From car parking fine to judicial review of a council’s code of conduct

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From car parking fine to judicial review of a council’s code of conduct

From car parking fine to judicial review of a council’s code of conduct

Tuesday 15 June, 2021

Dunedin City Council’s (“Council”) Code of Conduct (“Code”) unexpectedly became the subject of a recent High Court judicial review after a councillor received a car parking fine.

Having received a ticket in a council carpark, Cr Vandervis made a complaint about the ticket. In doing so, he offended the staff member to whom he complained who made a formal complaint about his aggressive and intimidating behaviour. The Chief Executive initiated an investigation into the incident and the results were presented to Council who voted to sanction Cr Vandervis with a formal censure. Cr Vandervis lodged the current judicial review to challenge the process undertaken in the investigation and Council’s decision to censure him, claiming the process did not comply with Council’s Code.

All councils are required, under the Local Government Act 2002 (“LGA”), to have a code of conduct. All councillors are required by the LGA to comply with their own council’s code of conduct. The LGA leaves it to members of each council to agree what they expect of each other’s behaviour, how breaches of the code might be determined and any potential sanctions for a breach.

Dunedin City Council’s Code sets out principles to guide how complaints should be made and how a breach will be made out. An appendix to the Code details the process for the determination and investigation of complaints.

The challenge

Cr Vandervis’ most substantial allegation was that the Council failed to comply with the principles of natural justice and fairness: he said he was not given a copy of the complaint, was not given sufficient details of the complaint, was not told of the witnesses interviewed or statements taken against him, and did not have a proper opportunity to respond to the allegations made against him during the course of the investigation.

Principles of judicial review in the context of local government

The High Court emphasised the focus of judicial review is on process, not outcome and that as a code is an internal regulatory manual, whether there has been correct process or not is generally a matter for a council to assess. In order for a court to intervene, the process would need to fail in such a substantial way that the decision could not stand. The grounds were all rejected.

The Court held that it would likely have exercised its discretion against granting relief even if any of the grounds had been made out: “because this incident involves a disciplinary context for a member of what is inherently a political body, in any event, relief, in my view, would likely not be appropriate” (at [74]).

Conclusion

The case is a reminder that all councils must have a sufficiently workable and detailed code of conduct, and that compliance with it, by all councillors, is required. A judge undertaking judicial review of internal council processes in this context will focus primarily on process and, subject to the facts, will likely be hesitant to intervene with council processes and decision-making.

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