Barfoot v O'Meara - [2019] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000686

[2019] NZHC 1186

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

the 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 and BARBARA SHAW

Applicants

AND

PATRICK O’MEARA

First Respondent

DENNY NGAHAUEWHA THOMPSON
Second Respondent

TAMAKI ESTUARY PROTECTION SOCIETY INC

Third Respondent

Hearing: 6 May 2019

Appearances:

R S Pidgeon for the Applicants

P O’Meara (Self-represented First Respondent) in Person

D N Thompson (Self-represented Second Respondent) in Person K M Muller, Amicus Curiae

Judgment:

29 May 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 29 May 2019 at 2.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

BARFOOT v O’MEARA [2019] NZHC 1186 [29 May 2019]

[1] The Tamaki Estuary Protection Society Inc (TEPS) was incorporated with the aim of preserving, protecting and improving the waters, life and shores of the Tamaki Estuary. Regrettably, pursuit of those objectives since October 2017 has been waylaid by a dispute about who comprises the executive committee of the TEPS (Executive Committee).

[2] The respondents say they were validly reappointed at the annual general meeting (AGM) on 29 October 2017. The applicants dispute that and seek, by way of judicial review, declarations that the defendants were not lawfully appointed or elected to the Executive Committee, and an order directing a further AGM to be held.1

[3] Ms Muller was appointed amicus curiae to represent the interests of the third respondent, the TEPS. I am grateful for her careful and comprehensive submissions.

[4] The substantive issue to be determined is whether the respondents’ appointment was valid, and if not, what relief (if any) should be granted.

What happened?

[5] The TEPS was originally formed in the 1970s and was registered under the Incorporated Societies Act 1908 in 1994. It is also a registered charitable entity under the Charities Act 2005. The TEPS’s rules were adopted in 1994 (the Rules). They were amended in 2008 and 2009, but those amendments are not relevant to this case.

[6] Mr O’Meara, the first-named respondent, was elected Chair in 2014 (the plaintiffs say he was co-Chair; he says he was the only Chair) and re-elected in 2015, and 2016. Mr Thompson, the second-named respondent, became involved with the TEPS in 2017.

[7] Mr Barfoot, the first-named applicant, has been involved with the TEPS since 1972, and has been made a life member. He has been on the Executive Committee and held the Chair role on several occasions, and was on the Executive Committee in 2017. Mr Barfoot says that Mr O’Meara, in his capacity as Chair, began introducing

1 Mr Pigeon, for the plaintiffs, confirmed at the hearing that the declarations sought in paragraph [6(a)(ii) to (v)] of the amended statement of claim dated 10 December 2018 were no longer sought.

a…

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 1186
Case: [2019] NZHC 1186
Decision Date: 29 May 2019

CaseChat Overview and Summary

The applicants in this case sought a judicial review of decisions made by the Tamaki Estuary Protection Society Inc (TEPS) in relation to the appointment of the Executive Committee. The applicants challenged the validity of the appointment of the respondents to the Executive Committee, and sought declarations and an order to hold a further meeting to elect the Executive Committee. The substantive issue before the Court was whether the respondents’ appointment was valid and, if not, what relief (if any) should be granted. The Court found that the appointment of the respondents was invalid due to significant procedural irregularities and breaches of the TEPS’s rules. The Court concluded that the purported reappointment of the respondents to the Executive Committee at the meeting on 29 October 2017 was invalid and of no effect. The Court granted declaratory relief and ordered that the TEPS hold fresh elections for the Executive Committee at a meeting convened for that purpose and chaired by an independent Chair. The Court also ordered that the respondents deliver all records and documents to an agreed party to be held pending further order of the Court. The applicants were awarded costs on a schedule 2B basis. The Court strongly urged the parties to attempt to agree on costs to avoid further dispute.

Orders