A petition for an inquiry into the election of Rotorua district councillors has been tossed out of court, however a judge will soon decide whether the mayoral election will be re-contested.
Wellington-based district court Judge Kevin Kelly made the decision at a preliminary hearing in the Maori Land Court in Rotorua today.
Earlier this month failed mayoral candidate Dr Reynold Macpherson lodged a petition for inquiry into the conduct of Rotorua Lakes Council chief executive Geoff Williams during the election, claiming he was biased in favour of incumbent mayor Steve Chadwick and some councillors, and that affected the outcome. He wanted the election results declared void and a new election ordered - for both the mayoralty and council.
Appearing on behalf of the council was Lachlan Muldowney of Tompkins Wake with Phillip Cornege appearing as counsel for Mr Williams. Dr Macpherson represented himself.
About 30 people were in the public gallery, including Mrs Chadwick, deputy mayor Dave Donaldson and Mr Williams.
Judge Kelly said the hearing was to hear a number of preliminary applications made by the parties.
In what was the most contested issue, Mr Muldowney submitted that as Dr Macpherson did not stand for council, the Local Electoral Act did not allow him to challenge the election of district councillors.
He said he was not suggesting the entire petition be struck out - under section 93 of the Act Dr Macpherson was entitled to bring a petition against the mayoral election.
In response, Dr Macpherson said he felt Mr Muldowney's argument making a distinction between the two elections - of which he was made aware yesterday - "appeared to me to be an ambush ... to undermine this petition being heard".
He said until he had seen the application by Mr Muldowney he felt there was just one election, not two, and that in the public's view it was also seen as one election.
"If this argument is successful, in my view, it will be unjust."
Dr Macpherson said it was in the public interest the petition be heard and not be set aside on what appeared to him to be "largely a technicality".
"It just appears to me sir that this defies natural justice...being completely unaware of the nature of our election actually being two elections it now would seem to be retrospective justice."
But Judge Kelly said the Act was clear and ruled the petition against the councillor election be struck out.
Dr Macpherson then attempted to have a co-petitioner added.
That was described by Mr Muldowney as a "rear guard action" to "cure this fundamental defect in his case against the councillors".
Judge Kelly refused this attempt, saying any new petition would be time-barred, as it had to be filed within 21 days of the public delaration of the election results.
Earlier in proceedings Mr Williams' lawyer asked that he be added as an interested party to the petition, so he could be represented in court.
Mr Cornege argued that as the case was all about the conduct of Mr Williams, it was appropriate for him to have separate counsel to protect his interests.
Dr Macpherson did not oppose this, saying that would be "natural justice".
The application was granted, meaning Mr Cornege will have limited rights in court on behalf of Mr Williams.
Dr Macpherson also successfully applied to add a new ground to his petition - alleging bias in that the results of a 2015 satisfaction survey were used in pre-election reports rather than 2016 results.
This was not opposed by Mr Muldowney. However, he cautioned that any further attempts by Dr Macpherson to add new grounds would be vigorously opposed.
Mr Muldowney also asked the judge to reserve the right to attribute court costs at the end of the hearing.
The full hearing - centred on the mayoralty election only - will begin at 10am on Tuesday, November 29. Judge Kelly set aside four days, if required.
Dr Macpherson came second in last month's mayoralty race, 2863 votes behind Mrs Chadwick.
Key points
Council chief executive Geoff Williams made an interested party in proceedings - may have a lawyer present
Petition against election of Rotorua district councillors struck out
All clear given for petition against mayoral election to be heard
Alleged bias in Rotorua Lakes Council pre-election report added as a ground in petition
Hearing to start November 29 - four days allowed
The petition for inquiry
The petition lodged by Reynold Macpherson claimed Mr Williams' conduct during the election was biased in favour of mayor Steve Chadwick and some incumbent councillors and was "therefore unfair on the other candidates".
It claimed Mr Williams' actions affected the election result.
The petition also refers to a council-commissioned Community Satisfaction Survey dated June 30, which was released publicly by the council on October 26 - after the election.
He claims the survey findings were adverse to the interests of the mayor and some councillor.
The petition also alleges bias by Mr Williams in publishing positive advertorials during the election campaign that ignored the findings of the survey and the use of 2015 results in pre-election reports.
Earlier:
Reynold Macpherson's election challenge has not been heard in full today - however a number of preliminary matters have been argued, with his petition against the election of district councillors struck out.
About 30 people were in the public gallery, including mayor Steve Chadwick, deputy mayor Dave Donaldson and Rotorua Lakes Council chief executive Geoff Williams.
Firstly, an application was made by Mr Williams' lawyer Phillip Cornege for him to be added as an additional party to the petition, so he can be represented in court.
Mr Cornege argued that as the case was all about the conduct of Mr Williams, it was appropriate for him to have counsel in court to protect his interests.
Mr Cornege requested limited rights to be heard if that proved to be necessary.
Dr Macpherson, who was representing himself, acknowledged for natural justice reasons Mr WIlliams should have some standing. He had no opposition to Mr Williams being made an interested party.
This was therefore granted by Judge Kevin Kelly, allowing Mr Williams' lawyer limited rights during the hearing.
Council lawyer Lachlan Muldowney then argued Dr Macpherson had no standing under section 93 of the Local Electoral Act to petition the court in respect of the election of the councillors as he had no critical interest in it.
Dr Macpherson only ran for mayor, not for a spot on council.
Dr Macpherson accused Mr Muldowney of an "ambush", as this argument was only filed to him late yesterday.
He said the issue before the court was the behaviour of the chief executive and he was not in any way targeting the council itself. He said it was in the public interest the petition be heard and not be set aside for what appeared to him to be "largely a technicality".
Mr Muldowney clarified he was not suggesting the entire petition be struck out, but that it just be limited to the mayoral election.
Judge Kelly ruled the requirements were clearly set out in the Act and had been brought to Dr Macpherson's attention.
He therefore struck out the petition in respect of the election of the councillors.
Dr Macpherson had made a late application to add a co-petitioner, in order to address this defect.
The judge pointed out any new petition would be time-barred, as it had to be filed within 21 days of the public delaration of the election results. That application was therefore denied.
Dr Macpherson then made an application for a new ground to be added to his petition - alleging bias in that results of the 2015 satisfaction survey were used in pre-election reports rather than 2016 results. This was not opposed by Mr Muldowney and was granted.
However Mr Muldowney cautioned that any further attempts to add substantive new grounds would be vigorously opposed.
The judge then turned to time tabling for the case to be heard.
He acknowledged the proposed time frame was tight - with a week available for the hearing to be heard starting November 28.
Dr Macpherson questioned the fairness of this, saying he wanted time to gather written evidence from witnesses.
After discussion, it was ruled Dr Macpherson had until close of play this Monday to file his written evidence. The respondents then had until Wednesday to respond.
The hearing will begin at 10am on Tuesday, November 29. The judge said it may not take four days but that was available if required.
The petition to be heard will be limited to the election of the mayor, not councillors.
Earlier:
A judge will today hear failed mayoral candidate Reynold Macpherson's petition for inquiry into last month's Rotorua Lakes Council election.
The hearing has been set down for 10am today. Though within the district court jurisdiction, it will be held in the Maori Land Court building on Haupapa St.
It is understood a visiting district court judge will preside.
Dr Macpherson, who finished second behind Steve Chadwick by 2863 votes in last month's mayoral race, has demanded an inquiry into the conduct during the election of the council's chief executive, Geoff Williams, and wants the election result declared void and a new election ordered.
Read more:
• Macpherson's election challenge: Court date set
His petition claims Mr Williams' conduct during the election was biased in favour of Mrs Chadwick and some incumbent councillors and was "therefore unfair on the other candidates".
Neither Mr Williams nor Mrs Chadwick have previously commented, Mr Williams saying he would await the outcome of the court process.
Much of the South Island is set to plunge below 0C tonight and tomorrow.