Bhullar v Auckland c0-Operative Taxi Society Limited

[2018] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-836

[2018] NZHC 960

BETWEEN

HARPREET BHULLAR

Applicant

AND

AUCKLAND CO-OPERATIVE TAXI SOCIETY LIMITED

Respondent

Hearing:

4 May 2018

Counsel:

R S Pidgeon for Applicant

G J Judd QC for Respondent

Judgment:

4 May 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 4 May 2018 at 5.45pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel:

R S Pidgeon, Barrister, Auckland G J Judd QC, Auckland

BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 960 [4 May 2018]

[1]                  The applicant, Harpreet Bhullar, is a taxi driver under the banner of the respondent (“Co-op Taxis”). He became a Co-op Taxis shareholder in 2007, and was elected to its board of directors (the “Board”) in 2016.

[2]                  By letter of 31 January 2018, Co-op Taxis’ solicitors, Fortune Manning, notified Mr Bhullar of Co-op Taxis’ receipt and investigation of a complaint against him, contending he breached Co-op Taxis’ rules relating to the conduct of secret ballots (the “Rules”). If such a breach was established, the Rules require the Board to consider whether Mr Bhullar’s name should be struck from the register of Co-op Taxis’ members. I understand such striking off would prevent Mr Bhullar from continuing to drive taxis under Co-op Taxis’ banner.

[3]                  Fortune Manning’s letter enclosed copies of documents (predominantly witness statements) contended to be relevant to a hearing of the complaint by an independent panel. (I apprehend the Board would be the usual forum for such a disciplinary hearing, but for Mr Bhullar’s membership of it.) On 18 April 2018, Fortune Manning advised Mr Bhullar the hearing would be held on Monday, 7 May 2018, at 11am.

[4]                  Mr Bhullar has today filed an application for judicial review, alleging various process failures in the investigation and proposed disciplinary hearing, including the apparent bias of members of the independent panel and the disqualification of Co-op Taxi’s solicitors. In support of that application he also seeks without notice interim orders staying the hearing, and directing the application be subject to case management on the judicial review list or otherwise.

[5]Section 15 of the Judicial Review Procedure Act 2016 (the “Act”) provides:

15 Interim orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:

(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.

…

(4)An order under subsection (2) or (3) may—

(a)be made subject to such terms and conditions as the court thinks fit; and

(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[6]It is important to note, under s 15 of the Act:

(a)first, interim orders are only available if, in the Court’s opinion, they are “necessary … to preserve the position of the applicant”; and

(b)second, interim orders are limited to prohibitions, stays, and declarations relating to exercise of the impugned power.

[7]                  The position for preservation is that in which the applicant would have been, but for the decision the subject of the application for review.1 There must be “a legal and factual position to preserve”.2 Further, ‘necessary’ means just that – “reasonably necessary” – and we are cautioned not to add any further gloss.3

[8]                  Without notice applications may only be determined if I am satisfied on specified grounds the application can properly be dealt with without notice.4

1      Douglas Bayly Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-2465, 1 December 2003 at [29].

2      New Zealand Maori Council v Attorney General [1996] 3 NZLR 140 (CA) at 151.

3      Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754, affirming Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.

4      High Court Rules, r 7.46.

[9]                  I convened an urgent telephone conference at 4:10pm today with Mr Bhullar’s counsel, Richard Pidgeon, and Co-op Taxis’ counsel, Gary Judd QC. Mr Judd appeared on a ‘Pickwick’ basis.

[10]              Mr Pidgeon outlined the scope of Mr Bhullar’s complaints against Co-op Taxis’ process, and the desirability the hearing be stayed. I asked whether Mr Bhullar’s position was adequately preserved if the Board was prohibited from determining to strike Mr Bhullar off the register of members pending further order of this Court. He accepted it would be. Mr Judd, for his part, responsibly conceded he could not resist such an order. I am of the opinion such an interim order is, but presently is all that is, necessary to protect Mr Bhullar’s position.

[11]              I am also satisfied the ground in r 7.46(3)(a) is met. In particular I am satisfied Mr Bhullar would be prejudiced by being required to proceed on notice. That is because of the pendency of the disciplinary hearing, and the uncertainty of the time by which the Board may then make its decision. Mr Judd was unable, given the shortness of time since he had received his instructions, to indicate what that subsequent period may be.

[12]              Mr Pidgeon sought a further order staying the disciplinary hearing to a later date, to permit Mr Bhullar’s defence better to be resourced. I am not prepared to become engaged in what is essentially the internal administration of Co-op Taxis’ disciplinary procedures, but expect counsel will collaborate to ensure both parties’ material interests are properly addressed. Obviously, the legitimacy of Co-op Taxis’ processes will depend in part on their propriety in the circumstances.

[13]              Pending further order of this Court, I prohibit Co-op Taxis – and, more particularly, its Board – from striking Mr Bhullar off its register of members.

[14]              I direct this proceeding be called in the next judicial review list in the Auckland registry.

—Jagose J