Frewer v Canterbury Radio Control Car Club Incorporated
[2022] NZHC 1604
•7 July 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-268
[2022] NZHC 1604
BETWEEN KEVIN PERCIVAL FREWER
Applicant
AND
CANTERBURY RADIO CONTROL CAR CLUB INCORPORATED
Respondent
Hearing: 13 June 2022 Appearances:
M J Borcoski and L G Wells for Applicant P A Cowey and D L Bell for Respondent
Judgment:
7 July 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 July 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
FREWER v CANTERBURY RADIO CONTROL CAR CLUB INCORPORATED [2022] NZHC 1604 [27 June 2022]
Introduction
[1] Mr Frewer is a dedicated radio control car racing enthusiast. He was one of the founders of the Canterbury Radio Control Car Club (the Club) in 1975. He was also involved in the campaign to fund and build the first New Zealand track for radio control car racing at Ruapuna Park.
[2] There are a number of classes of model cars that race at the Club, but Mr Frewer’s particular interest is in the 1/8th scale GT class (1/8 GT) which was developed in late 2018. This class uses a 1/8th scale buggy chassis that is lowered to suit tarmac racing rather than off-road situations, and has “slick tyres and a saloon style body shell”.
[3] Mr Frewer explains that normal 1/8th scale cars use foam tyres for racing as they are faster. However, 1/8 GT cars use rubber tyres for ease of use by newcomers. Indeed, two international bodies made rules to allow rubber tyres only for this class.1
[4] However, Mr Frewer noted that the life expectancy of rubber tyres started to deteriorate as a result of competition in the market which led to cheaper, but less durable tyres, being available. Because of this, he began investigating the use of foam tyres instead, saying he still had stocks of foam from when he used to sell foam tyres years ago for other classes of model cars. He considered if he could prove the advantages of foam tyres, then the rules preventing their use could be changed in the interests of racers. In his view, foam tyres would be cheaper and could be used anywhere, unlike rubber tyres where the driver has to experiment to find a suitable tyre for each particular track.
[5] From 2019 he became an advocate for foam tyres, publishing information about it on a Facebook page dedicated to this issue. However, at every step, he feels the Club has thwarted him, culminating in a decision to ban the use of foam tyres in the 1/8 GT race class at its 2019 AGM (the tyre decision).
1 The European Federation of Radio Operated Model Automobiles and the International Federation of Model Auto Racing.
[6] Mr Frewer applies for judicial review of the tyre decision seeking a declaration that it is invalid and an order quashing it or setting it aside.
[7]The parties are agreed that the issues on appeal are:
(a)whether the tyre decision is amenable to judicial review;
(b)if it is, whether the grounds for judicial review of the tyre decision are made out; and
(c)if a ground is made out, whether the Court should exercise its discretion to grant the relief sought.
Background
[8] Before considering these issues it is necessary to set out the events which led to the tyre decision and also some subsequent events which Mr Frewer says are relevant to its validity.
[9] In 1989 the Club was incorporated under the Incorporated Societies Act 1908 (the Act) and adopted a set of rules (the Rules) as required by the Act. These govern what might be described as the constitutional arrangements for the Club. The Rules state the objective of the Club is “the promotion of and participation in the sport of radio control model car racing”.2 The Rules set out the categories of Club membership and the voting rights that attach to such membership. They also cover the circumstances in which membership will cease, the circumstances in which the Rules can be changed, the requirements for holding a general meeting, and how voting will be conducted.
[10] The 1/8 GT racing class was introduced in 2018 and, in early 2019, Mr Frewer trialled his foam tyres at three club meetings. He also created a Facebook page dedicated to foam tyres entitled “Foam tyres for 1/8th GT”. At the time, the New Zealand Radio Car Association (NZRCA) had a rule which banned foam tyres
2 The objective originally referred to “1/8 scale gas radio controlled circuit car racing” but was amended by the Club on 14 March 2000, to remove the focus on gas-controlled cars.
for the 1/8 GT class. In April 2019 Mr Frewer says he was told by the Club’s president that he had to use rubber tyres, not foam tyres.
The tyre decision
[11] The Club held an annual general meeting (AGM) on 7 September 2019. Mr Frewer says that notice of the meeting was not given in accordance with the Rules. Instead, the 2019 AGM was notified via an event invitation posted on the Club’s Facebook page. The Facebook notification did not include an agenda nor mention anything about a vote to ban foam tyres. Mr Frewer says, because he was not aware that a ban would be voted on, he did not attend the 2019 AGM. However, Mr Frewer accepts he was aware of the AGM.
[12] The Club’s statement of defence says the motion to ban foam tyres from the 1/8 GT class was presented from the floor during the 2019 AGM. The Club treasurer, Mr Soper, says it “was voted on … by our Club’s drivers in that particular class. It passed and the rule was implemented immediately.” Of 15 votes, 12 voted for the motion, while three were against it. It seems Mr Soper is correct to say that only those members who raced in the 1/8 GT class voted because, on another vote at the same AGM, there were 24 votes recorded.
[13] However, soon afterwards, the NZRCA voted to remove the ban on foam tyres in the 1/8 GT class, with about a 70 per cent margin supporting the removal. Mr Frewer thought that would put an end to any issues as to him racing with foam tyres at the Club. However, at a Club meeting on 13 October 2019 when there were six GT class drivers present on the side of the track, Mr Soper asked the drivers to vote on whether they wanted Mr Frewer to race with them using his foam tyres. Virtually all of them voted against that happening. It seems there may, by then, have been some aversion to Mr Frewer’s ardent promotion of foam tyres. Mr Frewer acknowledges that one influential driver had said to other drivers “if it goes to foam, I’m giving up”. Mr Frewer also began receiving comments on his Facebook page saying things like he was “ramming it down people’s throats”.
[14] Mr Frewer says the Club then proceeded as if he was banned from racing with foam tyres. When it came time to renew Club memberships in September 2020, he
received an email from the Club’s treasurer, saying the committee had had a meeting to approve memberships and Mr Frewer was sent a letter with conditions to sign if he wanted his membership to continue. These included conditions requiring him to keep comments about the Club separate from his advocacy for foam tyres and, while he was free to continue with his development of foam tyres using the Club’s track after race meetings or at approved times, when racing at Club meetings he was to comply with the Club rules, including using rubber tyres only on the 1/8 GT class.
[15] Mr Frewer says he signed this document agreeing to the conditions as he believed that otherwise he could not be a member of the Club at all. However, he pursued the Club on the issue of why he could not race with foam tyres. In response, the Club committee sent a letter to Mr Frewer on 11 November 2020 saying it was a “drivers’ preference” for many reasons. These included that the drivers “like the format of running rubber with the similar approach to Super cars with the warmup and the challenge of setup”. The letter also said the stance on rubber tyres only was “in the rules when the class was started and was the attraction to running the class”. The letter emphasised that Mr Frewer could continue to test his foam tyres outside the Club 1/8 GT class race events. Mr Frewer says it was from this letter that he realised a change had been made to the rules.
[16] He engaged lawyers who wrote to the Club in late December seeking a reversal of the tyre decision. They claimed that the Club’s decision was amenable to judicial review on a number of grounds and said Mr Frewer “reserves his right to take further legal action” if the Club continued to ban him from racing with foam tyres.
[17] The Club responded on 11 January 2021 saying it had “the right to ban drivers when they fail to align with our Club[’s] rules and any agreements in place”. It said Mr Frewer “has been invited and given the opportunity to come and put forward his case to run foams at the last two AGM’s of which he has declined for reasons known only to him”. The letter then recorded concerns about Mr Frewer’s behaviour saying he had “intimidated several Club members” and the Committee had received five letters of complaint about Mr Frewer’s behaviour at the last Club meeting in December 2020. The letter went on to say that, in any event, the NZRCA rule only permitted the use of “production” tyres which are commercially available, and
Mr Frewer’s foam tyres did not meet that definition. The letter concluded by saying that Mr Frewer’s membership was revoked immediately because of:
- his behaviour which does not conform with our Clubs [sic] rules
- and the concern of the affected members.
[18] Further correspondence ensued, but no progress was made. Eventually, in mid-2021, Mr Frewer issued these proceedings challenging:
(a)the tyre decision (which he referred to as the “Banning Decision”);
(b)the decision to revoke his membership application if he did not agree to the conditions in the letter from the Club committee on 23 September 2020; and
(c)the decision to exclude him from membership on 11 January 2021.
[19] The Club relented and on 17 August 2021 reinstated Mr Frewer’s membership “without any special conditions” and confirmed that Mr Frewer could attend and vote in the 2021 AGM. That addressed the second and third grounds of challenge. However, Mr Frewer maintained his position that the tyre decision was invalid. In a letter dated 23 August 2021, Mr Frewer’s lawyers set out their reasons for challenging the tyre decision saying, in particular, it was made without following the correct processes in the Rules. It asked the Club to accept that the purported decision to ban foam tyres for the 1/8 GT class was invalid and that the rule no longer applied.
[20] In response, the Club’s lawyers said that, while the Club did not accept liability, “out of an abundance of caution and to avoid protracted legal proceedings, our client intends to have the foam tyres question voted on at the upcoming AGM on 16 October 2021”. It went on to say that Mr Frewer:
… as a member, may propose the wording of the motion he wishes to have voted on, submit any material to support his case for the use of foam tyres, and this will be circulated to all members ahead of the AGM. If he wishes, [he] can also speak to the topic at the AGM.
[21] Prior to the 2021 AGM, formal notice was given of the proposed remit to be voted on. It was proposed by the Club president, and initially read:
1/8th GT Class
All GT cars are to run commercially made and available rubber tyres as voted by the GT drivers. No foams allowed.
However, the notice advised that the remit had been amended by the Committee to read:
1/8th GT Class
All GT cars are to run commercially made and available rubber tyres. No foam tyres allowed.
[22] Prior to the meeting, Mr Frewer emailed a letter to all members which set out his side of the dispute. It explained the history of the dispute, his reasons for preferring foam tyres and his concern that the Club was being so resistant to what he was proposing. It concluded by saying:
I don’t know why a few people seem to be so opposed to what I am doing, which is for the greater good. I am worried that these decisions are being made by a few members of the Club who for some reason want to stop me being involved in the Club. Obviously this is very upsetting for me as I was a founding member of the Club and I am passionate about racing.
All I wish for is some meaningful discussions, for me to be allowed to trial foam tyres under racing conditions on a clean track and to restore the friendly and helpful atmosphere at the Club – the way it used to be.
[23] Mr Frewer attended the AGM where he also read out the letter he had sent to members.
[24] Mr Frewer and a supporter of his, Mr Barry Brown, say that when the remit regarding foam tyres was put to the meeting, there was no opportunity to discuss the matter. Specifically, Mr Brown said he had some matters he wanted to raise and he told the members “the only reason we were voting on the issue was because the original vote was invalid”. However, he said Mr Soper disagreed with him and Mr Soper and two others said they were “just changing the words of the rule”. This came as a surprise to both Mr Brown and Mr Frewer who understood that they were having a fresh vote on whether foam tyres should be banned in the 1/8 GT class.
[25] The Club’s minutes of the 2021 AGM record that the remit regarding foam tyres was passed. It also recorded, in general business, that:
Mr Kevin Frewer asks to speak about foam tires [sic], he reads a lengthy letter from himself describing points of durability, grip, handling etc regarding running foam tires [sic] in the 1/8 GT class.
Sam Hepenstal brings up prehaps [sic] a need to have a special meeting about voting for foam tire [sic] rules.
This does support Mr Frewer’s position that the members did not consider this was a fresh vote on the foam tyre issue but simply a vote to amend the wording of the existing Club class rule.
[26] Finally, the NZRCA also voted to ban foam tyres in the 1/8 GT class at their 2021 AGM, thus reverting to the position as it was in 2019. Mr Frewer says this vote was taken at the behest of certain members of the Club, and without a general mandate from the Club to do so. The Club says it was a legitimate decision by a majority of the members of the NZRCA, and the Club is required to comply with the NZRCA rules for all championship events.
[27] Although the amended statement of claim for judicial review challenges three decisions of the Club, because the Club has reinstated Mr Frewer’s membership with no conditions, the only issue remaining (aside from costs) is his challenge to the tyre decision.
Is the tyre decision amenable to review?
[28] The parties both accepted that an incorporated society’s decisions may be amenable to review under the Judicial Review Procedure Act 2016 (JRPA). Where they differed was whether the tyre decision has a sufficiently “public” aspect to warrant the intervention of this Court, as not every decision of an incorporated society will warrant the Court’s oversight.
[29] The circumstances which will engage the Court’s review function were explained by Kós J (as he was then) in Tamaki v Maori Women’s Welfare League Inc as follows:3
Typical qualifying circumstances will involve the denial of access to membership, the exercise of a disciplinary power, the deprival of a licence or other economic concession, the alleged misapplication of a society’s constitution in a manner that offends natural justice or an alleged error of law in the application of a society’s constitution where the body concerned has a public or quasi-public function.
(footnotes omitted)
[30] On the other hand, as the Court of Appeal observed in Hopper v North Shore Aero Club Inc:4
[10] Where the activities of a private entity are private in nature, the Courts have demonstrated a reticence to interfere with matters of internal management or regulation …
In Hopper, the applicant sought judicial review of the club’s decision to refuse permission for Mr Hopper, as a club member, to base his aircraft at the club’s airfield. However, the Court of Appeal doubted the issue was amenable to review saying:5
The club committee was not exercising a quasi-public function, nor … did it breach natural justice. In the absence of one or both of these features, it is doubtful that a decision of a private body will be amenable to review …
[31] Ms Borcoski, for Mr Frewer, acknowledges that the tyre decision does not concern disciplinary proceedings or livelihood issues. However, she says it does concern whether the tyre decision was arrived at honestly and for a proper purpose, in accordance with the Rules. In that regard, she submits the case is analogous to Stratford Racing Club Inc v Adlam where Chambers J said: “his essential complaint against the committee, namely that they were acting unfairly and for an improper purpose, is quintessentially the stuff of judicial review”.6
3 Tamaki v Maori Women’s Welfare League Inc [2011] NZAR 605 (HC) at [43].
4 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (HC).
5 At [12].
6 Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [55].
In addition, Ms Borcoski submits that while the tyre decision does not specifically revoke Mr Frewer’s membership, it does concern membership issues as its intended effect was to exclude Mr Frewer from racing at the Club.
[32] In asserting that the 2019 AGM did not comply with the Rules, Ms Borcoski refers to rr 7, 8 and 9 which state:
7 ALTERING, ADDING TO, OR RESCINDING THE RULES:
To alter, add or rescind any … rules of the Society a general meeting must be called and the addition, alteration, or rescinding of any rule must be put to the vote.
8 NOTICE OF A GENERAL MEETING
A.To hold a general meeting notice must be sent by mail to every member of the Society at least 14 days prior to the meeting being held.
B.A quorum is required, being 1/3 of the membership including
3 committee members to hold a general meeting of the Society.
9 VOTING
Voting will be done by a show of hands or by ballot.
[33] Ms Borcoski submits the Club did not comply with these Rules when it made the tyre decision. Mr Frewer did not receive proper notice of the 2019 AGM. The AGM was notified via Facebook. There was also no notice given to members that there would be a discussion or a vote on banning foam tyres in the 1/8 GT class. She submits it is implicit in the Rules that prior notice needs to be given of a vote to amend the Rules and the lack of compliance with the Rules detrimentally impacted Mr Frewer’s interests. He was the member that wanted to use foam tyres to race in the 1/8 GT class and, by failing to alert him to the possibility the rule banning foam tyres would be introduced, he was denied an opportunity to speak to, and be consulted on, the tyre decision.
[34] Ms Borcoski points out that lack of compliance with club rules was confirmed as a ground for review in Middledorp v Avondale Jockey Club Inc.7 That was an
7 Middledorp v Avondale Jockey Club Inc [2019] NZHC 901, [2019] NZAR 738.
application for judicial review regarding a club’s decision to suspend a committee member. In the High Court, Gordon J stated:8
[70] The Club and the Committee must act in accordance with the Rules and can only take actions which the Rules empower it to take in circumstances where sanctions are to be imposed.
[35] Ms Borcoski accepts that the Rules did allow the Club to vote on the tyre decision. However, she says the Rules only empowered the Club to take actions in a prescribed manner and the tyre decision was brought about through, and tainted by, a lack of compliance with the Rules.
[36] Mr Cowey, for the Club, however, submits the tyre decision is not sufficiently public in nature to attract judicial review. He says the tyre decision did not involve amendment of the Club’s Rules. It was a lower tier of decision-making. In order to operate a race class the Club has to set parameters and these are matters of internal management and regulation. While those parameters are necessary for the operation of the Club, he submits they are not of public importance and it is not appropriate for the Court to be involved in decisions of this nature.
[37] Indeed, he says if the Court was to intervene here, it would set a dangerous precedent where disgruntled club members, with sufficient funds, could fill the courts with complaints whenever they were outvoted on minor issues from the colour of a team’s rugby jersey to the date for the next bridge tournament. In his submission, domestic decisions made by clubs and societies do not impact the civil rights of members and the Courts have appropriately been reticent to grant applications by members to review them.
Discussion
[38] In this case, the amenability of the decision to review depends, in part, on factual determinations, including whether there was non-compliance with the Rules and whether the tyre decision did aim to exclude Mr Frewer from membership.
8 At [70].
[39] However, even without exploring those allegations I consider the issue is not obviously of such consequence to warrant the Court’s intervention. It involves a relatively trivial dispute over the parameters for participation in a particular class of hobby racing. Mr Frewer can still race in that class, albeit using rubber tyres. He can still operate his 1/8 GT class cars on foam tyres using the Club track, when not participating in official Club races. He can still advocate for foam tyres as an option. Indeed he can still submit a motion to the Club, in the ordinary way, to change the tyre rule. Now that the Club has (rightly) reinstated his membership, any risk to his membership arises solely from his resistance to complying with that rule rather than from any actions of the Club. To adapt Chambers J’s words in Adlam, a decision as to what rules should apply to a class of hobby car racing is quintessentially an internal management decision and not the stuff of judicial review.
[40] My instinct that the issue is not amenable to judicial review is reinforced when I examine the reasons advanced by the applicant for saying it is.
[41] The claim the decision concerned compliance with the Club’s Rules is not as straightforward as Ms Borcoski asserts. The Club appears to have two layers of rules. There are the constitutional rules of the Club which are discussed at [9] above. These are the rules which are required by the Registrar of Incorporated Societies under s 7 of the Act and, in accordance with s 6 of the Act, address issues such as membership, meetings, and voting rights.9
[42] There also are what are described as the Club class rules which are set out on an information sheet regarding the Club and its operation. The information sheet says:
All club events are run under the NZRCA rules and regulations with the following club rules for club events added. Any additions of rules must be approved by way of a vote from the current drivers of that class.
The sheet then sets out three rules for the 1/8 GT class which include the rule banning foam tyres.
9 I note that pursuant to s 6, sch 1 cl 2 of the Incorporated Societies Act 2022, the Club continues to be subject to the 1908 Act until it reregisters as a society under the 2022 Act or until 1 December 2025.
[43] The decision on what type of tyre is to be used for a particular race class is not a constitutional rule, and the Club’s Rules do not obviously govern how the Club class rules are to be made. The only evidence as to how Club class rules are developed is that set out on the Club information sheet. The starting point is that, in the usual case, such rules are to be consistent with the NZRCA rules, unless local circumstances warrant a departure. That is reinforced by the fact at the 2021 AGM of the NZRCA, the following rule was passed:
NZRCA member clubs are to base their club class rules on the NZRCA class rules where applicable, however changes to suit local racers are permitted providing a copy of “club” rules and changes are sent to the NZRCA Executive and updated accordingly should these change at any point.
[44] The only other parameter appears to be that such rules are to be voted on by the members who participate in the class of racing the rule will apply to. That appears to be what happened in this case.
[45] In the absence of any other evidence regarding how the Club class rules are made or amended, there can be no certainty that there has been a breach of the Club’s requirements governing their creation. In my view, the requirements in r 7 of the Rules for notifying and voting on a rule change relate only to changes to those constitutional rules.
[46] While Ms Borcoski is right that there was a technical breach of the Rules when notifying the 2019 AGM, that is not relevant to the tyre decision if Mr Frewer was not required to be notified, in advance, of a change to the Club class rules. It seems he was aware of the AGM, so the lack of written notice was of no practical consequence to him. In summary, there is insufficient evidence to suggest the tyre decision is amenable to judicial review because it did not comply with the Club’s Rules.
[47] The second ground for saying the tyre decision is amenable to judicial review was that it was a decision not arrived at honestly and bona fide, and for a proper purpose. However, Ms Borcoski primarily relies on events that happened after the decision was made, to suggest the Club used its power for an improper purpose, which was to “target and exclude” Mr Frewer. Ms Borcoski submits that because it was Mr Frewer who was racing foam tyres in the 1/8 GT class, it was him who was
primarily affected by the decision. However, the mere fact he was adversely affected by the decision is not proof that the Club used its power for an improper purpose. The minority will always be adversely affected when the majority view prevails. Something more is required.
[48] I also do not consider the actions taken by the Club committee following the tyre decision and Mr Frewer’s challenge to it, demonstrate that the tyre decision itself was made for an improper purpose. I accept that positions became more polarised once Mr Frewer challenged the tyre decision, but I do not consider that translates into the original decision being made for an improper purpose, noting that, at the time, it was consistent with the NZRCA rules.
[49] Finally, Ms Borcoski submits that the tyre decision is amenable to judicial review because it involves a breach of natural justice. However, the substance of natural justice varies depending on the nature of the power in question and the gravity and consequence of the decision.10 As was said by Asher J in Pritchard v Evans:11
[35] The concept of natural justice is essentially contextual and has been described as a “flexible concept which aims to achieve across an infinite spectrum of situations both the actuality and the perception that things have been done justly and fairly.” … What is required turns on the role and functions of the body in question, the nature of the decision and the statutory, regulatory or constitutional framework that applies. …
[50] Regrettably, in the present case, there is a dispute on the facts as to whether Mr Frewer was aware that the issue of tyres in the 1/8 GT class was to be discussed at the 2019 AGM. The Club says, in its statement of defence, that Mr Frewer had actual notice of the 2019 AGM and that the foam tyre issue would be discussed at that meeting, and he was invited by the Club’s treasurer to speak to the issue at that meeting. However, in his reply to the statement of defence, Mr Frewer simply denies that. I am not prepared to make a finding either way when there is a dispute on the facts and the evidence is not tested through cross-examination.
10 Middledorp v Avondale Jockey Club Inc, above 7, at [84].
11 Pritchard v Evans [2013] NZHC 3150, [2014] NZAR 370, citing Director of Civil Aviation v Paterson (No 3) HC Wellington CIV-2005-485-606, 23 June 2005.
[51] I accept that the tyre decision affected Mr Frewer’s interests. However, given he rejects the suggestion he was promoting foam tyres for any commercial purpose or pecuniary advantage, the only effect on him is to remove the option for him to race with foam tyres in that particular class. It is difficult to see that this is a consequence of such moment, that the Court should intervene to protect that right.
[52] For all these reasons, I am satisfied that this decision is not amenable to judicial review. However, should I be wrong on that count, and to bring some finality to this dispute, I go on to consider whether, in any event, the grounds of review are made out. There is, of course, some overlap between this and the previous discussion, which inevitably examined aspects of the merits of the case.
Are the grounds for judicial review established?
[53]Mr Frewer seeks relief under the JRPA on two main grounds:
(a)illegality; and
(b)unfairness or procedural impropriety.
Was there illegality?
[54] On the first ground, Mr Frewer says the Club acted outside its lawful authority, citing the alleged failure to comply with the Rules in making the tyre decision. In that regard, Mr Frewer points out that an error in the application of the rules of a society can be an error of law.12
[55] Here, Mr Frewer argues that the Club misapplied r 7, and so the 2019 AGM was not “a properly constituted meeting” of the Club,13 and as a consequence, he was denied an opportunity to be consulted on and to speak to the tyre decision. For the reasons already given in [41–46] above, I am not satisfied that Mr Frewer has demonstrated the tyre decision was governed by the Rules. Furthermore, there is a
12 Pritchard v Evans, above n 11, at [34].
13 At [58].
factual dispute as to whether he had notice the tyre issue would be discussed at the AGM and I am not prepared, on the balance of probabilities, to find that he did not.
[56] The second ground on which the decision is said to be illegal is that the rule was made for an improper purpose and was inconsistent with, and undermined, the Club’s objectives which are “the promotion of and participation in the sport of radio control model car racing”. Mr Frewer claims the Club used its power for the improper purpose of excluding him. Mr Frewer suggests the fact the Club offered a range of reasons at different times for the tyre decision – saying it was for “health and safety requirements”, it was consistent with the NZRCA rules, and it was “a driver’s preference” – indicated these were not genuine or legitimate reasons.
[57] He says the improper purpose becomes apparent when the factual sequence is considered. In his submission, this includes:
(a)the tyre decision only applied to the 1/8 GT class which was the class Mr Frewer was interested in, and raced in;
(b)the informal vote held on the trackside in October 2019 was directed at Mr Frewer, as the other drivers were asked whether they wanted Mr Frewer racing with foam tyres;
(c)the Club then required Mr Frewer to agree to conditions, including not to use foam tyres, in order for his membership to be accepted;
(d)the Club then revoked his membership, citing “five letters of complaint from Club members about Mr Frewer’s behaviour”, although the nature and content of the complaints have not been provided to Mr Frewer;
(e)the Club then misled Mr Frewer into believing that the foam tyre issue would be revisited at the 2021 AGM, when at the meeting it was clarified it was only a vote to change the wording of the 2019 resolution; and
(f)a Club committee member put forward a remit to the NZRCA to amend the NZRCA rules to once again prohibit foam tyres from being used in any GT class, and they did so without first engaging in the required consultation with other Club members.
[58] Again, I have largely addressed these issues in the discussion above at [47]. Although Mr Frewer may have felt targeted by the tyre decision, that was the inevitable result of it confirming a contrary view to his.
[59] However, it is important to record that the evidence falls far short of demonstrating that the tyre decision was inconsistent with and undermines the Club’s objectives. There are clearly reasons why members would wish to race with rubber tyres. Those reasons are articulated in Mr Frewer’s own affidavit. Rightly or wrongly, it appears there are drivers who do prefer that all participants use rubber tyres and, while Mr Frewer is dissatisfied with the decision, I cannot say that the Rule contravenes the Club’s objectives of the promotion of and participation in the sport of radio control model car racing. In any event, such a submission requires an investigation into the merits of the decision which falls well outside the scope of judicial review.
[60] I accept that the Club has put forward a number of different reasons for banning the use of foam tyres. However, it is quite possible that all these reasons have some part to play in the decision.
[61] I also accept it is unfortunate that the letter from the Club’s lawyers of 30 August 2021 suggested that the tyre decision would be revisited at the 2021 AGM, when in fact (whether through a misunderstanding or otherwise), the committee told its members that the motion was simply a vote on rewording the tyre rule. It is therefore unsurprising that Mr Frewer was “so stunned that [he] did not have a chance to object or to argue that what they said was not correct”. However, as I have already said, I do not consider that subsequent events demonstrate that the tyre decision was made for an improper purpose. Furthermore, the option of having a genuine vote on this issue remains open. The letter from the Club’s lawyers advised Mr Frewer he could put forward his own motion at the AGM, and the minutes record a willingness
of at least one other Club member, other than Mr Frewer and Mr Brown, to consider reviewing the foam tyre ban.
[62] While Mr Frewer seeks to impugn the decision of the NZRCA to amend its rules to again prohibit foam tyres, that organisation is not engaged in these proceedings and I have no scope to enquire into the process for making that decision. The fact is that the NZRCA has adopted, by a significant majority, a rule banning foam tyres in the 1/8 GT class, thus reinstating the position as it was approximately three years ago. This does not support the tyre decision having been made for an improper purpose.
[63] Finally, Mr Frewer says the tyre decision was illegal as it was made having regard to an irrelevant consideration, being “a driver’s preference”, and with no consideration of the objectives of the Club, which is a relevant consideration. I disagree. The Club’s objective of encouraging participation in the sport is enhanced by having race rules that reflect the preference of the majority of drivers. Whether that preference remains the view of the majority is not for me to determine. However, I cannot say it is an irrelevant consideration.
Was there procedural impropriety?
[64] The second overarching ground of review alleges a range of procedural improprieties, including that the Club failed to act without actual or perceived bias, there was a breach of natural justice and a breach of Mr Frewer’s legitimate expectation to be consulted on the tyre decision.
[65] When an allegation of actual or perceived bias is made, the Court must first establish the circumstances which have a direct bearing on a suggestion that the decisionmaker was or may be seen to be biased. The second stage is to ask whether those circumstances might lead “a fair-minded lay-observer to reasonably apprehend that the [decisionmaker] might not bring an impartial mind to the resolution of the instant case”.14
14 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62], approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 92, [2010] 1 NZLR 35 at [3].
[66] Mr Frewer asserts the following circumstances indicate the Club was acting with bias:
(a)Trevor Winter, who was a member of the Club committee at the relevant time, and his wife sell rubber tyres for 1/8 GT cars;
(b)Mr Frewer was told prior to the 2019 AGM that he had to use rubber tyres not foam tyres;
(c)Mr Winter was one of the people who voted at the trackside in October 2019 against Mr Frewer participating with foam tyres; and
(d)the vote on the trackside and the 2021 AGM “merely attempted to formalise the decision that had already been communicated to [Mr Frewer] prior to the 2019 AGM”.
[67] I do not consider these circumstances are sufficient to support this allegation. As the Club points out, Mr Winter was not present at the 2019 AGM. It is unsurprising that Mr Frewer was told prior to the AGM that he had to use rubber tyres, not foam tyres. That was the position under the NZRCA rules at the time. What occurred at the trackside in October 2019 simply confirmed that the rule banning foam tyres was being enforced. It did not create the rule. Finally, the circumstances at the 2021 AGM are of little assistance in examining the fairness of the 2019 AGM.
[68] In short, there is simply insufficient evidence to impugn the 2019 decision as being tainted by bias, whether perceived or actual. In any event, such a practical decision will inevitably engage preferences and strongly held views by Club members. For example, Mr Frewer would not expect to be excluded from the decision despite his firmly held views on the outcome. The context is determinative of the standard to be applied,15 and this type of decision does not require the same level of impartiality as should be brought to bear when a decision involves more fundamental rights.
15 Problem Gambling Foundation of New Zealand v Attorney-General [2015] NZHC 1701 at [280].
[69] Finally, Mr Frewer argues he had a legitimate expectation to be consulted on the tyre decision, noting that he had a genuine concern and interest in developing and testing foam tyres for the GT class. In that regard, he relies on the decision in Fowler & Roderique Ltd v Attorney-General, where the appellant’s application for a licence to dredge an area of the Foveaux Strait was denied as a result of the decision by the Minister of Fisheries to limit the number of licences able to be granted, and the Court found it should have been given an opportunity to be heard before that decision was made.16 However, the decision in Fowler can readily be distinguished. It concerned the appellant’s financial interests and livelihood, which would be permanently affected by the Minister’s decision. Mr Frewer simply has an interest in the tyre issue, and the only consequence is that he cannot race radio-control cars using foam tyres. It remains open to him to have the decision revisited at any time and, if sufficient members agree with him, the rule can be changed. In those circumstances, I am not prepared to find that Mr Frewer had a legitimate expectation to be consulted.
[70]In short, I do not find that any of the grounds of review are made out.
Availability of relief
[71] Again, for completeness, I briefly address whether, in the exercise of my discretion, I would have granted relief if one of the grounds for review had been made out. For example, if there had been procedural impropriety in the making of the tyre decision, or if it was established there had been a breach of natural justice by failing to ensure Mr Frewer had been heard on the issue.
[72] Both counsel acknowledge that relief in judicial review is discretionary, although, as was said by the Supreme Court in Ririnui v Landcorp Farming Ltd, the Courts will generally consider it appropriate to grant some form of relief where they find reviewable error.17
16 Fowler & Roderique Ltd v Attorney-General [1987] 2 NZLR 56 (CA).
17 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
[73] Factors pointing against the grant of relief include where to grant relief would now be futile,18 and where there is a more appropriate alternative remedy available, for example, a right of appeal.19
[74] The Club argues that even if an error is identified which the Court considers is amenable to review, the vote at the 2021 AGM (which is not the subject of an application for review) has superseded the 2019 AGM vote. Furthermore, the tyre decision is consistent with the NZRCA rules for such events and so relief would be futile.
[75] While the position is not as simple as Mr Cowey submits, because the 2021 motion was not, as Mr Frewer understood, a full re-examination of the merits of the rule, the rule passed at the 2021 AGM does supersede the 2019 rule and was notified in accordance with what Mr Frewer says was the process required by the Rules.
[76] However, in my view, the more powerful reason for declining relief is that Mr Frewer retains the ability to present a motion to amend the relevant Club class rule and have it debated by Club members. Indeed, he was invited to do that by the letter of the Club’s lawyers dated 30 August 2021. It was also a suggestion raised by another Club member at the 2021 AGM. If he is able to persuade a majority of Club members that his view is preferable, the rule will be changed. If not, then he will have to accept that he is bound by the majority view of the Club.
[77] For these reasons, even if I had been satisfied there had been some element of illegality or procedural impropriety in the tyre decision, I would not have granted relief, as there is an alternative remedy available.
Outcome
[78]The application for judicial review is dismissed.
18 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [151].
19 Wislang v Medical Council in New Zealand [2002] NZAR 573 (CA) at [31].
Costs
[79] Costs are reserved. My preliminary view is that the respondent is entitled to 2B costs. If costs cannot be agreed then memoranda can be filed as follows:
(a)any application for costs is to be filed and served within 20 working days of the date of issue of this judgment;
(b)any memorandum in response is to be filed and served within 10 working days of receipt of the application for costs;
(c)any memorandum in reply is to be filed and served within a further five working days.
Costs will be determined on the papers unless I am required to hear from the parties.
Solicitors:
Saunders Robinson Brown, Christchurch Parry Field Lawyers, Christchurch
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