Na'Amanu v Samoan Assemblies of God in New Zealand (Inc)
[2024] NZHC 3640
•3 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001424
[2024] NZHC 3640
UNDER The Judicial Review Procedure Act 2016, the Incorporated Societies Act 1908 and Parts 18 and 30 of the High Court Rules 2016 BETWEEN
MAOIAUTELE LAMOSITELE NA’AMANU
Plaintiffs
AND
THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INC)
First Defendant
THE SAMOAN ASSEMBLIES OF GOD IN AOTEAROA CHARITABLE TRUST BOARD
Second Defendant
Continued over …
Hearing: 5 November 2024 Appearances:
S A Keall for Applicants
R M N Marsich for Respondents
G J Thwaite for Sixth Defendants (excused)Judgment:
3 December 2024
Further submissions:
19 November 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 3 December 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.
………………………………
Registrar/Deputy Registrar
Solicitors: Cowan Law, Auckland
Wynn Williams, Auckland
NA’AMANU v THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INC) [2024] NZHC 3640
[3 December 2024]
CIV-2022-404-002225
BETWEENMAOIAUTELE LAMOSITELE NA’AMANU and TAULA PERRY YOUNG
Plaintiffs/Applicants
AND VENI MORISA
First Defendant/First Respondent
TAFUNA’I MUAIAVA
Second Defendant/Second Respondent
FA’AMANU PENIATA
Third Defendant/Third RespondentTHE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INC)
Fourth Defendant/Fourth Respondent
THE SAMOAN ASSEMBLIES OF GOD IN AOTEAROA CHARITABLE TRUST BOARD
Fifth Defendant/Fifth Respondent
WOODROFFE LAW PARTNERSHIP
Sixth Defendant/Sixth Respondent
[1] Samoan Assemblies of God in New Zealand (SAOG) comprises 52 congregations across New Zealand, totalling approximately 5,000 individual members. SAOG consists of an incorporated society, Samoan Assemblies of God in New Zealand Inc (the Society), and a charitable trust board, Samoan Assemblies of God in Aotearoa Charitable Trust Board (the Trust). The Society and Trust are linked in terms of purpose and operation. The Trust is the legal owner of church assets.
[2] The Society’s member churches, each led by a pastor, are independently constituted and practice separately from each other but participate as members of the Society in order to collaborate and share resources for the benefit of member churches and their faith.
[3] The Society is run by an Executive Council. To be a member of the Executive Council a person must be a pastor of SAOG. Elections for the Executive Council occur at the annual general assembly, held around Easter.
[4] This judgment addresses three interlocutory applications in two proceedings brought by two plaintiffs, who are long-standing pastors of member churches. The Society and the Trust are two of the defendants and are the applicants for the interlocutory orders sought. The proceedings have their genesis in the appointment of Pastor Veni Morisa as General Treasurer to the Executive Council in the April 2022 election. The plaintiffs contest the validity of that appointment. They say they are supported by a number of pastors from other member churches.
[5] The two proceedings pursued by the plaintiffs respectively challenge the validity of Pastor Morisa’s appointment (the 2225 Proceeding) and challenge certain disciplinary action taken in January 2024 against 15 pastors including the plaintiffs and its consequences (the 1424 Proceeding). Broadly speaking, the Society’s disciplinary action arises out of conduct associated with the litigation about Pastor Morisa’s appointment and the rift that has developed in SAOG. The two proceedings are consolidated and are scheduled for a two-day trial on 18 February 2025.
[6]The Society and the Trust have applied for the following orders:1
1 I refer to these parties as “the defendants” for the purposes of this judgment.
(a)security for costs;
(b)striking out the 2225 Proceeding as an abuse of process or on the basis that it discloses no judiciable cause of action; and
(c)joinder to the 1424 Proceeding of the 15 other pastors against whom disciplinary action has been taken (although this number has changed, as I discuss later).
[7] Before addressing the current applications, it is necessary to provide the factual and procedural background.
Background
[8] Pastor Young, the second named plaintiff, was General Treasurer of the Society. At the election held at the April 2022 general meeting, he was replaced by Pastor Morisa.
[9] On 9 August 2022, the Society filed a proceeding seeking a declaration that Pastor Morisa’s appointment was void and that he is ineligible to be a pastor, member of the Executive Council and Treasurer (the 1349 Proceeding).2 It relied on cl 16(1) of the Constitution of the Society which says that a person called to be a pastor “must be a person with no criminal record”.
[10] The 1349 Proceeding was subsequently discontinued by the Society following majority resolution of the Executive Council in circumstances where the authority to file the 1349 Proceeding was contested. Although the plaintiffs disputed the validity of the notice of discontinuance, it was subsequently held to be valid by Muir J on 31 October 2023.3
2 CIV-2022-404-1349.
3 The Samoan Assemblies of God in New Zealand (Inc) v Morisa [2023] NZHC 3049, (2023) 26 PRNZ 362.
[11] On 24 November 2022, the plaintiffs filed the 2225 Proceeding seeking the same relief as the discontinued proceedings, albeit with them as named plaintiffs rather than the Society.
[12] The parties agreed to mediate. A mediation occurred on 31 March 2023. It did not settle and a further mediation was scheduled for 23 May 2023. It too was unsuccessful.
[13] On 24 June 2023, the Executive Council gave notice of a special meeting to occur on 12 August 2023. That meeting was held. A number of resolutions were passed, including a vote of no confidence in the plaintiffs and others. The plaintiffs were removed as members of the Executive Council of the Society and trustees of the Trust.
[14] By December 2023, Pastor Young had not made available Society assets including bank accounts and the community hall to the replacing officers. The Society applied for an interim injunction requiring Pastor Young to hand over control. Venning J granted the application on 8 December 2023. 4 He ordered the plaintiffs to pay costs.
[15] The plaintiffs applied to rescind the injunction and to stay enforcement of the costs award.5 In support of that application, on 20 March 2024 they filed an affidavit in which they deposed “we are in a limited financial position and will struggle to meet the costs ordered”.
[16] In January 2024, the Society commenced disciplinary proceedings under the Constitution against 18 pastors, including the plaintiffs. The Executive Council advised the relevant pastors of the proceedings by letter stating:
On behalf of the Executive Council, we acknowledge the necessity to commence disciplinary proceedings against pastors whose conduct contributed to the two years of litigation and division experienced by the Samoan Assemblies of God New Zealand.
4 Na’amanu v Morisa [2023] NZHC 3599.
5 This was declined in Na’amanu v Morisa [2024] NZHC 928, Venning J.
[17] The respective letters listed “grounds” for the disciplinary process. There is some variation between the matters relied upon although there is a considerable degree of overlap.
[18] The letter further notified the addressee pastors that they had their practicing credentials as a pastor suspended “effective immediately” rendering each suspended pastor unable to practice as a pastor in their respective churches or exercise rights under the constitution such as running for office on the Executive Council or voting at general meetings.
[19] No prior written or oral warning was given of the disciplinary proceedings, which is required by the Constitution unless immediate action is required. The Society says that circumstances of extreme urgency existed because the plaintiffs and others would not relinquish control of the church’s assets.
[20] Four of the disciplined pastors had, in December 2023, been nominated to run for positions on the Executive Council at the Annual Conference scheduled for Easter 2024. However, following their suspension, the pastors were advised that they were ineligible for office because of the disciplinary proceedings against them.
[21] On 27 March 2024, the plaintiffs filed the 1424 Proceeding seeking a range of declaratory relief.
Extant proceedings
[22] The two extant proceedings are therefore the 2225 Proceeding and the 1424 Proceeding, now consolidated.
[23]In the 2225 Proceeding the plaintiffs seek declarations that:
(a)The election of Pastor Morisa to the Executive Council and as General Treasurer was unconstitutional and void.
(b)The appointment of Pastor Morisa as trustee was void.
(c)Pastor Morisa is unable to hold office on the Society or be a trustee of the Trust.
[24] In the 1424 Proceeding the plaintiffs seek orders under s 15 of the Judicial Review Procedure Act 2016 that:
(a)The 12 August 2023 meeting was unlawful and the resolutions made invalid.
(b)The disciplinary proceedings issued against the 17 pastors are unlawful and have no legal effect.
(c)All or any of the elections since the January 2024 disciplinary proceedings are unlawful because of the exclusion of the 17 pastors.
(d)Fresh elections are required to determine the Executive Council.
(e)All meetings since the issue of the disciplinary proceedings in 2024 are unlawful because of the exclusion of the 17 pastors and the resolutions made at those meetings have no effect.
[25] The defendants apply to strike out the 2225 Proceeding and for security for costs. They also apply to join the members of the opposing faction against whom disciplinary action continues to the 1424 Proceeding. The joinder is substantially driven by seeking to have these other pastors liable for costs. The plaintiffs oppose the applications.
[26] The key issues raised on the pleadings as to the disciplinary process are whether the conduct of the pastors was such as “may bring reproach on the Fellowship” as outlined in the letters to them; whether each pastor had adequate notice of the relevant meeting; whether there was an entitlement to suspend; and whether the circumstances justified “immediate action” that dispensed with the need for at least one oral and written warning.
[27]I now turn to the three interlocutory applications.
Security for costs
Threshold test
[28] Rule 5.45(1) provides that the Court may order security for costs if “there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding”.
[29] This is a threshold that must be met before moving to the discretion as to whether to order security for costs. To meet the threshold, there should be credible evidence of surrounding circumstances from which it may reasonably be inferred that the plaintiff will be unable to pay the costs, which need not amount to proof of inability in fact. 6
[30]As Kós J has observed: 7
[T]he words “will be unable” in r 5.45(1)(b) are concerned with ability to pay. Not with financially capable, but constitutionally unwilling, persons — where a stone must be squeezed hard to produce blood.
[31] There is no formal burden of proof to satisfy.8 What suffices as an evidential basis will depend on the circumstances.9
Plaintiffs’ financial position
[32] In support of the defendants’ application they rely on the 20 March 2024 affidavit filed by the plaintiffs seeking to stay a costs award (referred to earlier) in which they deposed “we are in a limited financial position and will struggle to meet the costs ordered”.
[33] The plaintiffs filed an affidavit in opposition to the application confirming that those costs had been paid and also outlining their personal financial positions.
6 Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd (No 2) [1977] 1 NZLR 516 (SC) at 519.
7 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [8].
8 Lunn v Fourth Estate Holdings Ltd (1997) 11 PRNZ 316 (HC) at 318.
9 At 318.
(a)The current government valuation of Pastor Young’s home is $720,000 and it is unencumbered. He and his wife are otherwise debt-free but have minimal cash savings. Their income is limited to government superannuation and they have little in the way of bank savings.
(b)Pastor Na’amanu and his wife jointly own a property with a current government valuation of $1,075,000 against which there is a mortgage of about $180,000. They have no other significant liabilities. He and his wife have income from government superannuation and from modest board from their daughter. They have little in the way of bank savings.
[34] The plaintiffs say they have access to church assets and that they are receiving financial support to fund the proceedings from supporting pastors including those against who disciplinary action has been taken. They say that $24,466 had been raised as at 8 October 2024 to fund the proceedings and they expect to receive further donations from colleagues of at least $50,000 by the New Year.
Analysis
[35] It is common ground that the plaintiffs have net equity in their houses well in excess of any costs award, but their personal income and cash assets are limited.
[36] Mr Keall for the defendants says that the threshold test is met here because this “cash-poor” scenario means that the plaintiffs will be unable to pay a costs order at the time it is made, and potentially requiring enforcement action. He refers to a line of English High Court cases in which the threshold has been considered in terms of the plaintiff’s ability to pay the costs order in accordance with that order (that is, the ability to pay immediately/promptly or on the date specified in the order).10 The approach in these cases would mean that the threshold question effectively requires assessing whether there will be liquid assets available to meet an award when it is made.
10 Longstaff International Ltd v Baker McKenzie [2004] EWHC 1852 (Ch); Holyoake v Candy [2016] EWHC 970 (Ch); and Kew Holdings Ltd v Donald Insall Associates Ltd [2020] EWHC 3069 (TCC).
[37] Mr Keall relies on dictum of Hammond J in Hamilton v Papakura District Council as supporting that the same approach applies in New Zealand.11 In that case the plaintiffs deposed that they owned two properties worth $750,000 upon which they owed $300,000. Their business was running at a profit, but it faced difficulties. No current accounts were produced in evidence.
[38]Hammond J considered:12
When viewed in the broad way in which the Court must approach these questions, I think the reality is that the plaintiffs are struggling to finance this litigation. Clearly, priority will be given to advancing [the plaintiffs] cause; and, at the end of an expensive trial the plaintiffs may well be unable to pay costs; at least without a realisation of the equity in their operation. I appreciate that the authorities are clear enough that it is not current liquidity which is the test;13 but I think there is sufficient cause for concern that the broad threshold test is met.
[39] In context I do not agree that this supports Mr Keall’s proposition. Hammond J’s “cause for concern” was the likely substantial deterioration to the plaintiffs’ financial position due to the impact of the costs and disbursements of the litigation and the business difficulties. He concluded the plaintiffs “may well be unable to pay costs”. I do not think his qualifying reference to “at least without a realisation of the equity” can be elevated into a statement of principle that the test is about availability of liquid assets to meet an award when it is made, when Hammond J went on to acknowledge that current liquidity is not the test.
[40] Mr Keall also referred me to BAM v GJM14 but that case supports the contrary proposition. There, the Family Court Judge had declined to make an order for security for costs. The order sought had been that the respondent provide a charge to the value of $20,000 over her property at Takapuna. On appeal, Duffy J held that it was open to the Judge to find that the equity the respondent had in her home was sufficient to negate a finding that she would be unable to pay an award of costs should she be
11 Hamilton v Papakura District Council (1997) 11 PRNZ 333 (HC).
12 At 337.
13 No authority was cited.
14 BAM v GJM [2013] NZHC 304, (2013) 29 FRNZ 158.
unsuccessful in the proceeding.15 Duffy J also referred to fresh evidence of the respondent’s net worth to support that conclusion.16
[41] The other New Zealand case law does not align with the English cases cited to me:
(a)In Keeys v Peterson Hansen J held that the threshold had not been met where the plaintiff was cash poor but had a significant landholding subject to a mortgage.17 This was so despite the Court acknowledging that the plaintiff would not be in a position to immediately satisfy an award.
(b)In Tuuta v Kamo Associate Judge Johnston held the threshold was not met on the basis that the plaintiff had equity in property from which liability to costs could ultimately be recovered.18
[42] Of the cases referred to me, the high point for the defendants is an obiter comment in Bright v Town.19 In that case the defendant had an unencumbered property but little income. Enforcement action was being taken by the Council to sell the property to meet a rates liability. Associate Judge Smith held that the threshold was not met although accepted (without reference to authority) that there may be cases where the length of time a plaintiff would need to realise assets to meet a costs award is so great that they should be regarded as “unable to pay” for the purposes of r 5.45(1)(b). 20
[43] An order for security for costs is a protective jurisdiction. The purpose of r 5.45 is not to place the defendant in a better position than the average litigant but rather to protect defendants in cases in which a plaintiff is genuinely impecunious so
15 At [35].
16 At [38]–[40].
17 Keeys v Peterson HC Whangarei CIV-2003-488-145, 20 April 2004 at [13]–[14].
18 Tuuta v Kamo [2019] NZHC 3026.
19 Bright v Town [2016] NZHC 411.
20 At [130]. In Bright v Auckland City Council [2009] LGHNZ 2 (HC) at [16] Asher J had previously concluded that the same plaintiff’s unencumbered property meant she was not impecunious and therefore unable to pay costs despite her only income being rent from a flatmate. However that was in context of an appeal against an order to pay security for costs on appeal, which does not have a threshold test.
that the defendant does not assume a materially greater risk than they should reasonably be expected to assume.21
[44] In my view the threshold is concerned with impecuniosity, not with liquidity. Indeed, it has some relevance that an order for security for costs can be met by either payment or the provision of security to the satisfaction of the Court. That is, the rule contemplates security for costs against an asset (against which enforcement measures could be required in the event of a costs judgment).
[45] I conclude that the threshold is not met. The plaintiffs are not impecunious. They have ample net equity to meet any costs award. The application for security for costs fails.
Strike-out
[46]Rule 15.1 of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it —
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
…
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[47] The jurisdiction to strike out must be exercised sparingly, and only in rare cases.22 The defendants submit that grounds (a), (c) and (d) apply. The principles applicable are as follows:
(a)For a claim to be struck out on the basis that it “discloses no reasonably arguable cause of action”, the claim must be so clearly untenable that the Court is certain it cannot succeed.23
21 Tuuta v Kamo, above n 18, at [26].
22 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
23 At [33].
(b)A claim is vexatious if it contains an element of procedural impropriety.24 For example, an attempt to bring a fresh proceeding for summary judgment when an earlier proceeding, for which summary judgment had been unsuccessfully claimed, remained extant.25
(c)An abuse of process captures all other instances of misuse of the Court’s process such as attempts to relitigate matters already determined,26 bringing substantively the same proceeding “in a different garb”,27 and duplication of proceedings.
Vexatious/abuse of process
[48] The defendants submit that the 2225 Proceeding was explicitly intended to be the same as the first proceeding issued on behalf of the Society (the 1349 Proceeding), albeit now with Pastors Na’amanu and Young as the plaintiffs.
[49] Mr Keall relies on the detailed procedural background from which he asks me to find an abuse of process in the way proceedings have been advanced by the plaintiffs in what he describes as a “cascading” manner. He says that the 2225 Proceeding should have been discontinued and, instead the current much refined amended claim now made in that proceeding (compared to its first iteration), should have been combined in the 1424 Proceeding which was issued around the same time.
[50] The defendants say that the plaintiffs have maintained the 2225 Proceeding only because discontinuance of it would crystallise an automatic liability for court costs including arising from the earlier discontinued proceeding. They submit therefore the claim is vexatious/an abuse of process.
[51] I am not satisfied the tests for an abuse of process or for vexatious proceedings are met. The plaintiffs were entitled to pursue their claim regarding the validity of the appointment of Pastor Morisa in the 2225 Proceeding. Issuing that proceeding when
24 Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
25 Registered Securities Ltd (in liq) v Yates (1991) 5 PRNZ 68 (HC).
26 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.
27 Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC).
the Society was asserting that the first proceeding had not been validly brought cannot be regarded as an abuse. Once that 1349 Proceeding was determined to be discontinued by the Society it was appropriate to advance the 2225 Proceeding.
[52] Costs against non-parties (for example, the plaintiffs) on the discontinuance of the 1349 Proceeding were reserved. But the plaintiffs’ logic is flawed that preserving the 2225 Proceeding rather than combining the issues in the 1424 Proceeding somehow avoids crystallising a costs liability. Either way, the costs issues reserved from the 1349 Proceeding would not be determined until the conclusion of whatever proceedings substantively address the issue of Pastor Morisa’s appointment.
[53] I do not accept Mr Keall’s submission that the plaintiffs were somehow required to discontinue the present proceeding to regularise or simplify the matters before the Court. There is no obligation to do so. As well, there is a counterclaim in the 2225 Proceeding by the fourth and fifth defendants against the plaintiffs and sixth defendant which would preclude that course. As Mr Marsich submits, the current two proceedings have now been consolidated in any event. They concern different matters. The 1424 Proceeding relates to the disciplinary process and its consequences whereas the 2225 Proceeding relates to the initial steps of the Society in appointing Pastor Morisa as an Executive Member.
[54]I reject this ground for strike out or dismissal of the 2225 Proceeding.
No reasonably arguable cause of action/justiciability
[55] As outlined earlier the plaintiffs seek declarations that the election of Pastor Morisa to the office of General Treasurer and as trustee are void and that he is ineligible to hold such offices. That claim is founded on Pastor Morisa having a criminal record and on the following provisions of the Constitution:
(a)Defining the composition of the General Council as (among other things) including the pastor of each local church (cl 4(2)).
(b)That the Executive comprises offices including a General Treasurer who are elected by the General Council (cl 5(1)).
(c)That membership of the Executive Council shall be “chosen from among the Ordained Pastors of the General Council” (cl 4(5)(5)).
(d)That by clause 16(1), “Any person called to be Pastor of a Local Church of the Fellowship must [among other things] be a person with no criminal record…”
[56] The defendants say that the relevant criterion for office in the Executive Council is that the person be a pastor. They say that there is no dispute that Veni Morisa is a pastor. Properly characterised, the issue raised in the pleading is with the criteria for being a pastor or perhaps with the Society “treating” Pastor Morisa as a pastor.
[57] Mr Keall submits that the court cannot rule on whether someone who is recognised by a religious organisation as a pastor should be recognised as such. That is because the policy of a church towards who should, and should not, be a member of its clergy is a matter for it. 28 Mr Keall submits the court would be verging into adjudicating an issue quintessentially one for the church, not for secular determination. While he acknowledges that the court has recognised jurisdiction to regulate disputes within religious organisations to enforce agreements and property rights, he says that this is not such a case.
[58] The justiciability of disputes within a religious organisation was considered by the Supreme Court of the United Kingdom in Shergill v Khaira.29 In that case, the issues before the Court included whether a certain person was “the third Holy Saint” and whether the doctrines to which he and others subscribed complied with the religious aims of a Trust Deed by which trustees were appointed to hold property for the Society, being a Sikh religious organisation. The Supreme Court overturned the Court of Appeal’s conclusion that these issues were not judiciable.
28 He refers to R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036 (QB); Shergill v Khaira [2014] UKSC 33, [2015] AC 359; Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart HC Whangarei CIV 2004-488-580, 12 February 2007 (HC); and Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 (CA).
29 Shergill v Khaira, above n 28.
[59]The Panel held (inter alia):30
… the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment …
[60]In the context of “unincorporated” religious bodies, it was held:31
The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs …
The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the association’s contractual constitution.
[61] The Panel went on to address certain cases relied upon by the appellants. In one such case, R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann the Court had held that a Chief Rabbi’s decision that the applicant was not religiously and morally fit to hold office as a rabbi did not raise an issue of public law amenable to judicial review.32 The Panel explained why this case did not support the appellant’s assertions of non-justiciability::33
If the claim had been presented as a challenge to the contractual jurisdiction of a voluntary association, the court would have had jurisdiction to consider questions of ultra vires and allegations of breaches of natural justice.
[62] Turning to the disposition of Shergill, the Panel accepted that to determine whether the individual in question had power to appoint and dismiss trustees (being the legal issue) the Court may need to adjudicate on issues including the fundamental tenets of the sect, what is required to be the successor of the “First Holy Saint” and whether the individual’s teachings and personal qualities comply with the fundamental religious aims and purposes of the Trust.34 The Supreme Court restored the High Court
30 At [45].
31 At [46] and [47].
32 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann, above n 28.
33 Shergill v Khaira, above n 28, at [58].
34 At [59].
order dismissing the application to strike out the claim on the basis of non-justiciability.
[63]I was referred to some New Zealand case law:
(a)In Mahon v Conference of the Methodist Church of New Zealand the Court of Appeal held that a minister’s appointment to a ministry was not an employment contract for the purposes of the Employment Contracts Act 1991. That was because on a review of the relevant objective evidence, there was no intention to create legal relations, so there was no contract. The Court articulated the principle that courts must be reluctant to determine what are at heart ecclesiastical disputes, but confirmed that the courts will intervene where civil or property rights are involved.35
(b)Allan J referred to the principle in Mahon in Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart.36 He went on to record that in the case before him it was accepted that it was proper for the Court to exercise jurisdiction to determine a dispute as to who had authority to licence priests and to remove them from those positions.37
[64] In light of this case law, in my view it is arguable that the plaintiffs’ claim in the 2225 Proceeding is justiciable because of the following at least arguable propositions:
(a)The issues in the proceeding concern (i) the interpretation of the Society’s constitution; and (ii) whether the Society acted ultra vires in the convention of the special session of the General Council on 12 August 2023, and the 2024 Executive Council election.
(b)The specific question engages with eligibility to hold the position of pastor and therefore hold office within the context of the Society’s
35 Mahon v Conference of the Methodist Church of New Zealand, above n 28, at 523.
36 Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart, above n 28.
37 At [45]–[46].
constitution not whether there is eligibility to hold the position of pastor within the context of the SAOG as a global religious movement.
(c)To the extent the issues engage with eligibility to be a pastor, a determination is necessary in order to decide a matter of disputed legal rights as to Pastor Morisa’s election to the Executive Council. It is arguable that the distinction drawn by the United Kingdom Supreme Court when explaining the Wachmann decision means this issue is justiciable.
(d)The relevant eligibility criteria is capable of objective ascertainment (no criminal convictions).
[65] This is not a claim I am prepared to strike out as untenable in the context of a one-hour hearing addressing three interlocutory applications.
Joinder
[66] The claim in the 1424 Proceeding pleads that the plaintiffs and their “supporters” are 24 pastors representing churches totalling some 2,400 individual members. The claim for declarations concerning or consequential on invalidity of disciplinary action taken by the Society arises out of the January 2024 disciplinary letters sent to pastors including the plaintiffs. Although the claim refers to 17 such pastors it is common ground that the group was 15 in number (including the two plaintiffs).
[67] By its July 2024 application, the defendants sought to join as parties the further 13 pastors. Sadly, one of those pastors has since died, bringing the number to 12.
[68] Post-hearing affidavits on behalf of the respective parties filed in the present applications suggest that the parties are in disagreement as to who are the parties that continue to support the plaintiffs in a challenge to the disciplinary process and/or who continue to be subject to the disciplinary process:
(a)An affidavit on behalf of the defendants sworn 21 November 2024 says that four of the 12 pastors had communicated that they do not support the plaintiffs. The defendants advised that if the Court were to add parties, it should be just the remaining eight. A schedule is provided. I am treating the joinder application as amended to that effect.
(b)The plaintiffs responded by affidavit sworn 25 November 2024 deposing that the defendants’ affidavit is inaccurate. They say that three of the four named pastors had been in contact with them since 21 November confirming their continued support. The fourth had advised he supports the challenge but did not wish to be directly involved in the proceedings. The plaintiffs say that if I make an order joining parties it would be inappropriate to join this fourth pastor. That would mean joining 11 pastors.
[69] An amended statement of defence filed on 27 November asserts that there are only eight supporters and eight pastors who have disciplinary matters remaining unresolved.
[70] It is in this unsatisfactory state of affairs that I address the defendants’ application to add the eight pastors as parties. The pastors would need to be joined as defendants because they is no consent from them to being joined as plaintiffs. For convenience, I refer to the application as seeking an order for joinder of “the disciplined pastors”.
Threshold for joinder
[71] The defendants’ primary motivation for joining the disciplined pastors is so that they can be liable for costs in the event the proceeding is unsuccessful. That is not a sufficient basis for joining parties to a proceeding. Orders against non-parties could address that if necessary in any event.
[72] The threshold question is whether there is a proper basis within r 4.56(1)(b) for joinder, that is, whether the other disciplined pastors are person who ought to have
been joined; or are persons whose presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.38
[73] I outlined the declarations sought in the proceeding earlier. The claim refers to the “disciplined pastors” as a group. The treatment of this group and the consequences for them of being disciplined is the substantial focus of the claim. A declaration is sought that the disciplinary action issued against the disciplined pastors is unlawful and has no effect. The relief sought, if granted, invalidates the disciplinary procedure and reinstates them as pastors.
[74] If granted, the steps imposing disciplinary procedures will be declared invalid. If not granted, the position remains that the pastors are subject to that process and are suspended. In these circumstances the disciplined pastors are parties who are directly affected by the relief sought. They are parties who “ought to have been joined” within r 4.56 although the unusual scenario is that it is the defendant who is asserting that they should now be joined.39
[75] At the hearing, I raised whether, in the absence of joinder, the disciplined pastors would be bound by the decision in the proceeding, particularly if the plaintiffs failed to obtain the declarations they seek. The plaintiffs (who resist further orders for joinder) say that they would, because the proceedings involve determinations as to validity of the Society’s actions, and members are bound by intra vires decisions of the Society. Mr Marsich submits that it follows that if declaratory relief is declined, the pastors would be required to abide by the decisions as valid decisions. Alternatively, he says that there would be a res judicata or issue estoppel on the basis that the disciplined pastors are persons with a personal interest and or privies as members of the Society.
38 High Court Rules 2016, r 4.56(1)(b); and Judicial Review Procedure Act 2016, s 14(2)(b)(ii).
39 Other relief consequential on invalidity of the disciplinary procedure seeks to invalidate all subsequent elections and decisions. I say nothing about the merit of the relief being granted. I draw attention to it because it highlights that the claim the plaintiffs bring is cast so as to affect all members of SAOG, not just whoever are the disciplined pastors. However, the specific disciplinary action taken against those pastors is in issue.
[76] No authority specific to incorporated societies was cited. It is not strictly necessary for me to decide but I disagree with both of Mr Marsich’s propositions provisionally because:
(a)As between a non-party disciplined pastor and the Society, the proceeding will not have determined that the decision is intra vires.
(b)Privity in the context of an issue estoppel relates to a mutuality of interest that means that the privy should not be able to advance the same claims again.40 There is no such mutuality of interest between the Society and a member wanting to claim against it.
[77] On the basis that, without joinder, there could be further proceedings by those not a party, the alternate jurisdictional threshold for joinder is also met. The disciplined pastors’ presence may be necessary to enable a complete adjudication on the issue of whether those disciplinary processes have been improperly used against them or not.
Discretion
[78] I turn to whether to exercise my discretion to order a joinder. The disciplined pastors’ interest in the proceeding is a compelling basis for joinder. The difficulty is that the matter is to proceed to trial in less than three months’ time with the Christmas break intervening. If the disciplined pastors who are not presently joined are now joined and seek full rights of participation it would inevitably derail the trial. There was no representation in Court for those persons on the current application and Mr Marsich, the plaintiffs’ counsel, says he does not act for them.
[79] The Court made without notice orders at the outset on the application of the plaintiffs directing the pastors referred to in the claim be served.41 Counsel for the plaintiffs has confirmed that this the orders were relevantly complied with. The disciplined pastors have not sought to be joined or to participate in the hearing in any
40 See generally, Mathew Downs (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [4.6].
41 Na’amanu v The Samoan Assemblies of God in New Zealand (Inc) HC Auckland CIV-2024-404- 1424, 17 June 2024. The application was made in part in reliance on r 18.7 of the High Court Rules however that rule applies only to proceedings listed under r 18.1, which this proceeding is not.
way. I infer that they do not wish to be heard. I do not know whether that would change if they were formally joined.
[80] The plaintiffs’ evidence is that other pastors are assisting with funding the litigation. The most recent (joint) affidavit filed by the plaintiffs sworn 25 November 2024 advises that the plaintiffs continue to have the confirmed support of 11 of the disciplined pastors.
[81] The plaintiffs submit that if I remain concerned as to whether the disciplined pastors would be bound by the proceeding, then the appropriate course would be to make a representative order under r 4.24, rather than a joinder. I am not attracted to that course because I have not heard argument on whether the requirements of such an order are met, and because of the complications of settling its terms. The trial is too close to delay matters for this.
[82] Nor have I sufficient familiarity with the detailed facts to proceed without argument. To take two examples, I am now confused by the most recent affidavits and pleading as to the status of disciplinary action against some of the pastors; and the disciplinary letters that were sent which are in substantially the same form but rely on different grounds.
[83] Joinder is not an all or nothing process and could be on the basis of only limited participation rights.42 But even limited participation and the mechanics around a joinder of several more parties at this late stage risks derailing the February trial. It would also result in further complication and cost. It is important that the trial proceeds when scheduled given the unrest the litigation is causing in SAOG.
[84] In reality, findings of the High Court on the plaintiffs’ claims are likely to determine the issues giving rise to the rift in the Society and to bring litigation to an end whatever the formal position on res judicata. As well, the order for joinder now relates to only a subset of pastors who received disciplinary letters. A mechanism Mr Keall proposed to deal with joinder at this late stage (that it be effective only for
42 Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 (HC) at [14].
those who adopt the plaintiffs’ claim by notice of appearance) does not necessarily address res judicata in any event. Perhaps more fundamentally, there must be an issue whether any further proceedings by the disciplined pastors would be stayed as an abuse of process given that they have been served but chosen to taken no steps and/or if they are funding the proceeding.
[85] On balance, the concerns I have for the scheduled trial persuade me that in my discretion, I should not make the order sought.
[86] In submissions the defendants raised that certain of the parties should be removed. I have not addressed that issue in this judgment and request that the parties file a joint memorandum advising if there is agreement on the changes Mr Keall proposed to the parties in that regard.
Result
[87] I dismiss the applications. If the parties cannot agree costs they are to file memoranda within 14 days (for the plaintiffs) and within a further 14 days (for the defendants).
[88] The parties are also to file a joint memorandum (or separate if necessary) advising which parties they contend should be removed from the proceedings. I will deal with that on the papers.
Anderson J
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