Test Case Update: Documents confirm Determination bias

On 5 June 2016 draft guidelines for the Seismic Assessment of Existing Buildings were released (available at eq-assess.org.nz). They will replace the NZSEE guidelines that have driven Wellington City Council’s seismic strengthening policy. At a high level the new guidelines are mostly just a rehash and justification of the original guidelines.

The documents support our conclusion, if there were any doubt, that the Determination was a sham. MBIE’s Manager of Determinations had an irreconcilable conflict of interest. He was working, at the time, with the Council’s participants in the Determination process, on a new seismic assessment framework that is intended to validate the very Council policies that he was being required to assess in the Determination.

The new Seismic Assessment Guidelines were prepared during the period of 2014 to 2016 with extensive technical input from the  members of the Project Technical Group.

Members included:

  • Group: Rob Jury Beca: Project Technical Chair
  • John Gardiner MBIE: Project Steering Group
  • Stephen Cody Wellington City Council: Project Steering Group

Rob Jury  was the Council’s Engineering Advisor at the Detemination. Stephen Cody is the WCC Manager Building Resilience  and managed the Determination from their end.

John Gardiner is MBIE’s Manager Determinations and wrote the Determination.

We were aware, when the Determination process started that John Gardiner might be having some role in MBIE’s policy formation process, but we naturally assumed that he would not be dealing with this case.  So when the draft Detemination came out with his signature on it, we wrote to the Chief Executive of MBIE, David Smol, asking that Gardiner be replaced by an independent legally qualified party because of an apparent bias.

Smol’s response was that “there no reason to suspect that he is unable to bring an impartial mind to the matter to be decided.” Smol also said that an ‘independent referee’ had been appointed, which was an implied assurance of the integrity of the process.

More than a month later a further letter was received from Andrew Crisp, Deputy Chief Executive, Building Resources and Markets. He attempted to buttress the case made by Smol.  “The test for apparent bias was a high standard and that I do not consider it has been met in this case. I reference the Supreme Court decision Saxmere Co. Ltd.v Wool Board Disestablishment Co Ltd (2009) NZSC 72 at para (93)’

Establishing the existence of an association is never of itself enough to disqualify the judge. It must be shown that its nature is such as to concern objectively that it may influence the judge’s decsion making”

It would have been useful if Mr.Crisp had set out the accepted legal test for apparent bias set out Saxmere (para 3).

“A judge is disqualified if a fairminded lay observer might reasonably apprehend that he might not bring an impartial mind to the question the judge is required to decide.”  And (93) “important aspect of meeting the reasonable test….. is the requirement to be specific concerning the perceived connection between the circumstances giving rise to concern and whether they establish reasonable apprehension of impartiality”

We think our fairminded observed would be concerned about the following:

  • Gardiner is a public servant. He does not have the protections of a judge against adverse personal consequences from his decisions.
  • His Minister had drawn a public and firm line in the sand that he was supporting the %NBS framework.
  • His employer had been promoting the %NBS framework for years.
  • Gardiner was working with the Council participants in the Determination process on a new version of the %NBS framework.
  • Gardiner was being asked to make a decision that the %NBS test was not lawful.

These facts are clearly distinguished  from Saxmere, which related to just a personal friendship and some unrelated business dealings between the Judge and one of the parties.

We know plenty of fairminded observers. Not one thought there was a chance of a fair hearing.

The new guidance documents also shed light on the Council’s behaviour in the Determination. It did not make a submission in response to our application.  That could not have been because it was indifferent as to the outcome, because it has subsequently aggressively resisted our application and appeal. The reason must be that it already knew what the answer would be. As Gardiner, Cody and Jury were working together it would not be too hard to pick up which way the wind was blowing.

The Council only made a submission after the draft determination had been released, when it realised that Gardner’s defence of the NZSEE framework was hopelessly inadequate, and would leave them very exposed on appeal. Their submission appeared to be a last minute effort to buttress a weak case.

Summing up, in our view the Detemination was worse than a sham. The process was corrupt.