The decision of the Court of Appeal on the decision of the expert panel to appoint James Gardner-Hopkins as a member of the panel, nominated by the Nagti Paoa Trust Board was rejected by the Court of Appeal (media statement on the decision is below).
Justice Ministry Media Statement on Gardner-Hopkins case –
The respondent, the Ngāti Paoa Trust Board, nominated Mr James Gardner-Hopkins as a member of an expert panel to decide a fast-track application for resource consent.
The fast-track process was established under now-repealed legislation, the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA). The Panel Convener, Judge Newhook, declined to appoint Mr Gardner-Hopkins, essentially on character grounds. Mr Gardner-Hopkins is serving a three-year suspension from practice as a lawyer following a decision that he was guilty of professional misconduct. The Board sought judicial review of the Convener’s decision.
Was the Convener entitled to consider Mr Gardner-Hopkin’s past misconduct when deciding whether to appoint him?
Held: Yes. Panels perform a quasi-judicial function and therefore the public must have a high level of confidence in their work. Just cause includes, but is not limited to, misconduct, inability to perform the functions of office, neglect of duty and breach of duty.
All of these relate to behaviour or characteristics of the individual concerned. Grounds for removal are not limited to conduct which happens while the person holds the office. What matters for present purposes is that they concern fitness for office. The Convener was entitled to consider Mr Gardner-Hopkins’s past misconduct when deciding whether to appoint him.
Was the Convener entitled to reject Mr Gardner-Hopkin’s nomination? Held: Yes.
Mr Gardner-Hopkins was suspended because his misconduct was found to be so inconsistent with the standards required of a lawyer that he was not a fit and proper person to practice law at that time. The public might reasonably wonder why a person who has yet to complete a period of suspension to re-establish his fitness to practise law is a suitable appointee to a quasi-judicial body which performs important public functions and needs a high degree of public confidence.
The Convener might reasonably think the risk of controversy was high having regard to the seriousness of the misconduct and the publicity which had attended the disciplinary proceeding. The High Court Judge erred in substituting his own assessment for that of the Convener.
Further the refusal to appoint him does not amount to the Convener punishing him again for past misconduct.
Was the decision inconsistent with Treaty principles? Held: No.
The Board’s right to nominate was respected and they were offered the opportunity to nominate someone else. An iwi authority does not have a right under the FTCA to have its nominee appointed, given the possibility that a number of iwi may make a nomination.