Max Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
Summary
The High Court granted interim orders preventing the Attorney-General from appointing a Judicial Conduct Panel to investigate allegations of judicial misconduct by a District Court Judge.
Background
Under our constitutional system, the independence of the judiciary is protected by providing security of tenure for individual judges. However, if the public is to retain confidence in the system, there is a countervailing need to ensure there is accountability for judicial misconduct.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) seeks to balance these conflicting objectives by establishing a multi-step process that must be undertaken before a Judge can be removed from office.
The process starts with the Judicial Conduct Commissioner. On receipt of a complaint, the Commissioner has discretion to take one of several actions. In cases where the Commissioner is satisfied that it is necessary to investigate a complaint that, if proven, could warrant consideration of removal of the judge, they may recommend that the Attorney-General convene a Judicial Conduct Panel to investigate the matter.
The Attorney-General may then decide to follow all or part of the Commissioner’s recommendation, and convene a Panel to investigate. Following an investigation, the Panel may recommend to the appropriate decision-maker to remove the Judge. The Attorney-General’s decision and the Panel’s investigation is determined by the scope of the Commissioner’s initial investigation.
In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club.
A complaint was referred to the Commissioner by the Attorney-General. On 23 January 2025, the Commissioner exercised their powers under the Act to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to investigate complaints about Judge Aitken’s conduct at the Northern Club Christmas Party
On 10 February 2025, before the Attorney-General convened the Panel, Judge Aitken filed judicial review proceedings alleging that the Commissioner’s recommendation was unlawful. At the same time, she sought interim orders preventing the Attorney-General from acting on the recommendation until the judicial review claim had been determined.
The case
To obtain interim orders, Judge Aitken had to demonstrate that they were necessary to protect her position, and that it was appropriate for the court to exercise its discretion to grant them.
Preservation of position
The court rejected Judge Aitken’s argument that she had a position to preserve solely because the trial court might decide the Commissioner’s decision was unlawful at trial. She was required to establish some kind of prejudice that would arise if the interim orders were declined and she went on to succeed at trial.
However, the court also rejected the Crown’s narrow argument that the only prejudice that could arise to a judge was potential removal from office (which could not possibly occur before trial).
The court noted that the Attorney-General’s decision to appoint a Panel following the Commissioner’s recommendation was a serious one. While convening the Panel was not an inevitable step to a Judge’s removal, the mere fact of an appointment was a serious step that could increase public pressure on the Judge and potentially compromise their independence.
On this basis, the court accepted that there was a potential prejudice to Judge Aitken’s natural justice rights for having to respond to the Attorney-General’s decision to convene the Panel, when that decision was potentially affected by the Commissioner’s error of law.
Discretion
In exercising its discretion, the court considered the merits of Judge Aitken’s case, the nature of the statutory power, and the balance of convenience.
The merits of the case tentatively favoured granting the orders, with the court stating that Judge Aitken’s claim did not appear ‘entirely lacking in merit’.
Public policy considerations pulled in different directions and were a neutral factor in granting relief. While granting interim orders might delay the statutory process and undermine the effectiveness of the complaints process, allowing a potentially unlawful process to continue until final determination could undermine the Act’s countervailing objective of protecting judicial independence.
The balance of convenience was the decisive consideration.
The prejudice to the Crown if the orders were made and they went on to succeed at trial was minimal. The hearing had been scheduled for the following month, meaning as soon as judgment was issued, the Attorney-General would be able to proceed confidently.
By contrast, Judge Aitken stood to suffer serious prejudice if the orders were declined but she went on to succeed at trial – she would be required to provide a response to the decision to convene the Panel (which could compromise her natural justice rights) and there was a likelihood of adverse publicity which could affect the undertaking of her judicial functions.
As the greater potential prejudice lay with Judge Aitken, the Court exercised its discretion to grant the orders sought.
Result
Interim orders were granted declaring that the Attorney-General ought not take any further action consequential on the Commissioner’s decision until further order of the court.
The hearing of the main judicial review proceeding was heard in mid-March 2025, with the court yet to issue judgment.
The case illustrates the delicate balance the court must maintain in the rare cases of determining the legality of the judicial misconduct process under the Act. The court in this case erred in favour of protecting the natural justice rights of Judges as a means of protecting judicial independence, suggesting a relatively low threshold for obtaining interim orders in the rare instance of proceedings under the Act.
For more information on this case or similar issues please contact Director Brigitte Morten
A member of Tuhoe successfully challenged a decision to demolish a number of huts in Te Urewera.
In 2013, the Crown and Tuhoe signed a settlement deed that agreed, among other things, that Te Urewera would have legal personality rather than merely being a national park. Te Urewera Act 2014 (“Act”) gives effect to the settlement deed, and the deed of key importance in interpreting the Act.
The Act specifies that Te Urewera is governed by Te Urewera Board (“Board”), established under s 16 of the Act. Board members were a mix of Tuhoe - Te Uru Taumatua trustees (“TUT”) and appointees of the Minister of Conservation. The Director-General of the Department of Conservation and the chief executive of TUT are responsible for operational management of Te Urewera.
The Act requires that that TUT and DOC must prepare an annual plan for the “following year” to provide for the operational management of Te Urewera. A draft plan must be approved by the Board under Schedule 2 cl 24 of the Act before it can become final.
The Crown retains property rights in certain improvements in the area, including the hut network, but can only take certain actions in respect of them (including demolition) in accordance with the annual operational plan. The Act provides certain residual powers to the Crown to act where no annual operational plan has been agreed.
No annual operational plan was approved for the 2021/22 and 2022/23 operational years due to disagreements between the Crown and TUT.
In 2022, the Board announced its decision to demolish 43 huts in Te Urewera. Wharenui Tuna (a local hapu member who had used the huts for recreation and the gathering of food since he was a child) filed judicial review proceedings in the High Court. He claimed the Board and the Crown acted unlawfully in their decision to destroy the huts, as did TUT in acting on that decision (“Respondents”).
Tuna was granted an interim order in an earlier proceeding, which stopped any further demolition activity pending a decision in the case. Nonetheless, several further demolitions did occur, although it is yet to be discovered who was responsible.
On 24 August2023, after the interim order was granted, the respondents attempted to retrospectively validate the demolitions by approving annual operational plans for the relevant years.
Mr Tuna argued that the decision to demolish the huts was unlawful on several grounds. The actual demolition of the huts by TUT was similarly unlawful as it had been based on the unlawful demolition decision.
Failure to act in accordance with annual operational plan
Mr Tuna argued that the demolition decision had not been in accordance with a prevailing annual operational plan and was therefore unlawful.
It was not disputed that there had been no annual operational plan in place at the time the relevant actions had been taken. However, the Crown argued the plans published after the decision had retrospectively validated the decision.
The court accepted Mr Tuna’s argument that the absence of an annual operational plan meant that the demolition decision (and subsequent demolition) was unlawful. The existence of a plan was not a technical matter. The Crown’s right to exercise its powers as the owner of the huts was subject to authorisation by a relevant plan.
The court was particularly scathing about the purported retrospective adoption of the plans, which it noted was endorsed by the Crown 367 days after the end of the year to which it related. A retrospective approach was at odds with the use of future-oriented language in the Act such as “plan” and “the following year”. Additionally, the need for such a plan was not established given that the Crown could still act in relation to Crown property in the area under residual powers set out in the Act.
Breach of principles of the Act
Section 5 of the Act requires that persons performing functions under the Act must act to preserve ecological systems and biodiversity, freedom of entry and access to the area, and Tūhoetanga.
Mr Tuna argued that the decision breached s 5, because it resulted in a reduction of facilities that could be used by DOC in their biodiversity functions, as well as impeding the public from tramping safely in the area. The Crown argued that this ground should fail as the principles in s 5 were aspirational rather than legally binding.
The court agreed with Mr Tuna, holding that the imperative language used in s 5 (“must”)strongly suggested that a legal obligation was intended. While the court accepted that the Board and the Crown were entitled to significant leeway as to how they upheld these principles, there was no leeway to give in this case. Neither the Crown nor the Board had attempted to justify how the demolition decision would uphold the s 5 principles. The court would have given such a justification significant weight in line with the principle of deference had it been advanced.
Accordingly, the demolition decision was unlawful on this ground.
Failure to consult
The court rejected Mr Tuna’s argument that the Board and TUT were required to consult before the demolition decision. No party had a legitimate expectation of being consulted in relation to the decision, and there was no express or implied requirement for consultation in the Act. The presence of express consultation requirements in relation to other matters under the Act pointed strongly against an implied requirement of consultation in this case.
Additionally,this case did not fall within the rare class of case where fairness required consultation to take place.
The court did not decide on the appropriate relief and costs, ordering a further hearing. Submissions for the Crown were due in March 2024, but a hearing date has yet to be allocated.
Pending the relief hearing, the interim order will remain in place.
The case is a notable example of a senior court providing significant criticism of Crown actions during litigation. The court was particularly unimpressed with the Crown’s contention that annual operational plans were merely a ‘technical’ requirement and their attempt to validate their actions through adopting a retrospective plan.
Update: The parties in this case have since come to an agreement. The press release for this agreement can be read here.
Summary
A decision by a local authority to appoint a chair for a major council-controlled organisation was unlawful for failure to consider the relevance of knowledge of tikanga Māori.
Background
Watercare is the council-controlled organisation (“CCO”) responsible for providing water and wastewater services to Auckland. Auckland Council is the sole shareholder of Watercare, and is entitled to appoint its directors, that power being delegated to a Committee.
Section 57 of the Local Government Act 2002(“LGA”) sets out requirements for the appointment of CCO directors. Section 57(1) requires local authorities to adopt policies that set out procedures for identifying knowledge and skills in CCO directors generally. Section 57(2), meanwhile, requires that when appointing a director for a particular CCO, that the local authority is satisfied that the appointee has the necessary skills, knowledge, and experience to lead the organisation.
Section 57(3), introduced by a 2019 amendment to the LGA, states “[w]hen identifying the skills, knowledge, and experience required of [CCO directors], the local authority must consider whether knowledge of tikanga Māori may be relevant to the governance of that [CCO]”.
On 12 March 2024, Council staff reported to the Committee that Watercare needed a new chair. The staff identified that te ao Māori knowledge was a skills gap on the current board. This advice reflected wording from the Council’s overall CCO board member appointment policy, which described “knowledge of te ao Māori and established Māori networks” as a core competency for CCO directors.
Following this, the Committee nominated a selection panel, which considered a shortlist of four candidates including Person A and Mr Hunt. The panel recommended that Person A be appointed as chair, and recommended against Mr Hunt’s appointment. The judgment redacted the name of the recommended appointment, so this brief refers to them as Person A.
At the 25 June Committee meeting scheduled to consider the chair appointment, a councillor moved for Person A’s appointment, in accordance with the panel recommendation. However, another councillor moved an amendment that Mr Hunt replace Person A as the candidate (“Appointment Decision”). A majority of the Committee present and voting voted in favour, and the Council went on to announce his appointment as Watercare chair.
The plaintiff, an independent Māori board established under statute, filed judicial review proceedings against the Council
The case
The plaintiff alleged that the Appointment Decision was unlawful on three grounds. They sought a declaration to this effect, as well as orders setting aside the decision, removing Mr Hunt from his role as chair, and making the decision afresh.
First ground – Breach of standing orders
Standing Orders adopted by the Council under the LGA barred “direct negative” motions – those that, if carried, would have the same effect as defeating a motion. The Plaintiff argued that the Appointment Decision breached this rule, as it negated the purpose of the original motion (namely, to appoint Person A as chair).
The Court disagreed. In this case, the purpose of the motion was to appoint a Watercare chair, not to appoint Person A as chair specifically. The Appointment Decision achieved this objective, notwithstanding that it had substituted one candidate for another.
Accordingly, there was no breach of the Standing Orders and the first ground failed.
Ground2 – Failure to consider knowledge of tikanga Māori
The plaintiff argued that the Council had unlawfully failed to consider the relevance of tikanga Māori knowledge in the Appointment Decision.
The Council disputed this. They argued that while there was no direct consideration of tikanga Māori knowledge, s 57(3) had been met as “knowledge of Te Ao Māori” had been identified as a core director competency in the Council appointment policy and in the specific Watercare appointment criteria.
The Court rejected the Council’s arguments for two broad reasons.
First, the wording of s 57(3) clearly required consideration for each individual director appointment. Even if the overall appointment policy showed an expectation that the relevance of tikanga Māori knowledge be considered, this could not establish that such consideration had actually occurred.
Second, the Council had not in fact considered tikanga Māori knowledge at any stage. While they had considered the broader criterion of knowledge of te ao Māori (broadly translated at “the Māori world view), s 57(3) specifically referred to tikanga Māori (a narrower concept relating to rules, practices, and the right way of doing things within te ao Māori).
Knowledge of the former did not imply knowledge of the latter. Section 57(3) required the Council to give attention to knowledge of tikanga Māori specifically. As they had not done so, the Court upheld the second ground.
Ground3 – Significant decision in relation to body of water
The plaintiff argued that the Appointment Decision was a “significant decision…in relation to a body of water”. The Council had failed to consider the cultural and spiritual relationship of Māori to relevant bodies of water, in breach of s 77(1)(c) of the LGA.
While the Court did not reach a final decision on this point, it held that the Appointment Decision was probably not a decision to which ss 77(1)(c) applied. While s 77(1)(c) was likely to apply to many of Watercare’s strategic and operational decisions, the Appointment Decision related to governance, not to any specific body or bodies of water.
Result
The Court held that failure to consider the relevance of tikanga Māori knowledge rendered the Appointment Decision unlawful. The decision was set aside.
This means that the Council must make the decision again. However, in doing so, they are free to reappoint Mr Hunt, provided they comply with s 57(3) in doing so. Mr Hunt was re-appointed 3 months after his original appointment and one month after the High Court made this judgment.
This raises legitimate questions about the merit of the proceedings.
Litigants in dispute with public bodies should view this case as an illustrative example that a win in court does not mean a good return on investment.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
