Barfoot v O'Meara - [2019] NZHC 3470

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-686

[2019] NZHC 3470

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of Tamaki Estuary Protection Society Inc.

BETWEEN

CHRISTOPHER BARFOOT, BETHANY MEGAN EVANS, JAMES REGINALD SINCLAIR, JULIE CHAMBERS, CHARLES WORTH, OLIVER HOFFMAN, DORTHE SIGGAARD, SIU MAN, LORA YOUNG, BARBARA SHAW

Plaintiffs/Applicants

AND

PATRICK GORDON O’MEARA

First Respondent

AND

DENNY NGAHAUEWHA THOMPSON

Second Respondent

AND

TAMAKI ESTUARY PROTECTION SOCIETY

Third Respondent

Hearing:
18 and 24 October 2019

Supplementary written submissions: 7, 27 and 30 November 2019

Appearances:

R Pidgeon for Applicants

K M Muller, as counsel assisting the Court

F Pilditch, Court appointed counsel for First and Second Respondents

Judgment:

20 December 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 20 December 2019 at 1.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BARFOOT & ORS v O’MEARA & ORS [2019] NZHC 3470 [20 December 2019]

Introduction

[1] By a judgment delivered on 5 September 2019,1 I found Messrs Thompson and O’Meara (the respondents) had committed a civil contempt of court. Their contempt was the wilful disobedience of a Court Order made by Edwards J on 29 May 2019.

[2] Underpinning this proceeding is an acrimonious dispute relating to the governance and “executive committee membership” of the Tamaki Estuary Protection Society Inc (TEPS). The background is set out in my judgment on contempt. The full context is set out in the judgment of Edwards J dated 29 May 2019. In short, the applicants commenced judicial review proceedings alleging that the respondents had not been validly appointed to the executive committee. The respondents vigorously opposed the orders sought.

[3] Edwards J found there had been a “catalogue of deficiencies and irregularities in the procedure leading up to the AGM, and at the AGM itself…”.2 Accordingly, she made orders that Mr O’Meara and Mr Thompson’s purported appointment at the AGM was invalid.

[4] Edwards J also ordered a fresh meeting and elections to be held, chaired by an independent Chair. Ms Anderson QC, who had previously been appointed to that role, confirmed her willingness to again act as Chairperson in a memorandum dated 5 June 2019.

[5] Critically for the purposes of the contempt application, Edwards J found that the respondents had refused to hand over TEPS’s records, including the minute book, bank account details, and membership lists; these remained in the respondents’ possession and control.3 She consequently made orders that this material be handed over by the respondents to Ms Muller, counsel assisting the Court. The order stipulated the date by which this was to happen. It did not, although some limited material was provided to Ms Muller late.

1      Barfoot & Ors v O’Meara [2019] NZHC 2217.
2      Barfoot v O’Meara [2019] NZHC 1186 at [39].
3      At [15] and [42].

[6] The respondents did not attend the hearing of the application for contempt. Nor had they engaged with the Court or the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barfoot v O'Meara

Details

AGLC: Barfoot v O'Meara [2019] NZHC 3470
Case: [2019] NZHC 3470
Decision Date: 20 December 2019

CaseChat Overview and Summary

The High Court of New Zealand was called upon to decide the appropriate penalty for civil contempt against Denny Ngahauweha Thompson and Patrick Gordon O'Meara, following a finding of contempt for their wilful disobedience of a Court Order. The contempt stemmed from an underlying dispute relating to the governance and membership of the Tamaki Estuary Protection Society Inc. The respondents had failed to hand over crucial documents to the Court despite clear orders, leading to the finding of contempt. In this case, the Court considered several issues, including whether the contempt had been purged, whether an injunction could be used to restrain the respondents from attending the next AGM, if community work could be imposed as a penalty, and what the appropriate penalty should be. The Court found that the contempt had not been purged, dismissed the application for an injunction, concluded that community work could not be imposed under the common law inherent jurisdiction, and ultimately decided to impose a fine of $750 on each respondent, with 90% of the fine to be paid to the applicants. Additionally, the respondents were prohibited from taking further steps in the substantive proceedings regarding the holding of an AGM by TEPS.

Orders