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High Court of New Zealand Decisions |
Last Updated: 3 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-3007 [2016] NZHC 642
UNDER
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the Industrial and Provident Societies Act
1908
the Protected Disclosure Act 2000
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IN THE MATTER
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of AUCKLAND COOPERATIVE TAXI SOCIETY LIMITED
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BETWEEN
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RANBIR SINGH Plaintiff
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AND
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AUCKLAND COOPERATIVE TAXI SOCIETY LIMITED
First Defendant
IAN GRAHAM, YAKUB (aka Jacob) MOHAMMED PATEL, KANWAJIT BHULLAR and KRISHNA
DEO LAL Second Defendants
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Hearing:
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9 March 2016
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Counsel:
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R S Pidgeon for plaintiff
S S Khan and R White for defendants
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Judgment:
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12 April 2016
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JUDGMENT OF PALMER J
This judgment is delivered by me on 12 April 2016 at 1.30pam pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors: Pidgeon Law, Auckland
Fortune Manning, Auckland
SINGH v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD & ANOR [2016] NZHC 642 [12 April 2016]
Summary
[1] Mr Singh is in serious conflict with members of the Board of the
Auckland Co-operative Taxi Society Ltd (the Society).
The Board has decided to
remove him as a member of the Society. Mr Singh has applied for judicial
review of that decision and an
interim order that he continue to be a member of
the Society pending determination of the judicial review. I grant interim
relief,
designed to preserve the positions of both parties, which includes not
only their respective financial positions and relationships
but also the balance
of internal political relationships within the Society.
Facts
Mr Singh’s Allegations
[2] Mr Ranbir Singh, the plaintiff, has been a taxi driver and
shareholder of the Society, the defendant. The Society is registered
under the
Industrial and Provident Societies Act 1908 and is said to be the largest taxi
organisation in New Zealand. In August
2014 Mr Singh campaigned for a seat on
the Board of the Society on an anti- corruption platform and was apparently the
top-polling
candidate. There are five other Board members; four of whom are
the second defendants.
[3] Mr Singh has levelled a variety of allegations about the
conduct of the Society with the wider membership and
in public. These
include allegations of overcharging, and favouritism towards a group of some 70
drivers, in the operation of
key contracts with Auckland District Health
Boards and the Ministry of Education. Mr Singh has made complaints to the
Police, the Serious Fraud Office, the Auditor-General, the Human Rights
Commission, the Registrar of Co-operative Societies and the
Ministry of Health.
The SFO and the Health Alliance are currently investigating the complaints they
have received. The Human Rights
Commission has closed its investigation of the
complaint it received since Mr Singh did not take it further.
[4] Members of the Board of the Society have been concerned about the way in which Mr Singh has made his allegations. They are concerned that he obtained
information improperly. They say he has breached other drivers’
privacy and that he is fracturing the membership of the Society
and causing
friction and fear amongst members which, they say, has and will negatively
affect the business of the Society and its
share price. They say Mr Singh is
engaging in threatening behaviour and even that he is creating racial
tension.
[5] Mr Singh says he is a whistleblower under the Protected Disclosures
Act
2000 and is acting in the best interests of the Society. He complains of
being assaulted at a Board meeting. He has been pushing
for a Special General
Meeting to be held. Mr Jacob Patel, a second defendant and the Chair, says a
Special General Meeting has not
been called because the request was not made
by the number required under the Society’s rules.
Disciplinary Process
[6] Mr Patel says the Society received several complaints about Mr Singh from members. The Board attempted to make him stop distributing company information publicly, including by way of cease and desist letters. Eventually, on 16 September
2015 the Board initiated a disciplinary process against Mr Singh. It gave him notice of its proposal, under rule 11(d) of its Rules, to strike him off the register of members because it was not in the best interests of the Society for him to remain. Fourteen grounds were identified with supporting annexures attached. He was invited to make submissions to two “independent judges” on the proposal by
16 October 2015.
[7] On 14 December 2015 Mr Singh applied for judicial review of the
decision to convene the meeting on 17 December 2015. He
sought a declaration
that that decision was invalid, an order postponing the hearing and other
declarations. He also applied, without
notice, for interim orders. On 16
December 2015 Edwards J declined the application for interim orders as
premature.1
[8] Mr Reddish and Mr Braid conducted a hearing on the
proposal on
17 December 2015. They received further submissions in December and
January.
1 Singh v Auckland Co-Operative Taxi Society Ltd [2015] NZHC 3290.
On 25 February 2016 they issued their 32 page decision.2 They
said they did not make a call on the veracity of Mr Singh’s
accusations, but they did state that “Mr
Singh has mounted a poorly
conceived campaign by releasing incomplete and selective information without
subjecting it to proper investigation
scrutiny or process”.3
They considered there was substantial doubt about the accuracy of
Mr Singh’s allegations and that the Board’s
allegations
“have in the main been proven”.4 They agreed with
the proposal to remove Mr Singh as a member but strongly advised the Board to
seek advice on whether to delay implementation
of the decision pending the
outcome of any of the inquiries by Government agencies.
[9] On 29 February 2016 the Board of the Society gave Mr Singh notice
that, pursuant to the decision of Mr Reddish and Mr Braid,
it had decided to
remove him as a member of the Society effective from 5 pm 2 March 2016. That
led to the application for interim
relief that is the subject of this judgment.
Mr Singh’s membership of the Board is currently suspended. His seat does
not
fall vacant until July 2017.
Current Application
[10] On 2 March 2016 Mr Singh filed an Amended Statement of Claim
and applied again for interim relief. This time he seeks:
(a) a declaration that Mr Singh is a member of the Society, with full rights
of membership;
(b) that the second defendants be prohibited from implementing
the
decision to terminate Mr Singh’s membership; and
(c) the orders of the court be conditional on Mr Singh complying with the
undertakings he has given.
2 Decision of the independent judges Kevin Braid and Tim Reddish in the matter of the proposal by the Board of Governance of Auckland Cooperative Taxi Society Ltd to remove Mr Ranbir Singh from the register of members of the Society, 25 February 2016 at [10.5].
3 At [10.4].
4 At [10.8-10.9].
[11] I note that a Statement of Defence has not yet been filed (or
required to be filed) so it is not clear which of the facts
alleged by Mr Singh
are accepted by the Society.
[12] On 3 March 2016 Peters J ordered, by consent, adjournment
of the application for interim relief on the condition
that:
the first defendant not revoke the plaintiff’s permit to drive a taxi
for the first defendant and allow the plaintiff to continue
driving his taxi for
the first defendant until a decision from the Court on the Interim
Application.
[13] The Society’s consent to that order and condition was given on
the basis of the following undertaking given to the
Court by Mr Singh on 14
December 2015:
I, Ranbir Singh, director and shareholder of the first defendant do
undertake (until the start of the special general meeting sought with date to
be
set on the basis that occurs within a reasonably prompt timeframe):
1. not to make any disclosures or complaints internally to shareholders or
externally to third parties; and
2. not to solicit the making of such disclosures or complaints as set out in
(1) herein;
3. which disclosures that complaints are of the type I have already made
and are the subject of this proceeding;
4. for the avoidance of doubt this undertaking does not include me from
exercise my democratic rights (such as under the rules
of the first defendant)
at the special general meeting to be convened on the basis that occurs within
reasonably prompt timeframe.
5. This undertaking is given on the basis that the requested
Special General Meeting is scheduled and held. My undertaking
is predicated on
the request for a Special General Meeting being held, in accordance with the
Rules of the first defendant.
[14] I note that, on 4 April 2016, the Society applied for an order rescinding the temporary order because it considered Mr Singh had breached the undertaking. On 6
April 2015 Mr Singh filed a Notice of Opposition disputing the breach and opposing the rescission. Because this judgment was imminent, unless there was objection, I adjourned the application to rescind the temporary order sine die.
Law
[15] There was no disagreement between counsel as to the legal principles
that apply to the grant of interim relief under s 8
of the Judicature Amendment
Act 1972. That section provides that the Court may make interim orders “if
in its opinion it is
necessary to do so for the purpose of preserving the
position of the applicant”.
[16] As Cooke J noted in the Court of Appeal, in Carlton and United
Breweries
Ltd v Minister of Customs, under this
provision:5
In general the Court must be satisfied that the order sought is necessary to
preserve the position of the applicant for interim relief
– which must
mean reasonably necessary. If that condition is satisfied, as the Chief Justice
was entitled to find that it
was here, the court has a wide discretion to
consider all the circumstances of the case, including the apparent strength or
weakness
of the claim of the applicant for review, and all the repercussions,
public or private, of granting interim relief.
[17] Counsel for both parties cited the expansion on this formulation by
Doogue J
in ENZA Ltd v Apple and Pear Export Permits
Committee:6
Amongst the circumstances of a case that the Court often considers
in respect of s 8 are the strengths and weaknesses of
the plaintiff’s
case, the competing advantages and detriments to the parties, the status quo,
the balance of convenience, public
repercussions as well as private, and the
overall justice position.
[18] I analyse these factors below.
Decision
Preservation of Position
[19] Mr Singh is currently a member of the Society which enables him to be a member of the Board. This “position” enables him to drive a taxi for the Society, thereby earning an income. It also enables him to contribute to the governance and decision-making regarding the internal business of the Society, both as a member
and Board member. Mr Singh emphasises both these aspects of his
position.
5 Carlton v United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 at 430.
6 ENZA Ltd v Apple and Pear Export Permits Committee HC Wellington CP266/00, 18 December
2000 at [17].
[20] If interim orders are not made, Mr Singh will not be able to engage
in either of these activities. The Society says that
Mr Singh would still be
able to drive for other taxi companies, or for Uber, or to work as an
electrician. I accept those are possibilities
though there would naturally be
some disruption to Mr Singh’s working life from doing so. I also accept
Mr Pidgeon’s
submission that Mr Singh would not be able to continue to
contribute to the governance and decision-making of the Society. Mr Khan,
on
the Society’s behalf, submits that a political position is that of the
group rather than an individual person. But, in
this case, given Mr
Singh’s initiation of issues, it may be both. In a very real sense, Mr
Singh would lose his ability to
uphold and pursue his policy and political
positions within the Society if he is not a member or a member of the Board.
Furthermore
he points out that, if his seat on the Board is filled by someone
with different policy or political positions, the balance on the
Board would be
altered.
[21] I consider interim orders are reasonably necessary to preserve both
of these aspects of Mr Singh’s position pending
a decision on his
application for judicial review. I go on to consider the strength of Mr
Singh’s case, the detriment to
the parties of interim orders, and the
overall justice of the case.
Strength of case
[22] First, the text and purpose of the Judicature Amendment Act 1972 supports judicial review applications by members of private bodies corporate. This is clear from the definitions of “statutory power” and “statutory power of decision” in s 3 of the Act. These definitions were expanded by Parliament in the Judicature Amendment Act 1977 in order to ensure that judicial review was available in respect of actions by private incorporated organisations.7 Accordingly, this strand of the law of judicial review subsists independently of the High Court’s supervisory power of the lawfulness of public, or executive government, decision-making. As the Court of
Appeal noted in Stratford Racing Club Inc v Adlam
“membership issues”, in
particular, can and do attract the intervention of the
Court.8
7 See comments by Hon David Thomson at Second Reading of the Judicature Amendment Bill: (28 September 1977) 414 NZPD 3311. The amendment reversed the effect of Thames Jockey Club v New Zealand Racing Authority [1975] 2 NZLR 768 (CA).
8 Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [54]- [55].
[23] My assessment of the strength of Mr Singh’s application in relation to his membership issue is made on the basis of the Amended Statement of Claim of
2 March 2016 and in the absence of a Statement of Defence or evidence having
yet been filed for the substantive hearing.
[24] I consider the Amended Statement of Claim is confusing in its
pleading of the relevant facts. The grounds of review are
lengthy and similarly
confused. Several do not appear to be grounds for judicial review; for example,
“the factor of provocation
was not adequately considered”9
and “the Tribunal should have dismissed the charge”.10
As pleaded, they appear to concern:
(a) Eighteen alleged errors in relation to the fourteen grounds of
review considered by the December 2015 disciplinary hearing;
the clearest of
which is not taking into account coverage of Mr Singh’s actions by the
Protected Disclosures Act 2000. However,
there is weight to the Society’s
response that the Act does not apply to Mr Singh’s position since his
disclosures were
made to all Members of Parliament, the New Zealand Herald and
the University of Auckland.
(b) Six alleged errors in relation to the February 2016 decision
including unreasonable and unsupported findings of fact and
taking into account
irrelevant considerations, none of which is compelling on its face.
(c) The failure to convene a Special General Meeting in response to a
requisition by members being ultra vires the Society’s
rules. On its
face, the Society’s response, that the requisition was not signed by the
required number of members, appears
to be a complete answer to this.
(d) The decision by the Society not to await the outcome of investigations before confirming its decision is challenged as: being made for an improper purpose (to prevent Mr Singh convening a Special General
Meeting or remaining as a Board member); not taking into account
the
9 Paragraph 59(j) of the Amended Statement of Claim of 2 March 2016.
10 Paragraph 59(p) of the Amended Statement of Claim of 2 March 2016.
strong advice from its independent panel members; and not taking into account
Mr Singh’s undertaking of non-disclosure, among
other matters. This is
currently the best pleaded claim in the application.
[25] Mr Singh seeks a declaration that the refusal to convene the Special
General meeting is invalid, an order directing a Special
General Meeting, an
order setting aside the 25 February 2016 decision, an order prohibiting
associated disciplinary action until
the allegations are investigated, an order
restoring Mr Singh as Board member, a declaration that the Health Alliance
contract has
been breached, and indemnity costs.
[26] Much of the Amended Statement of Claim of 2 March 2016 fails to
instill confidence that Mr Singh’s application for
judicial review is
likely to be sustained. Many of the facts are incompletely pleaded. Many of
the challenges are poorly conceived.
And some of the relief sought is
inappropriate for a judicial review proceeding. However, it is not uncommon
for the real issues
in judicial review proceedings to become clearer as the
proceedings progress. That would not be difficult here.
[27] In the end, the aspect of the proceedings that appears to have most
potential substance are the challenges to the Society’s
decision to
confirm termination of Mr Singh’s membership before awaiting the results
of external investigations. While I do
not assess the likelihood of success as
great I cannot, at this early stage of the proceedings, rule out the possibility
of success.
Competing detriments
[28] The Society is clearly fed up with Mr Singh’s activities. They, or at least those currently controlling the Board, appear to regard him as a disruptive troublemaker. They want him out in order to restore a greater sense of order to their internal relationships. The evidence supporting the Society’s application to rescind the temporary order demonstrates this. Mr Singh sent two text messages to nearly all of the Society’s shareholders on 24 March 2016. The messages are aggressively worded challenges to the Society which contain a variety of questions and allegations in response to media statements by the Secretary of the Society, Mr Ian
Graham. If Mr Singh continues as a member in the interim before his
judicial review application is heard, the Society fears he will
continue to
cause such trouble.
[29] However, as noted above, Mr Singh would clearly suffer detriment
from ceasing to be a member in the interim. He would have
to find alternative
employment. Just as importantly from his point of view, I accept, his ongoing
policy and political campaign
with the Society would be impeded. He could not
contribute to either governance as a Board member or participate in
voting
or the other incidents of membership. His Board membership would be
filled by someone else and his voice amongst members would
be lost. I make no
judgment either way on the merits of Mr Singh’s policy and political
views. But it is clear that not
only would his position not be preserved but
he would suffer significant detriment if he does not remain a member of the
Society
pending determination of the judicial review of his termination of
membership.
Status quo
[30] The status quo leading up to this decision was reflected
in:
(a) Mr Singh’s membership of the board being suspended but his seat
not
being filled;
(b) Mr Singh remaining a member of the Society and thereby continuing to be
able to drive his taxi and earn an income;
(c) Mr Singh undertaking not to make further disclosures or complaints
internally or externally pursuant to his undertaking.
[31] In relation to the last point, I do note that the undertaking was “given on the basis that” a Special General Meeting would be called. This has not occurred. Mr Singh’s text messages of 24 March 2016 do appear to have breached the intent of clause 1 of the undertaking – they made complaints internally to shareholders. But they were an internal response to a media release issued publicly by Mr Graham on behalf of Society and picked up by the National Business Review. The Society’s release directly rejected allegations made by Mr Singh and provided the Society’s
responses to them. Mr Singh is not alleged to have made his response public
or to have made any further unprovoked communications
with Society
members.
Overall justice
[32] I consider the overall justice of the case requires the status quo,
with some tweaks, to endure until the resolution of Mr
Singh’s judicial
review. Given the possibility of success, this would best mitigate the
potential detriments to
both Mr Singh and the Society while preserving both
of their positions, including the balance of internal political
relationships.
Orders
[33] Under s 8 of the Judicature Amendment Act 1972 I order
that, until Mr Singh’s application for judicial review
of the termination
of his membership of the Society is determined by this Court:
(a) Mr Singh’s board membership will be suspended, and will not
be filled, until it naturally expires under the Society’s
rules.
(b) Mr Singh will remain a full member of the Society and, in
particular, will continue to be able to drive his taxi for the
Society, subject
to the Society’s ordinary rules.
(c) Mr Singh will not make public comment on the issues involved in
this proceeding unless he is responding to such public comment
made by the Board
of the Society.
(d) Mr Singh will not lobby or communicate with members of the Society
regarding the issues involved in this proceeding.
(e) For the purposes of these orders the issues involved in this proceeding include, but are not limited to: the circumstances of Mr Singh’s termination of membership; the allegations he has made about the
Society; and the way in which the Society has responded to those
allegations.
(f) Leave is reserved to any party to apply to amend or rescind these
orders if they are breached, and to apply for indemnity
costs for so
doing.
[34] Since Mr Singh has succeeded in obtaining interim orders, albeit not
those he sought, I order costs (category 2) in his favour
in respect of this
application. The parties have leave to file submissions within 15 working days
if they cannot agree on costs.
[35] Finally, the parties need to bring these proceedings to resolution
promptly. A Statement of Defence must be filed and served
by 5 pm 27 April
2016. Within three working days of that, the parties should file a joint case
management memorandum (or separate
memoranda) in terms of Schedule 10 of the
High Court Rules for consideration in the next judicial review
list.
Palmer J
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