THOMPSON v CANOE RACING NEW ZEALAND INCORPORATED [2023] NZHC 1533

THOMPSON v CANOE RACING NEW ZEALAND INCORPORATED [2023] NZHC 1533 [20 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-001464[2023] NZHC 1533UNDER the Judicial Review Procedure Act 2016 andthe Contract and Commercial Law Act 2017IN THE MATTER OF an application for judicial reviewBETWEEN ALAN BLAIR THOMPSONApplicantAND CANOE RACING NEW ZEALANDINCORPORATEDRespondentHearing: 2 February and 15 May 2023Counsel: DM Fraundorfer and JR Curtis for ApplicantPW David KC and MJ Clarke for RespondentJudgment: 20 June 2023JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 20 June 2023 at 3 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Holland Beckett Law, Tauranga.Maria Clarke Lawyers, Auckland.PW David KC, Auckland.Table of ContentsThe case [1]Background [2]The claim and approach [15]Did CRNZ have the power to expel Mr Thompson in relation to B and C? [17]Was Mr Thompson sanctioned by NZCA in relation to C? [31]Should the board have taken further steps once it received Ms Casey'sfinal reports? [37]Was there a failure by Ms Casey in relation to C? [38]Should the board have done more in relation to Mr Thompson's witnesses? [44]Should the board have employed procedures from the 1995 constitution? [56]Assessment of this ground [58]Did the board otherwise act improperly or unfairly in relation toMr Thompson's expulsion? [61]Should the board have afforded Mr Thompson 10 working daysbefore it took further steps in relation to his expulsion? [61]Did the board breach its undertaking to Mr Thompson aboutconfidentiality? [66]Was Mr Thompson's right to be heard afforded in relation to expulsion? [71]Other arguments [85]Was Mr Thompson's right to be heard afforded in relation to suspension? [86]Did CRNZ breach contract? [93]Summary of conclusions [100]Remedy [101]Result [102]Costs [104]The case[1] Canoe Racing New Zealand Incorporated1 suspended, then expelled,Alan Thompson from its membership. CRNZ concluded Mr Thompson acted in amanner unbecoming of a member or prejudicial to the objects or interests of CRNZ,and brought CRNZ into disrepute, by lewd misconduct in 1991, 1998, and 2014.Mr Thompson seeks judicial review of these decisions. He also sues CRNZ for breachof contract. The most important issue is whether CRNZ had the power to expelMr Thompson for misconduct in 1991 and 1998; those incidents preceded hismembership and CRNZ's existence.1 CRNZ.Background[2] What follows is a précis only; further background is given throughout thejudgment.[3] CRNZ was incorporated 15 January 1999 and is the national body responsiblefor canoe racing. CRNZ's predecessor was the New Zealand Canoeing Association.2The transition between organisations, and whether an intermediate body also existed,appears lost to history. Mr Thompson says in the early 1990s, NZCA became theNew Zealand Canoeing Federation, and only in 1999 did CRNZ become the"leading organisation". Janet Shearer, the chairperson of CRNZ, says records,including a "1995 constitution document",3 imply CRNZ existed in unincorporatedform from as early as 12 April 1995.[4] Mr Thompson became a member of CRNZ (with its incorporation)15 January 1999. In 2012, he was made a life member of CRNZ in recognition of hisservices to canoe racing, including two Olympic gold medals in that sport.4[5] On 20 September 2020, Ms Shearer and other members of CRNZ's board,5held a Zoom call with canoe racers to discuss recent publicity concerning an"athlete welfare crisis" within CRNZ. During the call, the first complainant, A,expressed frustration Mr Thompson had contributed to the adverse publicity, as shesaid it was well known his behaviour had been "so bad for so long". A saidMr Thompson said something unacceptable to her in 2014.[6] Two days later, A complained formally to CRNZ. A said when she was part ofthe New Zealand under-23-years canoe-racing team in the Czech Republic,Mr Thompson said to her, in front of young male canoers, "If I were your age I wouldhave you on your back in the bed with your legs over your head".2 NZCA.3 The 1995 constitution.4 Mr Thompson won both at Los Angeles in 1984.5 The board.[7] On 25 September 2020, the board informed Mr Thompson of A's complaint.On 29 September 2020, the board told Mr Thompson it had suspended his membershippending determination of the complaint.[8] On 5 October 2020, the second complainant, B, contacted CRNZ. B said in1998 or 1999, at Hamilton, she gave Mr Thompson money for a race entrance fee, andapologised her payment was late. B said Mr Thompson replied, "I think we canforgive that [B], as long as you give the convenor of selectors a titty fuck". B said she"had just turned 20". B also referred to a third complainant, C. B said she hadencouraged C to contact CRNZ.[9] C did so the next day. C said in 1991, she went to Europe as the only femalemember of the New Zealand canoe team. C was then about 24 years old. C said onenight before a race, she went to Mr Thompson's adjoining room and asked him to bequiet. C said Mr Thompson, who was in bed, pulled back the covers, said to her,"Get a load of this [C]", and showed his penis. C said NZCA's culture was"horrendous", and this was largely set by Mr Thompson. C said she complainedformally to NZCA when she returned, but the complaint "went nowhere". C thenretired from canoe racing.[10] On 2 November 2020, the board informed Mr Thompson of the complaintsfrom B and C.[11] Victoria Casey KC was appointed to investigate the three complaints.She ultimately found all established.[12] On 22 December 2021, CRNZ held a special meeting to determine whetherMr Thompson should be expelled given he had:a) acted in a manner unbecoming of a Member or prejudicial to theobjects and interests of CRNZ (or the sport of canoe racing inNew Zealand), and/or brought the sport of canoe racing into disrepute bymaking inappropriate sexualised remarks to female athletes while actingin the capacity as a CRNZ Selector and Manager; andb) brought CRNZ and/or the sport of Canoe Racing into disrepute byindecently exposing himself to a NZ representative female athlete whileon tour in Europe in a capacity as the athlete's coach.[13] Eleven members voted for expulsion, three against. So, Mr Thompson wasexpelled.[14] On 26 August 2022, Mr Thompson filed this claim.The claim and approach[15] The claim is by way of judicial review and contract. The latter recognises amember of an incorporated society has enforceable contractual rights.6 The formerattracts restraint.7 Typical circumstances of judicial review involve:8 denial of access to membership, the exercise of a disciplinary power, thedeprival of a licence or other economic concession, the alleged misapplicationof a society's constitution in a manner that offends natural justice or an allegederror of law in the application of a society's constitution where the bodyconcerned has a public or quasi-public function.[16] The claim is extensive. The statement of claim comprises 141 paragraphs, withsuites of particulars,9 and the submissions on Mr Thompson's behalf total almost80 pages.10 I focus on the most important points; represented litigants should bejudicious in their selection of arguments. Doing so, 11 questions arise:(a) Did CRNZ have the power to expel Mr Thompson in relation to Band C?(b) Was Mr Thompson sanctioned by NZCA in relation to C?(c) Was there a failure by Ms Casey in relation to C?(d) Should the board have done more in relation to Mr Thompson'switnesses?6 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA) at [11].7 At [5].8 Tamaki v Māori Women's Welfare League Inc [2011] NZAR 605 at [43].9 Second amended statement of claim dated 12 March 2023.10 Submissions dated 20 January and 9 May 2023.(e) Should the board have employed procedures from the 1995constitution?(f) Did the board otherwise act improperly or unfairly in relation toMr Thompson's expulsion?(g) Should the board have afforded Mr Thompson 10 working days beforeit took further steps in relation to his expulsion?(h) Did the board breach its undertaking to Mr Thompson aboutconfidentiality?(i) Was Mr Thompson's right to be heard afforded in relation to expulsion?(j) Was Mr Thompson's right to be heard afforded in relation tosuspension?(k) Did CRNZ breach contract?Did CRNZ have the power to expel Mr Thompson in relation to B and C?[17] It is common ground this turns on CRNZ's constitution.11 To elaborate,incorporated societies are governed by legislation12 and must have a constitution.13Two constitutions of CRNZ were identified: one registered 15 June 2018, and a seconddated 1 March 2020. The parties agree the two constitutions are identical in relationto the matters before the Court, but that the 2018 constitution "was the governingconstitution at all material times" as the 2020 constitution has not been registered.14I, therefore, refer to the 2018 constitution as simply, the constitution.1511 It is also common ground case law is not determinative. The two closest cases,Harding v Institution of Professional Engineers New Zealand Inc [2014] NZHC 2251 andReay v Attorney-General [2019] NZCA 475, involved members who resigned before disciplinaryproceedings were determined.12 Incorporated Societies Act 1908; and Incorporated Societies Act 2022.13 Incorporated Societies Act 1908, s 6; and Incorporated Societies Act 2022, s 25.14 Incorporated Societies Act 1908, s 21.15 CRNZ does not argue B's complaint was governed by the 1995 constitution, which, as observed,is a document identified in support of the possibility CRNZ existed, unincorporated, from12 April 1995.[18] The relevant rules of the constitution provide:2. Objects2.1 The objects of Canoe Racing NZ are to:a. Be the national body in New Zealand to promote, develop,enhance and protect Canoe Racing mainly as amateur sportsfor the recreation and entertainment of the general public inNew Zealand;g. Seek and promote the membership of Canoe Racing NZ;l. Encourage and promote Canoe Racing as an activity thatpromotes the health and safety of all participants, respects theprinciples of fair play and is free from doping;q. Promote mutual trust and confidence between Canoe RacingNZ and its Members and at all times to act on behalf of, andin the interests of, their members and the promotion anddevelopment of Canoe Racing in New Zealand.3. Powers and Responsibilities3.1 Powers: Canoe Racing NZ has the power, subject to this Constitution,to do the following:c. Determine its membership including withdrawing,suspending or terminating Members;3.2 Responsibilities: As the guardians of Canoe Racing in New Zealand,Canoe Racing NZ is responsible for leading, promoting, developing,enhancing and protecting Canoe Racing in New Zealand 9. Member Entitlements and Obligations9.1 Obligations: Members acknowledge and agree that:a. This Constitution constitutes a contract between each of themand Canoe Racing NZ and they are bound by this Constitutionand the Regulations;b. They shall comply with and observe this Constitution and theRegulations, and any resolution of the Board;f. They are entitled to all the rights, benefits, advantages, andprivileges conferred by this Constitution; and10. Termination of membership10.1 Resignation: A member Club may resign its membership of CanoeRacing NZ by giving one (1) month's notice in writing to the Board.Upon the expiration of the notice period and provided the MemberClub has paid all arrears of membership fees due and payable by theMember, the Member shall cease to be a Member.10.2 Default in Fees: A member shall have its membership of CanoeRacing NZ terminated if any fees (including membership fees) orother payments to Canoe Racing NZ are due and outstanding. Beforesuch termination can occur the Board must give the Member writtennotice specifying the payment(s) due and demanding payment by adue date, being not less than seven (7) days from the date of thedemand. If payment is not made by the due date, membership shallbe suspended pending payment. If such suspension continues for afurther ninety (90) days, the Member shall have their membershipautomatically terminated on the expiry of such period.10.3 Discipline: If the Board considers a Member has:a. Breached, failed, refused or neglected to comply with aprovision of this Constitution, the Regulations or any otherresolution or determination of the Board or any dulyauthorised committee of the Board; orb. Acted in a manner unbecoming of a Member or prejudicial tothe objects or the interests of Canoe Racing NZ and/or CanoeRacing in New Zealand; orc. Brought Canoe Racing NZ, or any other Member or the sportof Canoe Racing into disrepute;it may, after consideration and in addition to Rule 9.4:(i) refer the matter to the Judicial Committee forinvestigation or determination (unless a Regulationspecifies otherwise), and that Committee may imposeany sanction including suspension or termination ofmembership of Canoe Racing NZ as specified in theRegulations; or(ii) may make its own enquiries, (including appointing aperson independent of the Board to undertake suchenquiries and provide a recommendation to theBoard), and impose any sanction that it has authorityto impose under this Constitution or any Regulation.10.4 Suspension: If the Board considers a Member has or may haveengaged in one or more of the circumstances in Rule [10.3]a–cinclusive, and it believes it is in the best interests of Canoe Racing NZto do so, it may suspend the Member pending determination of thematter by the Judicial Committee or the Board. Before invoking anysuch suspension, the Member shall be given notice of the allegedcircumstances in Rule 9.3a, b and c, the proposed suspension and theright to be heard.10.5 If a Member is suspended from membership of Canoe Racing NZ, theMember concerned shall:a. Not be entitled to attend, speak at or vote at a GeneralMeeting;b. Not be entitled to continue to hold office in any positionwithin Canoe Racing NZ, or a Member Club; andc. Not be entitled to any other privileges or benefits to whichit/they would otherwise be entitled including participation inany regattas, activity, vent, function or meeting of CanoeRacing NZ or a Member;until such time as the Judicial Committee or Board determine thematter or the Delegates at a General Meeting expel the Member.10.6 Expulsion: The Delegates at a General Meeting may expel a Memberif the Judicial Committee or Board makes a recommendation to do so,and a motion to that effect is notified in accordance with thisConstitution. The motion for expulsion must be adopted by SpecialResolution and shall not be voted on until the Member concerned hasbeen given the right to be heard.10.7 Termination by Member Club: Any Club Member that resigns or hasmembership of their Member Club terminated in accordance with therules of the Member Club, shall upon such resignation or terminationtaking effect, automatically cease to be a Member of Canoe RacingNZ.10.8 Effect of Termination: A Member who or that ceases to be a Memberof Canoe Racing NZ shall forfeit all rights in and claims upon CanoeRacing NZ and its property and shall not use any property of CanoeRacing NZ including its Intellectual Property.[19] Mr Thompson was expelled for breaching rule 10.3(b) in relation to A and B,and for breaching rule 10.3(c) in relation to C. Mr Thompson contends his expulsionwas invalid in relation to B and C because those breaches pre-date CRNZ's existenceand, necessarily, his membership with CRNZ. During the hearing, Mr Fraundorfer onbehalf of Mr Thompson ventilated a closely related argument: any breach had to becommitted while Mr Thompson was a member of CRNZ. Mr Fraundorfer saysrule 10.3 is "plain on its face" that the member must have been a member when theycommitted the breach; antecedent breaches do not qualify.[20] On behalf of CRNZ, Mr David KC contends it had the power to expelMr Thompson in relation to B and C, and rules 10.3(b) and 10.3(c) are not confined,facially or otherwise, to breaches committed during membership.[21] I make seven points.[22] First, the reference to "a Member" in the opening line of rule 10.3 is neutral onthe issue. The reference acknowledges logic, not more, as termination of membershipobviously requires the person be a member.[23] Second, rules 10.3(b) and 10.3(c) are not temporally qualified on their face.Neither contains an apparent limitation as to time. The same is true of the constitutionmore generally, it contains no limitation period in relation to disciplinary action ortermination of membership.[24] Third, the high point for Mr Thompson concerns the first limb of rule 10.3(b):"Acted in a manner unbecoming of a Member". It could be taken to mean theunbecoming act must occur while the person was a member. The interpretation isavailable—and not strained. However, this is not what the limb says; it does not referexpressly to an act during membership. Furthermore, if this is what the first limb isdirected at, it might have been clearer to say, "Acted in an unbecoming manner whilea member ".[25] Fourth, even if the first limb is confined to unbecoming action while the personwas a member, this is not determinative as the second limb of rule 10.3(b) is not soqualified: "or prejudicial to the objects or the interests of [CRNZ] and/or Canoe Racingin New Zealand". As will be apparent, the second limb begins with the term "or",which is disjunctive. So, rule 10.3(b) contains two distinct limbs, and the secondrequires only that the member has acted in a manner prejudicial to the objects orinterests of CRNZ and/or canoe racing in New Zealand. Unlike the first limb, thesecond does not connote the act must occur during membership.[26] Fifth, rule 10.3(c) comprises yet another distinct limb in relation to disciplinaryaction, and nothing in it suggests the behaviour must occur during membership.[27] Sixth, Mr Fraundorfer's argument is inconsistent with the objects of CRNZ,especially those captured by rules 2.1(a), 2.1(g), 2.1(l), and 2.1(q), in that it wouldpreclude termination of membership for all antecedent behaviour, no matter howscandalous or serious, and no matter how injurious to CRNZ, its members, or the sportof canoe racing more generally. For the same reason, the argument is also inconsistentwith rule 3.2, which places the responsibility on CRNZ as "guardian of Canoe Racingin New Zealand", "for leading, promoting, developing, enhancing and protecting" thesport.[28] Perhaps anticipating these concerns, Mr Fraundorfer contends membershipmay be terminated by combination of rules 3.1(c) and 10.6, without reference torule 10.3. Mr Fraundorfer says if the board considered a member was, for example,not "fit and proper", it could recommend their expulsion, and that recommendationwould be subject to adoption by special resolution. On this approach, rule 10.6 isindependent of the earlier rules comprising rule 10, hence a breach of rule 10.3 wouldnot be a prerequisite to termination of membership.[29] The argument attracts difficulty:(a) The constitution does not provide for termination when a member isnot "fit and proper", so termination on this or an analogous basis wouldhave to be implied. But, as Kós J observed in Tamaki v Māori Women'sWelfare League Inc, "the law generally insists that a power to suspend,expel or otherwise discipline membership of a society be express, ratherthan merely implied".16 This recognises an "untrammelled, impliedpower to discipline members is a dangerous device".17(b) The argument offends the principle identified by Kós J in another waytoo, in that it presupposes a freestanding ability to terminatemembership, that is, without reference to any criteria in theconstitution.(c) Suspension, a lesser penalty than expulsion, is available only whenthere has been a breach or possible breach of rule 10.3(a), 10.3(b), or10.3(c).(d) Rule 10.6 envisages earlier investigation by the Judicial Committee orboard, in turn linking to rules 10.3 and 10.4, which require a breach ofrule 10.3(a), 10.3(b), or 10.3(c).[30] Seventh, there is no conceptual difficulty with disqualifying behaviourpreceding membership (even CRNZ's existence). Membership is contractual innature, which is to say, it arises by agreement. It is always open to member andorganisation to agree disqualifying behaviour may precede membership. That,of course, must be apparent from the terms of the contract, in this case, theconstitution. For the reasons explained, I consider it is.Was Mr Thompson sanctioned by NZCA in relation to C?[31] C made a timely complaint (in 1991) to NZCA concerning the Mr Thompson'sbehaviour during the European competition. For this reason, Ms Casey was instructedby the board to:make inquiries as to whether a complaint made by [C] into the sameincident was investigated in or around 1991, whether any process wasundertaken and the outcome of the process (if any), and whether as a result ofmy findings, this investigation should continue.16 Tamaki v Māori Women's Welfare League Inc, above n 8, at [58(b)].17 At [58(b)].[32] C told Ms Casey if something official happened in consequence of hercomplaint to NZCA, she was not involved. C said Mr Thompson faced unrelatedallegations arising from the same trip, which were not of a sexual nature.Mr Thompson told Ms Casey that C's complaint was not upheld by NZCA, rather,there was no finding either way. Mr Thompson said the unrelated allegations, forexample, drinking and swearing while on tour, resulted in him losing his coachingposition for one year. Shortly thereafter, Mr Thompson resigned as NZCA'sCommodore in frustration at this outcome.[33] Ms Casey explored this issue at length, and with witnesses beyond C andMr Thompson. Ms Casey concluded C "did lodge a complaint about this incident inor around 1991 but that there was no proper investigative process followed in responseand the complaint was not resolved" by NZCA.[34] Mr Fraundorfer contends it is now arguable Mr Thompson was sanctioned byNZCA in relation to C, so there is a possibility C's complaint to CRNZ was barred bythe doctrines of issue estoppel, res judicata, or both. Mr Fraundorfer relies on twodocuments not before Ms Casey, the President's 1992 annual report to NZCA, and areport of the same year by the Acting Commodore. Mr Thompson obtained bothdocuments after Ms Casey completed her final reports, but before Mr Thompson'smembership was terminated. Mr Fraundorfer says the board should have halted theprocess when these documents became available, and its failure to do so was unfair toMr Thompson, or procedurally improper.[35] The President's report refers to "a difficult year", and later, to the Europeantour. About it, the report says:The Flatwater Team to Europe late in 1991 generated a degree of dissensionof such an extent that a majority of the team submitted written complaintsregarding the Team Coach and Team Manager. Some of the allegations wereconsidered serious enough to require consideration by the NZCA Executive.The result of the meeting, at which Ian Ferguson was asked to attend as teamrepresentative, was the decision of the Executive to declare the team coachand manager ineligible for selection to the 1992 Olympic team. The record ofthis meeting is contained in the minutes circulated to all clubs. The RacingCommodore, Alan Thompson, subsequently resigned.Following a newspaper article in which I quoted the Executive's decision, andin which Alan Thompson was quoted verbatim, I received a solicitor's letteron behalf of the Team Manager threatening me personally with legal actionfor defamation. I took legal advice and replied that I would not withdraw andwould vigorously defend any action against me. The matter rests there. TheNZCA Executive voted to reimburse me my legal costs at a subsequentmeeting.[36] The "minutes circulated to all clubs" are not in evidence and presumably, lost.The reference to some allegations being "serious enough to require consideration bythe NZCA Executive" does not, regrettably, identify what those allegations were.Consequently, the President's report adds nothing material to the position identifiedby Ms Casey. That being so, it cannot have been wrong for CRNZ to continue thedisciplinary process against Mr Thompson. The same is true in relation to the reportof the Acting Commodore, for, beyond a Delphic reference to "fire-fighting", thereport is silent on C's complaint.Should the board have taken further steps once it received Ms Casey's finalreports?[37] Ms Casey prepared an interim report and a final report in relation to eachcomplainant, hence a total of six reports. Mr Thompson's pleadings do not impeachthe reports, at least directly. Rather, they contend the final reports containshortcomings, such that it was procedurally improper or unfair for the board to haveacted on the reports by seeking termination of membership without first doing more.Multiple grounds are pursued. Again, I focus on the most significant.Was there a failure by Ms Casey in relation to C?[38] Terms of reference in relation to each complainant were recorded in separatedocuments. Mr Fraundorfer says the terms of reference in relation to C requiredMs Casey to address what constitution existed at the time of the alleged behaviour—1991—but Ms Casey did not do so.[39] The terms of reference in relation to C say:IntroductionAn allegation has been made by [C] against Alan Thompson, Member ofCanoe Racing New Zealand (CRNZ). The allegation is thata. on tour as a coach of the New Zealand kayaking team in 1991,Mr Thompson exposed his penis to [C].The circumstances that give rise to this allegation are outlined in a writtencomplaint and a preliminary statement made to the Sport NZ IndependentComplaints Mechanism (ICM) by [C], which are attached to these Terms ofReference.Mr Thompson has stated the allegation was investigated in or after 1991 when[C] made a formal complaint. [C] stated she made a formal complaint butdoes not recall there being an outcome of her complaint. No record of anyprocess has been located.An independent investigation is to be carried out into the allegation andwhether this has already been formally investigated by the relevantorganisation at the time the complaint was made in or around 1991. Thefindings of the investigation will be reported to Jan Shearer, Chair of theCRNZ Board. The investigation is to be completed by Victoria Casey QC.Objective / ApproachThe objective of this investigation is to:a. Complete a thorough, independent investigation, identifyingand reviewing the circumstances that arose and laid the basisfor the complaint.b. Provide an unbiased review of the findings and a written reportto the decision maker.c. Ensure fairness to the parties is observed throughout theinvestigation.d. Assess the findings of the investigation against the behaviouras described in the CRNZ Constitution.e. Recommendations to address any findings may be made,excluding any recommendation of disciplinary action.ScopeThe scope of the investigation is to cover the circumstances of the complaint,the actions complained of and any other relevant factors. The allegationsabout Mr Thompson made by other people which CRNZ is already aware ofare specifically excluded as irrelevant factors and must not be taken intoaccount. If during the course of the investigation, other allegations of a similarnature arise, the investigator will confer with the ICM regarding expandingthe Terms of Reference. Mr Thompson will be consulted before any changeto the Terms of Reference is made.The investigator is also required to make enquiries into whether a complaintmade by [C] was investigated in or around 1991, the process conducted inrespect of any complaint made by [C], whether any process undertakenconcerned the same allegation the outcome of the process (if any) and, if anyinvestigation or process was undertaken into the allegation in or around 1991,whether this investigation should continue.The investigator is to be provided with all relevant documentation related tothe allegations under investigation.The investigator is to provide and undertake a fair, independent, and thoroughinvestigation process, complying with the requirements of natural justice.Mr Thompson will be given the opportunity to nominate potential witnesses.The investigator determines who is relevant to the investigation. Otherinterviews (for example, with witnesses) are to be undertaken at the discretionof the investigator. The investigator is to interview all participantsindependently.Conflict of interestNo conflict of interest is declared by the investigator. However, if at any stageof the investigation a conflict of interest arises, this will be brought to theattention of the decision maker as soon as practicable....[40] The only aspect of the terms of reference that potentially supportsMr Fraundorfer's contention is paragraph (d) under the heading"Objective/Approach": "Assess the findings of the investigation against the behaviouras described in the CRNZ Constitution". However, the same paragraph appears in theterms of reference in relation to both A and B. Indeed, the three complainants' termsof reference are almost identical. This suggests paragraph (d) in relation to C's termsof reference did not require anything additional of Ms Casey concerning theconstitutional position.[41] Ms Casey's reports in relation to C support this view. Ms Casey's final reportends this way:It is not within the scope of my terms of reference to express a view on anydisciplinary response, or what the implications of this finding should be withregard to Mr Thompson's current position and future with the sport. I notethat the fact that this incident occurred 30 years ago, and under the aegis ofthe NZCA, before CRNZ was formed, poses some complex issues.I have however been invited to make any other recommendations that Iconsider appropriate. While there may be debate about what powers CRNZcan exercise in relation to Mr Thompson, by initiating this investigationCRNZ has established itself as the successor to the responsibilities of NZCAin relation to [C].NZCA failed to respond appropriately to this complaint at the time, and thissignificantly aggravated and perpetuated the harm caused to [C]. It will be apositive step for the current organisation to recognise and address this, and Irecommend that at the very least a formal apology be offered, andconsideration be given to what further steps could be taken to help address theharm so caused.[42] Ms Casey's draft report was in similar terms. Mr Thompson was given thedraft report and commented on it. While Mr Thompson questioned CRNZ'sjurisdiction in his response, he did not assert Ms Casey had failed to comply with theterms of reference in relation to the constitutional position. Mr Thompson was legallyrepresented throughout the process and his response ends by directing questions to hislawyers. So, there is little prospect the failure to raise the point represents layoversight. All this implies Ms Casey was not required by the terms of reference toaddress what constitution existed in 1991.[43] Finally on this issue, it is not clear how the alleged omission could constitutereviewable error in any event, for Mr Thompson now accepts the complaints weregoverned by the 2018 constitution, or as I have called it, the constitution, albeit beyondthe purview of rule 10.3.18Should the board have done more in relation to Mr Thompson's witnesses?[44] B said a few weeks after the incident, she told another canoer, P, about it.B said she thought P's partner, M, was present at that time. Ms Casey interviewedboth P and M. P said she did not recall B ventilating a complaint. M said he had"zero memory" of B doing so. M clarified what he meant by this: M said he was notsaying B had not complained; rather, he was saying he had "zero memory" of any suchcomplaint.[45] M expressed concern about the fairness of Ms Casey's investigation.Mr Fraundorfer says the board should have at least "paused" when it receivedMs Casey's report in relation to B because of the possibility that concern was valid.18 Submissions on behalf of Mr Thompson dated 20 January 2023 at [2.6].[46] Ms Casey addressed this point in her final report. During her interview of M,Ms Casey asked whether he had spoken to Mr Thompson about B's complaint. M saidhe had done so approximately four months earlier. However, it later became apparentM and Mr Thompson had in fact spoken "only days" before M's interview. Ms Caseyrecorded this in her draft report; so too unfavourable comment on M's credibility.Ms Casey provided that section of her draft report to M. M responded that he hadcontacted Mr Thompson (days before the interview) as Ms Casey was "looking toprove a thesis rather than assess the facts", and because he believed Mr Thompson"deserved to be aware of the slanted nature of the investigation". However, asMs Casey observed in her final report, that explanation was "clearly wrong" becauseat that stage of the investigation, she had done no more than contact M to arrange asuitable time to interview him.[47] Two things follow. First, M's alleged concern about fairness was voiced inanticipation of an adverse credibility determination by Ms Casey. Second, thechronology contradicted M's concern. Again, Ms Casey and M had not even met atthat point.[48] The next issue concerns F. A said when Mr Thompson made the remark to herabout putting her on her back in the Czech Republic, F was present. Ms Caseyinterviewed F. F's evidence, and Ms Casey's assessment of it, follow:I spoke to [F] over the phone. He said he had no memory of hearingMr Thompson make a sexualised comment to [A], even as a joke. He alsosaid that he'd never heard Mr Thompson make a sexualised joke to any athlete.He said that he didn't hear a comment like that and he thinks he wouldremember if he had, but he has no memory of it. I asked him whether it waspossible that [A] could have heard something in a different way than he mighthave. His response was that she could have, saying "I am not sure, sorry. Idon't really know how she hears things."I asked him later in the interview whether when he said: "not that I canremember" did he mean he couldn't remember a sexualised comment beingmade, or he did remember and it didn't happen. His response was that "I doremember and it didn't happen."I asked [F] at the start of the interview whether he'd heard about this complaintor spoken about this complaint with anyone else, other than Tom Ashley fromCRNZ who had contacted him at my request to arrange for me to have hiscontact details. His initial reply was that he had first heard about the complaintfrom [A]'s brother later in 2020 and then talked to his own family about it. Ithen asked him directly if he'd spoken to Mr Thompson about it, and hedisclosed he had, but said that this was in the context of another conversation,also late in the year, where he [F] had called Alan about something else, justto catch up, and "it had come up".Mr Thompson's evidence was however quite different. In his interview hesaid that on the day he received the complaint from CRNZ in early Octoberlast year he called [F] and at least two other athletes. He said he called thembecause he was trying to work out who was on that 2014 team. His purposefor doing so is unclear, and my inference is that he wanted to identify andpotentially speak to team members as they were potential witnesses of thealleged incident.Given Mr Thompson's irate description of his views of the complaint even inhis interview with me (that it was 'bullshit') it seems unlikely that he refrainedfrom expressing similar views to [F] and the others that he contacted that day,and in his interview he talked about their response to the complaint in generalterms. My view is that Mr Thompson contacted these athletes to confer withthem about the complaint and I infer that he was seeking (expressly or byimplication) support from them.[F]'s failure to disclose this call from Mr Thompson in response to my directquestion leads me to place limited weight on [F]'s evidence.[F] was offered the opportunity to comment on this section of my draft report.He chose to do so through an unsigned statement provided by Mr Thompson'slawyers. I had a number of concerns with that statement which I raised withMr Thompson's lawyers, who responded on behalf of [F] and Mr Thompson.The statement contains obvious errors. It appears to have been prepared atleast in part by Mr Thompson's lawyers, and agreed to by [F] withoutparticular regard to its accuracy.[F] says in his written statement that when he spoke to me in April 2021 andtold me that he'd first heard about the complaint from [A]'s brother late in2020, and that the only time he'd talked to Mr Thompson about it was alsoaround that time where 'it had come up' in the context of a call aboutsomething else, he had forgotten about Mr Thompson's call to him in October2020 telling him about the complaint. I note that [F] had been provided withthe transcript of my interview with him, and given the opportunity to correctany errors or provide further comment, so his failure to remember appears tohave extended to through that process as well.Even on the most favourable reading of this evidence, [F] either has a poormemory when it comes to matters that might be adverse to Mr Thompson,and/or does not exercise any particular care in the accuracy of his evidence. Iremain of the view that [F]'s evidence should be given limited weight.[49] Mr Fraundorfer says Ms Casey's approach to F's evidence is indicative ofconflicts that occurred between Ms Casey and Mr Thompson's witnesses, and theboard should therefore have been wary the complete factual canvas was not before it.[50] This submission does not really go anywhere. Mr Fraundorfer does not argueMs Casey was not entitled to make factual determinations, including ones adverse toMr Thompson or his witnesses. Nor does Mr Fraundorfer identify any error, as such,with Ms Casey's approach. The submission comes close to an allegation of bias, butthis is not pleaded. I, therefore, move to the next argument.[51] A made other allegations about Mr Thompson, including that on the same tripto the Czech Republic, he joked about watching pornography with junior malecanoers. I call these the other allegations. On 14 April 2021, Mr Thompson gaveMs Casey a list of 20 witnesses. Five were offered as character witnesses or referees,and nine as potentially rebutting the other allegations. The remaining six witnesseswere identified as being part of the Czech Republic trip, including F, whose evidenceI discussed earlier.[52] Ms Casey did not interview the witnesses offered by Mr Thompson, otherthan F. Mr Fraundorfer contends this was unfair to Mr Thompson because:(a) The other five Czech Republic witnesses might have had informationrelevant to A's complaint.(b) The nine concerning the other allegations might have had informationrelevant to the other allegations.Mr Fraundorfer contends the board should not have acted on the reports, without firstmaking factual inquiries of these witnesses.[53] Ms Casey explained her position in relation to (a) in her final report:Mr Thompson in his response to my draft report raises a process complaint,challenging my decision not to interview other possible witnesses. He claimsthat [A] during her interview with me named a number of persons who were"either present during the 2014 tour or who she alleges to have told about theincident".[A] in her interview referred to athletes that were on the trip but she could notrecall who was in the room at the time of the alleged incident, other than [F],and possibly [someone else identified by A]. She was also clear that she didn'ttalk to anyone on the tour about this incident. The first person she says shediscussed the incident with was [redacted], some four years later. Otherpeople she spoke to were in more recent discussions, in the lead up to herdecision to raise a formal complaint.Once I had completed my interviews with [A] and [redacted], I did notconsider it necessary to talk to others on the 2014 tour, who may or may nothave been present in the room at the time of Mr Thompson's alleged commentto [A], may or may not have overheard it, and may or may not have beencontacted by Mr Thompson in October 2020. Absence of recollection wouldnot establish that the incident had not happened. Nor at that stage did Iconsider it necessary to look for further evidence to corroborate that it hadhappened (and evidence of more recent discussions in the lead up to thiscomplaint would not have been useful for that purpose in any event).Mr Thompson provided further witness statements from three of the athleteson the 2014 trip (one unnamed) who each stated that they had not heard himmake a comment of a sexual nature to a female athlete during the 2014 trip.Those statements do not take matters any further: they may not have been inthe room at the time, or may not have heard the alleged comment.Mr Thompson in his response to the draft report also referred to a conversationhe says took place between his lawyers and another female athlete on the tour,who refused to provide a statements but told his lawyers that she had "nothingto say as the allegations are false". Mr Thompson requested me to makecontact with this person and obtain a statement. I have not done so, for threereasons. First, this person is apparently clear that they do not want toparticipate, and I have no powers to compel them. Second, [A]'s evidencewas that she did not recall the other female athletes being in the room, and sheis clear she did not talk to them about it afterward. This person is thereforeunlikely to be able to give relevant evidence as to the facts of what happenedat the time. Third, the reported statement that an athlete on the 2014 tourconsiders that the complaint is false is not helpful: unless this witness wasstanding by [A]'s side for every moment of every day on the tour, she cannotpossibly know that this incident did not happen.[54] Ms Casey also explained her position in relation to (b) in her final report:Mr Thompson also challenged [A]'s credibility on the basis that otherallegations she made in her written statement were also untrue. A number ofthese allegations were hearsay and [A] did not claim to know herself what thecorrect position was. I did not consider that any of them provided reliablesupport for her core allegation, and have not given them any weight in myassessment.However, I also do not consider that they detract from [A]'s credibility. Theexperience and understanding of the culture of a group on tour may well differbetween Mr Thompson, a senior male leader in his 50s, and [A], a youngwoman travelling with little support in a reasonably male dominatedenvironment.The specific allegation relating to pornography was carefully expressed: [A]said that Mr Thompson joked about watching porn with the young maleathletes, but she did not know if he actually did. In my interview withMr Thompson it became clear that male athletes may well have been accessingpornography, although Mr Thompson was clear that: (a) what they did wastheir business; and (b) there was an agreed protocol that neither he nor any ofthe other managers would be party to that sort of conduct. [A]'s impressionis not too far removed from even these limited concessions, and when theseare considered in the context of the language that I have found Mr Thompsonused to [A], joking about pornography would not be beyond the realm ofpossibility.The specific claim about Mr Thompson telling [A] that his nickname ('hose')referred to the size of his penis was firmly denied. Mr Thompson said hewould remember if she had asked him what his nickname meant, becausehardly anyone ever did. He also explained that the nickname started asrhyming slang about the size of his nose, probably expanded to 'hose nose'because of his hayfever when he was young. That of course does not rule outthe possibility that Mr Thompson gave a different and more offensive answerto [A], had she asked. His main response at our interview was that even if hehad given this sort of answer he would not in fact have used the word penis,as that was not a word he used to refer to that part of his anatomy.I asked [A] whether she was sure that Mr Thompson had used the word"penis". She explained that the word was actually used by someone else:when she asked Mr Thompson what his nickname meant she says he smirkedand said "wouldn't you like to know" and that it was another athlete standingbehind her (she cannot recall who) who joked that it referred to the size of hispenis.[A] also referred to being told by a young woman from the Poverty Bay clubwhere Mr Thompson coaches that his behaviour is still concerning and isconsistent with her experience in 2014. Mr Thompson provided referencesand suggested witnesses that I could speak to about the culture of this club,but he also accepted that the woman identified may well have beencomplaining about the club, describing that as 'tittle tattle from [an] athletethat would do anything to get in a team'. Whether or not there are any issuesin the Poverty Bay club is not within the scope of my investigation and Iexpress no view on that either way. However, the point is that [A]'s credibilityis not affected here: she describes only what she is told by someone thatMr Thompson appears to acknowledge might have been making suchcomplaints.To reiterate: my investigation is not about whether pornography was beingwatched on the tour or joked about, the meaning of Mr Thompson's nickname,nor the culture of the Poverty Bay club. I make no findings on those matters.I have considered them solely in the context of Mr Thompson's argument that[A]'s statements on these matters show that she is not credible, and supporthis position that she is deliberately fabricating her complaint against him. Ido not find that to be the case.[55] These reasons speak for themselves. It was open to the board to adopt them,without further action.Should the board have employed procedures from the 1995 constitution?[56] The 1995 constitution outlined different disciplinary procedures to those underthe constitution governing the complaints. Under the 1995 constitution, disciplinaryhearings involved oral evidence, including on behalf of a defendant. Mr Fraundorfercontends CRNZ should have utilised these procedures in relation to the complaints, orat least considered doing so, as they were more advantageous to Mr Thompson thanthose under the constitution.[57] This submission cannot be reconciled with Mr Thompson's acknowledgmentthe complaints were governed by the constitution.19 That being so, CRNZ was obligedto determine the complaints in accordance with it rather than the 1995 constitution.Assessment of this ground[58] As will be recalled, the overarching contention is that the final reports containshortcomings, such that it was procedurally improper or unfair for the board to haveacted on them without doing more. Again, I am unpersuaded this is so. Ms Casey wasinstructed to investigate the complaints. She did so. Ms Casey interviewed thecomplainants, Mr Thompson, and other material witnesses. Ms Casey released herdraft reports for comment. Mr Thompson commented (extensively) on these.Ms Casey's final reports contained unequivocal factual determinations thatMr Thompson had engaged in the conduct complained of, and reasons for thosedeterminations. Mr Thompson may disagree with the determinations, but that doesnot constitute a basis for intervention. In short, the board was entitled to act onMs Casey's reports. For completeness, I add two observations.[59] First, Ms Casey investigated each complaint independently of the others. Shedid not rely on what the Evidence Act 2006 calls "propensity evidence" or associatedreasoning. Ms Casey did not do so because the board and Mr Thompson agreed eachcomplaint should be investigated independently. It was open to the parties to agreethis approach. Nothing, however, in the constitution required it.19 Submissions on behalf of Mr Thompson dated 20 January 2023 at [2.6].[60] Second, Mr Thompson does not argue expulsion in relation to the complaintsof B and C constitutes a retrospective penalty in contravention of s 26 of theNew Zealand Bill of Rights Act 1990. He is right not to do so as s 26 is concernedwith criminal penalties, not those arising in a disciplinary setting.20Did the board otherwise act improperly or unfairly in relation to Mr Thompson'sexpulsion?Should the board have afforded Mr Thompson 10 working days before it took furthersteps in relation to his expulsion?[61] On 1 October 2021, Ms Casey gave the parties her final reports in relation toA and B. That in relation to C remained outstanding. Mr Thompson asked the boardfor 10 working days from the provision of the final report in relation to C before theboard took further steps in relation to his expulsion. The board did not accord therequest. On 22 November 2021, it gave notice it would seek Mr Thompson'sexpulsion at a special meeting on 22 December 2021, based on the complaints of Aand B. On 24 November 2021, Ms Casey gave the parties her final report in relationto C. On 29 November 2021, the board amended its 22 November notice to encompassC's complaint as well.[62] Mr Fraundorfer contends the board acted unfairly in not providingMr Thompson the time he sought, and by "tacking on" C's complaint to the existingnotice.[63] Rule 10.6 of the constitution, which I discussed earlier, is also relevant here.I set it out again:Expulsion: The Delegates at a General Meeting may expel a Member if theJudicial Committee or Board makes a recommendation to do so, and a motionto that effect is notified in accordance with this Constitution. The motion forexpulsion must be adopted by Special Resolution and shall not be voted onuntil the Member concerned has been given the right to be heard.[64] As will be apparent from rule 10.6, Mr Thompson had a right to be heard beforethe vote in relation to the special resolution concerning his expulsion. However,20 Z v Dentals Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.Mr Thompson did not have a right to be heard earlier. More particularly,Mr Thompson did not have a right to be heard by the board before it recommendedexpulsion. That being so, the real question is whether Mr Thompson had adequatetime to prepare between 22 November and 22 December 2021 in relation to A and B,and between 29 November and 22 December 2021 in relation to C.21[65] Mr Fraundorfer did not identify any material prejudice in relation to thesetimeframes, and the pleadings do not articulate any. The timeframes do not appearunreasonable on their face. I, therefore, am unpersuaded of unfairness.Did the board breach its undertaking to Mr Thompson about confidentiality?[66] As will be recalled, the board suspended Mr Thompson 29 September 2020following A's complaint. The board told Mr Thompson it was "conscious" of his rightto privacy, so too A's right. The board said it would "keep this matter confidentialduring the course of the investigation". It asked Mr Thompson to do likewise. Theboard gave the same undertakings in relation to B and C once it received theircomplaints. When the board gave notice on 22 November 2021 of its intention to seekMr Thompson's expulsion, it also issued this press release:Media Statement – Canoe Racing New Zealand22 November 2021In October 2020, CRNZ received complaints alleging that a CRNZ member,Alan Thompson, had made inappropriate sexualised remarks to femaleathletes. One incident was alleged to have occurred in 1998, and the other in2014. One of the incidents occurred overseas on a CRNZ tour, and the otherat a competition in NZ. CRNZ will not disclose further details of the conductat this time out of consideration for the privacy of the complainants.On receipt of the complaints, CRNZ appointed Ms Victoria Casey QC asindependent investigator via the SportNZ Independent ComplaintsMechanism (which has now been superseded by the SRCMS). The CRNZBoard suspended Mr Thompson's CRNZ membership pending resolution ofthe independent investigations. Mr Thompson denied (and continues to deny)that either incident occurred.Both investigations concluded in October 2021. Ms Casey QC found that thealleged conduct occurred, and that the conduct was unbecoming of a CRNZ21 Mr Fraundorfer does not contend the amendment of the notice (by adding C) contravened thenotice provisions of the constitution.member, and contrary to CRNZ's goals. The CRNZ Board acceptsMs Casey QC's findings.Based on Ms Casey QC's determinations, the CRNZ Board resolved to seekMr Thompson's expulsion from the CRNZ membership. In making thisdecision, the Board especially considered the following factors:• The nature of the remarks, including their intent, the context and thosepresent.• The impact of the conduct on the female athletes.• Mr Thompson's continued denial of the conduct and lack of remorse.• Ensuring a safe environment for all athletes who participate in canoeracing and CRNZ activities, both in NZ and in CRNZ's care when ontour overseas.• CRNZ does not condone or accept demeaning and/or sexuallyaggressive behaviour, particularly from those in positions of authorityand/or power.The CRNZ Constitution sets out that a member may be expelled only bySpecial Resolution of Members at General Meeting. As such, the Board hasrequested the CEO to call a Special General Meeting for 22 December 2021.The result of the SGM voting will be made available on 23 December 2021 tothe public and media.On conclusion of this process CRNZ will be available for comment. Thewelfare and confidentiality of the complainants is of the highest priority forCRNZ. As is continuing our commitment to ensuring a culture whereinappropriate behaviour can be addressed in a secure and confidential mannerand the appropriate process can be followed.[67] Ms Shearer, the chairperson of CRNZ, says the board took this step as itbelieved "Mr Thompson's expulsion would be leaked to the media quickly".[68] Mr Fraundorfer contends the board breached its undertakings aboutconfidentiality by issuing the release, and in any event, acted unfairly in doing so.[69] The board's undertakings concerned "the course of the investigation" inrelation to A, B and C. Plainly, the investigations in relation to A and B had ended by1 October 2021, when Ms Casey issued her final report in relation to thosecomplainants. That being so, the 22 November press release did not breach theundertakings in relation to those complainants.[70] As to unfairness, publicity could conceivably generate pressure being placedon members, particularly member clubs, to vote in favour of Mr Thompson'sexpulsion.22 However, that outcome could also reflect the nature and gravity ofMr Thompson's behaviour. Furthermore, Mr Thompson's suspension had attractedpublicity, and it was rational to expect more.23 Importantly, the board's press releasecontained: (a) no more information than that in the 22 November notice; and (b)nothing inaccurate. For these reasons, I am not persuaded of unfairness by virtue ofthe press release.Was Mr Thompson's right to be heard afforded in relation to expulsion?[71] The special meeting to determine expulsion was held 22 December 2021,at 7 pm, by Zoom. Events leading to the meeting are also relevant. On the morningof 13 December 2021, the board offered Mr Thompson the opportunity to provide aletter to members as part of a proposed information pack, provided it did not defamethe complainants, contain further evidence in respect of the complaints, or conflatethem "with what Mr Thompson describes as his 'ongoing dispute' with CRNZ".Mr Thompson's lawyers contested these conditions.[72] On 15 December 2021, the board gave members the information pack, whichincluded Ms Casey's final reports and a short statement by each complainant about theeffects of Mr Thompson's behaviour.24 The pack contained nothing fromMr Thompson, as he had not provided the board anything.[73] On 21 December 2021, Mr Thompson gave members an eight-page submissiondirected at why he should not be expelled.25 That afternoon, Mr Thompson's lawyersasked the board to confirm they were "not invited to attend the [special meeting] orspeak on his behalf".[74] Absent a response, they asked again at 5.07 pm, 22 December 2021. The boardreplied three minutes later, saying his lawyers may attend but not address themeeting.2622 Some members are individuals; others are clubs.23 There is an evidential contest as to how the media came to know of Mr Thompson's suspension.It is not necessary to resolve this.24 Their details were redacted.25 The submission challenged the legality and fairness of the process; it did not constitute a plea inmitigation.26 The lawyers chose not to attend.[75] Speakers at the meeting were asked to confine their addresses to three minutes,except for Mr Thompson, who was given a maximum of 30 minutes. Speakers werealso asked to remain on point by these remarks in the information pack:Scope of discussion:The SGM can only consider the business presented to it on the agenda, whichis to consider the expulsion of Mr Thompson on the basis of the CRNZ'sBoard recommendation following an independent investigation ofMr Thompson's conduct. The independent investigation found thatMr Thompson's conduct is prejudicial to the objects or the interests ofCanoe Racing in New Zealand and/or brings the sport of Canoe Racing intodisrepute. The Clubs are asked to decide whether to accept the Board'srecommendation to expel Mr Thompson under Rule 10.6 of the CRNZconstitution.Please restrict all comments accordingly.Speakers who comment on matters outside this limited scope will be asked tostop and / or put on mute by the Chair.All speakers are asked to be respectful and considerate in your comments toall parties involved, and in particular to the complainants.[76] Mr Thompson contends his right to be heard at the special meeting was notafforded.27 In advancing this contention, Mr Fraundorfer does not argueMr Thompson was entitled to have his lawyers speak at that meeting, presumablybecause the constitution regulated who may address meetings. Rather, Mr Fraundorferinvites attention to the surrounding circumstances, including what he describes as theboard's "control" of information by provision of the pack on 15 December 2021, andits restriction of speaking time to 30 minutes. Mr Fraundorfer says these limitationsmeant Mr Thompson had no true opportunity to be heard in relation to expulsionbefore members voted on that.[77] Unsurprisingly, no formula exists for determining whether someone's right tobe heard has been afforded. This may reflect the elasticity inherent to the right; whatit requires is a function of time, place, and circumstance.28 With this in mind, I makesix points.27 Under rule 10.6 of the constitution.28 Vandervis v Dunedin City Council [2022] NZCA 219 at [38]–[39].[78] First, while it is not wrong to describe the board as "controlling" theinformation to members, a more neutral expression would be that the board"supervised" the information to members. The latter better captures what occurred, asthe board had obligations beyond those to Mr Thompson, including the complainants.Those obligations were squarely engaged because Mr Thompson had expressed strongviews about the veracity of the complaints. For example, he had described A'scomplaint as "bullshit". Nothing suggested Mr Thompson's position had changed inrelation to the complaints.[79] Second, as recorded in the notice, the board accepted Ms Casey's factualdeterminations, and by virtue of them, concluded Mr Thompson acted in a mannerunbecoming of a member, or prejudicial to the objects or interests of CRNZ, andbrought CRNZ into disrepute. In terms of the constitution, the board had, pursuant torule 10.3(c)(ii), made "its own enquiries" (through Ms Casey), and was seeking to"impose any sanction" by expulsion.29 So, and importantly, the inquiry was penalty,not liability.[80] Third, the board provided Mr Thompson an opportunity to include material inthe information pack germane to penalty. When that opportunity passed,Mr Thompson provided a submission to members addressing process, includingcontentions the complaints had not been established, and penalty.[81] Fourth, a 30-minute speaking restriction would be difficult to reconcile withthe right were the inquiry liability. But, as observed, that was not the inquiry.That Mr Thompson may, for example, have wanted more time at the meeting tochallenge process or liability, is, therefore, beside the point.[82] Fifth, the board's restrictions on comments, as to which see [75], were to insiston no more than relevance given its earlier determination of liability.[83] Sixth, no technical, legal issue arose that would have benefited representationat the special meeting.29 Emphasis added.[84] For these reasons, I am not persuaded Mr Thompson was not afforded his rightto be heard in relation to expulsion.Other arguments[85] Mr Fraundorfer offered other process arguments ultimately directed atexpulsion. There is nothing in these. However, as will become apparent, I reach adifferent conclusion about Mr Thompson's right to be heard on suspension.Was Mr Thompson's right to be heard afforded in relation to suspension?[86] Rule 10.4 of the constitution gave Mr Thompson the right to be heard onsuspension.[87] On Friday, 25 September 2020, at 1.33 pm, the board informed Mr Thompsonof A's complaint and that it was proposing to suspend him pending determination ofthat complaint. The board asked Mr Thompson to respond by 5 pm the next day.Mr Thompson's lawyers replied Friday evening, describing the timeframe as"entirely unreasonable". They asked for more information and thereafter, seven daysto respond.[88] The evidence is not clear whether the board decided to suspend Mr Thompsonon Sunday, 27 September, or Monday, 28 September. Whatever the position, onTuesday, 29 September 2020, the board told Mr Thompson it had suspended hismembership in light of A's complaint.[89] Mr David contends the timeframe for Mr Thompson's response was notunreasonable because the complaint was serious and Mr Thompson and A wouldotherwise be attending a regatta beginning 10 October 2020, Mr Thompson as a coach.[90] These factors warranted a prompt response from Mr Thompson in relation tosuspension; plainly, that had to be resolved before the regatta.30 However, they cannot30 Unless perhaps Mr Thompson undertook not to attend.justify CRNZ's requirement for a response within approximately 27 hours, particularlyas:(a) There is no evidence Mr Thompson had earlier knowledge of A'scomplaint. It follows he had to digest both it and the prospect ofsuspension.(b) The timeframe began on a Friday afternoon and ended the next day—a Saturday.(c) Obtaining meaningful legal advice in these circumstances was likely tobe very difficult.[91] That being so, and as Mr Thompson was not given any other opportunity to beheard in relation to suspension, that right was not afforded.[92] This is not to conclude Mr Thompson needed a full seven days to respond, ashis lawyers sought. Nor is it to conclude Mr Thompson needed "full disclosure including supporting witness statements" in relation to the complaint, as his lawyersalso sought. Again, it is to conclude Mr Thompson's right to be heard was not affordedgiven the circumstances emphasised at [90], and the absence of any other opportunityto be heard before the decision was made to suspend him.Did CRNZ breach contract?[93] Mr Thompson's pleadings advance a contractual claim based on the samegrounds as those animating his claim for judicial review. Given my conclusions, onlyone issue arises: by not affording Mr Thompson's right to be heard on suspension,did CRNZ breach contract?[94] Mr Fraundorfer says, yes. He notes rule 2.1(o) of the constitution provides:Act in good faith and loyalty with its Members to ensure the maintenance andenhancement of Canoe Racing in New Zealand including its standards, qualityand its reputation for the collective and mutual benefit of Canoe Racing NZand its Members.[95] Mr Fraundorfer says it follows CRNZ had a contractual obligation ofgood faith to Mr Thompson, and it breached this obligation by not affording his rightto be heard on suspension. Mr Fraundorfer contends an absence of good faith may beinferred from surrounding circumstances, including this email from Ms Shearer toother members of the board on the morning of Friday, 25 September 2020:MorningAfter further consultation including legal advice from Russell McVeagh, SportNZ and ICM, the below and attached are the advised next steps.The recommendation proposed to the Board is as follows:• The Board considers suspending Mr Thompson under clause 10.4pending investigation of this complaint (the Board before deciding tosuspend, consults with Mr Thompson and reviews his feedback – canbe perfunctory);• We appoint the SportNZ Independent Complaints Mechanism as theinvestigator (SportNZ has agreed to support this – the ComplaintsMechanism is run by Steph Dyhrberg who has indicated she is willingto take this matter);• The ToR of the delegation to the ICM could be to investigate the factsand report their findings to the CRNZ Board;• The Board acts on the findings of the ICM under clause 10.Please let me know if you firstly have any questions and secondly if you arein agreement with this complaint being sent to Alan Thompson. We will needto listen to his feedback and then decide on whether to suspend him fromCRNZ – suggested this is a reasonable quick turnaround for Alan (48 hours).If the Board agrees, this can be sent today.ThanksJan[96] Mr Fraundorfer places weight on Ms Shearer's use of the term "perfunctory"in apparent reference to the right to be heard and the board's consideration ofsuspension.[97] I assume, without deciding, rule 2.1(o) has the effect contended for, and makefive points.3131 The rule is arguably more subtle than posited, in that the good faith obligation appears to bequalified to "the maintenance and enhancement of Canoe Racing in New Zealand ".[98] First, that the process could be "perfunctory" is, in context, also consistent withit being uncomplicated and swift.32 The fact of the pending regatta supports that view.Second, it is clear from Ms Shearer's email and other board correspondence thatCRNZ took legal advice before suspending Mr Thompson. Third, it is equally clearfrom surrounding correspondence CRNZ took that advice seriously. Fourth, the samecorrespondence also exhibits genuine concern on the part of the board about thegravity of A's complaint, and that rather than any animus appears to have motivatedthe board to move swiftly. Fifth, there is nothing unusual or untoward in the factCRNZ and Mr Thompson engaged in a procedural arm-wrestle. That they disagreedsharply about process does not imply an absence of good faith on CRNZ's part.[99] For these reasons, I am not satisfied CRNZ failed to act in good faith in relationto Mr Thompson's suspension (despite my conclusion Mr Thompson's right to beheard was not afforded).Summary of conclusions[100] CRNZ had the power to expel Mr Thompson in relation to B and C.Mr Thompson was not sanctioned by NZCA in relation to C in 1991. The board wasnot required to take further steps once it received Ms Casey's final reports; it was opento the board to act on those reports. The board did not otherwise act improperly orunfairly in relation to Mr Thompson's expulsion. However, Mr Thompson's right tobe heard on suspension was not afforded. No breach of contract is established.Remedy[101] Mr Thompson and CRNZ agreed before the hearing this judgment shouldaddress liability only, not remedy.33 I respect that. However, given my conclusions,it may be remedy can be agreed, most obviously, a declaration CRNZ did not affordMr Thompson's right to be heard on suspension. Failing agreement, the parties mayfile memoranda according to the timetable below, identifying what further steps theyenvisage.32 Neither party sought cross-examination of any witness.33 Joint memorandum of 20 October 2022 at [2].Result[102] The judicial review claim succeeds, and is upheld, to the extent CRNZ did notafford Mr Thompson's right to be heard on suspension. Every other aspect of thejudicial review claim fails and is dismissed.[103] Every aspect of the contract claim fails and is dismissed.Costs[104] This may be a case in which costs should lie where they fall given the breadthof Mr Thompson's claims. Failing agreement, the parties may file memoranda of notmore than 12 pages each, including as to remedy:(a) On or before 15 August 2023 on behalf of Mr Thompson.(b) On or before 29 August 2023 on behalf of CRNZ...Downs J