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Singh v Auckland Cooperative Taxi Society Limited [2016] NZHC 642 (12 April 2016)

Last Updated: 3 May 2016


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CIV-2015-404-3007 [2016] NZHC 642

UNDER
the Industrial and Provident Societies Act
1908
the Protected Disclosure Act 2000
IN THE MATTER
of AUCKLAND COOPERATIVE TAXI SOCIETY LIMITED
BETWEEN
RANBIR SINGH Plaintiff
AND
AUCKLAND COOPERATIVE TAXI SOCIETY LIMITED
First Defendant
IAN GRAHAM, YAKUB (aka Jacob) MOHAMMED PATEL, KANWAJIT BHULLAR and KRISHNA DEO LAL Second Defendants


Hearing:
9 March 2016
Counsel:
R S Pidgeon for plaintiff
S S Khan and R White for defendants
Judgment:
12 April 2016




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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