Ismail v New Zealand Muslim Association [2015] NZHC 1441 (24 June 2015)

Last Updated: 22 July 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001659 [2015] NZHC 1441

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	MOHAMMED IQBAL ISMAIL Plaintiff
AND	NEW ZEALAND MUSLIM ASSOCIATION Defendant

Hearing:	16 April 2015
Appearances:	S Connolly for Defendant (Applicant) A Kashyap for Plaintiff (Respondent)
Judgment:	24 June 2015

RESERVED JUDGMENT OF ANDREWS J [Defendant's Application to strike out proceeding]

This judgment is delivered by me on 24 June 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ISMAIL v NEW ZEALAND MUSLIM ASSOCIATION [2015] NZHC 1441 [24 June 2015]

Introduction

[1] In this proceeding the plaintiff, Mohammed Iqbal Ismail seeks judicial review of decisions made by the defendant, the New Zealand Muslim Association (“NZMA”). The NZMA has not filed a statement of defence. It has filed an appearance under protest to jurisdiction, and an application to strike out the proceeding, on the grounds that Mr Ismail lacks standing to bring the proceeding.

Background

[2] The NZMA owns and operates mosques in Auckland. It is the largest and oldest Muslim organisation in New Zealand. The NZMA has three branches: Ponsonby, Avondale (known as the Avondale Islamic Centre (“AIC”) and Ranui. Mr Ismail became a member of the AIC in around 2000. He was appointed a member of the executive committee of the AIC in 2010 and in 2013. He has also been a member of the NZMA executive committee.

[3] There has, for some time, been conflict between Mr Ismail and others on the one side, and the executive of the NZMA on the other. The conflicts appear to have arisen in 2011 when the Shura Council (which comprises delegates from NZMA branches) appointed a new Chairman of the AIC executive committee. Each “side” of the dispute accuses the other of unlawful and/or disruptive acts.

The proceeding

[4] Mr Ismail filed his statement of claim for judicial review on 16 July 2014. He alleges that the NZMA carried out a number of actions that were unlawful and/or in breach of natural justice. He alleges that these included issuing trespass notices against members of the AIC, disbanding the previously appointed AIC executive committee, refusing to accept as members people who are qualified to be members under the constitution of the NZMA and have previously been members and/or executive committee members of the AIC, closing the Avondale mosque, and expelling members from the NZMA without due process and without just cause. Mr Ismail further alleges that he and other members of the AIC have raised concerns

with the NZMA, but the NZMA has taken no substantive action to resolve those concerns.

[5] Mr Ismail seeks declarations as to the unlawfulness of the actions referred to above.

[6] In an affidavit in support of the application for judicial review, filed on 12

September 2014, Mr Ismail sets out his membership of and continuing involvement in the AIC up until 26 March 2014, when he received an email from Mr Haider Lone, stating that Mr Lone was from that time administrator of the AIC, and threatening disciplinary action against members holding meetings without his consent. He further states that the AIC had been closed (by the NZMA) since 19

May 2014 and that the NZMA has refused membership applications submitted by himself and other AIC members.

[7] Affidavits by three other AIC members supporting the application for judicial review were also filed on 12 September 2014.

Application to strike out

[8] The essence of the NZMA’s application to strike out is that Mr Ismail’s membership of the NZMA was validly terminated by letter dated 3 July 2013, and he therefore has no standing to seek judicial review against the NZMA. NZMA’s application is supported by an affidavit by Mr Lone, in which he states that Mr Ismail’s membership of the NZMA was suspended on 4 September 2012 for disciplinary reasons, and terminated on 3 July 2013, on the grounds of Mr Ismail’s misconduct. He also states that Mr Ismail was served with a trespass notice in respect of the AIC on 18 May 2014.

[9] Mr Ismail has filed an affidavit in opposition to the application to strike out and in response to Mr Lone’s affidavit. He states that he was given no opportunity to respond to the allegations against him before being suspended, that (contrary to Mr Lone’s assertion) his solicitor had subsequently responded to the NZMA, that meetings were subsequently arranged with the NZMA and NZ Police department of

ethnic affairs which resolved issues, and that he challenged the lawfulness of the termination of his membership.

[10] A further affidavit by Mr Lone, in response to Mr Ismail’s affidavit, was filed

on 10 April 2015.

Jurisdiction to strike out

[11] Pursuant to r 15.1(1) of the High Court Rules, the Court may strike out all or part of a pleading if it:

(a) discloses no reasonably arguable cause of action; (b) is likely to cause prejudice or delay;

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the Court.

[12] The approach taken to applications to strike out is well known. It may be summarised as follows:¹

(a) Pleaded facts, whether or not admitted, are assumed to be true, although there is no requirement for the Court to accept facts which are entirely speculative or which beggar belief.

(b) In order to be struck out, the cause of action must be clearly untenable. If a pleading is capable of success if amended, it will not generally be appropriate to strike it out.

(c) The jurisdiction to strike out is used sparingly, and only in clear cases.

Despite this, the fact that a claim raises a difficult legal question does not mean that it is unable to be struck out. However, courts are

¹ See Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v

Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

hesitant to strike out claims in areas of law where the law is still developing.

[13] For the NZMA, Mr Connolly submitted that Mr Ismail is not a member of the NZMA, and does not challenge the fact that his membership has been terminated. For that reason, he submitted, he has no standing to challenge decisions made by the NZMA. He submitted that it is irrelevant that the challenged decisions were made while Mr Ismail was a member. He submitted that Mr Ismail has no current interest in the NZMA and, therefore, has no standing to bring proceedings.

[14] In relation to the factual allegations made in the statement of claim, Mr Connolly referred to the judgment of the Court of Appeal in Attorney-General v McVeagh and submitted that those allegations are “so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further”. ²

[15] Mr Connolly also referred to the judgment of Barker J in Holloway v Auckland City Council, in which His Honour held that the applicant, a former but not current ratepayer, did not have standing to bring proceedings against the Council in respect of decisions made in relation to managing a dog pound,³ and to the judgment of the Court of Appeal in Hopper v North Shore Aero Club, as authority for the proposition that the Courts are reticent to intervene in the affairs of private entities.⁴

[16] Mr Connolly submitted that to allow Mr Ismail to challenge the NZMA decisions (which, he submitted, arose out of a vexatious interest arising from his falling out with the NZMA) would make the NZMA, and all similar charitable organisations, effectively powerless to enforce internal disciplinary procedures without fear of aggrieved ex-members returning to invalidate other, broader decisions of the organisations. He urged the Court not to “liberalise” the judicial review jurisdiction to enable a challenge of decisions made in accordance with the

_{constitution of a private religious organisation with privately held assets.}

² Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

³ _{Holloway v Auckland City Council HC Auckland CP2152/87, 27 June 1988.}

⁴ Hopper v North Shore Aero Club CA11/06, 14 November 2006.

[17] On behalf of Mr Ismail, Mr Kashyap submitted that Mr Ismail does challenge the termination of his membership of the NZMA. To the extent that a challenge to the NZMA’s decision to terminate his membership is not made clear in the statement of claim, he made an oral application for leave to amend the statement of claim. He submitted that the issue as to the termination of Mr Ismail’s membership had arisen in the NZMA’s application to strike out.

[18] Further, Mr Kashyap submitted that the grounds for challenging the termination of his membership are set out in the statement of claim and his affidavit in support of the application for judicial review. He submits that he did not receive any letter terminating his membership and, at an earlier stage, was given no opportunity to take advantage of procedures set out in the Constitution of the NZMA for challenging decisions.

[19] Finally, Mr Kashyap submitted that Mr Ismail has, in fact, been treated as a member of the Avondale Branch, and the NZMA, and has attended meetings and undertaken work within the Avondale Branch, following the purported termination. For those reasons, Mr Kashyap submitted that Mr Ismail does having standing to bring the proceeding.

Discussion

Reviewability

[20] The first issue to consider is whether the NZMA is amenable to judicial review. It is now accepted that the decisions of a private organisation may be reviewed, where its decisions have a significant effect on a section of the public,⁵ or

_{where it performs a quasi-public function.}⁶ _{Various independent regulators have}

⁵ See Finnigan v New Zealand Rugby Football Union Inc (No. 2) [1985] 2 NZLR 181 (HC);

_{Adlam v Stratford Racing Club Inc [2007] NZAR 544 (HC).}

⁶ See Electoral Commission v Cameron [1997] NZCA 301; [1997] 2 NZLR 421 (CA) at 429 (Reviewability of the

Advertising Standards Complaints Board).

been found to fall within this expanded definition,⁷ as have some private voluntary associations.⁸

[21] There is no dispute that the NZMA is a private voluntary organisation that manages a number of Islamic centres. It provides a valuable service to members of the Islamic community and acts in a quasi-public fashion in this regard. Its purposes (as set out in the NZMA constitution), are to provide for that community. I conclude that it is appropriate for the Court to supervise the way in which it acts to provide for the community.

[22] In its judgment in Hopper v North Shore Aero Club Inc, the Court of Appeal noted that judicial review of a private organisation is available where there is some quasi-public function, or where there has been a breach of natural justice.⁹ In the present case, I am satisfied that, to that limited extent, the NZMA is amenable to judicial review proceedings.

Standing

[23] The next issue is whether Mr Ismail lacks standing to bring proceedings for judicial review on the grounds that his membership of the NZMA was terminated on

3 July 2013.

[24] I do not accept NZMA’s submission that Mr Lone’s statement as the termination of Mr Ismail’s membership is an “indisputable fact” and determinative as to Mr Ismail’s standing. The matter of termination having been raised by NZMA, I am satisfied that there is a dispute of fact as to whether Mr Ismail’s membership was validly terminated on 3 July 2013, and there is a dispute as to whether there has been a breach of natural justice in the NZMA’s dealings with Mr Ismail. Those

_{disputes are evident from Mr Lone’s and Mr Ismail’s affidavits.}

⁷ See Electoral Commission v Cameron, above n 6, and Phipps v Royal Australasian College of

_{Surgeons [1997] 2 NZLR 598 (CA).}

⁸ See Finnigan v New Zealand Rugby Football Union Inc (No. 2) and Adlam v Stratford Racing

_{Club Inc, above n 5.}

⁹ Hopper v North Shore Aero Club Inc, above n 4 at [12].

[25] I am not persuaded that Mr Ismail’s evidence is “so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.” Nor am I persuaded that his claim is clearly untenable. I conclude that the proceeding should not be struck out.

Result

[26] The application to strike out the proceeding is dismissed. Mr Ismail is given leave to amend the statement of claim.

_{[27] Costs on a 2B basis should follow the event.}

Andrews J