Takerei v Roa [2012] NZHC 2483 (25 September 2012)

Last Updated: 8 October 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-000958 [2012] NZHC 2483

BETWEEN WILLIAM RICHARD BUSTER TAKEREI, TANIA ERIS MARTIN, ROIMATA WHANGA-KATIPA AND DONNA-LEE KATIPA

Plaintiffs

AND TOM ROA, STANLEY PAPA, KINGI PORIMA, RUKUMOANA SCHAAFHAUSEN, JEFFERY WILSON, GREGORY MILLER, HEMI RAU, TIPA MAHUTA, PAKI RAWIRI AND MARAE TUKERE

First Defendants

AND PAREKAWHIA MCLEAN Second Defendant

AND ROBIN TUKAHA WHANGA, FRANCES BORELL AND VINCENT HOHEPA

Third Defendants

Hearing: 17 September 2012

Appearances: N J Russell and S Carpenter for Plaintiffs

M Sandelin and C Haemmerle for Defendants

Judgment: 25 September 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 25 September 2012 at 4.30pm, pursuant to Rule 11.5 of the

_{High Court Rules.}

Registrar/Deputy Registrar

Date...............

Solicitors: Chen Palmer, Wellington for Plaintiffs

Minter Ellison Rudd Watts, Auckland for Defendants

TAKEREI& ORS V ROA & ORS HC HAM CIV-2012-419-000958 [25 September 2012]

Introduction

[1] This case has been brought to determine whether the three last named plaintiffs or the third defendants are the duly elected representatives of the Hiiona Marae on Waikato-Tainui Te Kauhanganui Incorporated (Te Kauhanganui).

[2] The plaintiffs seek declaratory relief and related orders confirming that Mr Roimata Whanga-Katipa, Mrs Tania Martin and Ms Donna-Lee Katipa have been validly elected to Te Kauhanganui as representatives of Hiiona Marae.

[3] The defendants oppose the application. They consider that the third defendants are the duly elected representatives.

Background

[4] Te Kauhanganui is an incorporated society under the Incorporated Societies Act 1908. It was established in 1999 following the Waikato-Tainui Settlement with the Crown in 1995. The Waikato Raupatu Lands Trust (the Lands Trust) was established by Deed dated 10 November 1995 to hold and manage the settlement assets on behalf of the settlement beneficiaries, the members of Waikato-Tainui. There are approximately 64,000 registered tribal members of Waikato-Tainui. Te Kauhanganui is the sole trustee of the Lands Trust.

[5] Te Kauhanganui’s Constitution provides for three elected representatives from each of the 66 marae in the Waikato rohe affiliated to the Waikato-Tainui confederation of iwi. The representatives are elected for three year terms. Like all incorporated societies, Te Kauhanganui conducts its affairs, including the election of marae representatives, in accordance with rules registered with the Registrar of Incorporated Societies (the Rules).

[6] The day-to-day management and control of Te Kauhanganui is left in the hands of an elected group of individuals, comparable in some senses to an executive committee, known as Te Arataura. The 10 members of Te Arataura are elected from members of the wider Te Kauhanganui body on a triennial basis.

[7] Unfortunately there appear to be two factions within the Hiiona Marae and Te Kauhanganui, those who support Mrs Martin on the one side and those who do not on the other.

[8] The resolution of the issues in this case turns primarily on the interpretation and application of the rules of Te Kauhanganui as an incorporated society. It is not for this Court to attempt to resolve the issues between the factions or to comment on who is right or wrong on the issues between them, save for determining who are the Hiiona Marae representatives for 2012-2015.

The parties

The plaintiffs

[9] William Takerei is an elected member and Deputy Chairperson of Te Kauhanganui. He is one of the three members elected to Te Kauhanganui to represent Te Kauri Marae. Tania Martin was elected at a Hui-aa-Iwi on 27 March

2011 to represent Hiiona Marae on Te Kauhanganui. Mr Roimata Whanga-Katipa and Donna-Lee Katipa were also elected as representatives of Hiiona Marae at that hui on 27 March 2011.

[10] Mrs Martin was also elected as Chair of Te Kauhanganui on 28 August 2011 and re-elected on 12 February 2012. (The defendants say on a without prejudice basis).

[11] With the exception of Mr Whanga-Katipa, the plaintiffs have all filed affidavits (in the case of Mr William Takerei and Mrs Martin, they have filed three). In addition Huhaana Marshall, an elected member of Te Kauhanganui representing Te Poho o Tanikena Marae has also sworn an affidavit supporting the plaintiffs. He was a former secretary of Te Kauhanganui appointed on an interim basis at the AGM on 4 December 2011 to assist the Chairperson Mrs Martin. In that capacity he was involved in reviewing the documents submitted by Hiiona Marae in relation to the 27

March 2011 election.

[12] The first defendants are all members of the Te Arataura, the executive arm of Te Kauhanganui. The second defendant is the Chief Executive of Te Kauhanganui. The third defendants are members of Hiiona Marae, who were elected as the representatives of the Marae to Te Kauhanganui on 26 May 2012.

[13] Affidavits have been filed on behalf of the defendants by Mrs McLean, the Chief Executive Officer of the Te Kauhanganui; Nicholas Wells, a partner at Chapman Tripp, who attended the Triennial Special Meeting of Te Kauhanganui on

12 February 2012; Tamati Tata (two affidavits), a trustee of Hiiona Marae and Chairperson of the Hiiona Marae; and Gregory Miller, a representative of the head of Te Kaahui Ariki to Te Kauhanganui.

The parties’ positions

[14] The plaintiffs say that Mr Roimata Whanga-Katipa, Mrs Martin and Ms Donna-Lee Katipa were duly elected as the representatives of Hiiona Marae Te Kauhanganui on 27 March 2011. They say that the manner in which the third defendants were elected and held out as representatives of Hiiona Marae for Te Kauhanganui amounted to a breach of Te Kauhanganui’s rules.

[15] The defendants’ position, expressed by Mrs McLean and Mr Miller in their affidavits, is that the issue of the representation of Hiiona Marae is for Hiiona Marae to resolve. Te Arataura’s position is described as neutral. When issues were raised about the March 2011 elections, the second defendant became involved in order to consider whether there were procedural flaws in the March 2011 election process. The first and second defendants also accepted a request from the Hiiona Marae Chairman, Mr Tata to organise further elections for Marae representatives for the

2012/2015 term. Te Arataura says it considered the second election held on 26 May

2012, pursuant to which the third defendants were elected, to be an appropriate process for the Marae to resolve its internal issues which threatened to derail the wider business of Te Kauhanganui.

[16] The defendants say that the plaintiffs were not properly elected because the notice of proceeding of 27 March 2011 did not comply with the relevant rules, and

nor did the election certificate. Further, the advertisement of the election certificate was published without consultation with Te Arataura and without Te Arataura’s approval. Consequently it was of no effect.

The issues

[17] There are two principal issues:

(a) Was the 27 March 2011 election of Mr Roimata Whanga-Katipa, Mrs Tania Martin and Ms Donna-Lee Katipa to Te Kauhanganui as representatives of Hiiona Marae valid?

(b) Whether Te Arataura and Mrs McLean’s actions in reviewing the 27

March 2011 election were legitimate?

[18] There are subsidiary issues concerning Mrs Martin’s election as Chair of Te Kauhanganui and the later election of the third defendants, but they effectively follow the outcome of the principal issues.

Was the March 2011 election valid?

[19] The rules of an incorporated society constitute a contract between the society and its members. They confer upon the society’s members’ rights, enforceable at law against the society, to have the society’s affairs conducted honestly and bona fide in accordance with the society’s rules. It follows that members of an incorporated society can bring an action founded in breach of contract where the society acts outside the express or implied scope of its rules. In this case that is the plaintiffs’ argument. They say that they were validly elected at the meeting of 27 March 2011 as Hiiona Marae’s representatives to Te Kauhanganui and that the first and second defendants had no right or authority to review their election as such. To resolve that issue involves consideration of the rules of Te Kauhanganui relating to the election of Marae representatives.

[20] The particularly relevant rules of Te Kauhanganui are as follows:

5. MEMBERS OF TE KAUHANGANUI

5.1 Election of Members

5.1.1. Each Marae shall be entitled to elect three representatives as Elected

Members. The three representatives shall comprise:

(a) One Kaumatau representative; (b) One Marae representative; and (c) One Rangitahi representative.

5.1.2 Every representative elected by a Marae pursuant to Rule 5.1.1 must: (a) be a beneficiary;

(b) be a beneficiary of the electing Marae as recorded on the

Roll;

(c) not be disqualified from membership by reason of Rule

5.3.1; and

(d) be elected pursuant to an election held in accordance with this Rule 5.1.

5.1.3 The three representatives of a Marae shall (at the election of that

Marae) be elected either:

(a) At a Hui-aa-Marae (a meeting of the Marae) duly convened for the purpose; or

(b) Pursuant to a Postal Ballot duly organised for the purpose, sent to the beneficiaries of that Marae;

and (in either case) the election process adopted by a Marae must give all the beneficiaries of the Marae a fair and reasonable opportunity to participate in the election of the three representatives of that Marae (comprising the three representatives described in Rule

5.1.1).

5.1.4 Written notice of a Hui-aa-Marae or Postal Ballot to be held by a Marae pursuant to Rule 5.1.3, to elect its representatives, shall be sent to the address of every beneficiary of that Marae (as recorded on the Roll) not less than 14 clear days before the meeting or closing date for the Postal Ballot.

The notice must state the place; day and hour of the Hui-aa-Marae or (in the case of a Postal Ballot) include ballot papers with sufficient explanation for completion and delivery of ballot papers, and the closing date for the Postal Ballot.

In the case of a Hui-aa-Marae, a copy of the notice of meeting shall also be published in the Waikato Times not less than seven clear days before the meeting.

5.1.5 Upon the election by a Marae of its representatives pursuant to this Rule 5.1, the applicable Marae must submit a certificate that sets out the names of the representatives elected by that Marae.

It must also certify that the election process adopted by the Marae to elect those representatives was in accordance with the requirements set out in this Rule 5.1 (refer Third Schedule – Election Certificate).

On or as soon as practicable after the date on which an Election Certificate is given to Te Kauhanganui, Te Kauhanganui shall publish the names of the representatives elected by that Marae in The Waikato Times.

...

5.1.8 Notwithstanding any other provisions of these Rules, if, within 14 days of the date on which Te Kauhanganui publishes a notice in the Waikato Times pursuant to rule 5.1.5, a written notice signed by not less than 10 members of that Marae is received at the registered office of Te Kauhanganui alleging that the election process adopted by the Marae to elect the representatives to which the Election Certificate relates was contrary to this Rule 5.1 (and setting out in reasonable detail the grounds of the allegation) then that complaint shall be investigated by Te Aratura. ...

[21] It does not appear to be in issue that the three plaintiffs and the third defendants satisfy the criteria in 5.1.1 and 5.1.2(a) and (b). Further, while rule

5.1.2(c) refers to disqualification under rule 5.3.1, none of the circumstances in rule

5.3.1 which could disqualify a person from membership as an elected member of Te Kauhanganui apply in the present case (to either the plaintiffs or the third defendants).

[22] The defendants’ case is that the three plaintiffs fail to satisfy rule 5.1.2(d) as the 27 March 2011 election was invalid for lack of compliance with rule 5.1 for four

_{main reasons:}

first, the notice of the annual general meeting was defective in that it failed to

_{comply with rule 5.1.3;}

second, the requirements for a lawful meeting were not met;

third, the election did not give all beneficiaries of Hiiona Marae a fair and reasonable opportunity to participate; and

_{fourth, the election certificate did not comply with the rules.}

The notice of meeting

[23] The notice of meeting advertised in the Waikato Times provided:

HIIONA MARAE TRUSTEES COMMITTEE NOTICE OF ANNUAL GENERAL MEETING,

DATE: Sunday 27 March 2011

TIME: 10.30am

PLACE: Hiiona Marae.

AGENDA:

Election will be presided by the Maori Land Court

1. Election of New Trustees & Marae Representatives

2. Annual Audit Report.

3. Kitchen project.

4. 3-Year Strategic Plan.

(NOTE: Election only will be presided by the Maori Land Court).

Meeting package will be distributed to all beneficiaries 10 days prior to the meeting. Please ensure the Secretary has your correct postal address.

For any enquiries, please contact:

Chairman, Mr E. Whaanga, – [telephone number] Secretary, Ms N. Katipa. – [telephone number]

...

[24] Mr Sandelin submitted that the notice was defective in that it did not expressly advise the purpose of the meeting was to elect Te Kauhanganui representatives for the 2012-2015 term. He compared it with a notice that had been given for the previous term, which expressly noted the meeting was:

... to elect a Kaumatua, Marae and Rangatahi representative to the Te

Kauhanganui for the 2009–2012 term of office.

[25] I do not consider there to be anything in this point. The rules of Te

Kauhanganui do not prescribe any particular form of notice as being required. Rule

5.1.4 required the notice to state the place, day and hour of the Hui-aa-Marae and to be published in the Waikato Times no less than seven clear days before the meeting. The notice complied with those requirements. It provided the necessary details and was published on 5 March 2011. There was no need for the notice to follow the previous form of notice. Significantly, the notice referred to both the election of New Trustees and Marae Representatives. In context the Marae representatives

could only have been representatives of the Hiiona Marae to Te Kauhanganui. There is no suggestion that there was a need for Marae representatives on any other body.

Were the requirements for a lawful meeting satisfied?

[26] Mr Sandelin made a number of points about the meeting itself. First he submitted that the meeting was defective because at the beginning a second agenda was issued. He also submitted there was confusion by beneficiaries as to whether the election was to preserve the status quo until the end of the current term or to elect representatives for the 2012–2015 term and if the latter, that there was no opportunity for other candidates to put their names forward.

[27] Mr Sandelin also suggested that the timing of the election was unusual. In

2008 the Hiiona Marae election was held on 28 September 2008 to elect Te Kauhanganui representatives for the 2009–2012 term. As a result he said it did not benefit from the “logistical support provided by the secretariat”. However, there is no reason for the elections to be held at any particular time provided they were held in advance of the 2012–2015 period and were for the purpose of electing representatives for that period.

[28] Mr Sandelin also submitted that the notice of the meeting did not call the meeting for the specific (and sole) purpose of the elections and thus a pre-requisite for the lawful meeting was not met. The March election was invalid on that basis alone. However, there is no reason why the hui at which the representatives of the Marae to Te Kauhanganui are to be elected should be restricted to the election of such members. Indeed it would be cost effective and efficient for the hui to deal with other matters of concern to members of Hiiona Marae given they were all called to the hui. This was a well attended meeting with over 250 members present. There is no requirement in the rules for the meeting to exclusively deal with representation.

[29] I do not consider there to be anything in the point that a more detailed agenda was circulated at the beginning of the meeting. The notice in the Waikato Times gave advice of the meeting and that representatives were to be elected. There was no need for the notice to set out the agenda in full, provided it gave notice of the

election which it did. The notice of agenda then made it very clear insofar as the election of Te Kauhanganui Marae representatives was concerned what was to be discussed. It was in the following terms:

TE KAUHANGANUI MARAE REPRESENTATIVES 2012-2014

Nominations

Vote

Results

Resolution 3 [sic]

THAT Hiiona Marae beneficiaries resolve to confirm the following 3 beneficiaries to represent Hiiona Marae as Members of Waikato Tainui Te

Kauhanganui (Inc) from 2012 to 2014: [Insert names of Representatives]

Moved by: Seconded by:

[30] Mr Sandelin next submitted generally there was confusion and uncertainty as to the effect of the motion and that meeting procedures failed to ensure beneficiaries were given a fair and reasonable opportunity to participate in the election. The defendants primarily rely on the affidavit of Mr Tamati Darrell Tata, who says that he considered the motion was to retain the incumbent representatives until the November 2011 elections. He also says that he does not believe that other Hiiona Marae members had an equal and fair opportunity to put themselves forward for election nor was there a proper and fair discussion at the meeting whether to hold an election for the Te Kauhanganui representatives. However, with respect to Mr Tata’s evidence it does appear to be given with the benefit of hindsight and in order to support the position that he has now adopted.

[31] There can be no suggestion, given the agenda that the meeting was to affirm the existing representatives until the end of their current term. Further, I note that clause 5.2 confirms that the elected members for each three year period remain members “unless ... disqualified from membership pursuant to rule 5.3.1 prior to the end of that term”. There was no basis in the rules to change representation during the period. Importantly also, 5.2.3 confirms there shall be no limit on the number of terms for which a person may be elected by a Marae as an elected member. Next, the agenda makes it clear that the names of the proposed representatives were to come from the meeting. It was open for any member to arrange a proposer and seconder to put their name forwards in order to have that voted on if they wished.

They could have done so in response to either the notice of meeting or the agenda at the meeting, which went all day.

[32] Further, the best evidence of what took place at the meeting is the record of the minutes from the meeting. Mr Tata has annexed a copy of the minutes to his affidavit. The plaintiffs do not accept they are full and accurate. I note there are some immaterial differences (highlighted in italics) between the minutes in the bundle presented by the defendants and the minutes annexed to Mr Tata’s affidavit. The minutes disclose as follows:

Te Kauhanganui election of Reps:

Current members are: Kaumatua: Rodney Snr Katipa Marae rep: Tania Martin Rangatahi: Donna-Lee Katipa

Chris Katipa asked that we keep Tania Martin on as Marae rep

Uncle Walt put a motion to the floor that the current members are kept on. Seconded by Margaret Elliot

Objection placed on the floor to the motion by Dawn Thompson to that motion. Chairperson was reminded to acknowledge objection.

Tania Martin has said that the marae can have our own process of election for the Te Kauhanganui Reps

Pat Tata said that Dave Tata Jnr was taken off Te Kauhanganui and replaced with Tania this was not correct he was replaced by Donna-Lee Katipa.

A huge discussion over whether we keep or look to re-elect new reps to the

Te Kauhanganui.

Liza Hiku asked that we keep elections open until November when appointments of new reps from all Marae are appointed.

Mariana Papa has asked how we can trustee hold a position on the Te Kauhanganui when that person is in the process of taking and another beneficiary to court.

Donna-Lee Katipa said that Tania martin is a great chairperson and works really hard on the Te Kauhanganui board

Tamata Tata asked that we vote

Aunty Rennie Katipa has asked we keep current reps as the meetings are quite lethal she suggested that as a beneficiary take time to go and sit in on one of the Hui

Robyn Whanga would like to support Tamati in re-electing [re-election] of new members for the Te Kauhanganui.

At this point the meeting needed to be brought to order and it was requested that the chairperson take control of the Hui.

Aunty Rennie Katipa apologised for her outburst

Dawn Thompson asked that we re-submit the process of election for Te

Kauhanganui reps

Aunty Pat said that a current rep member should not be currently holding their position on the Te Kauhanganui.

If we go with Uncle Walter’s motion does that mean they hold that position for another three years? Rodney 3rd would like the opportunity to be elected onto the Te Kauhanganui

Tania Martin stated she was on there to instigate change. Tania said that Tukuroirangi Morgan had spoken to her for at half an hour “he said that there was nothing that would incriminate her in that box. Tania invited whanau to ring and speak to Tukuroirangi Morgan and quoted his mobile number ... . When she was elected it was for the Marae Rep now that she holds the Chairperson role she now reps all the Marae. The executive have tried to have her removed but have been unsuccessful; so to come back to my marae and not have the backing or support is disrespectful to me and my mahi. I get the backing of the people but not my own whanau. Results of today’s Hui will have a big impact on what happens in the Te Kauhanganui.

Motion was brought back to the floor to keep the 3 current members on as our Reps this was voted on by a show of hands.

Outcome all current members will hold their position for another three years.

(My emphasis in bold added).

(Passages in italics are in the bundle copy, but not Mr Tata’s annexure).

[33] In summary, given the agenda before the meeting which made it clear the election was to elect representatives for the period 2012–2014 and that the minute taker recorded the outcome of the vote was that current members were to hold the position for another three years, I am unable to accept the submission that people did not understand that was the motion that was before the meeting to be voted on or that there was a suggestion members were confused as to whether the election was to reaffirm the existing members for the balance of their existing term.

Did all beneficiaries have a fair and reasonable opportunity to participate?

[34] The election of the plaintiffs as Hiiona Marae’s representatives to Te Kauhanganui followed a willing and vigorous debate during which all beneficiaries there present had a fair and reasonable opportunity to participate in the discussion and subsequent vote. I note that Mr Tata says the AGM was very well attended. Mr Russell submitted approximately 250 beneficiaries attended. For the above reasons I am satisfied that all beneficiaries had a fair and reasonable opportunity to participate in the election of the Marae representatives.

The election certificate

[35] Mr Sandelin next submitted that the election certificate submitted on behalf of the plaintiffs and purporting to be from Hiiona Marae was invalid. He noted that the certificate was dated 30 October 2011 and was not received until after the secretariat of Te Kauhanganui had received a request to mail out election notices calling for elections in late November 2011. He noted that rule 5.1.5 provided that the certificate was to be submitted “upon the election ...” which suggested the certificate must be provided promptly.

[36] However, the meaning to be given to “upon” in this context must be informed by the purpose of the certificate. The purpose of the certificate was to provide formal advice from the Marae to Te Kauhanganui of the members elected by the Marae to be the Marae’s representatives for the next three year period. While it is obviously preferable the certificate be sent promptly, there is no specific requirement for that to occur. Provided the certificate was given in sufficient time to satisfy any administrative purposes of Te Kauhanganui there could be no need for any particular urgency or time limit within which, following the meeting, the certificate was required to be provided. Te Kauhanganui is directed to publish the names on receipt of the certificate or as soon as practicable thereafter, but that is because Te Kauhanganui’s publication engages rule 5.1.8, a matter to which I return later in this judgment.

[37] The defendants’ best point on this issue is their submission that the election certificate was invalid as it did not comply with rule 4.1 and rule 5.1.5 because the officials required to sign the certificate did not sign it.

[38] Rule 5.1.5 provides the Marae must submit the certificate. The body of the rule does not itself provide who must sign the certificate. The rule does provide that the certificate must certify the election process carried out was in accordance with the requirements set out in rule 5.1 and then refers to the third schedule to the rules. The third schedule to the rules provides the form of certificate and includes spaces for signature by the chairperson and secretary of the Marae. Rule 4.1 of the rules provides that the election certificate “means a certificate in the form of the certificate set out in the third schedule”.

[39] As noted the certificate provides for signature by the chairperson and secretary. This was not complied with. The election certificate was signed by Mr Whanga-Katipa and Ms Donna-Lee Katipa. At the time the certificate was returned on 30 October 2011 Mr Tata and Mrs Hohepa were the Chairperson and Secretary respectively of the Marae. Mr Sandelin submitted that the certificate was therefore ineffective and invalid.

[40] Ms Katipa was the former Assistant Secretary of the Hiiona Marae’s trustees committee and, at the time of signing the certificate, was apparently Secretary of the Hiiona Marae whanau committee. Mr Whanga-Katipa is the Kaumatua of Hiiona Marae, was the former Chairman of the Hiiona Marae trustees committee and, at the time of signing the certificate, was the Chairman of the Hiiona Marae whanau committee.

[41] However, despite the positions that Ms Katipa and Mr Whanga-Katipa may have held in October 2011, the Hiiona Marae charter confirms that the duties and powers to promote the purposes and objects of the Marae are vested in the trustees. The charter provides that the trustees shall elect a chairperson and may also appoint a secretary and treasurer.

[42] Whatever sub-committees Ms Donna-Lee Katipa and Mr Whanga-Katipa may have been on in October 2011, they were not chairman and secretary of the Hiiona Marae and those sub-committees would, I accept, be ultimately answerable to the trustees of the Marae.

[43] Mr Tamati Tata was not elected Chairperson of the Trustees Committee until

17 June 2011. That was some 12 weeks after the hui on 27 March 2011. The election certificate could have been returned before his election by the former Chairperson of trustees. In any event it should have been returned by Mr Tata on his election as Chairperson. Mr Tata says that, after he was elected as Chairperson, he was required to sign a large number of forms and documents which was an overwhelming and busy process. The election certificate for the March 2011 elections was placed in the pile of documents he had to sign. That suggests the certificate was prepared and ready for his signature, but that he just did not get around to it. However, he then goes on to say that:

As I had concerns over the validity of the March 2011 I refused to sign the election certificate.

[44] For the foregoing reasons I have held that there was no basis for any concerns over the validity of the March 2011 election. Accordingly, there was no proper basis for the chairperson (and/or secretary) to refuse to sign the election certificate. I accept Mr Russell’s submission that there was no residual discretion residing in the chairperson or secretary to refuse to sign the certificate and thereby subvert the democratic process at the meeting.

[45] The substantive purpose of rule 5.1.5 is to provide notice to Te Kauhanganui of the elected representatives. While the form provides for the chairperson and secretary to sign, the rule itself provides for the Marae to give notice to Te Kauhanganui of the outcome of the elections. The certificate sent to the first and second defendants provided that notice, even though it was not signed by the chairperson and secretary.

[46] To the extent that Mr Tata had any issues or concerns arising out of the meeting he had no greater rights than any other members of the Marae and he could, if necessary, have invoked clause 5.1.8. He did not do so.

[47] Mr Russell referred to Swan v Massey University Students’ Association.1 The plaintiff had sought an injunction challenging the validity of a resolution of no confidence in him as president of the Students Association. He submitted the resolution was invalid because the voting on a show of hands was not counted by an executive officer of the Association in accordance with the rules. The Court rejected the plaintiff’s objection.

[48] While I accept Mr Sandelin’s point that the facts are quite different to the present case, the following underlying principle expressed by Henry J is important:2

In my judgment the Court ought not to interfere with the clearly expressed will of the majority of the members merely because the method of ascertaining that majority was not strictly complied with.

In the present case, the Court should not interfere with the clearly expressed will of the majority as recorded by the minutes of the March 2011 meeting and defeat that will by accepting the formal objection to the certificate, particularly given that I have found the notice complied with the rules and there was no other basis for Mr Tata as chairperson to decline to sign the certificate. His refusal to do so cannot overcome the express will of the majority of the members at the meeting on 27 March.

Was Te Arataura entitled to act as it did and review the election of 27 March

2011?

[49] Mr Sandelin submitted, that given Te Arataura was put on notice of a dispute between the two factions at the Hiiona Marae as to the validity of the March elections, it was entitled to inquire into the election process. Having inquired into it, it concluded that the election process did not comply with the rules and therefore it

_{could not publish the results of the March election.}

1 _{Swan v Massey University Students’ Association [1972] NZLR 985.}

2 At 988-989.

[50] If the Court accepts the two propositions contained in that submission then it follows it would be bound to accept Mr Sandelin’s further submissions that Te Arataura was entitled to revoke the election of the plaintiffs and ask the Hiiona Marae to hold new elections and recognise the third defendants as the properly elected members. The other side of that particular coin, however, is that if Te Arataura was not entitled to inquire into the election process, or was wrong to conclude the process did not comply with the rules, then the election of 26 May 2012 was itself invalid because the plaintiffs would remain the validly elected representatives of Hiiona Marae to Te Kauhanganui.

[51] I am sympathetic with the position that Te Arataura found themselves in, given the apparent division with Hiiona Marae. However, as noted it is not for this Court to resolve that internal issue within the Marae in these proceedings. All the Court can do is address the strict legal issues that arise.

[52] On that basis I consider whether the rules of Te Kauhanganui authorised the first and second defendants to act in the way they did to review the election of 27

March 2011.

[53] As noted, clause 5.1.8 provides a process by which Te Arataura is authorised to investigate a complaint into the election process. The inquiry was not authorised by that process. The pre-conditions for it never existed.

[54] Mrs McLean also referred to Mrs Martin’s formal complaint of 21 November

2011 against the Lands Trust including a letter purporting to:

(a) submit a vote of no confidence in the trustees of Hiiona Marae; (b) call for their resignation; and

(c) declare a special meeting of Hiiona Marae scheduled for 27

November unconstitutional.

[55] That complaint was misguided. It could not provide any basis for Te

Arataura to inquire into the validity of the March elections.

[56] While I accept Mr Sandelin’s general proposition that each member of Te Kauhanganui (including Te Arataura collectively) is entitled as a matter of contract to see the rules are respected and complied with, that does not support or authorise a general inquiry into the election process of individual maraes unless authorised by the rules of Te Kauhanganui, particularly where there is a specific rule dealing with investigation of election processes. It is not part of Te Kauhanganui’s role to resolve internal disputes within individual maraes.

[57] Mr Sandelin submitted, however, that the defendants were able to rely on the general procedure in rule 16.1 to support their investigation into the March 2011 election. Rule 16.1 provides:

16. DUTIES AND RESPONSIBILITIES OF TE ARATAURA

16.1 Subject to Rule 16.2, Rule 16.3, and any formal resolutions of Te Kauhanganui, the duties and responsibilities of Te Arataura is to manage the day-to-day affairs of Te Kauhanganui, including its duties and functions as the Trustee of the Waikato Raupatu Lands Trust.

Rules 16.2 and 16.3 have no application in this case.

[58] I am not able to accept that the investigation, outside the express power provided for such review in clause 5.1.8 of the elected representatives of individual maraes, can properly be said to be a function of “managing the day-to-day affairs of Te Kauhanganui”. The concept of “day-to-day” matters is one of matters of daily routine, of regular business. The review of whether members were duly elected representatives or not does not readily fit within that concept.

[59] In any event, even if the first and second defendants were entitled to carry out a review of the March 2011 election process, the reasons given by Mrs McLean for determining the March election was invalid are not sustainable. First, for the reasons given above I do not consider that the notice of the meeting was defective. It was also sufficiently clear that the purpose of the meeting was to elect representatives of the Hiiona Marae to Te Kauhanganui for the 2012–2015 (inclusive) term.

[60] Next, the fact the election was held some months prior to the relevant triennial special meeting of Te Kauhanganui is irrelevant. The minutes of the meeting (noting that the plaintiffs do not necessarily accept that they are entirely accurate) clearly record the election of representatives for that next three year period.

[61] Further, it is difficult to see how it could be said there was confusion as to whether the former representatives were elected as a group rather than individually or for what term, given that the rules required each of them to have certain standing and given the rules provided that existing members could stand and represent the Marae again.

[62] For the reasons given above I am satisfied that there was no basis for the defendants to consider the March election process did not give all members of Hiiona Marae a fair and reasonable opportunity to participate.

[63] Finally, as noted, nor was there any basis for the Chairperson, Mr Tata, to refuse to sign the certificate and forward it to Te Kauhanganui.

[64] It follows that the three last named plaintiffs were duly elected as representatives of the Hiiona Marae to Te Kauhanganui for the period 2012 to 2015. They are not disqualified under rule 5.3.1.

[65] The remaining two issues must follow the outcome of the first two issues. As duly elected representatives of the Hiiona Marae the plaintiffs were entitled to attend the triennial special meeting on 12 February. The election of Mrs Martin as Chairperson at that meeting is not defective for want of any standing on her part.

[66] The second election of the Hiiona Marae of 26 May 2012 (which the plaintiffs declined to take part in) was of no effect. The rules of Te Kauhanganui provide that there can only be three representatives. At the time of the meeting in May 2012 the three last named plaintiffs were duly elected as its representatives.

Result/orders

[67] The plaintiffs are entitled to the orders and declarations they seek, namely:

(a) that the plaintiffs Mr Roimata Whanga-Katipa, Mrs Tania Martin and Ms Donna-Lee Katipa have been validly elected to Te Kauhanganui as representatives of Hiiona Marae for 2012–2015;

(b) the second-named plaintiff Mrs Tania Martin had standing to be elected as chairperson on 12 February 2012;

(c) that the election or purported election of the third defendants as representatives of Hiiona Marae on Te Kauhanganui was in breach of the rules and unlawful;

(d) to the extent necessary there will be orders setting aside such election or purported election of the third defendants as representatives of Hiiona Marae and members of Te Kauhanganui;

(e) the names of the third defendants are to be removed from the elected members data base of Te Kauhanganui and replaced with the names of the plaintiffs Mr Roimata Whanga-Katipa, Mrs Tania Martin and Ms Donna-Lee Katipa as the validly elected Hiiona Marae representatives for the period 2012 – 2015.

Costs

[68] The plaintiffs having succeeded are prima facie entitled to costs. As noted, however, I consider that the first and second defendants were placed in a difficult position by the issues within the Hiiona Marae. That should be taken into account in resolving the issue of costs. I formally reserve costs and, if necessary, I will deal

_{with them on the basis of an exchange of memoranda.}

Venning J