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High Court of New Zealand Decisions |
Last Updated: 31 December 2018
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
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CIV-2014-419-317
[2015] NZHC 2694 |
UNDER
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The Judicature Amendment Act 1972
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IN THE MATTER
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of a resolution by the WAIKATO-TAINUI TE KAUHANGANUI INCORPORATED
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BETWEEN
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TANIA ERIS MARTIN
Applicant
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AND
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WAIKATO-TAINUI TE KAUHANGANUI INCORPORATED
First Respondent
HORI AWA
Second Respondent
GREGORY MILLER
Third Respondent
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Hearing:
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26 May 2015
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Counsel:
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J E Hodder QC and J Graham for the Plaintiff P F Gorringe for the
Respondents
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Judgment:
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2 November 2015
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JUDGMENT OF DUFFY J
This judgment was delivered by me on 2 November 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors
Sullivan Law, Hamilton
Chapman Tripp, Auckland Counsel
P F Gorringe, Hamilton
MARTIN v WAIKATO-TAINUI TE KAUHANGANUI INC [2015] NZHC 2694 [2 November 2015]
[1] The applicant, Tania Martin, brings this judicial review proceeding of a decision of the first respondent, Waikato-Tainui Te Kauhanganui Inc (“Te Kauhanganui Inc”) to remove her from office as an elected member and Chairperson of that organisation. Te Kauhanganui Inc has applied for an order from this Court striking out the proceeding. Mrs Martin opposes the application.
Facts
[2] Te Kauhanganui Inc is a society incorporated on 18 March 1999 under the Incorporated Societies Act 1908 following the settlement of land confiscation claims between the Crown and Tainui Iwi.1
[3] Te Kauhanganui Inc is the governing body of Waikato Tainui. It is responsible for the management of land and assets on behalf of more than 64,000 registered tribal members. Its affairs are governed by rules which its members approved on 25 November 2011 (“the Rules”).
[4] Under the Rules Te Kauhanganui Inc comprises an Assembly consisting of three elected representatives (“elected members”) from each of the 68 affiliated marae and an 11 member Executive Committee known as Waikato-Tainui Te Arataura (“Te Arataura”). Elections are held every three years; the last election was in February 2015. Under the Rules there are three elected officers: a chairperson, a deputy chairperson and a secretary (to which I will refer collectively as the officers). The officers are required to be current elected members of Te Kauhanganui Inc.
[5] Mrs Martin was one of the three elected members to Te Kauhangaui Inc from Hiiona marae from 1999 until 25 November 2012. She was also the chairperson of Te Kauhanganui Inc from 28 August 2010 to 25 November 2012.
[6] Mrs Martin was removed as chairperson and a member of Te Kauhanganui Inc by a resolution made at a special general meeting held on 25 November 2012. The second respondent, Mr Awa, put the resolution to the meeting on behalf of the Kaitumutumu marae. The third respondent in this proceeding, Gregory Miller, was
the interim chairperson presiding over the meeting when the resolution was put and passed.
[7] The disqualification of an elected member is governed by r 5.3.1 of the Rules. A member may be disqualified on various grounds, including if the member:
(i) acts (whether or not in his or her capacity as an Elected Member) in a manner which has brought or is likely to bring Te Kauhanganui into disrepute (including a serious breach of a written confidentiality undertaking) as determined by Elected Members who hold at least 50% of the Total Marae Votes.
[8] This voting requirement for disqualification is effectively an ordinary resolution.
[9] Te Kauhanganui Inc convened a general meeting on 27 October 2012. Resolution 3.1 was a resolution to remove each member of Te Arataura on the basis of r 5.3.1(i). At the meeting Mr Awa tabled a motion proposing additional resolutions to be considered at the beginning of the agenda. It was agreed that the additional resolutions would be added as the last item of business for discussion.
[10] However, before resolution 3.1 was considered the members agreed to adjourn the meeting and to defer the three remaining items for discussion at a special general meeting. This meeting was held on 25 November 2012; it began at approximately 9 am.
[11] At the beginning of the November meeting members considered a letter from the head of Kaahui Ariki,2 dated 19 November 2012, which proposed that Mrs Martin and the members of Te Aratura resign. The letter was discussed until approximately 2:30 pm. After a break, Mr Awa handed Mrs Martin as chairperson, a document headed “Proposed Resolution” which detailed the proposal to remove the officers, including Mrs Martin on the basis of r 5.3.1(i). The resolution included material headed “Disrepute Rationale” which set out ten grounds upon which Mrs Martin and other officers were alleged to have brought Te Kauhanganui Inc into disrepute. Mrs Martin informed the meeting that she had received the document, and copies were distributed
2 The Māori King.
to members. Mr Gregory was then appointed as interim chairperson by resolution. Mrs Martin opposed this resolution.
[12] Mr Gregory invited Mr Awa to speak in support of the proposed resolution to remove Mrs Martin and the other officers. Mrs Martin then spoke against the resolution. She spoke for some time. Mrs Martin states that she was abruptly stopped from speaking, although she objected to this as she submits that she had not yet addressed the “Dispute Rationale” in full. A vote was then taken on the resolution. It passed by a majority.3 Mrs Martin describes the members at the meeting as noisy and unruly throughout the discussion and, at times, abusive.
Application for Review
[13] Mrs Martin alleges that the resolution to remove her as chairperson and as an elected member of Te Kauhanganui Inc has destroyed her mana and weakened her reputation, because of the imputation of bringing “disrepute” to Te Kauhanganui Inc. It deprived her of the chairperson’s honorarium, and it overrode the right of the beneficiaries of the Hiiona marae to choose their preferred marae representative.
[14] Mrs Martin contends that Mr Awa’s resolution and the “disrepute rationale” that accompanied it failed to provide: (a) particulars of the allegations that he relied on to support the resolution; and (b) evidence to support the allegations.
[15] Mrs Martin contends that those failures meant that she was unable to: (a) consider the resolution and the allegations attached to it before the meeting of 25 November 2012; (b) prepare her responses; (c) speak to the meeting for a sufficient length of time; (d) speak in circumstances of respect and courtesy; and (e) fully address each of the 10 “disrepute” issues or any other relevant matters adequately and properly.
[16] Mrs Martin alleges that Mr Gregory, as interim chairperson, failed to act properly in certain matters.
3 Similar resolutions to remove the deputy chairperson and secretary failed.
[17] Mrs Martin contends that Te Kauhanganui Inc failed to act in accordance with the principles of natural justice. In this regard Mrs Martin alleges that:
(a) she had no knowledge before the resolution was presented to the 25 November meeting of its terms;
(b) she had no opportunity to consider, prepare and present an adequate and appropriate response;
(c) the members of Te Kauhanganui Inc were not in a position to make a properly informed decision on how to vote; and
(d) she was unable to present her case fully at the meeting because Mr Gregory unfairly curtailed her speaking time, and some of the members were noisy, disorderly and disruptive.
[18] Mrs Martin also contends that there was an obligation to appoint a neutral and competent interim chairperson and to ensure the meeting was fairly and properly managed. She contends that Te Kauhanganui Inc failed to do this because Mr Gregory was appointed in the context of an express and known wish of the Kaahui Ariki for Mrs Martin to resign, and Mr Gregory was a member of Te Kauhanganui Inc by appointment of the Kaahui Ariki.
[19] Mrs Martin also contends that she had a legitimate expectation that:
(a) Mr Awa would comply with the “Rules as to Notice” of his proposed resolutions;
(b) that Te Kauhanganui Inc would not purport to vote on a resolution presented in breach of its Rules as to Notice;
(c) that Mr Gregory would control the meeting; and
(d) that all members would listen carefully and respectfully to her points.
This legitimate expectation is said to arise arose from the terms and conditions, express and implicit, upon which members joined and remained members of Te Kauhanganui Inc.
[20] Mrs Martin argues that the elected members of Te Kauhanganui Inc failed to have regard to the views of their respective marae beneficiaries on the issues relevant to how they would vote, which she contends are a mandatory consideration. She argues that the elected members should have sought the opinions of members of their marae before they voted in the resolution to remove her and the other persons from their respective offices. Further, due to the absence of proper notice to her there was no means or opportunity for her to consult with and receive advice from members of the marae that she represented.
[21] Finally, Mrs Martin argues that the resolution was passed for an unlawful purpose – to remove her as chairperson – when the rules are designed to remove elected members. She contends that the object of removing her was to thwart disclosure and discussion of aspects of Te Kauhanganui Inc’s financial accounts.
[22] In her pleading Mrs Martin sought a declaration that her disqualification was invalid; an order quashing or setting aside the disqualification resolution; an order that she be reinstated as an elected member of Te Kauhanganui Inc for the Hiiona Marae; an order that she be reinstated as chairperson of the first respondent, or for directions as to management of a process to decide the appropriate chairperson of Te Kauhanganui Inc; and costs.
[23] Since the strike out application was filed Mrs Martin has reshaped her case somewhat although to date she had not filed an amended pleading. Initially she alleged that Mr Awa did not read out the substance of his proposed resolutions at the October 2012 meeting. She now acknowledges the verbatim transcript and recording of what transpired at the October 2012 meeting show that Mr Awa did read out his proposed resolutions in full and that she then summarised the resolutions. This included the resolution to remove her.
Strike-out application
[24] Te Kauhanganui Inc argues that there is no arguable cause of action because:
(a) The merits of specific decisions made by Te Kauhanganui Inc are non- justiciable; and
(b) The natural justice complaint falls away as Mrs Martin and other attendees undoubtedly had notice at the 27 October 2012 meeting of the proposal to remove her as chairperson of Te Kauhanganui Inc which was debated and adopted at the 25 November 2012 meeting; and
(c) The judicial review proceeding is frivolous, vexatious and otherwise an abuse of process, as events have overtaken the remedies sought and rendered any claim/relief futile.
Non-justiciability
[25] Te Kauhanganui Inc argues that there are seven reasons why the Court should not interfere with the decision to remove Mrs Martin.
[26] First, Te Kauhanganui Inc is essentially a political entity with decisions made by elected representatives who are electorally accountable to their marae and Te Kauhanganui Inc office holders. The merits are therefore non-justiciable. Te Kauhanganui Inc argues that the court in Waikato Tainui Te Kauhanganui Inc v Martin recognised the value of, and upheld, the democratic process within Te Kauhanganui Inc.4
[27] Secondly, the challenged activities are private in nature and governed by the constitution. They are, therefore, not subject to judicial review.5 The “internal management rule” reflects judicial recognition that, in relation to private entities, the
4 Waikato Tainui Te Kauhanganui Inc v Martin [2012] NZHC 85 at [26].
5 Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354 (CA) at [10].
viewpoint of the majority will prevail in matters of internal governance.6 In the absence of fraud, irregularities in the internal management of an incorporated society are matters for the members of that society.
[28] Thirdly, disqualification under r 5.3.1(i) is explicitly allocated for determination by the relevant voting majority of the elected members of Te Kauhanganui Inc.
[29] Fourthly, decisions involving voting by a large body do not require reasons for their decision, but may well involve a range of political, moral or personal considerations.
[30] Fifthly, disqualification for bringing Te Kauhanganui Inc into “disrepute” is impressionistic rather than forensically evidential. There is no satisfactory legal yardstick.
[31] Sixthly, Mrs Martin deposes that she had 45 minutes to speak to the resolution while Te Kauhanganui Inc claims that the audio record indicates that she spoke for almost one hour and 10 minutes. In any event, Te Kauhanganui Inc argues that it is a question of degree, not denial, of opportunity. Rowdiness attended not only her address, but also that given in favour of the resolution; and the debate followed a day of debate on the underlying political tensions.
[32] Lastly, under the remaining grounds of review, Mrs Martin encounters the fundamental difficulty that they challenge the clear constitutional powers of Te Kauhanganui Inc by the relevant voting majority, to deal with extraordinary business, and to determine whether r 5.3.1(i) should be applied.
Natural justice
[33] Te Kauhanganui Inc admits that whether natural justice was adequately provided turns on Mrs Martin’s knowledge of Mr Awa’s proposed resolution.
However, it argues that there is indisputable evidence she did have notice of the proposed resolution to remove her as chair of Te Kauhanganui Inc in October 2012, well before the 25 November 2012 meeting.
[34] Te Kauhanganui Inc argues that the critical factual allegations pleaded by Mrs Martin are demonstrably contrary to indisputable fact. Here it refers to Mrs Martin’s assertions in her affidavit that during the October 2012 meeting Mr Awa did not read out the content of his proposed resolution to remove Mrs Martin as chairperson, rather he stated he had additional resolutions that he proposed be added to the meeting’s agenda. So, whilst Mrs Martin claims she did not know the content of Mr Awa’s proposed resolution until the day it was put to Te Kauhanganui Inc, and, therefore, she was unable to prepare considered responses to the proposed resolution at the 25 November 2012 meeting; this is not so. The verbatim transcript, in the enclosures to the third affidavit of Mrs Moana-Tuwhangai, dated 6 May 2015, shows the opposite. At pg 9 of the transcript at 00:35:13 of the recording, Mr Awa is recorded reading out the proposed resolutions in full, including the resolution to remove Mrs Martin. In addition, Mrs Martin herself is recorded as summarising Mr Awa’s proposed resolutions to the house, including the resolution to remove her. She states “I’m sure you’ve all heard to appoint an interim chairperson. Resolution 2, remove each of the Te Kauhanganui officers. Resolution 3 confirms the resolution of the [General Meeting] Waikato-Tainui held Saturday 25 August 2012.” This is also confirmed by Mrs Moana-Tuwhangai’s affidavit.
[35] As noted, Mrs Martin now accepts that the resolutions proposed at the October 2012 meeting were disclosed.
[36] Te Kauhanganui Inc argues that the case is different to Waikato-Tainui Te Kauhanganui Inc v Martin where the court held that natural justice required that those at risk of losing their positions were given full details of what was alleged against them, prior to the meeting, so that they could meet the allegations.7 Te Kauhanganui Inc argues that the present context is different because Mrs Martin knew of the
proposed removal resolution at the October 2012 meeting and she knew it was the desire of the Head of Kaahui Ariki that she step down.8
[37] Te Kauhanganui Inc also argues that it was Mrs Martin’s responsibility to issue the notice of the November 2012 meeting and accompanying materials for this meeting. It contends that it was clear that this was her responsibility; as chairperson, and she signed the relevant agenda. Resolution 3 in that agenda referred to additions to the agenda and was a reference to Mr Awa’s resolutions directed to the removal of officers of Te Kauhanganui Inc, including Mrs Martin, for disrepute. These were simply restated in Mr Awa’s later document as “Resolution 5.”
[38] Accordingly, Te Kauhanganui Inc argues that Mrs Martin’s primary ground of complaint – breach of natural justice – falls away because she knew of the proposed resolution well before the November 2012 meeting; did not seek an adjournment of that meeting; and she had the opportunity to put her case at some length.
Other grounds
[39] Te Kauhanganui Inc argues that the remaining grounds of complaint are relatively minor or makeweight, and it submits that they provide no reasonable cause of action.
Frivolous, vexatious and otherwise an abuse of process
[40] Te Kauhanganui Inc argues that there is no available remedy because there has been a delay in bringing the application,9 the relief is futile or moot10 and/or the relief would serve no purpose, or the result would have been no different.11 This is because there have been further elections in 2015 for Te Kauhanganui Inc’s elected members and its officers. Therefore it is inconceivable for the court to disregard those election outcomes by reinstating Mrs Martin.12 Thus, there is no practical purpose to justify
9 Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260.
10 Fowler & Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56 (CA).
11 Easton v Human Rights Commission [2009] NZHC 805; [2009] NZAR 575 (HC) at [27].
12 Stratford Racing Club, above n 6, at [96] and [99]; and Barrett v Te Runanga O Ngati Pu Inc,
above n 6.
the resources required for contested litigation. Mrs Martin was re-elected in 2015 as one of Hiiona marae’s elected members. Te Kauhanganui Inc also argues that there is little political impact from the disqualification because Mrs Martin is an experienced operator in that political arena. Finally, Te Kauhanganui Inc argues that the delay in bringing this proceeding is a separate ground making refusal of relief inevitable.
Opposition to strike-out application
Justiciability
[41] Mrs Martin argues that the proceeding seeks to review the procedure and steps taken preceding the vote to remove her. She argues that the enquiry is not into the vote itself or the substantive decision, but to matters of procedure as they impacted on the efficacy of the vote.
[42] Mrs Martin argues that the court will seek to review incorporated societies where the society has particular features.13 She argues that Te Kauhanganui Inc is of an inherently public character because it is the governing body of many people who belong to a particular affiliation and region. She contends that the decision to remove her from office is one that attracts review by the court as it involved a disciplinary proceeding against an organisation’s senior officer. This is in contrast to an administrative or management decision of an incorporated society. Disciplinary decisions involve rights, in a wider sense, of an individual – where the court maintains a more active supervisory role.
[43] Mrs Martin argues that the fact that the decision was made by a body of elected representatives is not relevant because the review does not concern the merit of the decision but the process leading to the vote. Further, Te Kauhanganui Inc had no power under the Rules or Standing Orders to circumvent the process for dealing with resolutions, but even if it did, any power did not extend to breaching a member’s rights to be properly informed of allegations made against her, and to have adequate opportunity to prepare for and present a defence to the basis for the motion. She argues
13 Tamaki v Maori Women’s Welfare League Inc [2011] NZHC 688; [2011] NZAR 605 (HC) at [42]–[44]; Stratford Racing Club Inc, above n 6; and Rabson v Transparency International (New Zealand) Inc [2015] NZHC 334. Mrs Martin relies on the decision of Keane J in Morgan v Martin HC Hamilton CIV- 2011-419-1305, 23 September 2011. This case is discussed below at [60] and [76].
that r 5.3.1(i) does not provide carte blanche authority to the assembly to ignore due and fair process for a member.
[44] Moreover, Mrs Martin argues that disrepute is not impressionistic, and that it could be shown by evidence – and was shown by Mr Awa in his 10 “Disrepute Issues”.
Natural justice
[45] Mrs Martin argues that at the November 2012 meeting she had limited speaking time leading to a loss of opportunity in its effect. To treat the opportunity she was afforded as sufficient to meet the obligation of fairness she argues is to derogate from the importance of a proper response.
[46] Mrs Martin now accepts that the content of the three resolutions proposed by Mr Awa were disclosed. However, she contends that the disclosure at the October 2012 meeting was comprised of the bare resolutions only. Resolution 2 sought the disqualification of the three officers for bringing Te Kauhanganui Inc into disrepute.
[47] Mrs Martin contends that it was not until the start of the disqualification resolution consideration that a written copy of the resolution together with the paper in support – the “Disrepute Rationale” – containing 10 “Disrepute Issues” was made available by Mr Awa. She alleges that this document had not previously been seen by her or by the elected members of Te Kauhanganui Inc. Mrs Martin argues that this document purported to set out the case against the officers, though without any supporting material of an evidential kind at all. Thus, the full details of the allegations were not made before the meeting.14
[48] Mrs Martin also argues that there was substantially insufficient time for her to put her defence to the assembly. The agenda for the meeting was not discussed until 3:00pm; the temporary chairperson was then selected and discussion of the resolution finished at 10 pm. During this time there was also a break for dinner.
14 Waikato-Tainui Te Kauhanganui Inc v Martin, above n 7.
[49] Mrs Martin reiterates that the temporary chair for the purpose of Resolution 5 was supposed to be independent, but the personal appointed representative of the Kaahui Ariki was selected – the third respondent. She contends that he was loyal to the Kaahui Ariki, who was anxious to see Mrs Martin removed.
Frivolous, vexatious and otherwise an abuse of process
[50] Mrs Martin no longer seeks reinstatement as a chairperson, but continues to seek reinstatement of her position as representative of her Marae and a declaration that Resolution 5 was unlawful.
[51] She argues that the declaration of unlawfulness is important because of the personal affront and loss of mana she has suffered. Further, she contends that the Rules only allow her to be disqualified as a member because of allegations about her conduct as an officer. The rules did not provide for removal as an officer alone: were it otherwise, Mrs Martin may have been disqualified as chairperson but remained as a member. She argues that the declaration should be made because she lost her positions unlawfully, and that is a matter of real significance. Hiiona marae also lost one of its elected representatives. Finally, an order should be made to ensure that Te Kauhanganui Inc is conscious of the importance of process in dealing with any resolutions of a similar kind in the future.
[52] Mrs Martin acknowledges that there is dispute about whether her disqualification lasted for only the remainder of that triennial term.
[53] Regarding delay, Mrs Martin argues that she was undergoing the internal dispute resolution processes under r 22. Rule 22.5 stipulates that other than urgent interim relief, a party to the dispute resolution process is not permitted to start court proceedings until the r 22 process is complete. Further, she was suffering health problems by then, resulting in further delay before being in a position to issue the proceedings. Mrs Martin submits that the remedy she seeks is not meaningless or impossible.
Law
Strike-out application
[54] Under r 15.1 of the High Court Rules the court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action. To succeed on a strike- out application the society must show that the cause of action is clearly untenable such that “the court can be certain that it cannot succeed”.15 The jurisdiction should be sparingly exercised. The same strike-out principles apply to judicial review proceedings as they do to ordinary strike-out applications.16 Pleaded facts are assumed to be true and the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.17 However, the court can consider evidence that is inconsistent with Mrs Martin’s pleading when a factual allegation “is so demonstrably contrary to indisputable fact that the matter ought not be allowed to proceed further”.18 In Attorney-General v McVeagh the Court said:19
The Court is entitled to receive affidavit evidence on a striking out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved. ... But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further. If the evidence [that a party] wishes to tender shows that this is such a case, then the evidence should be received. If it does not, then the matter must be dealt with on the pleadings.
[55] There will be no reasonably arguable cause of action where the issue at hand is not justiciable.20
Frivolous, vexatious or abuse of process
[56] Under r 15.1 of the High Court Rules a claim can be struck out if it is frivolous, vexatious or otherwise abuses the process of the Court. Frivolous proceedings are
15 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
17 Couch v Attorney-General, above n 15, at [33].
18 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
19 At 566.
20 Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 (CA) at [29].
those that trifle with the court’s processes, such as proceedings which lack “the seriousness required of matters for the Court’s determination”.21
[57] A vexatious proceeding is one which has an element of impropriety, often a procedural impropriety, such as a second attempt to bring a fresh proceeding, or to obtain summary judgment when the earlier unsuccessful proceeding in which summary judgment had unsuccessfully been brought remained extent.22
[58] Abuse of process captures other instances of misuse of court’s processes, such as a proceeding that has been brought with an improper motive or is an attempt to obtain a collateral advantage, beyond that legitimately gained from a court proceeding.23
Justiciability
[59] Private bodies can be amendable to judicial review where they perform public functions. When determining whether judicial review is available the court should consider the nature of the public body, the particular function being performed, the context within which that function was performed, and what had gone wrong.24 Whether an application is justiciable is context specific. The main question is whether the exercise of the power is governmental in nature or is essentially of a private character.25 The nature, rather than the source of the power, is what is relevant.26 Decisions of private organisations may be reviewable if they have “important public consequences”,27 though matters of internal management or administration not taken under the constitution of a private organisation are not generally regarded as susceptible to judicial review.28 Generally, a club or society will be reviewable where they have applied their rules in breach of natural justice.29
22 Registered Securities Ltd (in liq) v Yates (1992) 5 PRNZ 68 (HC).
23 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 21, at [89].
25 Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC) at [69].
26 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [30].
27 Easton v Human Rights Commission [2009] NZHC 805; [2009] NZAR 575 (HC) at [21].
28 At [24].
29 Hopper v North Shore Aero Club Inc, above n 5.
[60] In relation to bodies representing iwi, particularly Waikato-Tainui, it is clear that they are usually considered to carry out public functions – particularly considering their role in quasi-political management over iwi as well as in negotiations with the Crown. As Keane J said:30
[19] A dispute as to the meaning of the rules of an incorporated society, more especially when that relates to the eligibility of members, or their continued eligibility, is readily susceptible to judicial review. As the embodiment of the Waikato Iwi in their relations with the Crown and other entities, moreover, the society is as public a private entity as can be imagined.
[61] Whilst the present dispute does not centrally involve the rules of the society, it is clear that accountability over the standards of natural justice applied in such a society is justified.
[62] In Tamaki v Maori Women’s Welfare League Kós J said: 31
Typical qualifying circumstances will involve the denial of access to membership, the exercise of a disciplinary power, the deprival of a licence or other economic concession, the alleged misapplication of a society’s constitution in a manner that offends natural justice or an alleged error of law in the application of a society’s constitution where the body concerned has a public or quasi-public function. I am perfectly satisfied that the League has such functions, as it is a body drawing upon broad participation from, and having wide influence in, Māoridom and beyond.
[63] Accordingly, I consider that the present proceeding is justiciable, and should not be struck out on that basis.
Natural justice
[64] As stated earlier, in a strike-out proceeding pleaded facts are assumed to be true and the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.32 However, the court can consider evidence that is inconsistent with Mrs Martin’s pleading when a factual allegation “is so demonstrably contrary to indisputable fact that the matter ought not be allowed to proceed further”.33 This is what has occurred here. The transcript and recording of the meetings of
30 Morgan v Martin, above n 13.
31 Tamaki v Maori Women’s Welfare League, above n 13, at [43].
32 Couch v Attorney-General, above n 15, at [33].
33 Attorney-General v McVeagh, above n 18, at [26] and [27].
October 2012 and November 2012 are at odds with the account of events given by Ms Martin in her affidavit evidence. She now acknowledges those inaccuracies in her evidence.
[65] The requirements of natural justice will vary according to the context.34 Rule 10 of Te Kauhanganui Inc’s rules provides that the secretary shall ensure that written notice of the time and place of a general meeting be sent to the last known address of every member not less than 21 clear days before the meeting. The notice must state the place, day and hour of the meeting, the business to be transacted at the meeting and the text of any special resolution to be submitted to the meeting. A special resolution is one that must be passed by a 75 per cent majority. A vote removing a person as an elected member due to that member acting in a way which is likely to bring the society into disrepute must be determined by 50 per cent of the members.
[66] In previous litigation involving Te Kauhanganui Inc, the court was asked to restrain the society from holding its half-yearly meeting until it had complied with notice requirements. The plaintiff claimed that notice of the meeting was defective. One of the items to be debated at the meeting was a proposal to remove members of Te Arataura under r 15.4 of the rules. This rule required the members to be removed by special resolution. Allan J granted the order, saying:35
... as a matter of fundamental natural justice, those who are in jeopardy of losing their positions as members of Te Arataura should, prior to the meeting, be provided with full details of what is to be alleged against them so that they can be ready to meet the allegations. There can be few circumstances in which it would be right to condone a different approach.
[27] The second concern relates to the position of members of Te Kauhanganui. They each represent their own marae and are, in effect, the voices of the marae concerned, within Te Kauhanganui. To enable them effectively to do that, they need to be in a position where they have had an opportunity of discussing with members of their own hapu the issues likely to be relevant to the decision they will be asked to make. That will not be possible under the proposed procedure, because no background material is supplied.
[67] The Judge’s determination here is arguably distinguishable as the rules expressly provide that the text of any special resolution must be provided. By contrast
34 See for example Birss v Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513 (CA) at 516.
35 Waikato-Tainui Te Kauhanganui Inc v Martin, above n 7, at [26] and [27].
an ordinary resolution, as in the current case, does not require the text to be provided in advance. Accordingly, the rules contemplate a different level of notice accordingly to the type of resolution.
[68] On the other hand, this distinction goes to the notice required to be given to every member of the society, rather than to the notice that must be given to a member against whom adverse allegations are made, particularly when the purpose of those allegations is to have the member removed from the society.
[69] It follows that whether the natural justice requirements were fulfilled by Te Kauhanganui Inc turns on as assessment of whether Mrs Martin was given adequate notice of the resolution to dismiss her from office, and the basis for doing so. Mrs Martin now accepts that Mr Awa did read out the proposed resolution to remove her as chairperson at the October 2012 meeting. Therefore, she did have some notice that the matter would be discussed. However, the extent of the notice and whether it was adequate is a separate question that is presently not in issue in the pleadings.
[70] I am not satisfied that the evidence of what occurred here reaches the threshold where it establishes the judicial review should be struck-out on the basis it is so hopeless that is not capable of being re-pleaded. Rather, the adequacy of the notice given to Mrs Martin needs to be properly assessed. This is not possible at present as the judicial review pleads she had no notice of Mr Awa’s resolutions; it does not address the adequacy of the notice she did receive. In her arguments before me she maintained the position that she had not been given proper notice of Mr Awa’s resolution to remove her from office or afforded a proper opportunity to respond to his resolution. It would go without saying that if she had no proper notice of the resolution her ability to respond to it would be hampered and in this way she could have no proper opportunity to respond to the resolution. Whether the time she was given to respond was sufficient is a separate issue. For these reasons I consider that Mrs Martin should be given the opportunity to re-plead her grounds of review. Although it is now clear she knew of the allegations made by Mr Awa in October 2012, it remains possible that the details of the allegations were not sufficiently disclosed before she had to meet them at the meeting in November 2012.
[71] Te Kauhanganui Inc argued that if Mrs Martin had received inadequate notice of Mr Awa’s resolution to remove Mrs Martin from office and elected membership she was responsible for that outcome. Its case is that at the October 2012 Mr Awa left copies of the resolution at the meeting and that part of the responsibility that Mrs Martin then held as an officer of Te Kauhanganui Inc was to ensure that the resolution was distributed to the elected members ahead of the November 2012 meeting. Te Kauhanganui Inc contends that any inadequacy in the giving of notice is attributable to Mrs Martin and so she cannot rely upon it as being a breach of natural justice.
[72] In Hill v Wellington Transport Licensing Authority the Court of Appeal found that a failure of the Transport Licensing Authority to give adequate notice to Mr Hill of a hearing in a proper timely manner was not a ground to vitiate the Licensing Authority’s decision against Mr Hill’s interests because the evidence showed that he clearly knew of the hearing and had chosen to “boycott” it.36 Te Kauhanganui Inc may be able to develop an argument to like effect in the present case if it can establish that any inadequate notice of the resolution to Mrs Martin or other elected members was as a result of an omission by Mrs Martin, as the officer of Te Kauhanganui Inc charged with the responsibility of ensuring proper notice was given. On this approach the argument that Te Kauhanganui Inc makes would function as an affirmative defence. However, I consider that it is premature to assess how such a defence might affect the outcome of the proceeding.
[73] Until the grounds of review are re-formulated in a way that focuses on the adequacy of the notice that was given and the opportunity to respond, how any affirmative defence might impact on those grounds cannot be properly assessed in a strike out application.
[74] Furthermore, Mrs Martin has not had a proper opportunity to address the legal question of whether it was her responsibility after the meeting in October 2012 to ensure that the information Mr Awa presented at that meeting was distributed in advance of the November 2012. Until Te Kauhanganui Inc’s argument on this topic is
36 Hill v Wellington Transport Licensing Authority [1984] 2 NZLR 314 (CA) at 321.
properly raised in its pleadings as an affirmative defence to an allegation of inadequate notice of the resolution Mrs Martin cannot address this aspect of Te Kauhanganui Inc’s case against her.
[75] Because I consider that Mrs Martin should have the opportunity to re-plead the breach of natural justice grounds for judicial review I see no purpose in traversing the other arguments that Te Kauhanganui Inc made in relation to her other grounds of review. If those arguments have revealed other weakness in her grounds of review she will have the opportunity to re-frame those grounds as well if she can, if she cannot the proceeding may still go ahead once the natural justice grounds of review are re- pleaded. In this regard I note that Te Kauhanganui Inc viewed the breach of natural justice grounds as the providing the core strength of Mrs Martin’s case for judicial review.
Relief
[76] In Morgan v Martin, Mr Morgan had been removed as an elected member by a vote of Te Kauhanganui Inc. In his judgment Keane J said:37
[21] I am also satisfied that this is a case where there is good reason to grant relief if the resolution passed does not comply with the rules. As a result of the resolution Mr Morgan was disqualified from being an elected member; a decision adverse not just to him but to the marae he was elected to represent. The effect was also that he ceased to be able to be the chief executive; a position carrying with it a right to be remunerated. The decision also went to his reputation. The ground on which he was disqualified was that he had brought Te Kauhanganui into disrepute.
[77] In the present case Mrs Martin has been re-elected for a new triennial term. However, there is a question as to whether the effect of her removal for the last triennial term affects her eligibility to be further elected as a member of Te Kauhanganui Inc. A decision on whether she was properly removed as a member of Te Kauhanganui Inc will go some way to resolve this issue. Thus even if she has properly been re-elected, I consider that a declaration stating that her disqualification as an elected member of Te Kauhanganui Inc was invalid would still be useful.
37 Morgan v Martin, above n 13.
[78] Secondly, such a declaration of invalidity would clarify the procedure required to be undertaken by Te Kauhanganui Inc when there was any future attempt to remove elected members.
[79] Thirdly, a declaration of invalidity would go some way to remedy the damage done to Mrs Martin’s mana and reputation by the finding that she had brought Te Kauhanganui Inc into disrepute. In O’Regan v Lousich38 Tipping J recognised the merit of allowing a person whose reputation was damaged by adverse judicial comment that breached the rules of natural justice to judicially review the offending decision.
[80] In O’Regan v Lousich the applicant was given no notice of the offending comments that impugned his reputation. In his judgment the Maori Land Court Judge had described Sir Tipene O’Regan as being “overbearing” when dealing with dissenting shareholders. Tipping J found that the “sting of the Judge’s words” was what would appear to a reader of the judgment to be a factual finding that Sir Tipene O’Regan had adopted an overbearing manner when dealing with dissenting shareholders.”39 Tipping J concluded that a finding of fact which was defamatory of the person complaining; and which was made by a court in the course of a decision could amount to a breach of natural justice:40
It is a fundamental principle of justice that adverse conclusions or findings are not made against people without their having notice of what is said against them and having an opportunity to reply ...
What should be regarded as adequate notice for present purposes and what should be regarded as an adequate opportunity to make reply are matters which depend on individual circumstances.
[81] O’Regan v Lousich was a case of common law judicial review where certiorari was sought, although Tipping J considered that the proceeding could have been brought under the Judicature Amendment Act 1972.41 The case is helpful here as it illustrates that conduct in breach of natural justice that is damaging to reputation can give rise to judicial review and the grant of a public law remedy.
38 O’Regan v Lousich [1994] NZHC 787; [1995] 2 NZLR 620 (HC).
39 At 631.
40 At 628.
41 At 631.
[82] A declaration to the effect that Mrs Martin’s removal in November 2012 as a member of Te Kauhanganui Inc was in breach of natural justice would still have utility even though there have since been fresh elections, and they resulted in her re- appointment as an elected member of Te Kauhanganui Inc. Such a declaration would remove the damage to her reputation that attended her removal from office, and it would outline to Te Kauhanganui Inc how it should proceed in the future to deal with resolutions to remove elected members from office.
[83] As regards delay I consider that Mrs Martin has given a satisfactory reason for the delay.42 Accordingly, there is still a remedy available in the form of a declaration of invalidity as regards the decision to remove her from office as chairperson and an elected member of Te Kauhanganui Inc.
[84] However, I accept that it would no longer be useful to order Mrs Martin’s re- instatement as an elected member for what is now an expired term. That part of the relief she presently seeks is now futile. She no longer seeks to be reinstated as chairperson of Te Kauhanganui Inc, so that part of the relief which she presently seeks will no longer be in issue.
Conclusion
[85] I consider that the impugned decision is justiciable, and whether Te Kauhanganui Inc followed the requirements of natural justice requirements or not warrants more scrutiny. It follows that Mrs Martin should have the opportunity to re- plead her grounds of review. For this reason the strike out application is dismissed.
[86] Mrs Martin should file an amended statement of claim within 15 working days of the delivery of this judgment.
[87] The respondents should file their amended statements of defence within 15 working days of been served with Mrs Martin’s amended statement of claim.
42 In Stratford Racing Club Inc v Adlam, above n 6, at [97] the Court discussed the issue of delay in terms of whether a declaration had any current significance as to historical interest. The decision was given in 2008, this aspect of the judgment concerning events in 2002.
[88] Leave is reserved to the parties to file memoranda as to costs.
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URL: http://www.nzlii.org/nz/cases/NZHC/2015/2694.html