Sludgegate Summing Up
After nearly eleven hundred days of drama, 35 previous appearances in court, four barristers, three legal firms, two Private Investigator's reports - and 22 days in court for the Sludgegate trial itself - it's over.
It has been a long road with many hurdles to even get Adrian Chisholm's case before the court. Yesterday some of the cracks in the case engendered by that long road were exposed as Auckland City Council's lawyers made their closing submissions. This extended update brings you the highlights.
Barrister Nicole Edelmann raced through the council's defence of Chisholm's allegations, summing up: Council owed no duty to Adrian Chisholm; even if they did they didn't breach it; even if they did his project "doesn't even reach the standard of a pipe dream" and would have fallen over anyway. In ruining Chisholm's project and ensuring his investors walked away they "probably did Adrian a favour."
Figures that council relied upon to prove they 'did Adrian a favour' had their own cracks. Introduced earlier by council's expert witness Tony Dean, they were coloured by his often-ludicrous comparisons between Chisholm's planned resort, and the Puka Park resort where Dean received his experience as a quantity surveyor many years ago. Dean says his figures show no profit in Chisholm's project. Chisholm's quantity surveyor by contrast says his own figures show a tidy profit. As Chisholm's quantity surveyor observed earlier, Dean's figures may be true if one assumes we are re-building Puka Park using 1960s assumptions - but of course we're not. Edelmann told Justice Chambers, presiding, that he must decide for himself which surveyor he believes.
Chambers himself demurred at some points in Edelmann's presentation. Chisholm had earlier said he had a legitimate expectation that reserve land bordering his resort project would stay as reserve. LaHatte told the court "council has special duties in administering a reserve. In fact they only got to the stage of needing to use a reserve [to dump sludge] because of their own negligence in their site decisions." Edelmann claimed however that as the Reserves Act only sets out the powers of council with respect to reserves, and not what council may NOT do with them, then there was nothing to stop council using a reserve for a sludge dump. Chambers observed, however, "presumably [the Act] limits council's powers to those specified in it. It doesn't, for example say that it may not be used for a used car yard either."
Edelmann cited case law that the Bill of Rights obligation to protect natural justice which Chisholm also relies on is overridden by the Resource Management Act: "the common law rights enshrined in [the Bill of Rights] cannot override the express provisions in the Resource Management Act relating to the making of rules." As Chambers observed: "To those of us not in the Environment Court it is sometimes strange the things they consider."
"It defies logic that experienced council officers would show malice," summed up Nicole Edelmann in concluding her defence of the experienced council officers. Adrian Chisholm observes however that Edelmann's view itself defies both logic, and the evidence of his own experience. Also disagreeing with Edelmann would be the hundred or so victims of council officers who told their stories to the recent Auditor-General's Inquiry into the Hauraki Gulf Islands.
However, it has not been easy to prove that malice in Chisholm's case. Being dropped by Russell McVeagh early this year, and later abandoned by barrister Rob Weir, has meant Chisholm's case was drawn together by a largely amateur band of supporters, with the result as Justice Chambers observed that the "particulars are slightly haphazard." Putting Chisholm's case to the court, barrister Chris LaHatte has often found himself hamstrung by evidence that Chisholm's supporters have either overlooked or introduced improperly when putting the case together.
One example of the gaps in Chisholm's case was pointed out by Justice Chambers: "Your problem," he told LaHatte, "is that if you maintain council' s sludge consent application was hopeless, then there should have been expert evidence called to say it was hopeless. Sure, some middens were found, but I don't know from your evidence whether or not that made it hopeless."
One compelling piece of evidence that LaHatte has fought unsuccessfully to have introduced is the March 16 memo that readers of these updates will be familiar with. "I submit," he told Chambers, "it ought to have been before you. The point I stress is that council maintain they are a responsible local authority; if so then they ought not to hide any of their actions." The point has a certain logic.
Chisholm's main investor Rod Dawson, whose withdrawal from the project triggered its collapse, took a bit if a hammering from the court. "I think things deteriorated from the moment Mr Chisholm interfered with [Mr Dawson' s] dinner party,' was one wry comment from Justice Chambers, concluding, "he was not the easiest partner for Mr Chisholm to have." A great deal of time was spent analysing the Shareholders' Agreement drawn up by Dawson's lawyer Nigel Harrison; Chambers eventually concluded "it is basically a complete mess." Dawson withdrew from the agreement when it was clear that council were persisting with the sludge dump.
Speaking outside the court after the day's conclusion, Chisholm summed up, saying: "I'm glad we fought this; if we didn't fight what those council bastards did to us we'd always regret it. We may not beat them; we may not even get a result - but we've bloodied their noses and that's the least they deserve for what they put us through. Now, we can put it all behind us and get on with our lives."
This will be the last Sludgegate Update. A summing up of the story will appear in the next Free Radical magazine, out in February, and of course all the Sludgegate updates can be found on The Free Radical site. Justice Chambers expects to announce his decision some time in the New Year. Until then, I wish all readers and non-council employees a happy holiday season.
Peter Cresswell (09) 631 0034 e-mail: firstname.lastname@example.org www.freeradical.co.nz www.sludgegate.com