct of the defendant relied upon by the plaintiff is an interview
that he had with Ms Susi McLean on Newstalk ZB on 10 June 2011. This was the
day that the Council decided to commence the process of advertising for a new Chief
Executive. Ms Susi McLean is the interviewer. The defendant‟s first name is Aaron.
Susi McLean Aaron, good morning
Aaron
Yes, good morning Susie, how are you?
Susi McLean I am very well thank you. How are things in your world?
Aaron
Pretty good, pretty exciting of course, we are going to
annual plan again today, had a big meeting yesterday, but
that wasn‟t the reason why I was calling you.
I had had some feedback, I had heard the start of your show
yesterday, and then had feedback from some people during
the day on what might have been on there, and I was quite
upset about it, and I really needed to give you a ring.
Susi McLean Go for it.
Aaron
And get a couple of things straight. Our Mayor has been
accused of some stuff that he hadn‟t done. Um, in the so
called leaks. So I think there is a reference in there that the
Mayor had gone around and asked, been a bully and asked
all the Councillors if they had supported Tony Marryatt, and
that wasn‟t actually the case.
So I‟m going to put my hand up here and say that it was
actually me that asked at that meeting that we had a couple
of weeks ago.
I can put it in context for you why I asked, but before I
would do that I would probably ask you – do you support the
boss at your place?
Susi McLean Aaron, can I just ask the question though, yes, I support my
boss, however I‟m just trying to think of the difference here,
however are you involved in the selection process?
Aaron
The entire Council is, yes.
Susi McLean Yes, so I guess the difference is this – I do support my boss,
but then I‟m not involved in hiring him. So, for me to
publicly support my boss, well for starters, I get my pay
cheque and it‟s politics, and it‟s a good thing to do as an
employee but I‟m not involved in the selection process.
I think the difference with you guys is – you are – you‟re
part of the recruitment panel. So to openly support one
candidate when you are opening the net up wider to
hopefully attract more, doesn‟t just seem like a great process
to me.
Aaron
True, it could be seen like that, but that wasn‟t the context of
the question.
It was around – I was asking the question based around legal
process, because the only reason that we – well in my mind
– that we are going out to consult – because Tony‟s contract
runs until next year, its May next year – so there is not going
to be a big change in the near future.
His contract runs until then, and legally you have to
advertise it.
The question I posed was, if you owned a company, your
company through no fault of your own, ie an earthquake was
in the worst situation it had ever been in its entire history,
and you had a CEO at that company that had the full support
of all his staff, not necessarily just the elected members, I
know the senior management staff and the staff at the
Council really support their boss.
Why would you go changing the captain of the ship? That
was the question I was asking.
And I was told it was a legal one, and it was in that, that I
asked whether people supported Tony, so that was the
context there.
Susi McLean And I guess for the people of Christchurch we need to then
understand – this is – either one of two things is going on,
either council is just going through a process and just going
through the motions in advertising the city manager‟s job
because it has to and it‟s not desiring change and therefore
the question is raised how seriously are you going to take
this process with any other candidate that turns up.
Or there‟s a genuine process designed to open the net wider
to ensure that we get the very, very best city manager that
we can get. So which of those two things is it?
Aaron
It is the latter because probably, I‟m not saying definitely,
but probably given Tony Marryatt‟s track record and the
local government, he will most likely be the best candidate
there is but that is not guaranteed because Rob Fyfe might
throw his hat in the ring.
Now Rob doesn‟t have a history in local government or
understand the CERA Act. But he might be the best
candidate on the day and therefore he would win. So it is
genuinely open. It‟s been pretty well advertised as in the
front page of the paper, so everyone knows it‟s coming up.
I think it officially opens as of this weekend and then the
ads will start next week in the paper. So it‟s ...
Susi McLean [interrupts] ... Do you know, Aaron, I think the muddle that
you guys have got yourselves in and you are in a muddle
with this one and it‟s even sounding muddily as we‟re
talking you know, I think the muddle has happened that
somehow there has been the aspersion or the inference that
the reason this job is being advertised is that councillors
and/or other influential people are unhappy with the
performance of the city manager.
Yeah?
Aaron
No. No, not at all. His contract runs out in May next year,
so that‟s why his contract has to be advertised. We are
allowed to roll over for two more years ...
Susi McLean Right.
Aaron
... but Tony‟s more committed to the city than that. And he
wants to see it through for five because that‟s what he just
did, he again wants to do another five. For that to happen –
so for him – so basically he‟s putting his job on the line.
This isn‟t the other way around. He can, by rights, just get a
two year rollover and he‟s back for three years from now.
So ...
Susi McLean [Interrupts] Right. What you‟re saying is that the job is not
up for grabs because you‟re unhappy with Tony‟s
performance; it‟s up for grabs because it‟s a legal
requirement.
Aaron
Exactly.
Susi McLean I guess what I would say to take it one step further, Aaron, is
that‟s all well and good, but for the people of Christchurch
you guys may not see a need to look for skills beyond the
city manager you have, but for the rest of us, we see this as
an opportunity to cast the net and see who is out there and
what‟s going on.
And I guess that as a city, as a rate payer, I would hope that
you are going to take that opportunity really seriously and
not just have a tick box process around the selection.
Aaron
No. No, we definitely will, but here‟s the bonus for the city
is that you already have within – because I mean there‟s
over 2000 staff in the Council and imagine how much of an
upset in the ship if a third disappeared in a year because
they didn‟t like the new CEO.
Under the old CEO that won‟t happen so – and it is not the
time for sweeping change but it is the time to have the door
open and if there‟s someone better there, they will get the
job, there‟s no doubt there at all.
Our luck for the city is that the old CEO is not saying I am
leaving town, I am moving on, this is it for me. He is saying
I am putting my name forward – so you have got a really
strong benchmark to judge the others against.
If he was not there, then you really have to take what comes
along – you actually have to or otherwise you won‟t have a
CEO.
Susi McLean Sure.
Aaron
... Whereas at this point we have got a really good one, we
might get a better one, if we don‟t get a better one, we have
still got a really good one – so for the city‟s sake, it is a
really good thing.
Susi McLean Hey Aaron, have you guys had legal advice on the situation
you are in now, particularly with some of the comments that
the Mayor is alleged to have made in support of the current
city manager.
Aaron
Umm. Yeah, yeah we have, and as far as we have been told,
the Mayor hasn‟t breached anything because he has just said
that of all the CEOs he has worked with, he has found Tony
to be one of the best.
There is nothing wrong with that – I don‟t see – you must
support, just like Mark Christianson is the head of our
drainage, our water and waste. He is one of the best in the
country – we have got no problems saying that. We have
really good people in the city – we should support that and
support them when that question is asked.
It would be nothing worse, imagine the turmoil our city
would be in if the Mayor has said, oh gee, the CEO is pretty
average I think, crikey, that wouldn‟t be very good for our
city.
Susi McLean Yeah, but I do think that the prudent thing to do would
actually not to be commenting on the performance of any of
the applicants for this job.
Hey look we have got to run Aaron. Thank you very much
for your call ...
Aaron
[Interrupts] One more thing Susie, so it was me who said
that, not Bob, and Bob did say yesterday that if someone
better does come along, they will be the CEO – so he said
that in his own words as well.
Susi McLean Good stuff, thanks for clarifying that Aaron and we will let
you get back to your city planning debate.
[13]
Mr Keown, in an affidavit, explained the context of these three different
incidents: his letter to
The Press, his asking councillors whether they supported the
CEO, and the reason for the Newstalk interview. His evidence is that:
3.
Prior to being elected as a Councillor I had limited knowledge of the
incumbent Chief Executive Mr Tony Marryatt. I had never met
Mr Marryatt. My knowledge of him was restricted to such
information as was available to me as a member of the public from
the media. I had formed some adverse views of Mr Marryatt‟s
performance, which I expressed on a number of occasions and in a
number of different venues, including:
(a)
I had been a member of a group known as City Vision which
was critical of the Council and Tony Marryatt as its CEO;
(b)
In public election debates I had criticised Mr Marryatt‟s
value;
(c)
On radio I had challenged the level of salary paid to
Mr Marryatt.
4.
Following my election I had some, but limited, dealings with and
opportunity to assess Mr Marryatt prior to the earthquake of
22 February 2011. Following that earthquake I had direct
experience of Mr Marryatt‟s leadership as Chief Executive. I was
impressed with the manner in which he dealt with that emergency
and the manner in which he communicated with and led the
employees of the Council during particularly stressful and trying
times.
5.
As a result of that experience I gained confidence in Mr Marryatt‟s
ability. I wrote a letter to the Press conveying that confidence in
him. I wrote the letter solely/primarily to redress my prior criticism
of him. ...
6.
My letter was written prior to my having knowledge of the
forthcoming expiry of the Chief Executive‟s appointment and
therefore had no bearing whatsoever on the appointment process
which is now impending.
7.
I subsequently became aware that the Chief Executive‟s contract
expired in May 2012. There was consideration by Council of what
would happen including the following:
(a)
About a couple of weeks before 10 June 2011 the Council
had an informal confidential „PX‟ (ie public and Council
staff excluded meeting) about the CEO‟s position. It was in
the early stages discussion about the position. It was before
I was aware of the requirements of the Local Government
Act regarding the appointment of the CEO. The discussion
clarified what was legally required ie reappointment for no
more than 2 years or advertising for a term of not more than
5 years. The context of my question was during discussion
about whether to roll over the appointment for two years or
advertise for a five year appointment. I questioned what the
view to a roll-over of 2 years was by asking the meeting
whether they support Mr Marryatt. That would not have
been an option if there had been widespread opposition to
that course.
(b)
Subsequently on 25 May 2011 the Council resolved not to
re-appoint Mr Marryatt but to advertise the position and
appoint a Chief Executive for a five year term.
...
8.
Despite the confidentiality of the meeting ... someone leaked the fact
of the question re support for Mr Marryatt to the media which
asserted that it was the Mayor who had asked it. On 10 June 2011, I
heard discussion on Newstalk ZB which also asserted that the Mayor
had asked the question of Councillors. I telephoned Susi McLean of
Newstalk ZB to set the record straight as I did not think it fair for my
question to be wrongly attributed to the Mayor.
[14]
Mr Forbes, counsel for the plaintiff, has invited the Court to interpret the
defendant‟s readiness to consider an outstanding other candidate for appointment
over the incumbent as mere words – not to be relied upon. He invites the Court to
make a finding that taken together, this course of conduct demonstrates that the
defendant has predetermined the outcome.
[15]
I find that taken together, the actions and words of the defendant show a
strong support for the retention of the CEO. But it is very important to record why
and why not.
1.
There is no suggestion that he is an old friend, a business partner, a
creditor or a debtor of the CEO. He does not, on that basis, fear or
favour the CEO for reasons other than his capability as a Chief
Executive Officer.
2.
Second, rather the Chief Executive Officer has impressed the
defendant by his performance in his office.
3.
The defendant believes strongly that the Council should not change
its CEO in the middle of this crisis unless a very outstanding
candidate comes forward.
[16]
This last point of view is what is called in public law, and elsewhere, as a
policy. The defendant‟s policy position is formed independently from the personality
of the incumbent.
The statutory criteria and process
[17]
I will now turn to the second part of my analysis which is to examine the
statute law and the statutory process governing the appointment process.
[18]
The Council does not have the power to delegate the appointment of its Chief
Executive. This is important. The Council can delegate all of its decisions except
making rates, making bylaws, borrowing money, selling assets, and adopting long
term and annual plans, and appointing its CEO.1
1 Local Government Act 2002 Schedule 7 Clause 32(1) (LGA, Sch 7, cl 32(1))
[19]
What does this mean? It means that Parliament intends full political
accountability by the councillors to the ratepayers for the appointment of the Chief
Executive Officer.
[20]
The law requires the Council to review the employment of the Chief
Executive Officer at least six months before the end of his term.2 It is not clear on
the record of this case whether this was done, or was being done in May, in the
course of a public-excluded meeting. I have been told from the bar that such reviews
are regarded as confidential, being employment related. What is clear, however, is
that the Council was discussing, before making a decision as to two years or five
years, the position of the Chief Executive Officer.3 It is more probable than not that
the councillors would have individual views in any event prior to that meeting, as to
the performance of the CEO, that is natural. In that discussion in the public-
excluded meeting, it is likely, and so probable, that any divisions in judgment will
have been identified among the councillors as to the quality of the performance of
Mr Marryatt as Chief Executive Officer.
[21]
As a matter of law, after the first term of the Chief Executive Officer, the
Council has a discretion to either reappoint the Chief Executive Officer for two years
or to advertise the position as vacant and open up another five year term.4 In this
case it would appear from the radio interview that Mr Marryatt has indicated that he
does not want another two year term. He wants to go into a competition for a five
year second term.
[22]
When the position was advertised by the Council, I am told from the Bar, that
the advertisement told potential applicants that the incumbent was applying. Such
applicants can be relied upon to do their homework and to appreciate that the
councillors will have likely established individual views, and possibly joint views,
one way or the other as to the merit of the incumbent.
2
LGA, Sch 7, cl 35(1)
3
LGA, Sch 7, cl 34(1), (4), (5)
4
LGA, Sch 7, cl 34(4)
[23]
The Council has seven special criteria when considering the appointment of a
Chief Executive Officer.5 The law is that:
The local authority must, in making an appointment under section 42, have
regard to the need to appoint a person who will –
(a)
discharge the specific responsibilities placed on the appointee; and
(b)
imbue the employees of the local authority with a spirit of service to
the community; and
(c)
promote efficiency in the local authority; and
(d)
be a responsible manager; and
(e)
maintain appropriate standards of integrity and conduct among the
employees of the local authority; and
(f)
ensure that the local authority is a good employer; and
(g)
promote equal employment opportunities.
These are minimum criteria.
[24]
As a good employer, the law requires the Council to have a personnel policy
requiring “the impartial selection of suitably qualified persons for appointment”.6
And, in addition, “when making an appointment, must give preference to the person
best suited to the position”.7
[25]
Taken together, this means the law requires councillors to impartially select
the suitably qualified person best suited for the position of Chief Executive Officer
of the Council.
[26]
This means that the councillors must consider, in advance of their decision,
the demands and challenges to be faced by the CEO of the City of Christchurch in
the five years from 2012, and then from the available candidates, select the person
best suited to those demands and challenges.
5
LGA, Sch 7, cl 33
6
LGA, Sch 7, cl 36(2)(c)
7
LGA, Sch 7, cl 36(3)(a)
[27]
In turn this means that the councillors can add to the basic criteria set out in
the statute, applicable to all local authorities across the country, additional criteria, so
long as those additional criteria are not inconsistent with the mandatory criteria.
[28]
This task can be described as developing a policy, individually or as a group,
as to how the candidates are being to be selected. It is as practical as giving some
thought beforehand as to the experience that will be looked for, as to the questions
that will be put to the candidates.
[29]
Public law is very familiar with the important difference between developing
a policy before a decision is made, and pre-determining a decision.
[30]
There are many cases which raise questions of an overly strong policy. These
cases are usually8 analysed in terms of the language of predetermination or closed
mind, rather than in the language of bias.
[31]
Where decision-makers have the ability to develop a policy the public law
analysis is best confined to the issue of “closed mind” or “predetermination”.
[32]
This is particularly apt in this case. No one is suggesting the defendant
favours or fears the Chief Executive Officer because of family, social or financial
considerations.
[33]
To complete this analysis of the statutory process, I would add that where a
decision-maker has developed a policy, on top of the basic criteria, it is best practice
to actually disclose that policy before the hearing. This is not possible if the
individual decision-makers have different additional criteria, as is quite likely in this
case, given that the whole Council are the decision-makers.
8
For example,
CreedNZ v Governor-General [1981] 1 NZLR 172 CA;
Devonport BC v Local
Government Commission [1989] 2 NZLR 203 CA
Applying the common law
[34]
I now turn to the third part of my analysis which is to apply the common law
to the facts and to the statute law. The law against predetermination and bias has its
origins in the law developed by Judges, not Parliament. Where we find it in statutes,
such as here in the Code of Conduct in the Local Government Act, it is clearly a
codification of the common law.
[35]
The common law requires public powers to be exercised fairly. Even if a
statute does not expressly say that, a Judge will insist on it. But what the common
law does not do is question who Parliament selects to make a decision, or the process
it imposes. Often, as here, the person appointed, and the process they follow,
virtually guarantees that the decision-makers will have formed strong views before
the hearing starts.
[36]
There was a suggestion in the plaintiff‟s legal argument that Mr Keown‟s
wrong was to air his views before the hearing. Contrary to that submission there is
no duty to appear impartial. The duty is to be impartial. But partiality should not be
confused with holding a strong and legitimate policy in favour of stability in a crisis,
unless an outstanding candidate trumps that value. “Impartiality” is the word used in
the Local Government Act and is clearly directed to preventing persons being
favoured or disfavoured for inappropriate reasons. And, as I have previously noted,
where a policy in addition to the statutory criteria is adopted, it is better that it be
aired before the meeting, not kept hidden.
[37]
The defendant‟s preference for stability is a legitimate policy that he can have
consistent with assessing the merit of the candidates. Given the crisis, it is legitimate
for him to take the view that a competing candidate will have to have outstanding
qualities justifying a loss of continuity of leadership at this time.
[38]
I consider next whether the plaintiff has proved that the defendant‟s policy
goes beyond favouring retaining the incumbent CEO to closing his mind to the
possibility of him being replaced.
[39]
Mr Forbes urged me to place no weight on this answer to Ms McLean‟s
question. You will recall I have read this out before, but I repeat it again, to focus on
Mr Forbes‟ argument:
Susi McLean And I guess for the people of Christchurch we need to then
understand – this is – either one of two things is going on,
either council is just going through a process and just going
through the motions in advertising the city manager‟s job
because it has to and it‟s not desiring change and therefore
the question is raised how seriously are you going to take
this process with any other candidate that turns up.
Or there‟s a genuine process designed to open the net wider
to ensure that we get the very, very best city manager that we
can get. So which of those two things is it?
Aaron
It is the latter because probably, I‟m not saying definitely,
but probably given Tony Marryatt‟s track record and the
local government, he will most likely be the best candidate
there is but that is not guaranteed because Rob Fyfe might
throw his hat in the ring.
Now Rob doesn‟t have a history in local government or
understand the CERA Act. But he might be the best
candidate on the day and therefore he would win. So it is
genuinely open. It‟s been pretty well advertised as in the
front page of the paper, so everyone knows it‟s coming up. I
think it officially opens as of this weekend and then the ads
will start next week in the paper. So it‟s ...
And then he was interrupted. Now we all know that Mr Rob Fyfe is the Chief
Executive of Air New Zealand and we all know that he has done an outstanding job
for that company. Plainly, the defendant was using Mr Fyfe to illustrate his point,
apparently because he, Mr Fyfe, had been the subject of discussion on Newstalk
earlier.
[40]
Mr Forbes said that his answer was just words as to the possibility of a better
candidate succeeding. That is a judgment I have to make. I do not agree. It needs to
be kept in mind that the interview was relatively informal, by telephone. My
judgment is that Mr Keown, the defendant, was answering honestly the questions. I
have already noted the suggestion in the argument that his fault may have been
candour. This appears to me to be a candid interview. I find that the plaintiff has not
proved that the defendant has a closed mind.
[41]
In his closing address Mr Forbes urged on me to apply a standard of
reasonable possibility of danger of bias, following the Supreme Court in
Saxmere.9
That decision is not directly on point. It is setting the test for apparent bias by reason
of personal favouritism. No case was cited to me where such a test has been applied
to a process such as going on the City Council. On the contrary, there are numerous
cases of decision-making by elected persons, where Judges caution against applying
rigorously the law of bias developed to prevent corrupt decisions, influenced by fear
or favour on the part of the decision-maker. Professor Joseph discusses this and
collects a number of cases.10
[42]
It suffices to quote from Professor Joseph a couple of his summaries of the
law. He says:
(4)
Utility of a single, universal standard
The vast range of decision-making authorities throws in question the utility
of a unitary standard of bias. ...
... A decision-maker may be expected to hold preconceived views or to
develop and apply policy in the exercise of discretion. Where bias is alleged
against local authorities or planning bodies, the evidence must tend to
establish actual predetermination of issue. ...
(at 999)
[43]
I cannot rule out as a reasonable possibility that the defendant may have a
closed mind, subconsciously. I should explain. My previous finding was that it has
not been proved on the probabilities that he has a closed mind. But I will not order
an injunction on the basis that there is a possibility that he may have a closed mind in
a case such as this, where Parliament has deliberately required the decision to be
taken by all the elected councillors. He is going to be one of 12 or 13 councillors
who will consider and debate the merits of the competing applicants. I decide the
case for the defendant.
9
Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35
10
‘Constitutional & Administrative Law In New Zealand „ 3rd ed Phillip A Joseph, Thomson
Brookers 25.5.4 (4) and (6);
CreedNZ v Governor-General [1981] 1 NZLR 172 CA;
Devonport BC v Local Government Commission [1989] 2 NZLR 203 CA
[44]
I end this judgment with some brief comments on material I have not taken
into account at all, or only in the most limited way. First, I did not read affidavits
filed by prominent citizens in support of the plaintiff or any of the newspaper articles
– except the article summarising and quoting from the opinion of the solicitors, Chen
and Palmer. I read that article for a special reason. I had taken note that a majority
of councillors on 1 July had resolved that the defendant stand aside, or invite him to
stand aside. (There is some debate as to the wording of the motion). I had observed
to the defendant‟s counsel, Mr Till, that the motion in any event may indicate a loss
of confidence by his fellow councillors that the defendant could keep an open mind.
Taking me through the article, Mr Till persuaded me that that was far from clear; as
Chen and Palmer‟s advice to the Council was cautious, and suggesting that the
defendant ought to stand aside as a precaution.
[45]
The defendant is entitled to costs. Costs are reserved.
Solicitors:
Wynn Williams & Co, Christchurch, for Plaintiff
Shirley Law, Christchurch, for Defendant