Council staff found (again) not to have acted maliciously
Adrian Chisholm has lost his “Sludgegate” Appeal Court case against Auckland City Council alleging malicious intent in a plan to dump sewage on Waiheke golfcourse land next to a tourism project Mr Chisholm was establishing.
Mr Chisholm alleged the council pressed ahead with the golfcourse dumping plan in January 1998 to sabotage his project. The council subsequently chose another site to dump the waste from septic tanks on the island, while Mr Chisholm’s project failed to proceed because, he claimed, investor support fell away as a result of the council action.
He lost his case before Justice Robert Chambers in the Auckland High Court, and lost on all counts in the Appeal Court judgment delivered on Friday by Justice Tipping.
Mr Chisholm took 3 claims to appeal — misfeasance in public office, negligence and breach of the Bill of Rights Act.
The key issue in the whole case, and particularly the misfeasance allegation, was an allegation that council utility planning group manager Mike McQuillan had told a 9 January 1998 meeting with the council’s lawyers that, “if nothing else, he was going to dump a truckload of sludge” (or a statement along those lines) on the golfcourse site.
Justice Chambers found that Mr McQuillan probably said something like this, but that it was most likely a throwaway line, not meant seriously.
The Appeal Court accepted Justice Chambers’ reasoning on alleged malice, on the basis of the High Court trial transcript. But Justice Tipping added that neither of the council staff who were allegedly motivated by malice was cross-examined on the basis that their conduct or decisions were so motivated.
The Appeal Court agreed with Justice Chambers that section 27 of the Bill of Rights had nothing whatever to do with Mr Chisholm’s allegations.
Mr Chisholm, now working at a Queensland resort, sued the council for $6.8 million. His latest dismissal has cost him $5000 in costs payable to the council, plus the costs of getting its lawyers to the hearing.
Earlier stories: Judge demolishes Chisholm’s Waiheke malice case
Chisholm has another chance to get crucial document before court
Absurd allegations about project that was never going to happen, lawyer tells Chisholm
Sludgegate: How to detect malice
“Sludgegate” case focus is on form
Waiheke “Sludgegate case opens in High Court
Chisholm’s Waiheke case nears court