Bhullar v Auckland Co-Operative Taxi Society Limited

[2018] NZHC 3341

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-836

[2018] NZHC 3341

BETWEEN

HARPREET BHULLAR

Applicant

AND

AUCKLAND CO-OPERATIVE TAXI SOCIETY LIMITED

Respondent

Hearing:

5 December 2018

Appearances:

A Beck for the Applicant

G Judd QC for the Respondent

Judgment:

17 December 2018

JUDGMENT OF GORDON J

This judgment was delivered by me

on 17 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 3341 [17 December 2018]

Introduction

[1]    The applicant, Harpreet Bhullar, is a taxi driver. In 2006, he became a member of the respondent, Auckland Co-operative Taxi Society Limited (the Society). In 2016, Mr Bhullar became a director of the Society’s Board of Governance (the Board).

[2]    On 7 August 2017, there was an incident at Taxi House, the administrative headquarters of the Society, involving Mr Bhullar, another taxi driver, Gurpreet Singh1 and Kevin Myers, a Compliance Officer for the Society.

[3]    The Board resolved to convene a hearing into alleged breaches of the Rules of the Society (the Rules) by Mr Bhullar.

[4]    As Mr Bhullar was a member of the Board, the Board appointed two delegates, Kevin Braid and Jimmy Mayes, to conduct the hearing.

[5]    The hearing was in two parts. First, there was a hearing to determine whether Mr Bhullar had breached the Rules (the May hearing). Mr Braid and Mr Mayes determined there had been breaches of two of the Rules. A further hearing followed, again presided over by Mr Braid and Mr Mayes, to determine whether Mr Bhullar should be struck off the register of members (the June hearing).

[6]    Applying the test in the Rules, Mr Braid and Mr Mayes determined that it was not in the best interests of the Society for Mr Bhullar to remain a member of the Society.

[7]    Mr Bhullar brings an application for judicial review challenging three decisions: the decision of the Board to proceed to a hearing; the decision of Mr Braid and Mr Mayes in the May hearing that Mr Bhullar had breached the Rules; and the decision in the June hearing that it was not in the best interests of the Society for   Mr Bhullar to remain a member of the Society.

1      I will continue to refer to Mr Singh as Gurpreet Singh as there are two other Mr Singh’s who will be referred to in this judgment.

[8]    The Society opposes the application. It accepts that the three decisions are amenable to judicial review.2

Background

[9]    The Society is duly incorporated under the provisions of the Industrial and Provident Societies Act 1908. Under the Rules, the governance of the business of the Society is vested in the Board of Governance, which comprises six persons who must be members of the Society. The Society administers the affairs of approximately 700 members, who are described as shareholders.

[10]   The Society operates under both the Rules which were registered on 6 June 2013 and Operating Rules which were confirmed by the New Zealand Transport Authority on 7 June 2013.

[11]   Rule 11 of the Rules sets out the grounds upon which the Board may strike a member off the register of members. One of those grounds in Rule 11(d) is, “upon being satisfied that it is not in the best interests of the Society that a licensee shall remain a member of the Society”.

[12]   On 8 August 2017, the Society was due to hold elections for membership of the Board.

[13]   On 7 August 2017, Gurpreet Singh went to the office of  Mr  Myers.  Gurpreet Singh had purchased a share in the Society on 1 August 2017 and he asked Mr Myers whether he was eligible to vote in the upcoming elections. Mr Myers’ position was that Gurpreet Singh was eligible to vote. He would be a shareholder at the date of the elections. There was then some discussion between the two men regarding a special vote. During this discussion, Mr Bhullar came into Mr Myers’ office and the Society’s position is that Mr Bhullar interfered in the discussion regarding Gurpreet Singh’s voting. Mr Bhullar strongly denies the allegations.

2      Deep v Auckland Gold Line Co-operative Taxi Society Ltd [2018] NZHC 499, [2018] NZAR 468 at [25].

[14]   On 9 August 2017, Mr Myers made a written complaint against Mr Bhullar. In that complaint, Mr Myers stated that there was no doubt in his mind that Mr Bhullar had an undue influence on Gurpreet Singh to deprive him of his democratic right to have a special vote. The complaint was received by Barrie White, the General Manager of the Society, who also received a number of complaints from other staff about Mr Bhullar’s behaviour at the time of the incident I have referred to. Mr White referred the matter to Fortune Manning, solicitors for the Society, for an opinion.

[15]   Fortune Manning provided written advice in a letter dated 16 August 2017. The letter stated that there were two issues arising out of the incident. One was possible breaches of the voting rules of the Society. The other issue raised was health and safety implications both in relation to Mr Myers and for staff whose complaints indicated they were very distressed by Mr Bhullar’s actions.

[16]   The Board met on 17 August 2017. Although Mr Bhullar was present at the start of the meeting, he was advised that due to his conflict of interest he would have to leave the meeting. The meeting was also attended by Shafraz Khan, a partner of Fortune Manning and the author of the 16 August 2017 letter. The Board resolved to appoint a lawyer from Fortune Manning to conduct interviews with all the complainants and furnish a report to the Board. Witness statements were accordingly prepared by Fortune Manning.

[17]   The Board met again on 6 November 2017.   Mr Khan was again present.   Mr Bhullar was not. Mr Khan presented a copy of the findings by Fortune Manning on the allegations made against Mr Bhullar in relation to the 7 August 2017 incident.

[18]   The Board resolved “that it will appoint an independent panel to undertake the 11(d) hearing in its place and endorse, without reservation, any recommendations the independent panel makes”.

[19]   The Board also resolved that it “will ask the GM Barrie White to provide a list of probable panel members that have taxi business knowledge out of which a panel of two members will be selected by the Board to carry out the 11(d) hearing”.

[20]   The Board then met again on 27 November 2017. The minutes record that  Mr Bhullar was not present due to a conflict of interest. The Board resolved that it would appoint “Mr Kevin Braid and Mr Jimmy Mayes to be the independent panel to conduct the 11(d) hearing for Mr Harpreet Bhullar, cab 658, to be held at Taxi House on a date and time to be determined”.

[21]   Mr Bhullar was advised of the allegations against him by way of a letter dated 31 January 2018 from Fortune Manning. The letter summarised the allegations against Mr Bhullar as follows:

In August 2017, the Board of the Society received several complaints regarding an incident that occurred on 7 August 2017. These complaints raised allegations against you of threatening and abusive behaviour.

On 17 August 2017, the Board resolved to investigate these allegations. In the course of this investigation statements were obtained from a number of witnesses. On the basis of these statements, the allegations against you can be summarised as follows:

1.On 7 August 2017, at around 11.30am, a shareholder came to the office of one of the Society’s Electoral Officers, Kevin Myers JP (“Mr Myers”), at Taxi House. The shareholder had purchased share 451 on 1 August 2017.

2.The shareholder queried whether he was eligible to vote. Mr Myers determined that the shareholder was eligible to vote because he would be a shareholder at the time of the election, which was due to take place on 8 August 2017.

3.The shareholder was asked if he wished to cast a special vote. The shareholder nodded in response. Mr Myers provided the shareholder with the special vote request form to fill out. This form determined shareholders’ eligibility for such a vote. Mr Myers explained to the shareholder that he could also vote on the day of the election.

4.You then entered into Mr Myers’ office while the shareholder was filling out the form. You shouted at the shareholder, asking who had told him to vote, and telling him to vote on Election Day.

5.You were asked by Mr Myers to leave his office immediately. You refused to do so. Mr Myers advised you that you had no right to be in his office. Mr Myers attempted to close his office door, but you forced it back open. You continued to shout at Mr Myers and the shareholder.

6.Shaun Williams and Mike O’Brien arrived at Mr Myers’ office after hearing your shouting. They removed you from Mr Myers’ office. You remained on the floor, however, and continued to argue in a raised voice. You accused the Electoral Officers of forcing shareholders to vote against their will.

7.Your actions occurred in plain sight of all call centre employees at Taxi House. This caused great distress to several employees who feared for their safety.

8.You continued to shout as you went downstairs to the second floor. Several staff on their breaks became very distressed by the commotion. You then moved to the Chairman’s office where you continued your aggressive behaviour in sight of all staff.

9.The shareholder did not continue with his vote and left the Mr Myers’ office. He never completed his request form.

[22]The letter then continued by setting out the relevant rules as follows:

Breach of the Rules of the Society

The above actions, if proven, can be a breach of Rules 11(a) and (g) of Schedule A of the Rules of Society. These Rules provide as follows:

“11.     Offences relating to the Conduct of Secret Ballots

(a)Interfering with or influencing voters,

Every person to whom these by-laws apply commits a serious breach of these by-laws if that person –

(i)In any way interferes with an elector, with the intention of influencing the elector or advising the elector as to the elector’s vote;

…

(g)Undue Influence

Every person to whom these by-laws shall apply commits a serious breach of these by-laws and is guilty of a corrupt practice if that person:

(i)Directly or indirectly, by himself or herself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts or threatens to inflict by himself or herself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote for or against a particular motion or motions and/or for against a particular motion and/or for against a particular candidate or to refrain from voting …

(ii)By abduction, duress, or any other fraudulent device of contravenes, impedes or prevents the free exercise of the voting of a member, or thereby compels, induces or prevails upon a member either to vote or to refrain from voting”.

A breach of either Rule 11(a) or 11(g) is considered to be a serious breach under Rule 3 of Schedule A. This Rule provides as follows:

“3.      The seriousness of a breach of these by-laws

(a) The preservation of the rights of members to a secret ballot and the preservation of the integrity of the voting system is a matter of great importance. Any breach of these by-laws shall be regarded by the Society as requiring the Board to consider whether or not the name of any member committing a breach of Rule 27 or any of these by-laws should be struck off the register of members pursuant to Rule 11(d) of the Rules”.

Rule 3 makes it mandatory for this matter to be referred to the Board for an 11(d) hearing. Under Rule 11(d) the Board may strike a member off the register of members upon being satisfied that it is not in the interests of the Society that a licensee shall remain a member of the Society.

[23]In relation to the panel for the hearing, the letter advised:

You are currently an elected member of the Board of the Society. For this reason, the Board has decided not to adjudicate the 11(d) hearing itself, as there is a risk that any decision of the Board can be called into question for bias. Instead, the Board has appointed an independent panel to adjudicate your hearing. The Board will follow any decision of the panel on this matter. The members of the panel will be Mr Jimmy Mayes, former shareholder and director of the Society and Mr Kevin Braid, currently Director of Hutt and City Taxis.

[24]   Finally, the letter stated that Mr Bhullar would be advised in due course of the hearing date and that at the hearing he would be provided the opportunity to present his defence to the allegations that had been made against him. Copies of the various witness statements were enclosed.

[25]   On 18 April 2018, Mr Bhullar was advised  that  a  hearing,  pursuant  to  Rule 11(d) of the Rules, would be held on Monday 7 May 2018.

[26]   On 3 May 2018, Mr Bhullar filed his application for judicial review together with an application for interim relief seeking orders staying the forthcoming hearing on 7 May 2018. Before Jagose J, counsel then acting for Mr Bhullar, accepted that his position would be adequately preserved by an order that the Board be prohibited from determining to strike Mr Bhullar off the register of members (rather than an order staying the hearing). The Society did not resist such an order. On 4 May 2018,

Jagose J accordingly ordered that pending further order of this Court, the Society, and more particularly the Board, were prohibited from striking Mr Bhullar off the register of members.

[27]   By letter dated 7 May 2018, from Fortune Manning to counsel then acting for Mr Bhullar, confirmation was given that the hearing that had been set down for that day would proceed on 11 May 2018.  The letter also confirmed that the hearing on  11 May 2018 would consider whether there had been a breach of Rules 11(a) and/or 11(g):

For the avoidance of doubt, we also confirm that Friday’s hearing will be to consider whether or not your client has breached rules 11(a) and/or (g). If the panel finds that those rules have been breached, the panel will be asked to consider whether he should be struck off the register, it being mandatory that this be considered. Your client will be given the opportunity to be heard before any decision is made. If the decision is that he should be struck off the register, the Society will need to apply to the court to rescind the interim order.

[28]   In a letter also dated 7 May 2018, counsel then acting for Mr Bhullar recorded a concern on behalf of Mr Bhullar of apparent bias in relation to Mr Braid and      Mr Mayes, and asked whether the Society would be willing to change the judges. In a letter the following day, Fortune Manning responded on behalf of the Society stating that the Society was not prepared to make any changes to the composition of the panel.

[29]   The hearing before Mr Braid and Mr Mayes proceeded on 11 and 21 May 2018. Both the Society and Mr Bhullar were represented by counsel. Evidence was given by witnesses who were cross-examined. Mr Braid and Mr Mayes delivered a written decision (undated) which concluded with their finding that Mr Bhullar had breached Rules 11(a)(i) and 11(g).3 They recorded their understanding that the “penalty” for the breach would be considered at a hearing pursuant to Rule 11(d). They stated that the reasons for Mr Bhullar’s actions and his explanations should be considered then. They reverted the matter to the Board for a hearing under Rule 11(d).

[30]   That hearing took place on 25 June 2018, again before Mr Braid and Mr Mayes, with a written decision being delivered on 12 July 2018. The written decision recorded

3      It appears from the decision that Mr Braid and Mr Mayes found there was a breach of both Rule 11(g)(i) and (ii).

the determination of Mr Braid and Mr Mayes that it was not in the best interests of the Society that Mr Bhullar remain a member. The decision records that they now put this forward to the Board.

[31]   The decision has not been implemented because of the interim order of this Court of 4 May 2018. However, the request the Board made to Mr Bhullar not to come to Taxi House except for meetings of the Board still applies.

[32]   Mr Bhullar filed an amended statement of claim on 3 August 2018 and a statement of defence was filed by the Society on 24 August 2018.

First challenged decision – the decision to convene a hearing

[33]   Mr Bhullar alleges that the Board’s decision to hold a hearing was unlawful. The allegations can be distilled into the following four grounds:

(a)In determining to hold a hearing, the Board’s focus was not on the allegations made against Mr Bhullar, but to set up a process that would get rid of him;

(b)The Board did not consider or seek submissions on an alternative course of action. Its decision to proceed to a hearing was a disproportionate response to the 7 August 2017 incident;

(c)The investigation began as a health and safety complaint and metamorphosed into a breach of election regulations complaint without any consultation with or input from Mr Bhullar; and

(d)At the Board meeting where the decision to proceed with the hearing was made, the directors rubber-stamped the recommendation of Fortune Manning without making their own considered decision.

[34]   I will deal with each of the grounds in turn. But first I add some further detail to give context to the first ground.

[35]   Mr Bhullar says that there are two factions within the Society, each with its own agenda. He says that the interests of one faction are represented by the Chair of the Board, Yakub (Jacob) Patel, and two other Board members (the management faction). The other faction is represented by Mr Bhullar and one other Board member (the member faction).4 The Society admits only that there are factions within the Society.

[36]   Mr Bhullar says that one of the issues on which the factions have been fundamentally divided is the question of whether to extend the period for which the Chair of the Board can hold office. The management faction has been attempting to do this and this has been opposed by the member faction.

Ground a

[37]   In support of the first ground, Mr Beck, who appeared for Mr Bhullar, submits that the minutes show from the outset that the Board  was focused on holding a   Rule 11(d) hearing. The Board was steering firmly in one direction. Mr Beck submits that at the time the Board decision was made, it was under the control of the management faction and the decision was made in the interests of that faction rather than in the interests of the full body of members of the Society. The decision was taken at a time when the balance of power within the Board was in favour of the management faction, with the Board having continually refused to call a meeting to fill the vacancy in the Board. The reason to discredit Mr Bhullar was because he was opposed to a motion to change the constitution of the Society allowing for an extended term for the Chair of the Board at a time when Mr Bhullar was standing for re-election to the Board.

[38]   Mr Beck supports his submission that the Board was focused on having a Rule 11(d) hearing to oust Mr Bhullar and that there was a proposal that there be only one hearing, namely a hearing under Rule 11(d), first by reference to a sentence in the 16 August 2017 letter from Fortune Manning to Mr White which states:

Rule 3 above makes it mandatory for this matter to be referred to the Board for a 11(d) hearing.

4      At the relevant time, there were five rather than six Board members.

[39]   Mr Beck then refers to the statement in the minutes of the Board meeting on 6 November 2017 that:

According to the Society’s rules, the only option of the breach of the Society’s Rules by Mr Harpreet Singh Bhullar is of hearing according to Rule 11d.

[40]   Mr Beck says this was a “jumping of the gun”. There first needed to be an investigation for the purpose of establishing whether there had been a breach. It was premature to determine that there should be a hearing under Rule 11(d). The Board was setting up a hearing to enable Mr Bhullar to be struck off rather than proposing a process that there be a genuine inquiry into a breach of electoral rules.

[41]   I do not consider there is any substance in this ground. It is not supported by contemporaneous documents, nor by the process that was in fact followed which involved two separate hearings, namely a hearing for the purpose of establishing if there were breaches and then a hearing under Rule 11(d).

[42]   First, in terms of the contemporaneous documents, the statement in the Fortune Manning letter and the Board minutes relied upon by Mr Beck need to be read in their proper context.

[43]The Fortune Manning letter of 16 August 2017 states:

… I have considered whether the actions breached the Rules of the Society. I consider the actions, if proven, can be a breach of Schedule A, Rules 11(a) and

(g) … The Board will be required to give notice to Harpreet regarding this complaint against him and give him an opportunity to present defence to any allegations made. These allegations are serious and can lead to the loss of his share …

(Emphasis added)

[44]The letter concluded:

In our opinion this matter should be referred to the Board to conduct an 11(d) hearing. However, before a 11(d) hearing is commenced, the Board should fully investigate the matter, including obtaining witness statements from all persons involved. Any 11(d) hearing will have to determine two issues. Firstly, the Board has to determine whether the evidence supports the breach of the Rules. If the Board finds that there is insufficient evidence to conclude that the Rules were breached, that will be the end of the matter. If the Board finds that the Rules have been breached, then the Board will need to consider

whether it is in the best interests of the Society that the member remains a member of the Society [in accordance with Rule 11(d)].

(Emphasis added)

[45]As to the Board minutes of 17 August 2017, they state:

It was stressed [by Mr Khan of Fortune Manning] that we need to take this matter seriously as the allegations are regarding the integrity of our election process. On the same token, the process can have dire consequences for Bhullar. We therefore need to properly investigate the complaints to determine if they have any substance. We cannot make such allegations, especially against an elected member of the Board lightly.

[46]   Then, in the letter of 31 January 2018 from Fortune Manning on behalf of the Board to Mr Bhullar, after summarising the allegations against him, the letter states, “[t]he above actions, if proven, can be a breach of Rules 11(a) and (g) of Schedule A of the Rules of Society” (emphasis added).

[47]   The letter further records that at the hearing Mr Bhullar would be provided with the opportunity to present his defence to the allegations that had been made against him.

[48]   Therefore, the contemporaneous documentary evidence makes it clear that while the Board referred to holding a hearing under Rule 11(d), it was contemplated that the hearing would have two parts. First, to establish whether or not there had in fact been breaches and only if that was the case would the next step, to determine whether it was in the best interests of the Society that Mr Bhullar remain a member of the Society, occur.

[49]   In relation to this ground, Mr Beck makes an additional submission that the Board did not authorise Mr Braid and Mr Mayes to conduct a hearing to establish if there had been breaches of Rules 11(a) and/or 11(g). The Board only authorised the panel to conduct a Rule 11(d) inquiry.

[50]   There is similarly no substance in this submission. A reading of the correspondence from Fortune Manning, which informs the minutes, and the minutes themselves makes it clear that when the Board referred to a Rule 11(d) hearing and to

appointing a panel to undertake such a hearing, it was contemplated that such a hearing would have two parts, namely a liability part and then a penalty part.

[51]   In relation to the first ground, Mr Bhullar also says that the decision to hold a hearing was made in the best interests of the management faction led by the Chair of the Board, Mr Patel, and that the Board had continually refused to call a meeting to fill the vacancy on the Board (as referred to in [37] above).

[52]   There is an affidavit of Manjit Singh sworn in support of the application for review. Manjit Singh is now a director of the Society. In his affidavit, he says that he wrote to the Board seeking to become a director as the first alternate unsuccessful applicant at the prior election. Manjit Singh deposes that this was ignored by the Board who instead operated with only five directors after one had resigned. He deposes that the refusal to elevate him to the Boardroom table meant that the Chair of the Board, Mr Patel, could operate with a majority to take the steps he did against Mr Bhullar.

[53]   Mr Patel has sworn an affidavit in opposition to the application for review in which he refutes Manjit Singh’s allegation. Mr Patel deposes that the casual vacancy arose because a former director had left the Society and subsequently New Zealand. There was less than six months to run before the next Annual General Meeting and consequent voting of a new Board of Directors. Mr Patel says there is the power but not the obligation for the Board to co-opt a member in if they see the need to do so in all the circumstances. It is not mandatory, and the current Board did not see the need to do so.

[54]   Mr Patel says that the decision to conduct a hearing arose directly as a consequence of Mr Bhullar’s conduct and had nothing to do with the composition of the Board. The decision to investigate and the hearing procedures were supported by all the Board members (other than Mr Bhullar).

[55]   Although there was no cross-examination on the affidavits, the evidence of Mr Patel is consistent with the contemporaneous documents.

[56]   I therefore do not accept that the decision to hold a hearing arose from any factional interests.

Ground b

[57]   I turn to the second ground, namely that to hold a hearing was a disproportionate response by the Board which did not consider or seek submissions on any alternative course of action.

[58]   It is factually correct that the Board did not consider or seek submissions on whether no action should be taken, but it is not apparent how that allegation can give rise to judicial review. Complaints need to be investigated. If they are found to have sufficient substance, the proper procedure is to have a hearing when the person, subject of the complaints, will be heard.   In Reid v Institute of Chartered Accountants,5    Mr Reid, an accountant, brought an application for judicial review of a decision of the Institute of Chartered Accountants, seeking orders reviewing a decision of the Professional Conduct Committee (PCC) of the Institute, which considered a complaint made by him to the Institute against his former firm and two of his former partners in that firm.

[59]   The rules of the Institute required the PCC to investigate complaints and to decide what further action (if any) would be taken on the complaint.6 The PCC was simply a preliminary investigatory body.7 The Court stated:

[21] … As was usually the case, evidence and cross-examination is not required … nor are the parties or legal representatives present. That is entirely appropriate at that stage of the disciplinary process …

…

[23] … The determination at this stage is not to decide the issue, nor to decide to bring charges, or to decide that a prima facie case exists, but to decide what course of action to adopt.

5      Reid v Institute of Chartered Accountants HC Wellington CP87/02, 23 October 2002.

6 At [4].

7 At [15].

[60]   Having received the report and witness statements from Fortune Manning, the Rules required that there be a hearing. The Rules govern the course that the Board was required to follow.

[61]Rules 27(d) and (e) of the Rules provide as follows:

(d)Secret ballots shall be conducted in accordance with the secret ballot by-laws that appear as schedule A to these rules;

(e)Every vote for the election of members to the Board shall be by secret ballot.

[62]   The voting that was to take place on 8 August 2017 was for election of Board members. That therefore leads to by-law 3 contained in Schedule A to the Rules. That by-law provides:

3.The seriousness of a breach of these by-laws

(a)The preservation of the rights of members to a secret ballot and the preservation of the integrity of the voting system is a matter of great importance. Any breach of these by-laws shall be regarded by the Society as requiring the Board to consider whether or not the name of any member committing a breach of Rule 27 or any of these by-laws should be struck off the register of members pursuant to Rule 11(d) of the Rules.

(Emphasis added)

[63]   There is no other rule or by-law that provides an alternative mechanism. Accordingly, any complaints and misstatements which indicate a possible breach of the voting system of necessity indicates a process requiring a hearing. If a breach of the relevant by-laws is established, then that will inexorably lead to a determination under Rule 11(d).

Ground c

[64]   I next turn to the allegation that the investigation began as a health and safety complaint and metamorphosed into a breach of election regulations complaint (without any consultation with Mr Bhullar).

[65]   As is apparent,  the  process  started with  a  complaint  from Mr  Myers  on  9 August 2017. Mr Myers’ statement of that date clearly raises the issue of possible interference with Gurpreet Singh’s voting.

[66]   It was the letter of 16 August 2017 from Fortune Manning which suggested the Board consider the health and safety implications of Mr Bhullar’s actions in addition to the possibility of offences relating to the conduct of secret ballots. The minutes of the Board meeting of 17 August 2017, as far as health and safety concerns go, simply record that Mr Khan read out his opinion which included the reference to health and safety implications. The minutes of the meeting otherwise focus on the possible breach of the electoral rules. The process that the Board agreed would be followed was for an investigation in connection with the election process, not health and safety.

[67]   I have already addressed the issue of consultation. There was no requirement for Mr Bhullar to be consulted at this stage of the process.

Ground d

[68]   I next turn to the allegation that in deciding to convene a hearing, the Board effectively adopted the recommendation of Fortune Manning in a rubber-stamping fashion.

[69]   The witness statements compiled by Fortune Manning and Fortune Manning’s report were presented at the Board meeting on 6 November 2017. There is nothing in the minutes to suggest the Board resolved to proceed to a hearing on a “rubber- stamping” basis. The minutes record that Mr Khan joined the meeting at 11.10 am and presented a copy of the finding by Fortune Manning on the allegation and the report compiled from witness statements. The minutes record that the meeting closed at 12.40 pm. The only other (and related) matter recorded was that the Board would ask the General Manager, Mr White, to provide a list of probable panel members. There was certainly opportunity for the Board members to consider the report and witness statements, and there was nothing in the minutes to suggest they did not do that.

[70]   Mr Bhullar has failed to make out any grounds in support of his first cause of action.

Second challenged decision – the decision that Mr Bhullar breached the electoral by-laws

[71]   Mr Bhullar says that the decision in the May hearing was not a properly made decision. Mr Braid and Mr Mayes were not authorised to act as delegates of the Society. Nor were they independent. It is also alleged that the decision contains several errors of law.

Delegation

[72]   Mr Beck submits that the only authority conferred on Mr Braid and Mr Mayes was at the Board meeting of 27 November 2017 where it was resolved to appoint them as the independent panel to conduct the Rule 11(d) hearing. Mr Beck continues that the May hearing was a hearing into breaches of electoral laws contained in Rules 11(a) and 11(g). This was not what the Board had authorised and no lawful delegation was in place.

[73]   I do not consider there is any substance in this submission. I have already referred to the necessary context to the Board resolution which indicates that a reference to the conducting of a Rule 11(d) hearing necessarily included a prior determination as to whether or not there had in fact been a breach of the Rules.

[74]   This is reinforced by the affidavit of Mr Patel who deposes that the hearings to be scheduled were clearly with respect to the breach of the voting rules. He says it was always the Board’s intention that if the person was found guilty of breaching those rules, then the independent panel would go on to carry out the mandatory requirement under Rule 11(d).

[75]   Mr Patel further says that after the hearing before Jagose J, in order to be fair to Mr Bhullar, the hearing scheduled for Monday 7 May 2018 was adjourned and the Board accepted advice to conduct the hearing in two parts (with the second part only being necessary if there had been a breach of the Rules).

Apparent bias

[76]   At the first Board meeting on 17 August 2017, the Board was alive to the issue of bias if it were to consider the matter itself because Mr Bhullar was an elected member of the Board. Further, if the Board were to undertake the investigation, in practice that would be handled by management. That would have given rise to another issue in that members of management had made witness statements. For all those reasons, first, the preliminary investigation was carried out by a solicitor from Fortune Manning. Second, at the Board meeting on 6 November 2017, the Board resolved that the General Manager, Mr White, should provide a list of probable panel members with taxi business knowledge to the Board, which would then select a panel of two.

[77]   Mr White’s evidence was that the qualifications that the Board were looking for in terms of the independent panel were people with obvious integrity and honesty, but also people who not only had the knowledge of the taxi industry, but also had experience in that industry. They would also have experience in terms of dispute resolution or matters that affected the operation of taxi companies at a governance or upper management level.

[78]   Mr White further says that they would be seeking people who preferably had been involved in a relatively large taxi company and/or involved at a level of senior management or Board input. They would also be seeking people who had been involved in taxi or related company enterprises where they were aware of the voting processes for the appointment of directors and/or Board members in such companies.

[79]   Mr Patel says that apart from the necessary qualities and experience, the Board placed no restrictions on Mr White as to whom he might approach and select as candidates for the Board to then review and appoint.

[80]   Of the four people Mr White contacted, only Mr Braid and Mr Mayes were in a position where they were prepared to accept the role. Their appointment was confirmed by a motion passed by the Board to form the independent panel.

[81]   Mr Bhullar says in his affidavit that Mr Braid is a taxi proprietor in Wellington and Wairarapa, and was formerly the General Manager of Wellington Combined Taxis

Ltd which holds a 21.93 per cent share in Taxi  Charge.  Mr Bhullar also says that  Mr Braid is currently a director of Hutt and City Taxis, which is a class B shareholder of Taxi Charge.

[82]   In the pleadings, it is accepted that Taxi Charge is a billing solution provider used by entities which have accounts with the Society and by other companies which have a shareholding in Taxi Charge. It is also accepted that the Society has a shareholding in Taxi Charge,8 and that Wellington Combined Taxis Ltd has a similar shareholding.9 There is no evidence as to the percentage share of Hutt and City Taxis in Taxi Charge.

[83]   Mr Bhullar continues that Mr Braid is a close associate of the late Ian Graham, a key figure in the Society, Mr Patel, and Mr White.

[84]   In relation to Mr Mayes, Mr Bhullar says he has had long associations with Mr Patel,  Mike  O’Brien,10  Mr  Myers,  Albie Williams,11  and  Mr  White,  who  (Mr Bhullar says) are all associated with the management faction represented by    Mr Patel (I interpolate that Mr O’Brien, Mr Myers and Mr Williams all gave evidence at the May hearing). Mr Bhullar says that Mr Mayes is a former director of the Society and he says Mr Mayes recently played in a golf tournament with Mr Khan of Fortune Manning and a manager of the Society.12

[85]   Mr Patel responds in relation to his alleged connection with Mr Braid, saying that he was aware Mr Braid was a well-qualified director involved in the taxi industry in the Lower Hutt and Wellington areas. He was generally aware that Mr Braid was involved in Taxi Charge, but Mr Patel says that he had never met him personally and

8      Mr Bhullar says the shareholding is 24.65 per cent, while the Society says the shareholding is

26.04 per cent.

9      Mr Bhullar says Wellington Combined Taxis Ltd has a shareholding of 21.93 per cent, while the Society says the shareholding is 24.64 per cent.

10   Mr O’Brien is an Electoral Officer of the Society and made a witness statement regarding events on 7 August 2017.

11 Mr Williams is a Call Centre Manager at Taxi House and made a witness statement regarding  events on 7 August 2017.

12 The manager is not named in Mr Bhullar’s affidavit. But a photograph of the golf tournament  shows Mr  Mayes  with  three  others  including  Shafraz  Khan  of  Fortune  Manning  and  Mike O’Brien.

had no real knowledge of him, “save for the details which were presented to us by the General Manager”.

[86]   Those details, according to Mr White, are: Director of Hutt and City Taxis; Chairman of Hutt and City Taxis; General Manager of Wellington Combined Taxis Ltd; Director of Taxi Charge; executive of NZ Taxi Federation; and President of NZ Taxi Federation.

[87]   In terms of his connections with Mr Braid, Mr White says that he only ever dealt with him in a professional capacity. They are not personal friends.

[88]   As to any connection between Mr Patel and Mr Mayes, Mr Patel says he was aware Mr Mayes was a former shareholder and director of the Society. He knew he was a director from 2000 to 2003 because he had seen Mr Mayes’ name on the plaque which is inscribed with the names for each group of directors on the large honour board of directors set up in the Board room. Mr Patel says he had not been particularly aware of Mr Mayes within the Society. He never served on a board of management when Mr Patel was there. Mr Patel himself first became a director in 2004.

[89]   Mr Patel says he was generally aware that Mr Mayes would have been a judge on various panel decisions that all directors are involved in. He would have judged shareholder lease and driver issues during that time.   Mr Patel was also told that    Mr Mayes had been a judge on a number of Rule 11(d) hearings during his time on the Board.

[90]   Mr White does not comment on any alleged connection with Mr Mayes, save to refer to his qualifications, which Mr White states were: a former shareholder of the Society; a former director of the Society from 2002 to 2003; known by Mr White to have sat on the Appeals Committee of the Society; and known by him to have undertaken Rule 11(d) hearings for the Society.

[91]   The issue of apparent bias was not raised with Mr Braid and Mr Mayes at the May hearing but, as noted, was raised in correspondence prior to the hearing in letters between counsel.

[92]   In his oral submissions, Mr Beck put Mr Bhullar’s case on the basis that there are associations of a social nature between Mr Braid and Mr Mayes and those whom he has named. No actual bias is alleged. He puts his case on the basis of apparent bias.

[93]   When pressed in the course of oral submissions, Mr Beck acknowledged that this was not his strongest ground of review.

The law

[94]   In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, Blanchard J referred to the Australian case of Ebner v Official Trustee in Bankruptcy,13 saying:14

[3] … a Judge is disqualified “if a fair-minded lay observer might  reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. As that judgment proceeds to observe, that principle gives effect to the requirement that justice should both be done and be seen to be done …

[95]Blanchard J went on:

[4]        It was pointed out in Ebner that the question is one of possibility (“real and not remote”), not probability. The High Court of Australia also warned against any attempt to predict or inquire into the actual thought processes of the judge. Two steps are required:

(a)First, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b)Secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

(Citations omitted)

[96]Blanchard J also referred to the fair-minded lay observer, saying:

[5]        The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance

13     Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (HCA).

14     Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.

or apprehension of bias. Lord Hope of Craighead commented in Helow v Secretary of State for the Home Department that:

before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

[6]        … The courts must be careful not to subvert the hypothesis by ascribing too much legal knowledge to the lay observer. To do so might mean that justice is not both done and seen to be done by a notional representative of the public. On the other hand, if the court does not impute to the observer some knowledge about how barristers and judges commonly interact it may arrive at a hypothetical opinion of a hypothetical observer which does not reflect reality.

[7]        There therefore need to be added to the facts about the case known to the observer, which I will shortly describe, some basic knowledge of how counsel and judges are expected to act and interact …

(Citations omitted)

Discussion

[97]   Putting the fair-minded lay observer into the hearing in this case (as opposed to a Court hearing), that observer would be presumed to have some knowledge of the role taxi organisations play in the industry and that there would be disciplinary processes operating within the industry and taxi organisations. They would know that there will be connections between taxi organisations and that officials within those organisations would fraternise with each other from time to time. They would therefore know that board members would have personal and professional connections and dealings with Society members on whom the Board or other panel members must sit in judgment.

[98]   In my view, no fair-minded lay observer would consider such connections and dealings to be sufficient to vitiate a decision for apparent bias. There would have to be something more.

[99]   Is there something more in this case? The connections are said to be through the taxi industry and some social interaction between Mr Braid and Mr Mayes and

persons associated with the  Society (although, as  noted  in his  oral submissions,  Mr Beck referred simply to social connections).

[100]   The allegations regarding Mr Braid are vague and generalised. Based on the evidence of Mr Patel and Mr White, there are hardly close associations between them.

[101]   In terms of Mr Graham, the Court was told that he died in October 2016. It is difficult to see how Mr Braid knowing Mr Graham when he was alive could be relevant to apparent bias.

[102]   In terms of Mr Mayes, at its highest there is a loose past connection with persons associated with the Society and some  recent  social  interaction.  As  with Mr Braid, nothing has been identified which might lead Mr Mayes to decide a case other than on its legal and factual merits.

[103]   There are similarly no bases for the Court to determine that there is a logical connection between the association of Mr Braid and Mr Mayes with members of the Society, and the feared deviation from the course of deciding the case on its merits.

[104]   The associations in this case, without more, would not cause a fair-minded lay observer to reasonably apprehend that there was a real and not remote possibility that either of the two panel members might not bring an impartial mind to the resolution of the questions required to be resolved. Nor has it been demonstrated that there could be any logical connection between the matters or connections alleged and the feared deviation.

[105]   For completeness, I address two further matters on this issue. Mr Beck submits that apparent bias can also be inferred because the potential panel members were selected by Mr White without any consultation with Mr Bhullar. It does not follow that Mr Braid and Mr Mayes were not independent because Mr White identified them. There is no requirement in the Rules for consultation with Mr Bhullar. A member has no right to participate in the choice of those delegated to conduct a hearing in the place of the Board, any more than a litigant in an ordinary court has the right to participate in the selection of the Judge who is to try his or her case.

[106]   Before the hearing, Mr Bhullar was advised who the panel members were to be. The evidence of Mr White is that Mr Bhullar specifically said to him that the Board could use “my panel”, meaning Mr Braid and Mr Mayes. It is surprising, in those circumstances, that Mr Bhullar then raises the issue of apparent bias.

[107]   The second matter relates to interactions between Mr Braid and Mr Mayes and counsel then representing the Society. Affidavit evidence in support of the application for review refers to small talk between counsel for the Society and Mr Braid and    Mr Mayes before the hearing started. It is stated that there was no such small talk with counsel for Mr Bhullar apart from the first day. The evidence continues that Mr Mayes said to counsel for the Society that their daughters had worked at the same law firm at the same time. The affidavit also refers to counsel for the Society being seated very close to the two Judges and making eye contact with them.

[108]   Mr Beck did not seek to make anything of these allegations in his submissions. He was correct not to do so.

Errors of law

[109]   The alleged unlawfulness in the decision of the panel, namely that Mr Bhullar breached the electoral by-laws, is based on the following grounds:

(a)The investigators (staff of Fortune Manning) assisted with the creation of the witness statements;

(b)The interview with Gurpreet Singh was not transcribed and placed in the bundle for use at the hearing. Mr Braid and Mr Mayes accordingly failed to take into account the evidence of Gurpreet Singh;

(c)The decision was based on an incorrect interpretation of the law and was not a reasonable conclusion based on the evidence; and

(d)The decision of the panel does not appear to have been considered or adopted by the Board. There was accordingly no decision of the Board.

[110]I deal with each of these in turn.

Ground a – Fortune Manning’s assistance in preparing witness statements

[111]   This assertion is factually correct but it does not engage any ground of judicial review.

[112]   The witness statements were presented to the Board together with the legal advice from Fortune Manning. The witness statements were supplied to Mr Bhullar. In due course, each witness confirmed his or her statement at the May hearing and they were then cross-examined by counsel for Mr Bhullar.

Ground b – Interview with Gurpreet Singh

[113]   Mr Beck is correct that Gurpreet Singh’s interview was not transcribed, but it does not follow that Mr Braid and  Mr  Mayes  failed  to  take  into  account  Gurpreet Singh’s evidence.

[114]   When Gurpreet Singh was interviewed at Fortune Manning, he was accompanied by Iqbal Singh. Iqbal Singh answered most of the questions (not as an interpreter). The interview was recorded by both Iqbal Singh and a staff member at Fortune Manning. The Fortune Manning recording was played during the hearing. What was said in the interview appears in the transcript of the hearing. Gurpreet Singh was then cross-examined and re-examined.

[115]There is no substance in this ground.

Ground c – Incorrect interpretation of the law and not a reasonable conclusion based on the evidence

[116]   Mr Beck refers to Gurpreet Singh’s evidence that he was not prevented from voting by Mr Bhullar and that he had  always intended to vote  the  following  day,  8 August 2017. Mr Beck refers to the finding of the panel that Mr Bhullar had the intention of influencing Gurpreet Singh because Mr Bhullar seemed to have been worried about how Gurpreet Singh would vote. They found he interfered with

Gurpreet Singh. They also found that he used force and violence that caused Gurpreet Singh not to vote.

[117]   Mr Beck submits it is not clear how this conclusion could have been reached in light of the evidence of Gurpreet Singh.

[118]   There is a useful summary in the Laws of New Zealand of when a decision can be said to be not a reasonable conclusion based on the evidence:15

The Court has adopted various descriptions of the kinds of decision that will be unreasonable. An unreasonable decision has been described as one:

·      outside the limits of reason;

·      that no sensible decision-maker acting with due appreciation of his or her responsibilities could have arrived at;

·      that no reasonable body could have reached, that is, a decision which is irrational;

·      so absurd that no one could ever dream that it lay within the powers of the authority; or

·      requiring “something overwhelming”: Wednesbury itself. “Reasonableness” has been held to be:

·      determined by the application of logic and reason;

·      the power to be wrong only in moderation. (Citations omitted)

[119]   The decision in the May hearing states that the panel “… found the witnesses from the Society to be very frank and honest. All of them are employees of the Society who were going about their duties when the events occurred”. It can be inferred from that statement that to the extent there was disagreement between the witnesses for the Society and Gurpreet Singh and Mr Bhullar, Mr Braid and Mr Mayes preferred the evidence of the Society’s employees. It was open to them to do so. Most of those witnesses had made complaints immediately after the incident and gave evidence consistent with the complaints they had made.

15     Laws of New Zealand Administrative Law (online ed) at [103].

[120]In particular, Mr Myers’ witness statement contained the following:

Kuram brought [Gurpreet Singh] up to see whether he could vote …

I asked [Gurpreet Singh] “Would you like to have a special vote?” and [Gurpreet Singh] said, “Yes”. I then explained what the requirements were for a special vote and that he would need to provide reasons for why he needed to vote prior to the election. I explained that he could vote on the day of the election. I then gave him the special vote request form on which he started to fill out his name and other details.

At this point, [Mr Bhullar] came into my office and shouted at [Gurpreet Singh] “Who downstairs told you to vote?” and instructed him to “vote tomorrow!” [Gurpreet Singh] was dumbstruck and did not respond. [Gurpreet Singh] appeared to be intimidated by [Mr Bhullar].

I considered [Mr Bhullar] had no right to be present when voting was about to take place. [Mr Bhullar] was at the doorway of the office so I told him that he had no right to be here while a vote was going to be cast and started to close the door. [Mr Bhullar] pushed the door back into me. At that stage I stated [sic] to be more firm and said, “Get out”. It is imperative that any person voting is to be left alone in the room when voting and that the decision to vote is made fully by them …

My concern is that Harpreet stopped due process in election. [Gurpreet Singh] had started to fill out the special vote form but he never completed the form and cast his vote because of [Mr Bhullar’s] interference.

[121]   Turning then to the ingredients of the two rules. Rule 11(a) requires, first, an interference with an elector and second, an intention of influencing the elector or advising the elector as to the elector’s vote. The panel was entitled to find on the evidence I have referred to that Mr Bhullar’s actions showed that he did interfere with the elector, Gurpreet Singh.

[122]   The second element is the intention of influencing Gurpreet Singh as to his vote or advising him as to his vote.

[123]   The expression “as to the elector’s vote” might be read in one of two ways. One way would be as to the substance of the vote. The second, and wider interpretation, would include the process employed to vote.

[124]   I consider the second interpretation is the proper interpretation. I take into account the importance of voting referred to in Rule 3(a), which states that the integrity

of the voting system is a matter of great importance. Any interference, whether by way of substance or process, would be an offence captured by Rule 11(a).

[125]   The evidence of Mr Myers provided a basis for finding that Mr Bhullar had the intention of interfering with the process which Gurpreet Singh should employ to vote. In other words, not to cast a special vote that day but to come to the polling place the following day.

[126]   Rule 11(g)(i) precludes using or threatening force or violence in order to induce an elector to vote in a particular way or refrain from voting. Rule 11(g)(ii) precludes the use of duress to impede or prevent the free exercise of the voting of a member or by duress compelling, inducing or prevailing upon a member to refrain from voting.

[127]   The evidence of Mr Myers is that he attempted to close his office door so that Gurpreet Singh could vote in private, but Mr Bhullar forced it back open. Mr Bhullar continued to shout at both Mr Myers and Gurpreet Singh. Gurpreet Singh’s evidence was that he “squeezed the paper and put [it] into his pocket after Mr Bhullar came into the office”. The paper referred to is a special voting form. Gurpreet Singh did not end up completing the form or casting a special vote. On that evidence it was open to the Board to find a breach of Rule 11(g)(i) and (ii).

[128]   It cannot be said on the basis of the evidence that the decision in the May hearing was unreasonable.

Ground d – Decision not considered or adopted by the Board

[129]   Mr Beck submits that there are no Board minutes referring to the decision in the May hearing. There was accordingly no decision of the Board to adopt the findings.

[130]   In the minutes of 6 November 2017, when the Board resolved to appoint an independent panel, the resolution included that the Board would, “… endorse without reservation any recommendations the independent panel makes”. It is understandable that the Board would make such a resolution as it was taking care that no part of its process could be impugned for bias on its part.

[131]   It therefore did not need to formally endorse the decision once it was made. In any event, by the process followed with Mr Braid and Mr Mayes proceeding to a hearing under Rule 11(d), the Board effectively endorsed the decision in the May hearing.

Third challenged decision – the Rule 11(d) decision

[132]   Mr Bhullar contends that the decision in the June hearing that it was not in the best interests of the Society that Mr Bhullar remain a member of the Society was an improper and irregular decision. He contends that the irregularities concern the independence of the decision-makers, the errors of law made by them, and the impermissible rubber-stamping by the Board  of  the  decision  of  Mr  Braid  and  Mr Mayes.

Ground a – Apparent bias

[133]   Mr Bhullar again raises apparent bias on the part of Mr Braid and Mr Mayes in relation to the Rule 11(d) hearing. There are no additional or different factors which would cause the Court to take a different view on the issue of apparent bias in relation to the June hearing. My conclusion is the same as my conclusion in relation to the May hearing.

[134]   Mr Bhullar makes an additional  submission.  He says  that  Mr  Braid and  Mr Mayes had already formed an unfavourable view of Mr Bhullar at the May hearing. They were, therefore, not in a position to make an objective and impartial assessment of Mr Bhullar for the purposes of Rule 11(d).

[135]   There is nothing in the Rules that contemplates that finding a breach of any of the Rules disqualifies the decision-maker from then forming the opinion that it is not in the best interests of the Society that the person remain a member of the Society (under Rule 11(d)). Adopting a common-sense approach, the reverse in fact should apply. As with a criminal court or any other disciplinary tribunal deciding on penalty after finding a breach, it is desirable that the court or tribunal imposing penalty is the same court or tribunal which considered the breach. That court or tribunal will be

aware of relevant aggravating and mitigating features in relation to the breach which should then be considered at the penalty hearing.

[136]   In this case, Mr Braid and Mr Mayes were in no different position from the position the Board itself would have been in had it not delegated its functions and powers. Mr Beck did not explain how the Board should have proceeded had it been in the shoes of Mr Braid and Mr Mayes.

[137]   In any event, it is not necessarily the case that a decision-maker will be disqualified because of views previously expressed, unless those views indicate a closed mind in relation to the issue to be decided. On this issue, Mr Bhullar makes a bare assertion, without evidential support.

[138]   There is a helpful discussion in Russell v Taxation Review Authority, on when a Judge’s attitude or state of mind might lead a detached observer to entertain questions about the Judge’s impartiality.16 In that case, Mr Russell argued that, having been before Judge Barber in a large number of cases since 1989 in respect of which it was said that Judge Barber had consistently held against him, there was a real danger or real possibility that the Judge would have pre-determined many of the issues he would be called upon to determine in Mr Russell’s case. It was submitted that the Judge was disqualified on the basis of presumptive bias.

[139]Cooper J referred to the following passages from a leading text:17

[91]      The Court of Appeal also referred to Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (now in a second edition), 2007, Banks & Jordan Law Publishing company which contains a full discussion of the relevant United States law. In Chapter 16 of that work there is a discussion of the decision in Liteky v Unites States, and subsequent rulings by most of the Circuit Courts of Appeal, and many of the State Courts. On the basis of the summary of the various cases referred to in that chapter, the author concludes at p 443:

It is now generally agreed that, absent facts from which a reasonable person could infer that a challenged judge’s rulings or decision was the product of actual bias, the rulings a judge renders in the same or a related case will almost never support an inference or a presumption

16     Russell v Taxation Review Authority (2009) NZTC 23,284 (HC).

17     Referred to by the Court of Appeal in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495.

of judicial bias – much less establish the bias required to warrant disqualification or reversal.

[92]Further, at p 444 the author observes:

The maxim that adverse rulings, standing alone, do not warrant disqualification applies regardless of whether the motion to disqualify is predicated on the judge’s rulings in the same proceeding, a prior or different proceeding involving one or more of the same parties, or a proceeding that is only factually similar to a pending matter. The rule also applies without regard to the subject matter of the rulings, the type of case in which they were rendered, or whether the rulings were of a legal, factual, or evidentiary nature.

…

[95]     On the basis of these and other cases referred to, the author concludes at p 449-450:

Thus, the mere fact that a Judge has issued rulings that a party perceives to be unfavourable to its cause is usually insufficient to establish disqualifying bias, even when the number of such unfavourable rulings is on a statistical basis extremely high or possibly suggestive of a pattern. The same is true when the unfavourable rulings are directed toward a party’s counsel rather than the party itself. An Appeals Court is particularly unlikely to find that rulings are indicative of disqualifying bias when they were upheld on appeal.

[140]   Cooper J concluded that there cannot be reasonable questions about a Judge’s impartiality arising simply from his or her determination of cases, even if there is a consistent pattern of holding against one party.18

[141]   Applying that principle to the instant case, there cannot be reasonable questions about the impartiality of Mr Braid and Mr Mayes arising simply from their determination that Mr Bhullar had breached certain electoral rules.

Ground b – Errors of law

Elevated standards

[142]   Mr Beck first submits that Mr Braid and Mr Mayes erred by interpreting Rule 11(d) as requiring “an elevation of the standards that need to be considered”. Mr Beck submits that the more natural interpretation of the rule is that “best interests” is a

18 At [99].

composite expression. He relies on the Collins English Dictionary which says that to “act in someone’s best interests” is to “act so as to benefit somebody”. There is no connotation of elevated standards.

[143]   I do not consider there is any substance in this argument. The phrase complained of by Mr Beck appears in context as follows:

11. We have to consider the “best interests of the Society”. It is interesting that the rule uses the word “Best”. In our view this is an elevation of the standards that need to be considered under this rule.

[144]   The Oxford English Dictionary contains the definition of “best” as: “most beneficial or advantageous for the object in view; most appropriate, advisable or desirable”.19 This term, in context, requires a decision not as to what is good for the Society’s interests or what might be better for the Society’s interests, but what is best for the Society’s interests.

[145]   Even if the term “best interests” is a composite expression, the word “best” in that expression cannot be ignored. The Cambridge English Dictionary refers to “best interests” as follows:20

Acting in your best interests = doing what is best for you.

[146]   What the rule requires therefore is that there be a decision as to what is most beneficial or advantageous or most appropriate, advisable or desirable in the interests of the Society. In my view, it cannot be said that the decision was wrong when it referred to elevated standards.

[147]   It is also important not to look at the test in isolation, but also to consider how Mr Braid and Mr Mayes then went about their job in applying the test.

[148]   They first considered the Society’s position, noting that the goal of the Society is to maximise benefits for its members. In order to operate efficiently, they said that a Society should be able to grow to be able to benefit its members. Every member of

19     Oxford English Dictionary (online ed, Oxford University Press, 2018).

20     Cambridge   English   Dictionary    “Meaning of ‘interest’ in the English Dictionary”

<dictionary.cambridge.org>.

the Society should get together and work within the Rules to achieve this purpose. However, they went on to immediately note that a breach of any rule does not and should not automatically mean that a member should not be part of the Society. Everything has to be looked at in context. They said that the underlying priority has to be, “the best interest [sic] of the Society”.

[149]   When one considers the decision as a whole, Mr Braid and Mr Mayes, in referring to elevated standards, were not demanding perfection from Mr Bhullar. They referred to the evidence and submissions on behalf of the Society, and then turned to what Mr Bhullar had provided in response. They noted a number of character references had been provided. They accepted that Mr Bhullar seemed to be a very respected member of his community. They also acknowledged the compliments that he had received as a driver and they recorded that they accepted that he is good at his job. They accepted that Mr Bhullar may be fit to drive a taxi, but what they were considering was something different from that.

[150]   I do not consider Mr Braid and Mr Mayes erred in their interpretation of  Rule 11(d).

Irrelevant matters

[151]   Next, Mr Beck submits that Mr Braid and Mr Mayes took irrelevant matters into account. He says the Rule 11(d) hearing should have been confined to the breaches of the two rules identified in the May hearing, but Mr Braid and Mr Mayes based their decision on previous complaints and other actions of Mr Bhullar wholly unrelated to the breach of the Rules. He submits the decision is irreparably tainted by these matters.

[152]   First, it is clear that Mr Bhullar had notice of all the matters that the Society would be relying on in the Rule 11(d) hearing. Mr Bhullar was advised of those matters in advance of the hearing. There can be no breach of natural justice in that regard.

[153]   I return to the test to be applied – is it in the best interests of the Society that a licensee shall remain a member of the Society?

[154]   I agree with Mr Judd QC, for the Society, that that rule makes it clear that the Board is able to exercise its power of removal whenever it becomes satisfied that it is not in the best interests of the Society that a licensee shall remain a member. In this case, it is clear that the breach of the Rules was the final matter in a series of matters.

[155]   As Mr Judd submits, the separate questions need to be kept in mind. First of all, were the Rules breached? If they were, should Mr Bhullar remain a member of the Society? The issue in respect of the second question was not whether the Rules were breached, but whether it was in the best interests of the Society that Mr Bhullar be struck off.

[156]   I therefore do not consider that the other matters that Mr Braid and Mr Mayes took into account, in addition to the established breach of the Rules, were irrelevant considerations in the context of the test that they were required to apply.

Decision was unreasonable

[157]   Mr Beck next submits that the decision was not a reasonable conclusion on the basis of all the relevant evidence presented at the hearing. He says there was no objective basis for the conclusion reached. He says the stated reason for the decision was as follows:

The decision is, whether it is in the best interest [sic] of the Society that Mr Bhullar remains a member. We have come to the conclusion that it is not. It has become very  clear  from  the  evidence,  including  that  provided  by  Mr Bhullar, that he has for some time, and continues to, harbour theories of fraud, conspiracies, mismanagement and wrong-doing against members of the Board and members of staff. He was unable to bring evidence of fraud and mismanagement.

[158]   Mr Beck submits that what a person thinks or believes cannot, from an objective point of view, be said to establish that continued membership is not in the Society’s best interests.

[159]   In identifying the particular paragraph, Mr Beck is effectively asking that it be read in isolation from all the preceding paragraphs. In those paragraphs, the panel refers to Mr Bhullar’s actions (which stem from his theories of fraud). Those

preceding paragraphs leading up to the paragraph Mr Beck refers to, in summary, contain the following.

[160]   There is a reference to previous complaints against Mr Bhullar; various actions that Mr Bhullar has been part of against the Society; his repeated allegations of scams and corruption in the Society; an incident (seen on video) where Mr Bhullar confronted Mr Patel in an aggressive manner; and an allegation by Mr Bhullar contained in text messages that there were corrupt practices in the Society. The decision states that these could have potentially been very damaging to the Society in circumstances where large contracts are at stake. The decision states that none of those actions was denied by Mr Bhullar. Rather, he tried to justify them.

[161]   The decision notes that Mr Bhullar maintained his conspiracy of fraud and wrongdoing and saw himself as the person working to expose those, but he had produced no concrete evidence of any fraud or conspiracy.

[162]   The decision continues that, in considering what is in the best interests of the Society, Mr Braid and Mr Mayes kept in mind that the main object of a co-operative society is not to make money, but to grow in order to benefit its members through their participation in the business and that management and governance of taxi companies is vital for their survival.

[163]   The decision then states that they not only considered the rights of Mr Bhullar to be a member of the Society, but also the rights of all other members to benefit from their membership as they hoped to, when becoming members of the Society.

[164]   All these references preceded the single paragraph which Mr Beck says was the stated reason for the decision. The preceding paragraphs all provide the necessary context.

[165]The decision was not unreasonable.

Ground c – Rubber-stamping of decision

[166]   Finally, Mr Beck submits that the Board’s prior resolution to accept the recommendation of the independent panel “without reservation” was not an appropriate decision.

[167]   Mr Beck submits that under the Rules, the Board is given the ability to delegate any powers conferred on it by the Rules. This power of delegation appears under the heading “Management”. However, Mr Beck says Rule 11(d) is not a management rule. It addresses the rights of a person to remain a member of the Society. Before exercising its power, the Board has a duty to satisfy itself that it would be in the best interests of the Society. While the Board is able to delegate powers, it does not have the ability to delegate duties. It was therefore required to make a proper reasoned decision as to whether the expulsion power should be invoked.   The decision of    Mr Braid and Mr Mayes was rubber-stamped by the Board without any independent consideration of the merits.

[168]I refer to the wording of the relevant rule, which states:

MANAGEMENT:

(43) The Governance of the business of the Society shall be vested in the Board who in addition to the powers and authorities presents or otherwise expressly conferred upon it may exercise all such powers and do all such acts and things as may be exercised or done by the Society and are not required by the rules or by any Statute to be exercised or done by the Society in general meeting, but subject nevertheless to the provisions of any Statute and to the Rules of the Society in operation for the time being provided that the making of any Rule shall not invalidate any prior act of the Board which would have been valid if such new rule or alteration or rescission had not been made. The Board may from time to time either generally or particularly delegate to any person any of the powers conferred on it by these Rules, including the power of delegation conferred by this Rules.

[169]   I first observe that although the word “management” is the heading above the rule, the rule itself refers to the “governance of the business of the Society” (rather than management).

[170]   Second, the power of delegation is expressed widely. It refers to the Board having the ability to delegate “to any person any of the powers conferred on it by these

Rules.” One of the powers in the Rules is to make a decision that it is not in the best interests of the Society that a licensee shall remain a member of the Society.

[171]   It should not be overlooked that although it is open to Mr Bhullar to challenge the decision by way of an application for judicial review, what is being interpreted in this case is a contract.

[172]   The submission on behalf of Mr Bhullar is contrary to the natural and ordinary meaning of the words in the Rules.21 The Board has a power to strike off which cannot be exercised unless the Board is satisfied in accordance with Rule 11(d). It is a condition of the exercise of a power that the Board be satisfied. When the power is delegated, it is a condition of the exercise of the power by the delegate that the delegate be satisfied. There is no separate duty on the Board to do what the rule specifies to be the ground for the exercise of the power.

[173]   I am assisted in this conclusion by the judgment of Paterson J in Williams v Auckland Co-operative Taxi Society Ltd.22 That case involved allegations of bias on the part of the committee which was to conduct a hearing under Rule 11. The Society submitted that under the doctrine of necessity, the committee of the Society was entitled to proceed with the hearing because it was the body charged with the management of the Society’s affairs.

[174]   Paterson J, in considering the doctrine of necessity, stated that it “operates where there is no other decision maker empowered to act and therefore no substitution of a potentially biased decision maker is possible”.23 The Judge then went on to say that, “[i]n this case I have formed the view that the doctrine has no application because there is no restriction on the Committee’s powers of delegation”.24

[175]   It is clear from a reading of the judgment and of the relevant rule applying at the time, that the Committee was the equivalent to the current Board. The judgment

21     Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].

22     Williams v Auckland Co-operative Taxi Society Ltd HC Auckland M2176/98, 15 February 1999.

23     At 11.

24     At 12.

sets out r 43 as it was worded at the time. I refer below to the relevant part of the judgment, including the rule and the Judge’s conclusion, as follows:25

Delegation

…

The management of the business of the Society is vested in the Committee by r 43 of the Society’s rules which states:

MANAGEMENT:

(43) THE management of the business of the Society shall be vested in the Committee who in addition to the powers and authorities by these presents or otherwise expressly conferred upon it may exercise all such powers and do all such acts and things as may be exercised or done by the Society and are not required by the Rules or by any Statute to be exercised or done by the Society in general meeting, but subject nevertheless to the provisions of any Statute and to the Rules of the Society in operation for the time being provided that the making of any Rule shall not invalidate any prior act of the Committee which would have been valid if such new Rule or alteration or rescission had not been made[.]

The Committee may from time to time either generally or particularly delegate to any person any of the powers conferred on it by these Rules, including the power of delegation conferred by this Rule[.] (Emphasis added)

If the words in the last paragraph of r 43 are given their natural and ordinary meaning, the Committee may delegate a particular matter under any of the powers conferred on it by the rules to any person. The review provision under r 11 is a power conferred on the Committee under the rules. Mrs Williams’ [the applicant for judicial review alleging bias] position is a particular situation under that rule. In my view, there is no restriction on the Committee delegating its powers under r 11.

[176]   There is no suggestion by Paterson J that the Committee would then need to independently consider the merits.

[177]   In any event, if the Board were to do so, the issue of apparent bias would again raise its head.

[178]   I therefore do not accept the submission on behalf of Mr Bhullar that the Board, having made its delegation to Mr Braid and Mr Mayes, was then required to make its own independent consideration of the merits.

25     At 12.

Conclusion

[179]The application for judicial review is dismissed.

Application to vary order of Jagose J dated 4 May 2018

[180]There is a final matter I need to address.

[181]   The Society filed an application dated 24 August 2018 seeking a variation of the order of Jagose J made on 4 May 2018 referred to in [26] above.

[182]   The variation seeks the imposition of a condition that pending further order of the Court, Mr Bhullar stay off the place known as Taxi House and that the Board be permitted to conduct its affairs without the presence of Mr Bhullar.

[183]   By consent, the application to vary was adjourned to the same date as the hearing of the substantive application for judicial review.

[184]   At the conclusion of the hearing, by consent, I further adjourned the application to vary, to the date of my decision on the substantive application for review.

[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.

[186]   The underlying order having been discharged, there is nothing to vary. The application for variation is therefore dismissed.

Costs

[187]   I reserve the question of costs. My preliminary view is that the Society, as the successful party, is entitled to costs which would be on a 2B basis. I encourage the parties to reach agreement on costs and to file a joint memorandum. Any such joint memorandum should be filed within 30 days of the date of this judgment.

[188]   In the absence of agreement, the Society may 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