Cowper v Ice Gymsports North Canterbury Inc
[2025] NZHC 1594
•16 June 2025
NOTE: ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT AND LITIGATION GUARDIAN. SEE
THE NAMES OF THE PARTIES HAVE BEEN ANONYMISED IN THIS JUDGMENT
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-116
[2025] NZHC 1594
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
KIM COWPER by his litigation guardian RICHARD COWPER
Applicant
AND
ICE GYMSPORTS NORTH CANTERBURY INC
First Respondent
AFFINITY GYMNASTICS ACADEMY INC
Second Respondent
OLYMPIA GYMNASTIC SPORTS INC
Third Respondent
GYMSPORTS NEW ZEALAND INC
Fourth Respondent
Hearing: 28 April 2025 Appearances:
D M Fraundorfer and H J O Lewis for Applicant E N Humphreys for First Respondent (by leave) R Jones for Second Respondent (by leave)
A J Davis for Third Respondent
A M McCormick for Fourth RespondentJudgment:
16 June 2025
COWPER v ICE GYMSPORTS NORTH CANTERBURY INC [2025] NZHC 1594 [16 June 2025]
JUDGMENT OF OSBORNE J
Introduction
[1] The applicant, Kim Cowper (Kim) was a teenager at the time this proceeding was commenced. He had been involved in competitive gymnastics from a young age.1
[2] Kim applies under the Judicial Review Procedure Act 2016 for review of what are alleged to be decisions of each of the first, second, and third respondents not to accept him as a member of their respective clubs (respectively “ICE”; “Affinity”; and “Olympia”). In the case of ICE, the club involved at the relevant time was the Rangiora Gymnastics Club (RGC) which was in the process of being taken over by ICE. I will refer to the three club respondents collectively as “the Clubs”.
[3] The fourth respondent, Gymsports New Zealand Inc (“GNZ”) regulates the sport of gymnastics in New Zealand. Kim (through his father) made complaints against the Clubs to GNZ. GNZ did not address the complaints through any of its judicial or dispute resolution processes that were in place at the time. Kim seeks an order quashing the decision of GNZ and seeking a declaration that GNZ has jurisdiction to consider the complaints.
[4] The Clubs and GNZ deny there have been any reviewable errors—their pleadings are individually summarised from [72] below.
Background
The “pre-history”
[5] Before turning to Kim’s attempts to enrol with the Clubs, there is earlier, relevant background to his gymnastic career, relating to issues that arose between Kim (and members of his family) and his former coach (the “former coach”).
1 I will refer to the applicant in this judgment as “Kim” to clearly distinguish him from his father, who will be referred to as “Mr Cowper”.
[6] From 2014 to 2020, Kim was primarily a member of Christchurch School of Gymnastics (CSG), except for a three-month period in 2019 where he attended Te Wero Gymnastics. He was enrolled in the Male Artistic Gymnastics (MAG) programme.
[7] During this time a relationship breakdown occurred between the Cowper family and CSG involving Kim’s (now) former coach. Mr Cowper alleges Kim was subject to bullying from the former coach and made numerous complaints to CSG on this subject. CSG alleges Mr Cowper intimidated and inappropriately confronted the former coach about his complaints. Affinity filed an affidavit of Avril Enslow, who was the chief executive officer of CSG in 2018. She deposed Mr Cowper sent at least 11 complaint emails between March and September 2018, all regarding the former coach. Ms Enslow stated she received an email from the former coach in September 2018 that he was “mentally exhausted and “at breaking point” due to Mr Cowper’s consistent complaints against him. Ms Enslow stated, due to CSG’s responsibility as an employer, CSG rearranged the coaching allocations removing Kim from the former coach’s training group.
[8] In September 2020, Mr Cowper formally filed a complaint with GNZ and the Independent Complaints Mechanism citing numerous issues including complaints involving the former coach. In early October 2018, the former coach resigned from CSG. On 11 January 2021, CSG trespassed Mr Cowper but Kim continued to have access to training as normal. Following a meeting between the parties in January 2021, facilitated by Sport NZ and GNZ, Mr Cowper withdrew Kim from CSG.
The rights or wrongs of the falling out
[9] The former coach had been a gymnast member for 20 years and 2018 was in his eighth year of coaching. He held significant qualifications.
[10] I have summarised (above at [7]) allegations made by Mr Cowper against the former coach when Kim was a member of CSG. Those represent Mr Cowper’s view of matters. There is a contrary view, contained in the evidence of Ms Enslow, which suggests that Mr Cowper, through repeated questioning of the former coach’s ability to be a coach at all, and other conduct, created a situation in which the former coach
became mentally exhausted and ultimately decided to resign from CSG at the end of the 2018 competitive season.
[11] Where responsibility lay for the breakdown in the relationship between CSG (and its officers and employees) on the one hand and the Cowper family on the other hand is beyond the scope of this proceeding. As it was not a matter directly in issue, the Court has not received the evidence that would enable the Court to reliably draw any conclusions on the factual matters involved.
[12] It is not possible or necessary, on the basis of the affidavit evidence, to determine whether Mr Cowper’s allegations about the former coach are justified—I make no such finding. What is relevant is that it is clearly established that Mr Cowper had repeatedly made complaints against the former coach including as to his coaching ability and style; the former coach had become mentally exhausted and ultimately decided to resign from CSG and to take a break from coaching; and any resumption of a coaching involvement on his part with the Cowper family would have been fraught with risk of an unsatisfactory relationship and further stress on the former coach.
[13] It is clear that none of the Clubs could reasonably have been expected, in the context of Kim’s potential membership, to conduct the sort of investigation into facts to reach a safe conclusion as to exactly what caused the relationship breakdown between CSG and the Cowper family. Accordingly, what the Clubs could reasonably know or learn at the time they were approached in relation to Kim’s potential membership was the information I have identified at [12] above.
[14] The Clubs could also have ascertained that Mr Cowper and CSG had different views of responsibility for the relationship breakdown, CSG attributed that responsibility to Mr Cowper, and Mr Cowper attributed that responsibility to CSG (or, more particularly, to the former coach when he was employed at CSG).
Initial approach to Olympia
[15] In January 2021, Mr Cowper made a telephone enquiry of Olympia to see if Olympia would enrol Kim.
[16] The evidence of Olympia’s Acting Board Chair, Katrina Ede, is that, at the time, Olympia had a small MAG programme and the club was at its chosen six MAG member capacity—that capacity being reached through the ability of Olympia’s coach to coach a certain number of athletes.
[17] In late January, Olympia’s general manager advised Mr Cowper there would be no space available for Kim for at least seven months.
Approach to Rangiora Gymnastics Club
[18] The Rangiora Gymnastics Club (RGC) was, in 2020, operating in a Rangiora building shared with ICE. From late-2020, the two clubs were in discussion to have ICE take over RGC and run both the trampolining and gymnastics codes.
[19] RGC, at the time, had limitations on the support it could offer gymnasts, both in terms of its equipment level and layout and the qualification level of its MAG coach.
[20] On 28 January 2021, Mr Cowper contacted the RGC head coach to ask if Kim could temporarily train at Rangiora while he was on a wait-list at Olympia.2
[21] Kim’s request was passed on to Nigel Humphreys, ICE’s club manager, as RGC was in the process of being taken over by ICE. Mr Humphreys emailed Mr Cowper on 4 February 2021 proposing he and an RGC coach meet with Mr Cowper to discuss the matter before both RGC and the ICE board considered whether to make any offer of membership to Kim. The Clubs wished to discus Kim’s history with other clubs including CSG and Te Wero. Mr Humphreys prepared an 18-point agenda for the meeting with Mr and Mrs Cowper. The agenda was divided into three parts dealing with Kim’s level of experience; the background of issues between the Cowpers and CSG and the current state of proceedings; and how the Cowpers viewed the ability of RGC to fit into Kim’s career given RGC’s limited MAG programme and equipment. The meeting was held. Mr Cowper states Mr Humphreys and the coach concluded the meeting by stating they would investigate and contact other clubs for their account before making a decision.
2 The statement of claim states Kim at that time “applied to enrol at [ICE]” but Mr Cowper’s email recording the approach expressly requested the ability to “temporarily train” at Rangiora.
[22] In his evidence Mr Humphreys explained the reason for the meeting and the matters considered by ICE following the initial contact from Mr Cowper. Mr Humphreys deposed:3
7This was [relayed] to the then Head Coach of RGC Gio Varela, who expressed concern to me that this decision should be made with my consultation due to the high level of this competing MAG (Men's Artistic Gymnastics) Gymnast.
8In consultation with the then RGC MAG coach Thorston Kaiser, we offered a personal meeting with the Cowper family to discuss the possibility of membership to RGC.
9The meeting was cordial and informative as I attempted to understand why [Kim] would want to join a small regional club that did not have an advanced MAG program.
10The discussions involved Cowper’s history with other clubs such as Te Wero and CSG for my understanding of their personal circumstances, and to assist me gaining knowledge of the Canterbury Gymnastics environment, of which I had little understanding.
11At the conclusion of the meeting I said we would consider membership based on consultation with the ICE Trampoline board and the coaches concerned. Many factors were considered and a decision was made not to offer Cowper a membership under the membership terms of our constitution.
12Specifically considered was that the then employed MAG coach was not GNZ (Gymnastics New Zealand) qualified at a high enough level to coach, or assist on the competition floor with Cowper. This amounted to a Health and Safety risk with our employee should we ask him to coach a gymnast beyond his ability and qualification, if he, or the gymnast, was injured on the job.
13The equipment level and layout at RGC was not of sufficient quality or had enough surrounding space to safely accommodate the skill level required of a gymnast of Cowper’s ability.
14The safety of existing members were considered with the need to run both recreational and competitive classes at one time, in limited space.
15To accommodate Cowper would require considerable expense to the club, including changing MAG training times, upskilling coaches, providing competition judges at the appropriate level and up grading equipment such as Rings and Pommel. Limited financial resources simply made this impossible.
16It was made clear to us at the time of the meeting that membership was only going to be temporary as Cowper would move to a bigger club, such as Olympia, when space became available.
3 Affidavit of Eric Nigel Humphreys, 2 April 2025.
[23] On 16 February 2021, ICE, by letter, advised Mr Cowper that ICE and RGC had taken considerable time investigating Kim’s gymnastic career and surrounding issues that could impact on a membership at RGC. They recorded that, in accordance with the recommendations of the coaches and the decision of the ICE Board, Kim would not be offered a position in RGC’s MAG programme. It was recorded the reason for this was an inability to offer Kim the type of specific training he required without considerable changes to existing programmes and coaching strategies, and a concern the addition of Kim “would impact the balance and culture that currently exists within [their] facility”.
[24] In late-February 2021, Mr Cowper approached the Chief Executive Officer (CEO) of GNZ, asking whether GNZ’s CEO could assist to help Kim get back into a club in Canterbury. The CEO responded that it was solely for any club to consider whether or not to take Kim as a member.
Approach to Affinity
[25] Affinity was established as an artistic gymnastics club in 2018 as a dedicated facility to serve the Selwyn District based in Rolleston. The club’s programmes are in two streams, namely recreational gymnastics (approximately 90 per cent of the club membership) and competitive gymnastics. Affinity has head coaches for its MAG programme and its Women’s Artistic Gymnastic (WAG) programme.
[26] Affinity took over a year to find a head coach for the MAG programme and in October 2019 persuaded Kim’s former coach to join Affinity as head coach of the MAG programme.
[27] In early-February 2021, Mr Cowper, in a telephone call to Affinity’s general manager, Tracy Jones, sought information about enrolment into the MAG programme. Ms Jones had not previously heard of Mr Cowper or Kim. She obtained some details from Mr Cowper about Kim and advised Mr Cowper she would get back to him.
[28] Ms Jones then spoke to the former coach who informed her of his previous experience coaching Kim at CSG and of his dealings with Mr Cowper. The former coach spoke of the stress caused by the issues in dealing with the issues while at CSG,
leading to him to leave the sport of gymnastics in 2018. The former coach told Ms Jones he would be uncomfortable having any further involvement with Kim and Mr Cowper.
[29] Ms Jones deposed, having regard to Affinity’s responsibilities to its staff and to maintain harmony within the main competitive programme, she decided Kim would not be a good fit for the Affinity MAG programme. She advised Mr Cowper accordingly.
Complaint to GNZ
[30] On 22 March 2021, Mr Cowper wrote an “official complaint” (“Complaint”) to GNZ, addressed also to its Sport Integrity Unit and its Judicial Regulation Panel. Mr Cowper, addressing his comments to GNZ’s CEO, stated the CEO had been “privy of these complaints for many months (some of them years)” and that Mr Cowper would also be starting or attempting to start judicial review proceedings.
[31]Mr Cowper stated that:
[a]t the ‘heart of the matter’ is that … Kim … has been denied membership from clubs … There has been a denial of access to the sport.
[32] I summarise the statements made in the Complaint in relation to each of the Clubs:
(a)RGC had decided to do an investigation (speaking to two clubs) before deciding whether to accept Kim as a member, discriminating against him for his family making legitimate complaints, and leading to the Board’s concern as quoted above at [23];
(b)Affinity: Mr Cowper referred to Ms Jones’ explanation for refusing Kim membership that he would not be “a good fit” (above at [29]). Kim referred to Ms Jones subsequently saying that the Cowper family had in the past made complaints about the former coach, when he was working at CSG. Mr Cowper asserted Affinity had “openly [admitted] discrimination against Kim”.
(c)Olympia: at the time of his 22 March complaint to GNZ, Mr Cowper stated he was still waiting to officially hear back from Olympia but noted Olympia’s indication that the “gym is full”. Mr Cowper stated “the head coach says that he is unwilling to help Kim”. He referred to Kim being on the waiting list which was around six months to a year away.
[33] Mr Cowper concluded the Complaint with a statement that he would be approaching the judicial review application with honesty and that, at the very least, a failed application would bring a message to a larger group “such is the secondary purpose of this email”. The heading to the email indicated that it had been copied to over a dozen people not immediately involved in the complaint, predominantly, but not all, lawyers.
[34] Mr Cowper, on the following day, 23 March 2021, emailed GNZ. He referred to GNZ’s constitution. He recorded that he agreed under rr 18.2–18.4 of the Constitution to have the Sports Tribunal of New Zealand (the Sports Tribunal) hear “the dispute” concerning RGC and Affinity.
[35] On or about 29 March 2021, GNZ’s chief executive officer responded to Mr Cowper. He stated Mr Cowper’s primary dispute was with the Clubs who had refused to accept the application for Kim’s membership. The CEO stated GNZ could not direct the Club to accept a member, it being a matter for the Club. As such, GNZ could not agree to refer the dispute to the Sports Tribunal. For clarity, the CEO recorded that Kim was not currently a member of GNZ.
[36] In late-March 2021, Mr Cowper made a complaint to the Human Rights Commission (HRC) that Kim had been denied membership to the Clubs based on the Cowper family making complaints to CSG. Mr Cowper invited the Clubs to engage in mediation, but they refused. In May 2021, as discussed from [68] below, Mr Cowper filed proceedings in the Human Rights Review Tribunal (HRRT) on behalf of Kim—he named ICE and Affinity as defendants.
Further approach to Olympia
[37] Following Olympia’s response in late-January 2021 as to its MAG programme being full, Mr Cowper took up email correspondence with Olympia in March 2021. Mr Cowper had ascertained that Olympia appeared to have six gymnasts in its MAG programme. In Mr Cowper’s opinion, the recommended ratio was eight, leaving “heaps of room and space for another gymnast”. Mr Cowper queried whether the Olympia MAG coach did not want to coach Kim. He added that Kim could do two trainings a week with one of the coaches until a full-time place within the MAG programme became available.
[38] In the correspondence which followed, Olympia’s Chairperson, Andy Worrill, recorded Olympia was working through the request for Kim to join the MAG programme but stated there were some matters that pre-dated Mr Cowper’s initial contact that required Olympia’s consideration.
[39] Mr Cowper approached the Sport and Recreation Complaints and Mediation Service (SRCMS) for assistance. Olympia indicated they were not prepared to engage in a mediation process.
[40] Shortly afterwards, Mr Worrill informed Mr Cowper by email that Olympia was not able to accept Kim as a member of Olympia, this being “a final decision”.
[41] In late-May 2021, Mr Cowper made a further request to Olympia for Kim to be joined, to which Olympia did not respond.
[42] Around August 2021, Mr Cowper instructed Wynn Williams, a law firm, to write to Olympia. By letter dated 5 August 2021, Wynn Williams stated they did not consider the denial of Kim’s membership to be legitimate, including because Olympia’s website made no mention of lack of capacity. Olympia was invited to reconsider its decision. It proposed there be a meeting to discuss Kim’s membership “on a collaborative basis”. Failing Olympia’s agreement to a meeting, a demand was made for the full reasons Olympia had for denying Kim’s membership.
[43] Olympia responded simply to the Wynn Williams’ letter stating: “The Board has considered your letter and our decision remains unchanged.”
[44] In the meantime, Mr Cowper sought information from Olympia under the Privacy Act 2020. When Mr Cowper was not satisfied with the response, he complained to the office of the Privacy Commissioner in July 2021 and there was then an investigation as a result of which Olympia provided some further information, to the satisfaction of the Privacy Commissioner. Kim claims no relief in this proceeding relating to the privacy request process.
The constitutional role of the Clubs and of GNZ
[45] For Kim, Mr Fraundorfer recognises the decision-making of an organisation has to be sufficiently public in nature to be subject to judicial review. Kim accordingly adduced evidence of the club’s constitutions and/or codes of conduct, together with GNZ’s regulations.
Affinity
[46]Affinity is an incorporated society.
[47] Its constitution contains provisions for membership applications and for Affinity to determine whether to accept an application and, subsequently, whether to suspend a member or to terminate their membership. By becoming a member, a person has to complete the GNZ Club membership form and the member acknowledges Affinity’s constitution constitutes a contract between the member, Affinity and GNZ and they are bound by the constitutional and regulatory documents of both Affinity and GNZ.
[48]Under Affinity’s constitution, aspects of its objects are to:
(a)promote, develop, enhance and protect gymsport as an amateur sport in New Zealand for the health, well-being and benefit of the general public of New Zealand;
(b)seek and promote the membership of the club; and
(c)encourage participation in gymsports in the Selwyn District and Canterbury Region, as a sport for all including people with disabilities, and regardless of age, gender, or race.
[49] Under the constitution, Affinity is to have as its members such individuals as the Committee considers appropriate provided the membership is consistent with the GNZ constitution and the GNZ Regulations.
[50] Affinity’s constitution contains no criteria restricting membership along exclusionary, prohibited grounds of discrimination. The process for applying for membership involves completing an application form, paying the membership fee, and returning those items to Affinity, following which Affinity decides if the application is approved.
Olympia
[51]Olympia is an incorporated society.
[52]Olympia’s constitutional document has not been provided in evidence.
[53] However, Mr Fraundorfer has included in his submissions a quotation which he says comes from a synopsis on the front page of Olympia’s “Code of Conduct and Club Safety Rules for all Members, Staff and Volunteers”. It reads:
Olympia Gymnastic Sports (OGS) is committed to each individual’s experience, success and development within a caring, responsive, and safe environment. Olympia works to ensure that all individuals have the opportunity and support to develop to their fullest potential and share a personal and meaningful bond with others in the club’s community.
ICE/RGC
[54]ICE and RGC operated in tandem. Both are incorporated societies.
[55] RGC’s constitution included a process, parallel to that of Affinity, for receiving and determining whether to accept applications for membership, together with powers
of suspension and termination. Members agree that the constitution constitutes the contract between the member, RGC, and GNZ, and that they are bound by the GNZ constitution and regulations.
[56] The club’s objects set out in RGC’s constitution are materially identical to Affinity’s (above at [48]) objects save that the geographical reference is to “Rangiora and the surrounding districts”.
[57] Other aspects of RGC’s constitution are also materially identical to those aspects of Affinity’s constitution set out at [50] above.
GNZ
[58] Andrea Nelson, GNZ’s current CEO, provided an affidavit. She identified GNZ as the governing body for gymnastics in New Zealand. GNZ administers the sport across all codes from grassroots to high performance athletes. GNZ sporting codes include both mens’ and womens’ artistic gymnastics, rhythmic gymnastics, aerobics and trampoline.
[59] Olympia, Affinity and ICE were and remain member clubs and had the responsibility to comply with GNZ’s regulations.
[60] In the context of Kim’s claim that GNZ committed a reviewable error by refusing to consider the Complaint, Mr Fraundorfer referred particularly to provisions in two sets of GNZ’s regulations in force at the time:
(a)under the GNZ (2020) Judicial Regulation:
(i)Clause 7.2 defines “Misconduct” as any action or inaction, by a member or other person that harms or could harm, or brings or could bring, GNZ (or any of its officers, employees or agents), any Member Club or Associate member, or GNZ into disrepute, and includes “Serious Misconduct.” The clause also recognises another category of misconduct, namely “Minor Misconduct.”
(ii)clause 7.3 gives examples of misconduct which include, but are not limited to “(m) Discrimination (as defined in the Membership Protection Regulation)”.
(b)under the GNZ (2011) Membership Protection Regulation:
(i)Clause 4.1 provides no “Member or person or organisation to whom this Regulation applies shall engage in Misconduct, as described in the GNZ Judicial Regulation”. Misconduct includes discrimination.
(ii)…
(iii)Clause 5.1 (identifying the “responsibilities of GNZ”) provides GNZ’s Board and its CEO are responsible either directly or through delegated authority to other staff for ensuring the implementation of the Membership Protection Regulation, including:
Adiscouraging and preventing Harassment, Discrimination, and Child Abuse within GNZ;
Bensuring formal Complaints are investigated in a sensitive, responsible, and timely
manner;
…
Cproviding advice to persons who experience Harassment, Discrimination and/or Child Abuse;
…
F informing both Complainants and
Respondents of the procedures contained in the Regulation and their rights under the law.
(iv)Clause 19 defines “Discrimination” to mean treating or proposing to treat someone less favourably because of a particular characteristic in the same or similar circumstances in certain areas of public life (“direct discrimination”), or imposing or intending to impose an unreasonable requirement, condition, or practice that is the same for everyone, but which has an unequal or disproportionate effect on individuals or groups with particular characteristics (“indirect discrimination”). The characteristics covered by this Regulation include “family status”, which in turn includes “being a relative of a particular person”.
[61] The Judicial Regulation has since been revoked. This Court was not provided with any information as to the current form of any similar regulation.
[62] The GNZ Judicial Regulation (clause 9) provided for the making of complaints by any member of GNZ or a person on behalf of another person. A complaint was required to describe allegations of misconduct set out in as much detail as possible.
[63] Under the Judicial Regulation and GNZ’s Disputes and Disciplinary Policy 2020, “misconduct” complaints were referred to GNZ’s Sport Integrity Unit. “Serious misconduct” complaints were referred to a GNZ’s Judicial Committee. A third category of conduct identified in cl 7.2 of the Judicial Regulation was “Minor Misconduct.” In this proceeding Kim is implicitly asserting his complaint involved serious misconduct as he alleges, by his fifth cause of action, that GNZ acted illegally by not referring the complaints to a judicial committee.4
[64] GNZ’s constitution, pursuant to which its regulations were created, was an instrument adopted in 2007 and subsequently amended.
[65] Under GNZ’s constitution, the role and powers of its Board are identified. The Board’s powers under r 15.15 include:
To discipline Members as specified in this Constitution and the Regulations including holding an enquiry or appointing a person or persons to hold an enquiry into and imposing such penalty as it thinks fit in case of misconduct by any team, gymnast or official while under the direct control of GymSports NZ or for such other reason as the Board shall decide;
[66] “Members” is defined to include member clubs (which ICE, Affinity and Olympia were).
[67] Rule 18.1 of the constitution required the Board to establish an independent Judicial Committee to carry out judicial and disciplinary functions of GNZ. The particular rules Mr Cowper referred to in his 23 March 2021 email (above at [34]) were rr 18.2–18.4. They form part of r 18 which provides:
18.Discipline, Disputes and Appeals
18.1Judicial Committee: The Board shall establish an independent Judicial Committee to carry out judicial and disciplinary functions of GymSports NZ. The composition, jurisdiction, powers and
4 “Serious misconduct” was defined in GNZ’s Judicial Regulation by reference to its potential to cause significant or serious harm to another.
procedures of the Judiciary Committee shall be set out in the Regulations.
18.2Disputes: In the event of any dispute, doubt or difference arising out of the interpretation or application of this Constitution, or a matter that is not provided for in this Constitution or the Regulations, then such dispute shall be referred to the Board. The Board shall determine the dispute or matter as it thinks fit. The Board’s decision shall be final and binding or alternatively, if the parties to the dispute or matter agree, then it shall be referred to the Sports Tribunal if it has jurisdiction to deal with it.
18.3Disputes between Board and Member Club: In the event of any dispute, doubt or difference arising between the Board and any Member Club or Associate Member, (other than a dispute about default in fees under Rule 11.2), the parties will:
a.endeavour to negotiate a resolution of the dispute amongst themselves (which may include representatives or support persons for either party) if there is no resolution within an agreed timeframe, then;
b.endeavour to agree on a resolution of the dispute by attending mediation; and failing that,
c.if it is a dispute, doubt or difference as described in Rule 11.3, then Rule 11 shall apply, or
d.if it is any other dispute, doubt or difference, then either party may refer the dispute to the Sports Tribunal for determination by it in accordance with its rules.
Each party shall bear their own costs, including any legal costs, arising out of any procedure under this Rule.
18.4Sports Tribunal: GymSports NZ recognises the Sports Tribunal as the appropriate forum to resolve certain sports related matters set out in the rules of that Tribunal. If specified in this Constitution and/or the Regulations, matters which are within the jurisdiction of the Tribunal shall be referred to it including, without limitation, anti-doping violations arising out of any applicable Regulations on anti-doping, appeals against selection or non-selection to a national team selected by GymSports NZ, and any other sports-related matters.
Proceedings in the HRRT
[68] As identified at [36] above, Mr Cowper initially sought the assistance of the HRC in seeking to have the defendant clubs participate in mediation. That did not occur.
[69] In May 2021, Mr Cowper initiated proceedings against ICE and Affinity in the HRRT. In the HRRT proceedings, Kim alleged ICE and Affinity had unlawfully discriminated against him by refusing to grant him access to membership because of his relationship with his father, Mr Cowper. Kim asserted he had been discriminated on the basis of family status, a prohibited ground of discrimination under the Human Rights Act 1993.5
[70] In August 2022, the HRRT heard applications by Affinity and ICE for orders striking out Kim’s HRRT claims. The HRRT reserved its decision but did not promptly deliver a decision. That led Kim, through Mr Cowper in 2025, to file judicial review proceedings in relation to the failure of the HRRT to issue a decision.
[71] I was informed by counsel at the hearing of this proceeding (on 28 April 2025) the HRRT’s decision had still not been issued. Subsequently, counsel provided the Court with a copy of the HRRT’s decision, issued on 16 May 2025.6 The HRRT dismissed Affinity’s and ICE’s strikeout applications. This was on the basis the defendants had not persuaded the HRRT that Kim’s claim of discrimination by reason of family relationshiap was completely untenable and certain not to succeed.7
The judicial review claims
Claims against the Clubs
[72] Kim claims the Clubs took into account illegal and/or irrelevant considerations in declining him membership. The impugned (alleged) considerations were that Mr Cowper had previously made complaints about CSG and was Kim’s father. Kim claims there was no proper investigation; Kim was deprived of the right to put forward a proper argument; and the Clubs did not subsequently provide information to support their decisions.
[73] Kim seeks declarations that the Clubs’ decisions were made on unlawful grounds and on the basis of irrelevant considerations. He seeks orders quashing those
5 Human Rights Act 1993, ss 21(1)(iv) and 44.
6 Cowper v Affinity Gymnastics Academy Inc [2025] NZHRRT 16. The names of the parties have been anonymised both in the NZHRRT judgment and in this judgment.
7 At [26].
decisions and directing the Clubs to reconsider any future membership application in accordance with the principles of natural justice and without regard to irrelevant considerations.
Claims against GNZ
[74] Kim’s fourth cause of action alleges an error of law on the part of GNZ. Kim claims GNZ had jurisdiction to require member clubs to make decisions and to comply with GNZ’s rules. He asserts GNZ mistakenly believed it did not have jurisdiction to consider the Complaint and that GNZ’s refusal to consider the Complaint involved an error of law. Kim seeks an order quashing GNZ’s decision to refuse to consider the Complaint and seeks a declaration that GNZ had jurisdiction to consider the Complaint.
[75] Kim’s fifth cause of action alleges illegality on the part of GNZ. Kim claims that GNZ’s rules required GNZ to consider the Complaint and, if it could not be resolved, to refer it to GNZ’s Judicial Committee. Kim claims GNZ acted unlawfully in neither considering nor referring the Complaint. Kim seeks an order quashing GNZ’s decision to refuse to consider the Complaint; a declaration that GNZ is required to consider the Complaint in accordance with GNZ’s rules; and a declaration GNZ breached its duty to consider and adjudicate upon the Complaint under its internal rules.
ICE’s defence
[76] ICE denied it had carried out an investigation concerning “Kim’s prior involvement in gymnastics”. It asserted its investigation had related to the club’s ability to provide an appropriate setting and a sufficiently qualified coach for Kim. ICE accepted it had declined Kim’s application for membership.
[77] ICE denied it told Mr Cowper Kim’s membership was declined because Mr Cowper had made previous complaints against other clubs—ICE stated previous club interaction was not the reason for declining Kim membership.
Affinity’s defence
[78] Affinity denied Kim had made a compliant application as Affinity’s required form and the required membership fee were not submitted in accordance with Affinity’s constitution.
[79] Affinity admits it considered Mr Cowper’s previous conduct with respect to the former coach, now Affinity’s head coach. Affinity pleaded that its general manager, Tracy Jones, had advised Mr Cowper that Kim would not be a good fit in Affinity’s competitive MAG programme as she had become aware of complaints made by Kim and Mr Cowper against Affinity’s head coach (Kim’s former coach) and considered Affinity could not subject the former coach to that environment.
[80]Affinity pleads three affirmative defences:
(a)under s 44(4) of the Human Rights Act 1993 (HRA), Affinity is entitled to restrict access to membership on any prohibited ground of discrimination, thereby significantly reducing the potential for “irrelevant considerations” or “unlawful considerations”;
(b)under s 17 of the New Zealand Bill of Rights Act 1990 (NZBORA) Affinity, along with its coaches and members, has the right not to be associated with the plaintiff, rendering Affinity’s decision (if there was one) not justiciable or attracting a very low intensity of a view; and
(c)as a matter of abuse of process or duplication of proceedings, the claim against Affinity should not be permitted to proceed while proceedings alleging unlawful discrimination are before the HRRT.
Olympia’s defence
[81] Olympia admitted it had advised that Kim had been placed on a waitlist but denied that Mr Cowper, around March 2021, had asked Olympia to reconsider Kim’s enrolment. Olympia further denied that, in making the (denied) decision, it had
considered Mr Cowper had previously made complaints about a gymnastics club and that Mr Cowper was Kim’s father.
GNZ’s defence
[82] GNZ admitted it regulates the sport of gymnastics in New Zealand, that it has jurisdiction to investigate the actions of member clubs to determine they are complying with their own rules and with the rules of GNZ, and that GNZ has jurisdiction to require member clubs to make decisions and to comply with GNZ’s rules. GNZ asserts, however, Mr Cowper’s complaints were not suitable to be addressed through any of GNZ’s judicial or dispute resolution processes that were in place at the time. GNZ therefore denied it had jurisdiction to consider Mr Cowper’s complaint or that it made a mistake in refusing to consider the complaint.
[83] GNZ’s CEO, Ms Nelson, in her affidavit explained GNZ’s approach consistently with GNZ’s pleading.
Submissions generally
Discussion: Olympia
[84] Olympia was the first of the Clubs approached by Mr Cowper, by telephone, in January 2021.
[85] With no constitutional document of Olympia having been provided in evidence in this proceeding, Mr Fraundorfer cites the synopsis which, as recorded in his submissions, sits at the front of Olympia’s Code of Conduct (reproduced at [53] above).
[86] Mr Fraundorfer referred to Mr Cowper’s exchanges with Olympia when Mr Cowper resumed contact with Olympia in March 2021. In particular, he referred to the Chairperson’s observation that there were some matters that pre-dated Mr Cowper’s initial contact that required Olympia’s consideration (above at [38]).
[87] Mr Fraundorfer submitted the exchange with Olympia’s chairperson indicated a predetermination and an apparent bias on the part of Olympia as decision-maker.
[88] I note these submissions are made against the background of a pleading that did not assert pre-determination or apparent bias but instead asserted Olympia had taken into account irrelevant and/or unlawful considerations, namely that Mr Cowper had previously made complaints about a gymnastics club and that Mr Cowper was Kim’s father.
[89] As I have noted (above at [81]) Olympia’s defence to the pleaded claim was that Olympia, in making the (denied) decision had neither considered Mr Cowper had previously made complaints about a gymnastics club nor that Mr Cowper was Kim’s father.
[90] Mr Davis, for Olympia, identified Olympia had (between the time of Mr Cowper’s initial approach and Olympia’s final decision) become aware of issues surrounding Mr Cowper at a previous gymnastics club which had resulted in the former coach resigning and suffering mental health issues.
[91] Mr Davis submitted the plaintiff’s case against Olympia essentially rested on the premise that, because of Olympia’s knowledge of the existence of “bad blood” between Mr Cowper and CGS, Olympia decided not to admit Kim into membership. Mr Davis submits the undisputed evidence clearly indicates the decision was based on the coach to gymnast ratio, a matter of proper concern to the club.
[92] In my view, the claim against Olympia is untenable. Every gymnastics club is not only entitled but also required to consider its appropriate ratios to ensure the proper training and safety of its members and potential members. Here, a part of the complaint against Olympia is the proposition that it should have amended its chosen ratio from six to eight pursuant to Mr Cowper’s urging, and that its decision to adhere to its ratio involved discrimination against Kim by reason of Mr Cowper being his father.
[93] Correctly analysed, Olympia declined to take Kim on as a member because it did not change its ratio policy. It was entitled not to change its ratio policy.
[94] This was not a situation where Olympia was not at its ratio limit, but refused to consider Kim for membership. If that had been the case, it would have become necessary for this Court to consider, in relation to the claim against Olympia, any evidence that Olympia, despite having capacity to take further members for the MAG programme, had refused Kim membership because of his relationship to Mr Cowper. That situation does not arise on the facts.
[95]There will accordingly be judgment for Olympia.
Discussion: Affinity
[96] Affinity is the Rolleston-based club where Kim’s former coach had subsequently been engaged as head coach of Affinity’s MAG programme after his year out of coaching.
[97] Mr Fraundorfer referred to objects identified under Affinity’s constitution including the promotion of and participation in gym sports of all people.
[98] Mr Fraundorfer submitted, as with Olympia, the communicated response of Affinity—that “Kim would not be a good fit for the Affinity MAG programme”— indicated a predetermination and apparent bias on the part of Affinity as decision-maker.
[99] As with the pleading against Olympia, the pleading against Affinity was that it had taken into account irrelevant and/or unlawful considerations, namely that Mr Cowper had previously made complaints about a gymnastics club and that Mr Cowper was Kim’s father.
[100] As I have noted (above at [78]–[80]), Affinity pleaded what may be described as two factual defences and also three affirmative defences, invoking statutory or legal issues.
[101] In his submissions for Affinity, Mr Jones addressed all those matters. He emphasised Affinity was dealing with a telephone enquiry which it had to consider
whether to progress or not. Kim had not submitted either the required membership form or paid the membership fee as prerequisites to consideration.
[102] Concerning Mr Cowper’s previous conduct towards the former coach (now Affinity’s head MAG coach) Mr Jones emphasised the need for Affinity to protect their employee from any harm associated with the coaching of Kim.
[103] In my view, the claim against Affinity is untenable. Just as it was appropriate that Olympia adhere to its view as to appropriate training ratios, it was appropriate for Affinity, in considering whether to take on a new member, to have substantial regard to the wellbeing of Affinity’s existing employees, including, most relevantly, its head coach. Far from being an irrelevant or unlawful consideration, the consideration of an existing employee’s wellbeing was a highly relevant consideration.
[104] It is therefore unnecessary I further consider Affinity’s affirmative defences under the HRA and the NZBORA. It is also unnecessary that I consider the affirmative defence alleging abuse of process by reason of there being proceedings before the HRRT.
[105] There will be judgment for Affinity because Affinity’s motivating consideration was relevant and lawful.
Discussion: ICE/RGC
[106] ICE, or RGC as it was operating in early 2021, was the Rangiora-based club which Mr Cowper contacted in January 2021 for the purpose of having Kim temporarily train while on a wait-list at Olympia. As it transpired, following a meeting with Mr Cowper, ICE did consider whether to offer Kim a position in RGC’s MAG programme.
[107] Mr Fraundorfer identifies that RGC’s constitution sets out objects which are materially identical to those of Affinity (above at [48]), including in relation to the promotion of and encouragement to participate in gym sports, but with reference to “Rangiora and the surrounding districts”.
[108] Mr Fraundorfer submitted in relation to ICE/RGC, as with the other clubs, there had been a predetermination and apparent bias in the decision-making. As with the other clubs, these submissions were made against the background of a pleading that did not assert predetermination or apparent bias but instead asserted ICE had taken into account irrelevant and/or unlawful considerations, namely that Mr Cowper had previously made complaints about a gymnastics club and that Mr Cowper was Kim’s father.
[109] Mr Fraundorfer further submitted there had been no proper investigation or enquiry before ICE made its decision and that Kim was deprived of the right to put forward proper arguments.
[110] Mr Humphreys, for ICE, rejected the suggestion there had been predetermination on the part of ICE/RGC—the purpose of the meeting with the Cowpers, on the basis of an agenda, was to understand why Kim would want to join a small regional club, even on a temporary basis. Mr Humphreys referred to the evidence of the MAG coach then employed by RGC being not sufficiently qualified to coach or adequately assist Kim. He referred also to the safety risks involved, both in terms of the coach’s level of ability and in terms of RGC’s set up and equipment. In the context of a temporary membership, Mr Humphreys also emphasised the expense to the club of setting up temporary arrangements.
[111] In my view, as with the claims against the other clubs, the claim against ICE is untenable. Against the background of the meeting ICE/RGC arranged with the Cowpers and the detail of the agenda items that were presented and discussed at that meeting, it is understandable Mr Cowper might have feared the history of his dealings with the former coach was looming as an issue that might cut across ICE/RGC considering Kim for temporary membership—those issues did form one aspect of the agenda. But the agenda items focused significantly on Kim’s level of experience and on the ability of RGC to fit into Kim’s career.
[112] Importantly, Mr Humphreys’ evidence as to the gap between the level of gymnastics performance that RGC was currently providing and the level Kim’s
experience realistically required was not disputed by the applicant in any reply evidence.
[113] On the evidence, I conclude there was a significant mismatch between the coaching Kim would require and RGC’s capacity that could have justified RGC in refusing to consider long-term membership for Kim. It certainly justified RGC in not being prepared to embark on an upgrading of facilities and coaching qualifications for a temporary arrangement as sought by the Cowpers. A relatively small regional club, supporting gymnasts performing at a comparatively lower level, could otherwise be transformed at significant cost to cater for a single, more highly qualified athlete for what might turn out to be a very short period—this is not tenable.
[114] Correctly analysed, the key factor that led to ICE/RGC declining to take Kim on as a temporary member was the Board’s realistic consideration it could not justify the significant transformation of the club’s facilities and coaching arrangements that would be required to temporarily support a gymnast of Kim’s experience and potential.
[115]There will accordingly be judgment for ICE.
Discussion: GNZ
[116] Whereas Kim’s claim against GNZ was pleaded through two causes of action (above at [74]–[75]), Mr Fraundorfer helpfully summarised the case against GNZ as relating to its failure to intervene, by refusing to consider the Complaint on the mistaken basis GNZ did not have jurisdiction to consider the Complaint and/or that its failure to consider the Complaint was illegal.
[117] Mr Fraundorfer described the essence of the Complaint as one of “discrimination based on family status”.
[118] Mr Fraundorfer submitted that Kim was entitled to make such a complaint and GNZ required to consider such a complaint because:
(a)the Clubs were “Members” in terms of GNZ’s Constitution and thereby subject to the discipline of GNZ (above at [65]);
(b)the Complaint was a complaint of discrimination based on “family status”, a matter constituting “misconduct” under both GNZ’s Judicial Regulations and its Membership Protection Regulations (above at [60]);
(c)as such, the Complaint was sufficient to trigger a referral to either GNZ’s Sport Integrity Unit (if treated as a complaint of “misconduct”) or to the Judicial Committee (if treated as a complaint of “serious misconduct”) (above at [63]);
(d)there was accordingly an error of law when GNZ did not consider the Complaint;
(e)furthermore, the failure of GNZ to view the Complaint in light of its wider governing documents and purposes meant GNZ did not consider what the Complaint was actually about or truly consider Kim’s position, resulting in an illegal decision.
[119] For GNZ, Mr McCormick submitted the membership decisions the Clubs were making involved management and operational issues for the Clubs to determine, within which GNZ had no right to interfere.
[120] Mr McCormick accepted the Clubs would not, as a matter of administrative law, have an unfettered discretion as to who they will accept as members. But he submitted, the Clubs in this case, in exercising their “constitutional discretions” cannot be criticised for acting on the considerations raised by Mr Cowper. None of the Clubs could be characterised as having not acted in furtherance of the particular club’s objects and purposes or as having acted with an improper purpose or in bad faith.
[121] Mr McCormick submits GNZ, upon receipt of any complaint, first had a duty to ascertain whether (on the facts of this case) there was even an arguable case of misconduct—a responsible body, especially in the sporting domain, is not obliged to commence an investigation or refer the matter to a judicial process simply on receipt of a complaint. Here, in Mr McCormick’s submission, the process of Kim’s
application for membership was and remains the province of the respective clubs as incorporated societies. Mr McCormick suggested Mr Cowper had not provided GNZ with any evidence of discrimination, or of bias or predetermination, other than referring to his long-held belief that his previous behaviours were being visited upon his son. As such, GNZ was correct to view the dispute as one between Mr Cowper and the Clubs regarding the operation of their membership processes.
[122] Mr McCormick drew an analogy with the Solicitor-General’s Prosecution Guidelines, which provide guidance on decisions to prosecute.8 Those guidelines involve a two-stage test, first reviewing the quality of the evidence and, secondly, considering the public interest in bringing a prosecution. In Mr McCormick’s submission it would have been an improper application of GNZ’s constitutional policies were GNZ to have initiated a judicial process against the Clubs for misconduct simply on the basis of Mr Cowper’s grievance as it stood, and to have then sought to gather evidence afterwards.
[123] I come to consider the review of GNZ’s decisions having already reached my conclusions in relation to the complaints made against the Clubs. As I have found the review application against each of the Clubs must be dismissed, it is appropriate to first consider (in relation to GNZ) the primary relief sought, namely an order quashing the decision to refuse to consider the Complaint (as it related to each club).
[124] As I have found the Clubs were, in administrative law terms, within their rights to refuse Kim membership, the request for the quashing of GNZ’s decision has been overtaken by events. Put another way, the correct outcome of any investigative or judicial process GNZ instigated into the conduct of the Clubs would have seen the vindication of the Clubs’ decision-making for the reasons identified earlier in this judgment. Even if GNZ made a decision which involved a reviewable error, the quashing of such decision is not appropriate—such error has been overtaken by other findings.
8 Crown Law “Decisions to Prosecute—Te Whakatau ki te aru” December 2024)
< leaves for consideration the second form of relief sought, namely a declaration that GNZ had jurisdiction to consider the Complaint.
[126]The applicant’s complaint here is two-fold:
(a)that GNZ acted unlawfully (in terms of the Judicial Regulation), in refusing to consider the Complaint; and
(b)GNZ acted unlawfully in failing to refer the Complaint to the Judicial Committee.
[127] I observe there is a distinction between the basis of the Complaint—that the Clubs had discriminated against Kim because his family had made complaints—and the desired outcome for Kim—that he be accepted as a member of at each of the Clubs.
[128] I recognise, as GNZ’s (2020) Judicial Regulation stood, the complaint procedure appeared sufficiently broadly drafted to enable complaints to be made by individuals whether or not they were already members of a club. I also recognise that “discrimination” (as defined in the Membership Protection Regulation) constituted an example of the misconduct which could be the subject of a complaint under the Judicial Regulation. Discrimination, whether relating to a club’s approach to a membership application or some other activity, is plainly a form of club misconduct GNZ is intended, by its regulation and rules, to have powers to investigate and sanction.
[129] What is more problematic in the applicant’s case, is the proposition that upon Mr Cowper making a complaint that Kim had been discriminated against on the basis of his relationship with his father, GNZ was obliged, without discretion, to refer the complaint to its Judicial Committee. I accept Mr McCormick’s submission that, the (2020) Judicial Regulation had to be construed as permitting, not requiring, GNZ to refer complaints to one of the enforcement bodies. The need for GNZ to exercise a discretion in relation to the categorisation of complaints was reflected in clause 7.2 of the Judicial Regulation (above at [60](a)(i)) through the implicit requirement upon
GNZ to determine whether particular conduct complained about should be categorised as “minor misconduct”, “misconduct”, or “serious misconduct”.
[130] I do not consider it was open to GNZ to refuse to accept the Complaint for consideration. Once GNZ received a complaint which constituted a complaint of “misconduct” (because it involved an allegation of discrimination), GNZ was obliged to consider the Complaint.
[131] A logical first step for GNZ was to consider how the Complaint was to be categorised in terms of the level of misconduct. I do not consider the applicant has made out a case that the Complaint had to be treated as a complaint of “Serious Misconduct”. It follows that the applicant’s pleading that GNZ acted unlawfully in failing to refer the Complaint to a Judicial Committee (which would arise only in relation to an issue of “Serious Misconduct”) is not made out.
[132] In the form the (2020) Judicial Regulation existed, there is a strong argument that GNZ had not preserved to itself a discretion, once a complaint was viewed as involving more than “Minor Misconduct”, to not refer the Complaint to at least the Sport Integrity Unit. My conclusion is that, as GNZ’s regulations and rules stood under the 2020 version, GNZ did err in not referring the complaint at least to the Sport Integrity Unit.
[133] The difficulty in moving beyond that recognition to considering the grant of relief as sought by the applicant, lies in the fact the Court has been informed the (2020) Judicial Regulation has since been revoked. As the Court has not been provided with any information as to the current form of any replacement regulation, the Court is not in a position to declare how GNZ would be required to proceed today under its current rules. The relief sought by Kim was, understandably, declarations as to GNZ’s present jurisdiction. As to what GNZ is required to do on the information before the Court with the (2020) Judicial Regulations revoked, the Court is not in a position to declare how GNZ must now act.
[134] As the relief sought by the applicant is expressly framed in the present tense, it is not appropriate for the Court to consider the past application of the 2020 Judicial Regulation.
Costs
[135] Kim has been legally aided in this proceeding. Section 45(2) Legal Service Act 2011 applies, so as to exclude an order of costs against him unless I am satisfied there are exceptional circumstances.
[136]I am not satisfied there are any exceptional circumstances.
Result
[137]The application is dismissed as against all defendants.
[138]There is no order as to costs.
Osborne J
Solicitors:
Bush Forbes, Tauranga
Counsel: D M Fraundorfer and H J O Lewis, Barristers, Tauranga Clark Boyce, Christchurch
Counsel: A J Davis, Barrister, Christchurch Maciaszek Brown Law, Christchurch
Counsel: A M McCormick, Barrister, Christchurch
Copy to: E N Humphreys (Ice Gymsports North Canterbury Inc) R Jones (Affinity Gymnastics Academy Inc)
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