Barfoot v O'Meara - [2019] NZHC 2217

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-686

[2019] NZHC 2217

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of Tamaki Estuary Protection Society In.

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: 28 August 2019

Appearances:

R Pidgeon for Applicants

No appearance for Respondents
KM Muller, as counsel assisting the Court

Judgment:

5 September 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 5 September 2019 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BARFOOT & ORS v O’MEARA [2019] NZHC 2217 [5 September 2019]

[1] The applicants seek orders holding the respondents, Mr O’Meara and Mr Thompson, in contempt of court. They say the respondents have wilfully failed to comply with an Order made by Edwards J to deliver up documents in their possession.

[2] Neither Mr O’Meara or Mr Thompson have taken steps in relation to the contempt application. Neither appeared at the hearing before me.

Background

[3] It is unnecessary to traverse the full background which is helpfully set out in the Judgment of Edwards J delivered on 29 May 2019.1 Suffice it to say that underpinning this application was a dispute as to who comprises the executive committee of the Tamaki Estuary Protection Society Inc (TEPS). The applicants commenced judicial review proceedings alleging that the respondents had not been validly appointed to the executive committee.

[4] On 29 May 2019, Edwards J issued a Judgment in which she 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.

[5] 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.

[6] Critically for the purposes of this 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 remain in the respondents’ possession and control.3 She made the following Order against the respondents:4
Within two working days of the receipt of this judgment, the respondents shall deliver all records, minute books, membership register, financial accounts and

1      Barfoot v O’Meara [2019] NZHC 1186.
2 At [39].
3      At [15] and [42].
4      At [43](d).

any and all other TEPS’s documents to Ms Muller to be held pending further order of the Court.

[7] This material is said to be essential for the holding of an Annual General Meeting which complies with 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 2217
Case: [2019] NZHC 2217
Decision Date: 5 September 2019

CaseChat Overview and Summary

The applicants, a group of individuals and organisations, sought to hold the respondents, Mr O'Meara and Mr Thompson, in contempt of court for their failure to comply with a previous order made by Edwards J. The order required the respondents to deliver up certain documents in their possession to Ms Muller, who was to hold them pending further order of the court. The applicants argued that the respondents had failed to deliver up the documents and had acted in contempt of court. The legal issues before the court were whether the order was clear and unambiguous, whether the respondents were aware of the order and in breach of it, and whether their conduct was deliberate. The court found that the order was clear and unambiguous, and that the respondents were aware of it and in breach of it. The court also found that the respondents' conduct was deliberate, as they had failed to provide any explanation for their non-compliance despite multiple opportunities to do so. The court held that the respondents were in contempt of court and issued an arrest warrant for them, which would be executed if they failed to comply with the order or attend court on the specified date. The court also made an order for costs against the respondents.

The court found that the respondents had deliberately failed to comply with the order made by Edwards J, and held them in contempt of court. The court issued an arrest warrant for the respondents, which would be executed if they failed to comply with the order or attend court on the specified date. The court also made an order for costs against the respondents. The court's decision was based on the evidence presented, which showed that the respondents had been served with the order and the contempt application, but had failed to provide any explanation for their non-compliance. The court found that the respondents' conduct was deliberate and wilful, and that they had obstructed the administration of justice. The court's decision was consistent with the principles of the law of contempt, which aim to preserve the authority of the court and ensure that the administration of justice is maintained.

Orders