VANDERVIS v DUNEDIN CITY COUNCIL [2022] NZCA 219

VANDERVIS v DUNEDIN CITY COUNCIL [2022] NZCA 219 [2 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA56/2021[2022] NZCA 219BETWEEN LEE VANDERVISAppellantAND DUNEDIN CITY COUNCILFirst RespondentDAVID BENHAMSecond RespondentHearing: 23 March 2022Court: Collins, Lang and Mallon JJCounsel: L A Andersen QC and S Gaskell for AppellantM R Garbett and S M Chadwick for RespondentsJudgment: 2 June 2022 at 9.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents costs for a standard appeal on aband A basis with provision for one counsel and with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Lee Vandervis, a Dunedin City councillor, was censured by the Dunedin CityCouncil after a confrontation with a staff member about the circumstances in whichhe had been issued a $12 parking ticket. He challenged his censure in a judicial reviewproceeding. The High Court dismissed this challenge.1 He now appeals to this Court.[2] He appeals on two grounds:2(a) The complaint that led to him being censured was invalid because itwas not made by an authorised person under the Council's Code ofConduct.(b) The investigation that led to him being censured was in breach ofnatural justice because he was not adequately informed of the complaintand the evidence relied upon or given an adequate chance to respondbefore it was determined that he had breached the Code of Conduct.[3] We dismiss the appeal for the reasons that follow.Factual background[4] Mr Vandervis has been an elected councillor for many years. In each of the2016 and 2019 elections he was the highest polling councillor. He was also the highestunsuccessful candidate in the mayoralty.[5] On 13 September 2019, he parked his car in a parking space near the DunedinDental School. From the footpath side he could see a sign on the meter stating thatthe rate was $2 per 30 minutes. He did not notice that on the street side the meter hada P30 sign indicating that the parking space had a 30 minute limit. He paid $4.20 intothe meter thinking that he had parking for over one hour. He came back within thehour to find his car being ticketed. He had a discussion with the parking officer whopointed out the P30 limit. The parking officer told Mr Vandervis that he would haveto take up his issue with the Council.1 Vandervis v Dunedin City Council [2020] NZHC 3436 [High Court judgment].2 In the High Court, Mr Vandervis also contended that no panel of investigators had been appointedat the start of the triennium as required and this meant that Mr Benham (the investigator) had notbeen properly appointed and the decision to censure him was invalid. This ground of review wasrejected in the High Court and is not pursued on this appeal.[6] Mr Vandervis' evidence is that he immediately went to the Council CustomerServices desk. He told the person at the desk that he wanted the meter noted as faultybecause the P30 sign was not visible when using the meter and it had accepted $4.20when the limit was $2 for the maximum 30 minute period. According to Mr Vandervis,the person at the desk refused to listen to his complaint and told him he had to makethe complaint in writing. Mr Vandervis said he made it clear that his complaint wasabout the faulty machine and she should note the machine number.[7] On 17 September 2019 at 5.42 am he sent an email to the Council's ChiefExecutive, Dr Sue Bidrose. The email outlined the above and said the "unpleasantfemale services officer" refused to listen to his complaint and "became moreunpleasant as [he] tried to show her the phone-photo" of the meter. The emailcontinued:Please sort the following issues:1- misleading advertising on parking machine clearly saying $4 per hour.32- contradictory P30 signage on machine invisible from normal footpathapproach for paying machine.3- faulty machine accepting $4.20 payment but only allowing 30 minute timerestriction.4- Scooter Parking Officer not recognising issues above, not cancellingticket, and apparently falsely claiming that I had to go to the DCC if Iwanted to complain.5- Very unpleasant Customer Services female [they were all female] whorefused to consider my complaint, or to acknowledge the photo evidenceI showed, or acknowledge the Parking Officer's wrong advice that I hadto go to the DCC to complain.It is disappointing that I am now spending so much more of my valuable timemaking this DCC-caused parking complaint for a third time, now to you asCEO.Please address the numerous complaints above, Please advise that the inappropriate parking ticket has been cancelled by returnemail, and that you will promptly address the issues 1-5 above..(square brackets in original)3 We note that the photograph of the sign relied on by Mr Vandervis does not state "$4 per hour".Rather it states "$2.00 per 30 min".[8] On 18 September 2019 at 2 pm the staff member involved in the incident withMr Vandervis emailed Dr Bidrose to advise that she wished to make a Code of Conductcomplaint. Her email advised that this had followed a discussion with her generalmanager about her options. Her email also advised that there were many witnesses tothe incident who would be willing to make statements.[9] Dr Bidrose also received an email that day, at 5.31 pm, from the staff member'sgeneral manager about their meeting earlier in the day. The email advised Dr Bidrosethat the staff member "was quite shaken" at the time of the incident and, having beenadvised of her options, had decided she would like to make a Code of Conductcomplaint about the incident.4[10] On 19 September 2019, Dr Bidrose contacted David Benham by telephoneappointing him as the independent investigator on the complaint. Mr Benham hadconsiderable relevant experience, having held roles in local government for over30 years, including nine years as the Chief Executive of the Wellington RegionalCouncil. The next day, at 10.38 am, Dr Bidrose's PA, Vivienne Harvey, emailedMr Benham about administrative arrangements for the appointment and advised himthat interviews with the complainant and the witnesses were scheduled for26 September 2019.[11] On 23 September 2019 at 9.18 am Dr Bidrose emailed Mr Vandervis advisinghim that: she had received a Code of Conduct complaint; Mr Benham had beenappointed investigator; and Mr Benham would investigate the complaint inaccordance with Appendix B of the Code of Conduct.[12] On 24 September 2019 a "Full Incident Report" was completed by the staffmember. It was provided to Mr Benham by email on the same day at 4.36 pm. Thestaff member described the incident as follows:Lee Vandervis came [into] reception regarding a parking infringement he wasnot happy about receiving. He showed me a photo on his phone of the meterthat had the maximum time stay on the opposite side from the payment screen,and said he was not aware of the maximum time stay. I told him he can submit4 The options were taking no further action, speaking with Mr Vandervis directly, or making a Codeof Conduct complaint.an explanation in writing. He said I'm doing my explanation now, to which Iexplained explanations need to come to us in writing and we are unable toaccept the explanation verbally. I tried to give him options but he said he hadwasted enough time and that he was giving his explanation. I tried to explainagain it would need to be in writing but he was not happy with this and askedfor my name, which I wrote on the ticket and stormed off saying he would seeme in court.His manner during this exchange was aggressive, and his voice was raised thewhole time. He was leaning over the counter trying to intimidate me andwaving his finger at me. I tried to remain calm and explain there are processesin place, but this seemed to get him more riled up.We had a customer at the time, who was made to feel very uncomfortable.Everyone in the plaza (in planning and building) at the time heard the wholething, which indicates he was speaking in a raised voice.[13] At 5.56 pm that day, Mr Benham emailed Dr Bidrose advising that "thecomplaint [was] material and a full investigation [was] required". He attached hispreliminary assessment of the complaint. This advised that he had read the staffmember's complaint and spoken to her by telephone. He had also spoken to anotherstaff member from another department who had witnessed the latter part of theincident. He had also viewed the CCTV recording of the incident and noted that it hadno sound. His assessment went on to state:It is clear from both the complaint and the witness, that the behaviour of theCouncillor towards the complainant was aggressive, loud and intimidating.The complainant was very distressed and upset after the incident.The witness['] view was the complainant responded remarkably calmly inwhat was a totally uncalled for verbal attack.I have determined that the complaint is material and of sufficient substancethat a full investigation is justified.[14] At 6.48 pm that day, Dr Bidrose emailed Mr Vandervis advising him that shehad received the investigator's preliminary assessment and he had determined that "thecomplaint [was] material and a full investigation [was] required". Mr Vandervis wasalso advised that the investigation would begin that week.[15] Over the next two days, 25 and 26 September 2019, Mr Benham conductedinterviews of the staff member involved, seven other employees and a member of thepublic. He also interviewed Mr Vandervis and made the CCTV footage available tohim. Mr Benham made notes of his investigation setting out:(a) The staff member's account: This was in similar terms to that set outabove. She described feeling intimidated, "churned up and upset" fromthe incident.(b) The accounts given by other employees and the member of the public:Their accounts corroborated the staff member's account. Theydescribed Mr Vandervis as "yelling", getting "progressively louder andmore aggressive" or similar and that the staff member had remainedcalm throughout.(c) His discussion with Mr Vandervis: Mr Vandervis gave a differentaccount of the incident. He said he was not there to get a waiver of hisfine, but rather to get action on the parking meter signage. He believedthe staff member was not acting appropriately and the complaint waspolitically motivated (in the context of the upcoming Mayoral andCouncil elections in early October) and a continuation of negativeinformation leaked about him by staff to discredit him. He disputedthat he spoke loudly, aggressively and in an intimating tone. He saidhe did not say "I will see you in court" but did say "if you want to takethis to court, I'm happy to argue". Mr Benham informed Mr Vandervisthat, without exception, witnesses considered that his manner and voicewere loud, aggressive and intimidating and that his behaviour was veryinappropriate.(d) Mr Benham's comments on the CCTV footage: He noted that it showedgesticulating and finger pointing but was without sound so of limitedassistance. He also noted that he had made the footage available toMr Vandervis who had then released it on social media and Mr Benhamconsidered this was unfortunate and inappropriate.[16] By letter dated 4 October 2019, Mr Benham provided his "full investigation"report to Dr Bidrose. He referred to his preliminary investigation in which he hadconcluded "that potentially a material and substantive breach" of the Code of Conducthad occurred. He summarised the information he obtained from his investigation, asoutlined above. He also referred to Mr Vandervis having released to social media on23 September 2019 his own complaint which described the staff member as "a veryunpleasant" officer. He said this contrasted with all the witness statements who saidthat the staff member had remained calm and polite. He commented that the publicrelease of Mr Vandervis' complaint had added to her distress. He concluded:13. On the basis of what I have heard I conclude that Councillor Vandervis has materially breached the Code of Conduct on threegrounds.a) Section 5.2 Relationships with Staff. Under bullet 4 "treat allemployees with courtesy and respect and avoid publicly criticisingany employee"b) Section 5.2 bullet 6 "avoid doing anything that might compromise,or could be seen as compromising, the impartiality of an employee"c) Section 10 Ethical Behaviour. Under bullet 2 "not influence, orattempt to influence, any council employee, officer or member in orderto benefit their own, or families personal or business interests"14. I do not accept Councillor Vandervis' contention that the complainantand other staff were politically motivated. As stated there was a member ofthe public present who presented the same view as the staff.15. In terms of penalties and actions a number are set out in Code ofConduct Section 13. Based on what I have outlined I will leave it to theCouncil to decide what actions it decides to take but at the very least I believean apology should be made to the complainant.[17] On 30 October 2019, counsel for Mr Vandervis wrote to Dr Bidrose setting outconcerns about the process. Following an interim reply on 4 November 2019,Dr Bidrose replied on 21 November 2019. Amongst other things, this included a copyof the complaint (set out at [12] above). There were further communications betweencounsel for Mr Vandervis and Dr Bidrose about Mr Vandervis' concerns with theprocess.[18] A Code of Conduct report from the Council Executive Leadership Team wasan agenda item for a Council meeting on 10 December 2019. This report set out thebackground and made recommendations as follows:RECOMMENDATIONSThat the Council:a) Considers the findings of the investigation of David Benham in his FullInvestigation into Dunedin City Council Code of Conduct complaintmade by the Chief Executive following a complaint by a CustomerService Centre staff member.b) Provides Councillor Vandervis the opportunity to address Council if hewishes to.c) Suspends standing order 20.2(c) to enable Councillor Vandervis morethan usual five minutes to address Council.d) Decides whether a breach of the Code of Conduct has occurred, and if so,which, if any, of the sanctions outlined in the Code of Conduct that itwishes to impose.[19] In discussing the options and the next steps, the report said:10. The Council must now decide what it wishes to do about thecomplaint. Councillors must read the report, attached, and must alsogive Councillor Vandervis an opportunity to appear and speak in hisown defence. If the Council accepts the findings in the investigator'sreport, and wishes to apply for sanctions, the Council can decide,based on the investigation, to impose sanctions 13. The next steps are for the Council to discuss the investigation, hearthe Councillor, and decide whether the findings of the independentinvestigation are accepted and, if so, how to respond.[20] The minutes of the Council meeting refer to the report, note that the matter wasinvestigated in accordance with the Code of Conduct process, and thatCouncillor Vandervis considered there had been no breach and provided reasons forthat view. The minutes further record that "Councillors spoke to the perceived breachand agreed to accept the findings of the investigation and issue Cr Vandervis with awritten censure", and the motion to accept the findings of Mr Benham's investigationand to censure Councillor Vandervis was unanimously carried.[21] A transcript of the Council meeting provides more detail. Mr Vandervis madethe following points:(a) He did not engage in the conduct alleged by the complainant. He is atall man with a beard and has a loud clear voice, which some peoplemay find intimidating. The claim that he was trying to avoid a $12parking ticket was ridiculous. He paid a $40 parking ticket that wasowing before he left.(b) He was not provided with natural justice because he was not able to seethe complaint or any of the witness statements and did not know untilafter receiving the investigator's report that a staff member had falselyclaimed that he was trying to have a parking ticket set aside. Hispurpose was to report a malfunctioning and mislabelled parking meterand he has made similar complaints about this before this incident.(c) It was only after his complaint about the staff member that the Code ofConduct complaint was made about him.(d) Staff members other than the Chief Executive did not have the right tomake a Code of Conduct complaint and this breach of procedure meantthat his privacy had been breached at a critical time in the electioncampaign.(e) Councillor Benson-Pope should not participate because of apparentbias arising out of his comments in an Otago Daily Times article.5(f) The CCTV supports his account because it did not show anyinappropriate behaviour nor any obvious concern by the staff memberand other people in the vicinity. His "finger wagging" was about theparking machine.[22] In the ensuing discussion, one councillor spoke in favour of Mr Vandervis,making the points that: it was unlikely Mr Vandervis was trying to get out of paying a$12 ticket because he was paying a $40 ticket at the same time; the video did notappear to show shouting or that Mr Vandervis had stormed off; a big issue was beingmade out about a small thing; and it was no wonder that Mr Vandervis was concernedabout election interference. However, other councillors spoke in favour of acceptingthe investigator's report. They made the point that it did not matter whether5 The article was published on 24 September 2019, describing the incident and noting that a Code ofConduct complaint had been filed.Mr Vandervis was trying to get out of a $12 ticket or was complaining about the meter.Rather, it was about the conduct being an inappropriate way to treat staff. The pointwas also made that the investigator interviewed nine witnesses and there was no reasonto believe they were all politically motivated. A councillor made the point that it wasunlikely that a staff member would have said "I am going to take you to court".Another councillor raised whether the process was appropriate in light ofMr Vandervis' concerns about the process that had been followed. The lawyer whohad provided advice to the Chief Executive about the process advised that he wassatisfied the principles of natural justice and fairness had been followed.[23] On 11 December 2019 a letter from the Mayor was forwarded to Mr Vandervisrecording the Council's decision to accept the investigator's report and to censure him.Code of Conduct[24] The Code of Conduct sets out the standards of behaviour expected from electedmembers in the exercise of their duties.6 It is designed to deal with the behaviour ofmembers towards: each other; the Chief Executive and staff; the media; and thegeneral public.7 Members are to "treat all employees with courtesy and respect andavoid publicly criticising any employee" and a failure to do so is a breach of the Codeof Conduct.8[25] On making complaints, the Code of Conduct provides:912 BREACHES OF THE CODEMembers must comply with the provisions of this Code Any member, orthe chief executive, who believes that the Code has been breached by thebehaviour of a member, may make a complaint to that effect. All complaintswill be considered in a manner that is consistent with the following principles.12.1 PrinciplesThe following principles will guide any processes for investigating anddetermining whether or not a breach under this Code has occurred:6 Dunedin City Council Code of Conduct (25 October 2016) [Code of Conduct], cl 1.7 Clause 2.8 Clause 5.2.9 Footnotes omitted.• that the concepts of natural justice and fairness will apply in thedetermination of any complaints made under this Code. This requires,conditional on the nature of an alleged breach, that affected parties:o have a right to know that an investigation process is underway;o are given due notice and are provided with an opportunity to be heard;12.2 ComplaintsAll complaints made under this Code must be made in writing and forwardedto the chief executive. On receipt of a complaint the chief executive mustforward that complaint to an independent investigator for a preliminaryassessment to determine whether the issue is sufficiently serious to warrant afull investigation.Only members and the chief executive may make a complaint under this Code.12.3 Investigation, advice and decisionThe process, following receipt of a complaint, will follow the steps outlinedin Appendix B.12.4 MaterialityAn alleged breach under this Code is material if, in the opinion of theindependent investigator, it would, if proven, bring a member or the councilinto disrepute or, if not addressed, reflect adversely on another member of thecouncil.(footnotes omitted)[26] If "a complaint is determined to be material and referred to the council thenature of any penalty or action will depend on the seriousness of the breach".10 If thebreach is material, the Council has a range of actions it can take. They include sendinga letter of censure to the member.11[27] Appendix B sets out the process for determining and investigating complaints.As relevant it provides:Step 1: Chief executive receives complaintOn receipt of a complaint under this Code the chief executive will refer thecomplaint to an investigator The chief executive will also:10 Clause 13.11 Clause 13.1.• inform the respondent that a complaint has been made against them, thename of the investigator and refer them to the process for dealing withcomplaints as set out in the Code.Step 2: Investigator makes preliminary assessmentOn receipt of a complaint the investigator will assess whether:1 the complaint is frivolous or without substance and should bedismissed;2 the complaint is outside the scope of the Code ;3 the complaint is non-material; and4 the complaint is material and a full investigation is required.In making the assessment the investigator may make whatever initial inquiryis necessary to determine the appropriate course of action. The investigatorhas full discretion to dismiss any complaint which, in their view, fails to meetthe test of materiality.Step 3: Actions where a breach is found to be non-materialStep 4: Actions where a breach is found to be materialIf the subject of a complaint is found to be material the investigator will informthe chief executive, who will inform the complainant and respondent. Theinvestigator will then prepare a report for the council on the seriousness of thebreach.In preparing that report the investigator may:• consult with the complainant, respondent and any affected parties;• undertake a hearing with relevant parties; and/or• refer to any relevant documents or information.On receipt of the investigator's report the chief executive will prepare a reportfor the council which will meet to consider the findings and determinewhether or not penalty, or some other form of action, will be imposed. Thechief executive's report will include the full report prepared by theinvestigator.Step 5: Process for considering the investigator's reportThe council will consider the chief executive's report in open meeting,except where the alleged breach concerns matters that justify the exclusion ofthe public [].Before making any decision in respect of the investigator's report the council will give the member against whom the complaint has been made anopportunity to appear and speak in their own defence. []First appeal ground: whether the complaint was made by the Chief Executive[28] This ground of appeal concerns the requirement under cl 12 of the Code ofConduct that "[o]nly members and the chief executive may make a complaint".12Mr Vandervis contends that the complaint did not comply with this because it wasmade by a staff member. He contends that the power to make a complaint is separatefrom the obligation on the Chief Executive to forward a complaint to an investigator.He contends that the Chief Executive has an obligation to do more than simply passon a complaint by a staff member as occurred here. She must decide to make acomplaint about the matter and the complaint is then from her and not the staffmember.[29] The High Court rejected this argument. It found that the Chief Executiveconsidered the complaint and chose to bring the complaint as the employer of the staffmember.13 Mr Vandervis submits the High Court was wrong about this because:(a) Dr Bidrose had not seen the complaint before she instructedMr Benham on 19 September 2019 because it was not put in writinguntil 24 September 2019.(b) The staff member was told that it was entirely her decision whether tomake a complaint under the Code of Conduct.(c) The documents refer to the complaint being made by a staff memberand describe her as the complainant.12 Code of Conduct, above n 6, cl 12.2.13 High Court judgment, above n 1, at [49]–[50].(d) There is no evidence or document showing that Dr Bidrose gaveindependent consideration to whether a complaint should be madeabout the incident.[30] As set out earlier, the Code of Conduct encompasses the behaviour of acouncillor towards a staff member.14 However, it is only a Member or the ChiefExecutive that can make a complaint under the Code of Conduct.15 This means thatwhen an incident involving a staff member and a councillor arises, the Chief Executiveis the person who must initiate the Appendix B process.[31] We accept that, when the Chief Executive learns of an incident about a possiblebreach of the Code of Conduct by a councillor that involves a staff member, the ChiefExecutive must determine whether to initiate the Appendix B process. However, thisis a narrow (gatekeeping) inquiry of a kind that does not require a formal decision.Relevant to that inquiry are whether the staff member alleges a councillor has behavedinappropriately towards them, whether the incident appears to be within the Code ofConduct, and whether the staff member wishes to have the incident investigated underthe Code of Conduct.[32] We say this because, once a written complaint under the Code of Conduct hasbeen made to the Chief Executive, she "must" forward that to an independentinvestigator.16 It is the investigator, not the Chief Executive, who then determineswhether the complaint is frivolous, without substance, outside the scope of the Codeof Conduct, non-material, or material and requiring full investigation.17 It is thereforenot the Chief Executive's role to consider the merits of the complaint.[33] This was the way the complaint proceeded here. Dr Bidrose was aware of theincident from Mr Vandervis' letter of complaint on 17 September 2019. It is evidentshe was also aware that the staff member was meeting with her general manager on18 September 2019 to discuss the incident and potential options she could pursue. Bythe early evening of that day she was aware that the staff member was "quite shaken"14 See [24] above.15 A member encompasses councillors.16 Code of Conduct, above n 6, cl 12.2 and Appendix B, step 1.17 Clause 12.3 and Appendix B, step 2.by the incident and wished for the matter to proceed as a Code of Conduct complaint.The next day she instructed the investigator. She subsequently advised Mr Vandervisof the investigation and that it would be investigated pursuant to the Appendix Bprocess.[34] At the time she instructed Mr Benham, she had received written confirmationthat the staff member wished to make a complaint under the Code of Conduct. Shehad not received written details of the complaint. However, those details werereceived by 24 September 2019 and forwarded to the investigator before he completedhis preliminary investigation. We see no issue with this under the Appendix B process.The narrow compass of the incident meant that both the Chief Executive's gatekeepingrole and the preliminary investigation could be completed in short order as it was.[35] We also see no issue with the fact that the complaint was described in some ofthe documentation as the staff member's complaint and that she was described as thecomplainant. The staff member had complained about Mr Vandervis' conduct andwished to have the matter investigated under the Code of Conduct. As Dr Bidroseaccurately put it at the Council meeting on 10 December 2019: although the staff member used the term that they wanted to make a codeof conduct complaint it is actually me that raised the complaint with theinvestigator and hired the investigator [the] staff member or member of thepublic can't do that so that has to go through so in that sense you might arguethat I did it on her behalf if you like because the behaviour wasn't about mebut it was me that raised the complaint with the investigator [36] The complainant is the person who makes the complaint to the relevantauthority (here the Chief Executive) for the relevant authority to initiate the relevantprocess (here an investigation by an independent investigator). It was not inaccurateto describe the staff member as the complainant and as having made a complaint eventhough it was the Chief Executive who formally made the complaint that initiated theAppendix B process.[37] We therefore dismiss this ground of appeal.Second appeal ground: whether the investigation breached natural justiceLaw[38] Natural justice is the duty to act fairly. Its requirements vary according to thepower that is exercised and the circumstances of its use. As it was put in a case from1949:18The requirements of natural justice must depend on the circumstances of thecase, the nature of the inquiry, the rules under which the tribunal is acting, thesubject-matter that is being dealt with, and so forth.[39] The duty to act fairly includes the requirement to "hear the other side". Whatthat will require depends on the circumstances, but a party must know the case againstthem and have an adequate opportunity to prepare a response.19 The duty to act fairlyalso means that decisionmakers must not predetermine the matter, that is they mustnot have closed their minds or committed themselves to an intractable position beforehearing the other side.20Alleged breaches[40] Mr Vandervis contends that the Appendix B process involves the followingstages: at Step 1 the Chief Executive decides whether to make a complaint under theCode of Conduct; at Step 2 the investigator determines whether a material breach hasoccurred; if a material breach is found to have occurred, then at Step 4 the investigatordetermines how serious the breach is; and at Step 5 the Council decides what penaltyto impose.18 Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118; and PA Joseph Joseph onConstitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 1099–1011.19 Joseph, above n 18, at 1110–1111.20 At 1159.[41] He contends the investigation was conducted in breach of natural justicebecause:(a) He was not given a chance to respond at all until after the preliminaryassessment was done, by which time it was already determined thatthere had been a material breach of the Code of Conduct.(b) He could not adequately respond during the full investigation becausehe was not given the original complaint or adequate details of it, norwas he given the witness' statements nor the preliminary assessmentuntil after the full investigation was done.(c) The defects in the investigation were not cured by the Council'sdecision because the Council's sole role relates to penalty.High Court[42] The High Court rejected Mr Vandervis' arguments for the following reasons:21(a) The preliminary assessment was only to assess whether the complaintwas material and required a full investigation, so there was no need togive Mr Vandervis a chance to respond during the preliminaryassessment.(b) The full investigation gave Mr Vandervis a chance to respond. It wasalso clear from what was said to Mr Vandervis, and what Mr Vandervissaid in response, that he knew the key details of the complaint duringthe full investigation.(c) The Council meeting gave Mr Vandervis another chance to respond.21 High Court judgment, above n 1, at [52]–[74].(d) If there were any errors in the process, they were cured by later steps inthe process, they were too insignificant to be reviewable, and theywould not have changed the Council's decision.Preliminary investigation[43] As set out earlier, under the Appendix B process, the purpose of the preliminaryinvestigation is to determine whether the complaint is frivolous or without substance,outside the scope of the Code, is non-material or material.22 Materiality meansconduct that would bring the Council member into disrepute.23[44] This is intended to be a low-level inquiry. This is because the Appendix Bprocess permits the investigator to make whatever initial inquiry is necessary todetermine the appropriate course of action. The appropriate course can only bedismissing the complaint (if it is frivolous or without substance or non-material),referring it elsewhere if appropriate (if the complaint is outside the Code of Conduct),or referring it for a "full" investigation.[45] It is also because the Appendix B process provides that at the full investigationstage the investigator may consult with the complainant, respondent and affectedpersons, undertake a hearing, and refer to any relevant documents or information.24The process therefore envisages that this is where the main part of the investigator'sinvestigation takes place.[46] We acknowledge that the headings at Steps 3 and 4 in the Appendix B processare framed as "where a breach is found to be non-material" and "where a breach isfound to be material". Those headings suggest that whether there has been a breachof the Code of Conduct will take place at the preliminary stage and the fullinvestigation determines the seriousness of the breach that has already been found tohave occurred.22 See [27] above.23 Code of Conduct, above n 6, cl 12.4.24 Appendix B, step 4.[47] However, those headings must be read with the content of each step set outunder those headings. Under Step 2, the investigator is to assess whether "thecomplaint" is frivolous, outside the scope of the Code of Conduct, non-material ormaterial. It does not state that the investigator is to determine whether a breach of theCode of Conduct has occurred. This language continues under Step 3 where it is stated"[i]f the subject of a complaint is found to be non-material " and Step 4 where it isstated "[i]f the subject of a complaint is found to be material ". Even if theinvestigator decides at Step 4 that a serious breach of the Code of Conduct hasoccurred, when the Council consider the complaint under Step 5, it is described as an"alleged breach" with the respondent entitled to "speak in their own defence".[48] This language confirms that the process at the preliminary stage is focussed onthe nature of the complaint rather than what the respondent has to say about it. Theinvestigator's role is to make a preliminary assessment on whether the alleged conductin the complaint would constitute a "material" breach of the Code if the investigatorconsiders that a breach is established after hearing from the respondent at the fullinvestigation. In other words, the preliminary investigation considers whether thereappears to be a case to answer such that a full investigation is appropriate. It remainsentirely open to an investigator, following a full investigation, to recommend that noaction be taken by the Council.[49] This is how the investigation proceeded here. At the preliminary investigationstage, the investigator reviewed the written complaint, discussed it with the staffmember, spoke to another staff member and viewed the CCTV footage. Theinvestigator reported to Dr Bidrose that he had determined that "the complaint" wasmaterial and of sufficient substance to justify a full investigation. There was no pointinitiating a full investigation, and calling upon Mr Vandervis to respond to it, if thecomplaint was frivolous or non-material.[50] At the full investigation stage, a wider investigation took place. In addition tothe telephone inquiries made at the preliminary stage, interviews were conducted withthe staff member and other witnesses. Mr Vandervis was also interviewed for hisaccount. It was only after this process was completed that the investigator reported tothe Council. His report described his preliminary investigation as having concluded"that potentially a material and substantive breach" had occurred. It is clear from thisdescription that the investigator's views were preliminary only. He set out theinformation he had obtained from the full investigation and said he had concluded amaterial breach had occurred on the basis of that investigation.[51] We therefore reject the submission that whether Mr Vandervis had breachedthe Code of Conduct was predetermined at the preliminary investigation stage. It wasa preliminary assessment that "the complaint" was material. We also reject thesubmission that Mr Vandervis should have had the opportunity to respond at thepreliminary investigation stage. He did not need to respond unless it was decided thata full investigation was warranted.Full investigation[52] We agree with the High Court that the full investigation gave Mr Vandervis anopportunity to respond and that it was also clear from what was said to Mr Vandervis,and what Mr Vandervis said in response, that he knew the key details of the complaintduring the full investigation.[53] Specifically, Mr Vandervis' response, as recorded by Mr Benham at the time,showed that he knew the staff member alleged that he was trying to get a waiver of hisparking ticket as he said that was not his purpose and his concern was the parkingmeter signage. Mr Vandervis' position that he did not know this allegation alsocontrasts with his own letter of complaint, which sought to have his parking ticketcancelled.25 Mr Vandervis also knew, again as recorded by Mr Benham at the time,that his manner and tone was also at issue as he disputed that he had spoken loudly,aggressively and in an intimidating tone and was told that all the witnesses had adifferent view than him about this.[54] Mr Benham's affidavit for the High Court judicial review initially said:When I spoke to him, Councillor Vandervis knew what the staff member saidshe experienced because he had been provided with a copy of her email.25 We were advised at the Court of Appeal hearing that he had not paid the parking fee. It seems thatit may have been paid by someone, however: see Hamish McNeilly "The mystery of who paid a$12 parking ticket at the centre of a court case" Stuff (online ed, Wellington, 7 April 2022)<www.stuff.co.nz>.Notwithstanding, I continued to remind him of the specifics of the complaintabout his behaviour as he raised a number of other issues with me during theinterview. In response I reminded him it was not my role to take a view onother issues he raised.[55] He corrected the first sentence of this at the High Court hearing (he had beencalled for cross-examination). He said he had understood that the staff member'scomplaint (that is, the "Full Incident Report" at [12] above) had been provided toMr Vandervis but he now knew this to be incorrect. However, he stood by his evidencethat the specifics of the complaint were put to Mr Vandervis despite repeatedcross-examination on the matter. Mr Benham also said he gave Mr Vandervis the tenorof the evidence from the witnesses.[56] Mr Benham's evidence is consistent with his contemporaneous records asinvestigator. We agree with the High Court on the basis of that evidence and thecontemporaneous records that Mr Vandervis had knowledge of the substance of thecomplaint and what the witnesses had said about it.[57] Mr Vandervis' principal concern seems to be that he did not know it was beingsaid that he was trying to get out of a parking ticket when his complaint was about theparking meter. However, that was Mr Benham's conclusion about his conduct ratherthan what the complainant actually said. The staff member's account was that he wasunhappy about the parking infringement he had received because of the signage on themeter. That accorded with his own account of his actions on that day and his writtencomplaint on 17 September 2019. Whether he actually said to the staff member thathe wanted his ticket waived (which she does not say) is somewhat splitting hairs.[58] Because Mr Vandervis was not provided with the complaint and the writtenaccounts of what the witnesses said, it is possible that he did not know in precise termshow his behaviour had been described. For example, he may not have known that thestaff member had claimed that he had "stormed off". Investigators under this processmight find it useful in the future to provide the written complaint to a person beinginvestigated (with any necessary redactions) to avoid any later allegation that theperson being investigated did not know the details of the complaint.[59] Here, however, there is no doubt that Mr Vandervis knew the gist of thecomplaint. Specifically, he had come into the Customer Service office to complainabout the misleading signage of a parking meter which meant that he had received aparking ticket and he was not happy about it (all of which he had himself referred toin his own complaint). There is also no doubt that he knew that he was said to havespoken loudly and inappropriately to the staff member. We consider this was sufficientto fairly provide him with the opportunity to respond.Council hearing[60] Mr Vandervis contends that the process errors and breach of natural justice inthe investigation were not cured by the Council hearing because that hearing wasconfined to penalty. We have found that the complaint was made by the ChiefExecutive and there was no breach of natural justice. However, we also consider thatthe Council hearing gave Mr Vandervis a further and full opportunity to respond to theinvestigator's conclusion that breaches of the Code of Conduct had occurred.[61] The report to the Council from the Executive Leadership Team informed theCouncil that it was for them to decide "whether a breach of the Code of Conduct [had]occurred, and if so, which, if any, of the sanctions" should be imposed. As thediscussion at the meeting and the minutes show, this was a decision about whether toaccept the report rather than a reinvestigation of the matter. The councillors discussedwhether they accepted the investigator's conclusions having heard what Mr Vandervishad to say about them. One councillor made the point that Mr Vandervis must havebeen motivated by the poor signage rather than the $12 ticket. The ensuing discussionwas focussed on Mr Vandervis' treatment of the staff member. The discussion isconsistent with the Council deciding to accept the investigator's report because of thattreatment. They considered this conduct warranted a censure.[62] We therefore consider that the Council hearing provided Mr Vandervis withanother opportunity to be heard. At this time, he had received all of the informationrelied on by the investigator. It would have been open to the Council to decide toimpose no penalty on Mr Vandervis having heard from him if they accepted what hehad to say. However, they were also entitled to accept the investigator's report anddecide that he should be censured.Result[63] The appeal is dismissed.[64] The appellant must pay the respondents costs for a standard appeal on a band Abasis with provision for one counsel and with the usual disbursements.Solicitors:Anderson Lloyd, Dunedin for Respondents