Bhullar v Auckland Co-Operative Taxi Society Limited
[2018] NZHC 3435
•20 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-836
[2018] NZHC 3435
BETWEEN HARPREET BHULLAR
Applicant
AND
AUCKLAND CO-OPERATIVE TAXI SOCIETY LIMITED
Respondent
Hearing: 19 December 2018 Appearances:
A Beck for the Applicant
G Judd QC for the Respondent
Judgment:
20 December 2018
JUDGMENT OF GORDON J
This judgment was delivered by me
on 20 December 2018 at 1.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Integris Law Firm, Auckland
Ken Patterson, Tauranga
Counsel: A Beck, Auckland
G Judd QC, Auckland
BHULLAR v AUCKLAND CO-OPERATIVE TAXI SOCIETY LTD [2018] NZHC 3435 [20 December 2018]
Introduction
[1] On 17 December 2018, I delivered a judgment refusing Mr Bhullar’s application for judicial review challenging three decisions of the respondent, the Auckland Co-Operative Taxi Society Limited (the Society).1
[2] Those decisions were: the decision of the Board of Governance of the Society (the Board) to proceed to a hearing in relation to allegations that Mr Bhullar had breached the rules of the Society; the decision of the panel appointed by the Board that Mr Bhullar had breached those rules; and the decision by the panel that it was not in the best interests of the Society for Mr Bhullar to remain a member of the Society.
[3] Prior to the hearing, on 4 May 2018, Jagose J made an order pending further order of this Court prohibiting the Society, and more particularly the Board, from striking Mr Bhullar off its register of members.
[4] In my judgment refusing the application for review, I said in respect of that order:
[185] Having dismissed the application for review, the interim order (prohibiting the Board from striking Mr Bhullar off its register of members) effectively falls away. To the extent that it is necessary, I formally discharge that order. The Board may now proceed to strike Mr Bhullar off its register of members in accordance with the decision made under Rule 11(d) of the Rules.
[5]Mr Bhullar has filed an appeal against my decision.
Application for stay or interim relief
[6] Mr Bhullar has also filed a without notice application (but served on the Society’s solicitor) for an order staying execution of my judgment pending Mr Bhullar’s appeal to the Court of Appeal from that judgment or alternatively, an order for interim relief precluding the Society from striking Mr Bhullar off its register of members pending determination of the appeal.
[7]The grounds on which the orders are sought are:
1 Bhullar v Auckland Co-Operative Taxi Society Ltd [2018] NZHC 3341.
(a)Mr Bhullar has instructed counsel to file an appeal against the Court’s decision;
(b)the Society has already taken action purporting to enforce my decision;
(c)there will be substantial prejudice to Mr Bhullar if his membership of the Society is terminated; and
(d)there is no substantial prejudice to the Society in a stay of the judgment pending determination of the appeal.
[8] Mr Bhullar has filed an affidavit in support of the application. He deposes that being struck off the register of members means that he cannot continue as a taxi driver for the Society. He says that will prevent him from earning a living as a taxi driver until he is able to obtain membership of another taxi company. He says he has already been approached by the compliance manager of the Society demanding that he return all property of the Society. He deposes that it is clear to him that unless immediate orders are made by the Court, the Society will prohibit him from continuing as a taxi driver for the Society and also carrying out his role as a director of the Board.
[9] I conducted an urgent hearing of the application by telephone on 19 December 2018.
Submissions in support of the application
[10] Mr Beck, for Mr Bhullar, refers to correspondence between the parties which he annexes to his memorandum and says that the Society has apparently already struck Mr Bhullar off the register of members. He says the consequences of this action are that Mr Bhullar has been unable to access the communication network operated by the Society and has effectively been excluded from operating as a taxi driver.
[11] Mr Beck refers to the commonly applied factors in applications for a stay and submits that this is a case where Mr Bhullar’s appeal would be rendered nugatory unless the status quo is maintained. The whole point of the appeal is to set aside the
decision of the Society to strike Mr Bhullar off the register of members and to ensure his continued membership, as well as his ability to operate as a taxi driver.
[12] Mr Beck submits that the application has properly been brought without notice because of what he describes as the “precipitate action” taken by the Society and the urgent need to obtain protection for Mr Bhullar’s position.
Submissions in opposition
[13] Mr Judd QC, for the Society, submits that the application for a stay is misconceived. There is no judgment of the Court requiring anyone to do anything which could be stayed. He submits that the only possibility would be an interim order, but he submits that is also misconceived.
[14] In relation to the statement in [185] of my judgment referred to in [4] above, Mr Judd submits that it was in fact not necessary for the Board to take steps to strike off Mr Bhullar from its register of members. Upon my discharge of the 4 May 2018 order of Jagose J, an earlier resolution of the Board had immediate effect.
[15] Mr Judd refers to minutes of the meeting of the Board of 18 July 2018. The minutes record the following:
[The lawyer for the Society] mentioned … “the decision endorsed by the panel for Bhullar’s membership is subject to Court decision.”
The Board resolved to accept the decision of the panel.
[16] The decision of the panel (in terms of the wording of the relevant rule) was that it was “not in the best interest [sic] of Co-Op that Mr Bhullar remain a member”.
[17] Mr Judd submits that due to the Court’s dismissal of the application for review and discharge of the order made by Jagose J on 4 May 2018, the impediment to implementation of the decision of the panel, endorsed by the Board on 18 July 2018, disappeared. Mr Bhullar is no longer a member of the Society.
Discussion
[18] The application proceeds under r 12 of the Court of Appeal (Civil) Rules 2005. Under r 12(3)(b), the Court may grant interim relief. That rule gives jurisdiction to the Court to make an interim order even where the relevant order was non-executory and thus not amenable to an order for a stay under r 12(3)(a).2
[19] If Mr Judd’s analysis, that Mr Bhullar is in fact no longer a member of the Society, is correct, then the Court would be required to make a mandatory order directing the Society to reinstate Mr Bhullar as a member. Mr Judd’s position is that such an order would mean the Court would be directing the Board to act in a way that is contrary to its rules. A person must be approved by the Board as a member and it would have to be in the best interests of the Society for Mr Bhullar to become a member. It has already been found that it is not in the best interests of the Society for Mr Bhullar to remain a member. Accordingly, the Board has no power to admit him as a member and the Court cannot make such a direction to the Board.
[20] Mr Judd submits that to make an order in those circumstances is quite different from the situation discussed in Yan v Mainzeal Property and Construction Ltd (in rec and in liq), where the orders involved were part of the Court’s own process.3
[21] I first examine whether Mr Judd’s analysis regarding the Board’s process is correct. Or did the Board in fact need to take a further step consequent upon my judgment, for Mr Bhullar to be removed as a member of the Society?
[22] The minutes of the Board meeting on 6 November 2017 include the following resolution:
The Board resolved that it will appoint an independent panel to undertake the 11D hearing in its place and endorse without reservation any recommendations the independent panel makes.
2 Yan v Mainzeal Property and Construction Ltd (in rec and in liq) [2014] NZCA 86, (2014) 22 PRNZ 296 at [21]-[22].
3 Yan v Mainzeal Property and Construction Ltd (in rec and in liq), above n 2.
[23]Rule 11(d) of the Rules of the Society provides:
REMOVAL FROM MEMBERSHIP
(11)The Board may strike a member off the register of members upon any of the following grounds: --
…
(d)Upon being satisfied that it is not in the best interests of the Society that a licensee shall remain a member of the Society.
[24]The panel decision on 12 July 2018 concluded that:
… it is not in the best interest [sic] of Co-op that Mr Bhullar remain a member. This is the position that we now forward to the Board.
[25] The minutes of the Board referred to by Mr Judd and set out in part in [15] above, more completely read:
Decision is put by [Chairman] to the board. As per the resolution [Chairman] presented the independent panel’s decision to board that the panel has found Bhullar Harpreet guilty and in the society’s best interest [sic] Bhullar Harpreet should be struck off the society’s register. The board should honour the panel’s decision as per the board resolution (dated 06th November 2017).
“Board resolution on election”
“Incident involving Mr Harpreet Bhullar” signed by [board members]
[Lawyer advising the Board] mentioned the “decision endorsed by the panel for Bhullar’s membership is subject to court decision”.
The Board resolved to accept the decision of the panel.
Moved seconded
[26] When the minutes of the two Board meetings of 6 November 2017 and 18 July 2018 are read in combination, I consider the Board had in fact already taken the decision to strike Mr Bhullar off its register of members consequent upon the decision of the independent panel. But, the Board’s decision was subject to a decision of this Court, Mr Bhullar by then having filed his judicial review proceedings.
[27] In other words, I accept the submission now made by Mr Judd that no further steps were in fact required by the Board following my decision, and that Mr Bhullar
was struck off the register of members as soon as I discharged the 4 May 2018 order of Jagose J.
[28] Does that then mean that this Court has no jurisdiction to direct that the Board reinstate Mr Bhullar’s membership of the Society pending the hearing of his appeal?
[29] I do not accept the distinction Mr Judd makes between an order directing the Board not to take steps to strike Mr Bhullar off the register if, in fact, the Board had needed to take that final step (consequent on my judgment) and an order directing the Board to reinstate Mr Bhullar’s membership.
[30] Either way, the Board would be acting contrary to its rules by Mr Bhullar being a member when there has been a finding that it is not in the best interests of the Society that he remain a member of the Society.
[31] I therefore consider, following Yan, the Court does have jurisdiction to make a mandatory order directing that the Board reinstate Mr Bhullar’s membership.
[32]I now turn to consider whether such an order should be made in this case.
[33]The well-known factors to be taken into account include the following:4
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
4 Yan v Mainzeal Property and Construction Ltd (in rec and in liq), above n 2; Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11]; citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9] and Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-3230, 11 February 2009.
(f)the public interest in the proceeding;
(g)the overall balance of convenience; and
(h)the apparent strength of the appeal.
[34] Mr Bhullar will not be able to continue to operate as a taxi driver with the Society and thus earn income from that work if the decision to strike him off the register of members of the Society remains operative. However, that will not prevent Mr Bhullar from obtaining work with other taxi organisations. If he is successful on appeal, then it is open to Mr Bhullar to claim damages for breach of contract. I consider that would be an adequate remedy and that the appeal would not be rendered nugatory by the lack of an interim order.
[35] I accept Mr Bhullar’s bona fides in prosecuting his appeal. A notice of appeal dated 19 December 2018 is annexed to Mr Bhullar’s affidavit.
[36] As to whether the Society will be injuriously affected by an interim order, there is a basis for such a conclusion. The Society will be required to operate with a person amongst its ranks in respect of whom it has been found it is not in the best interests of the Society that he remain a member. In coming to that conclusion, the independent panel considered not only the breaches of the electoral rules referred to in my judgment, but also a past incident recorded on video when Mr Bhullar confronted the Chair of the Board; previous complaints against Mr Bhullar; various actions that Mr Bhullar had been part of against the Society; his repeated allegations of scams and corruption of the Society; and his behaviour towards staff of the Society.
[37] Having regard to all of those matters, I consider that the Society would be injuriously affected by Mr Bhullar remaining a member pending the hearing of his appeal.
[38] In terms of third parties, Mr Beck submits that because Mr Bhullar has responsibilities as a director of the Board, he will be unable to exercise those
responsibilities. It is submitted that Mr Bhullar has the support of a significant proportion of members who elected him as a director.
[39] However, as against that, the interests of the members would be protected by a person elected to fill the vacancy on the Board (which the rules provide for).
[40] I do not consider that there is any particular novelty and importance in the questions involved in the appeal, nor is there a public interest in the proceeding.
[41] As to the prospect of success on appeal, Mr Beck submits that there are issues concerning the proper exercise of exclusion powers by bodies such as the Society. He submits that those issues are clearly arguable and the appeal is not one that is lacking any prospect of success. However, while that submission is made, the notice of appeal simply repeats the grounds of review argued in this Court. The memorandum in support does not in fact address the strength of the appeal.
[42] Weighing all the above factors, I consider that the balance of convenience favours the refusal of interim relief.
[43]The application for a stay or interim relief is refused.
Costs
[44] I did not hear counsel on costs. Accordingly, I reserve costs. I invite counsel to agree costs and to file a joint memorandum. Such memorandum should be filed within 30 working days of the date of this judgment. In the event that agreement cannot be reached, the Society is to file and serve its memorandum within five working days of the date for the joint memorandum. Mr Bhullar is to file and serve his memorandum within a further five working days. Memoranda should not exceed four pages.
Gordon J
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